PUBLIC LAW 95-520, 92 Stat. 1821, VETERANS ADMINISTRATION PROGRAMS
EXTENSION ACT of 1978
certain expiring programs of
the Veterans' Administration, to extend and improve
the program of veterans
readjustment appointments in the Federal Government,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may be
cited as the " Veterans' Administration Programs Extension Act of 1978".
// 38 USC 101 //
Sec. 2. Section 230 (b) of title 38, United States Code, relating to
the Veterans' Administration office in the Republic of the Philippines,
is amended by striking out " June 30, 1978" and inserting in lieu
thereof " September 30, 1981".
Sec. 3. (a) Section 624 (c) of title 38, United States Code,
relating to the veterans medical center in the Republic of the
Philippines, is amended by striking out " Veterans Memorial Hospital"
and inserting in lieu thereof " Veterans Memorial Medical Center".
(b) Section 632 of such title // 38 USC 632. // is amended--,
(1) by striking out " Veterans Memorial Hospital" each place it
appears in such section and inserting in lieu thereof in each such
place " Veterans Memorial Medical Center";
(2) in the matter in subsection (a) preceding clause (1)--,
lieu
thereof " September 30, 1981";
(3) by striking out " July 1, 1978" in subsection (b) and
inserting in lieu thereof " October 1, 1981"; and
(4) by striking out "during the five years beginning July
1,1973, and ending June 30, 1978--" in subsection (d) and
inserting in lieu thereof "occurring during the period beginning
July 1,1973, and ending September 30, 1981--".
Sec. 4. Section 6 (a) (2) of the Veterans' Administration Physician
and Dentist Pay Comparability Act of 1975 (Public Law 94 - 123; 89
Stat. 669), // 38 USC 4118 // relating to the expiration of authority to
enter into special pay agreements, is amended by striking out "
September 30, 1978" and inserting in lieu thereof " September 30, 1981".
Sec. 5. Section 601 (4) (C) of title 38, United States Code,
relating to contract-care medical facilities, is amended by striking out
"(v) hospital care" and all that follows through " December 31, 1978"
and inserting in lieu thereof "(v) hospital care, or medical services
that will obviate the need for hospital admission, for veterans in a
State not contiguous to the forty-eight contiguous States, except that
the annually determined hospital patient load and incidence of the
provision of medical services to veterans hospitalized or treated at the
expense of the Veterans' Administration in Government and private
facilities in each such noncontiguous State shall be consistent with the
patient load or incidence of the provision of medical services for
veterans hospitalized or treated by the Veterans' Administration within
the forty-eight contiguous States, but the authority of the
Administrator under this subclause (except with respect to Alaska and
Hawaii) shall expire on December 31, 1981, and until such date the
Administrator may, if necessary to prevent hardship, waive the
applicability to the Commonwealth of Puerto Rico and to the Virgin
Islands of the restrictions in this subclause with respect to hospital
patient loads and incidence of provision of medical services".
Sec. 6. (a) Section 2012 (b) of title 38, United States Code,
relating to veterans' employment emphasis under Federal contracts, is
amended by inserting after "veterans" a comma and "or if any veteran who
is entitled to disability compensation under the laws administered by
the Veterans' Administration believes that any such contractor has
discriminated against such veteran because such veteran is a handicapped
individual within the meaning of section 7 (6) of the Rehabilitation Act
of 1973 (29 U.S.C. 706 (6))".
(b) (1) Subsection (b) of section 2014 // 38 USC 2014. // of such
title, relating to veterans readjustment appointments within the Federal
Governmnet, is amended to read as follows:
"(b) (1) To further the policy stated in subsection (a) of this
section, veterans of the Vietnam era shall be eligible, in accordance
with regulations which the Civil Service Commission shall prescribe, for
veterans readjustment appointments, and for subsequent
career-conditional appointments, under the terms and conditions
specified in Executive Order Numbered 11521 (March 26, 1970), // 5 USC
3302 // except that--,
"(A) such an appointment may be made up to and including the
level GS-7 or its equivalent;
"(B) a veteran of the Vietnam era shall be eligible for such an
appointment without any time limitation with respect to
eligibility for such an appointment; and
"(C) a veteran of the Vietnam era who is entitled to disability
compensation under the laws administered by the Veterans'
Administration or whose discharge or release from active duty was
for a disability incurred or aggravated in line of duty shall be
eligible for such an appointment without regard to the number of
years of education completed by such veteran.
"(2) In this subsection, the term 'veteran of the Vietnam era' has
the meaning given such term in section 2011 (2) (A) of this title. // 38
USC 2011. //
"(3) No veterans readjustment appointment may be made under authority
of this subsection after September 30, 1981.".
(2) Subsection (d) of such section is amended (A) by striking out
"thereof" in the second sentence and inserting in lieu thereof "of this
section", and (B) by adding at the end of such subsection the following
new sentence: " Each report under the preceding sentence shall include
in the specification of the use and extent of appointments made under
subsection (b) of this section the following information (shown for all
veterans and separately for veterans described in subsection (b) (1) (C)
of this section and other veterans):
"(1) The number of appointments made under such subsection
since the last such report and the grade levels in which such
appointments were made.
"(2) The number of individuals receiving appointments under
such subsection whose appointments were converted to career
conditional appointments, or whose employment under such an
appointment has terminated, since the last such report, together
with a complete listing of categories of causes of appointment
terminations and the number of such individuals whose employment
has terminated falling into each such category.
"(3) The number of such terminations since the last such report
that were initiated by the department, agency, or instrumentality
involved and the number of such terminations since the last such
report that were initiated by the individual involved.
"(4) A description of the education and training programs in
which individuals appointed under such subsection are
participating at the time of such report.".
(3) Subsection (f) of such section // 38 USC 2014. // is amended by
inserting "subsection (a) of "after "as used in".
Sec. 7. Section 5082 of title 38, United States Code, relating to
authorizations of appropriations, is amended by adding at the end
thereof the following new subsection:
"(c) There is authorized to be appropriated for fiscal year 1979 to
carry out the programs authorized under this chapter such sums as may be
necessary (1) to make to institutions with which the Administrator has
entered into agreements under subchapter I of this chapter // 38 USC
5071. // supplemental grants for which the Administrator had, before
May 1, 1978, approved applications from such institutions, and (2) to
meet fully the commitments made by the Administrator before May 1, 1978,
for grants and applications approved under authority of this subchapter
and subchapters III and IV of this chapter, // 38 USC 5071, 5091, 5096.
// except that no funds appropriated under this subsection may be used
for grants and applications approved under this subchapter and such
subchapters III and IV until the full amounts for which applications had
been so approved have been obligated under such subchapter I.".
Sec. 8. // 38 USC 601 // (a) Not later thatn February 1, 1980, the
Administrator of Veterans' Affairs shall submit a report to the Congress
and to the President on the furnishing by the Veterans' Administration
of hospital care and medical services in the Commonwealth of Puerto Rico
and in the Virgin Islands. The Administrator shall include in such
report--,
(1) a comprehensive assessment of the health-care needs of
veterans in the Commonwealth of Puerto Rico and in the Virgin
Islands;
(2) a detailed report on the hospital care and medical services
furnished or to be furnished to such veterans during fiscal years
1975 through 1981, with information in such report shown with
respect to the number of veterans treated or to be treated, the
facilities at which such care and services are furnished or to be
furnished, and the extent to which such care and services are
furnished or are to be furnished for the treatment of veterans for
service-connected disabilities of any degree and of veterans with
service-connected disabilities rated at 50 per centum or more;
and
(3) recommendations as to how the health-care needs of such
veterans can best be addressed within the existing authority of
the Administrator of Veterans' Affairs and what additional
authority, if any, is necessary and desirable to meet such needs.
(b) In making recommendations under subsection (a) (3), the
Administrator shall take into consideration--,
(1) the state of the economy in the Commonwealth of Puerto Rico
and in the Virgin Islands;
(2) alternative sources of health-care services that would be
available to veterans in the Commonwealth of Puerto Rico and in
the Virgin Islands if the health-care services furnished by the
Veterans' Administration for non-service-connected disabilities
were substantially reduced;
(3) the desirability of equitable distribution of Veterans'
Administration health-care resources; and
(4) the higher priority established by law for the care and
treatment of service-connected disabilities.
Sec. 9. There is authorized to be appropriated for fiscal year 1979
the sum of $5,000,000 to enable the Administrator of Veterans' Affairs
to implement the Veterans' and Survivors' Pension Improvement Act of
1978. Amounts appropriated pursuant to the preceding sentence shall
remain available during the one-year period beginning on the date of the
enactment of such Act and may be used to carry out a program of public
information and advertising designed to advise fully all persons who may
be affected by the provisions of such Act of the provisions of such Act,
including the manner in which such Act may affect them and any rights
they may have under such Act.
Approved October 26, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 111 (Comm. on Veterans' Affairs).
SENATE REPORT No. 95 - 825 (Comm. on Veterans' Affairs).
CONGRESSIONAL RECORD:
Vol. 123 (1977): Apr. 4, considered and passed House.
Vol. 124 (1978): May 26, considered and passed Senate amended.
Oct. 13, House concurred in Senate amendments with amendments.
Oct. 15, Senate concurred in House amendments.
PUBLIC LAW 95-519, 92 Stat. 1819
officers under the provisions
of title 5, United States Code, relating to annual
and sick leave, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That section 6301 (2) of
title 5, United States Code, is amended--,
(1) by striking out "or" at the end of clause (xi);
(2) by striking out the period at the end of clause (xii) and
inserting ";or" in lieu thereof; and
"(3) by adding at the end thereof the following new clause:
"(xiii) an officer in the legislative or judicial branch who is
appointed by the President.".
Sec. 2. 5551 (b), 6302 (e), and 6306 (b) of title 5, United States
Code, are each amended by striking out "section 6301 (2) (x)-(xii)" each
place it appears and inserting "section 6301 (2) (x)-(xiii)" in lieu
thereof.
Sec. 3. Section 8339 (m) of title 5, United States Code, is amended
by adding at the end thereof the following new sentence: " For the
purpose of this subsection, in the case of any such employee who is
excepted from subchapter I of chapter 63 of this title // 5 USC 6301 //
under section 6301 (2) (x)-(xiii) of this title, the days of unused sick
leave to his credit include any unused sick leave standing to his credit
when he was excepted from such subchapter.".
Sec. 4. (a) The amendments made by the first section and section 2
of this Act, // 5 USC 5551 // shall take effect beginning on the first
day of the first applicable pay period beginning on or after the date of
the enactment of this Act. (b) The amendment made by section 3 of this
Act shall apply only with respect to employees who retire or die on or
after the date of the enactment of this Act.
Approved October 25, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 1496 (Comm. on Post Office and Civil Service).
SENATE REPORT No. 95 - 403 (Comm. on Governmental Affairs).
CONGRESSIONAL RECORD:
Vol. 123 (1977): Sept. 9, considered and passed Senate.
Vol. 124 (1978): Sept. 18, considered and passed House,
amended. Oct. 10, Senate concurred in House amendments.
PUBLIC LAW 95-518, 92 STAT. 1818
Virginia, as Gathright Dam
and Lake Moomaw.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the Gathright Lake,
Jackson River, Virginia project, authorized by the Flood Control Act of
1946, // 33 USC 701j. // approved July 24, 1946, shall hereafter be
known and designated as Gathright Dam and Lake Moomaw, and any law,
regulation, map, document, or record of the United States in which such
lake is designated or referred to as Gathright Lake or is referred to by
any other name, shall be held and considered to refer to such lake under
and by the name of Gathright Dam and Lake Moomaw.
Approved October 25, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95-1094 (Comm. on Public Works and Transportation).
SENATE REPORT No. 95-1165 (Comm. on Environment and Public Works).
CONGRESSIONAL RECORD, Vol. 124 (1978):
May 15, considered and passed House.
Sept. 6, considered and passed Senate, amended.
Oct. 15, House agreed to Senate amendments.
PUBLIC LAW 95-517, 92 STAT. 1817
Federal Republic of
Germany ten paintings of the German Navy seized by
the United States Army
at the end of World War II.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the Secretary of
the Army is authorized to transfer to the Federal Republic of Germany,
without compensation, title to, and custody of, ten paintings by the
artist Claus Bergen depicting the German Navy that were seized from the
German Government by the United States Army after World War II.
Sec. 2. No funds of the United States may be expended in connection
with any transportation or handling costs incident to the transfer
authorized under the first section of this Act.
Approved October 25, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95-1575 (Comm. on Armed Services).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Oct. 2, considered and passed House.
Oct. 14, considered and passed Senate.
PUBLIC LAW 95-516, 92 STAT. 1816
Manufacturing, Incorporated,
and other matters.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That notwithstanding the
time limitations in section 514 of the Tariff Act of 1930 (19 U.S. C.
1514) or in any other provision of law, Eastern Telephone Supply and
Manufacturing, Incorporated, of Newport, Rhode Island, may file, within
sixty days after the date of enactment of this Act, a protest with the
United States Customs Service concerning the over-payment of customs
duties on goods purchased from Bell of Canada that entered the United
States through Buffalo, New York, and Champlain, New York, during the
period from February 1974, to December 1974, inclusive. The United
States Customs Service shall accept such protest as if it were filed in
a timely fashion and shall review such protest in accordance with the
otherwise applicable provisions of law.
SEC. 2. SUSPENSION OF DUTY ON NATURAL GRAPHITE.
(a) Item 909.01 of the Appendix to the Tariff Schedules of the United
States (19 U.S.C. 1202) // 19 USC app. 1202. // is amended by striking
out "6/30/78" and inserting in lieu thereof "6/30/81".
(b) The amendment made by subsection (a) // 19 USC app. 1202 // shall
apply with respect to articles entered, or withdrawn from warehouse, for
consumption after June 30, 1978.
(c) Upon request therefor filed with the customs officer concerned on
or before the ninetieth day after the date of enactment of this Act, the
entry of any article--,
(1) which was made on or after June 30, 1978, and before the
date of enactment of this Act, and
(2) with respect to which there would have been no duty if the
amendment made by subsection (a) of this section applied to such
entry
shall, // 19 USC 1514. // notwithstanding the provisions of section 514
of the Tariff Act of 1930, or any other provisions of law, be liquidated
or reliquidated as though such entry has been made on the date of
enactment of this Act.
Approved October 25, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95-1363 (Comm. on Ways and Means).
SENATE REPORT No. 95-1114 (Comm. on Finance).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Aug. 1, considered and passed House.
Aug. 23, considered and passed Senate, amended.
Oct. 10, House agreed to certain Senate amendments, disagreed
to Senate amendment No. 2.
Oct. 12, Senate receded from amendment No. 2.
PUBLIC LAW 95-515, 92 STAT. 1811, INTERSTATE HORSE RACING ACT OF 1978
parimutuel wagering on horseracing,
to maintain the stability of the horseracing industry,
and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, This Act // 15 USC 3001.
// may be cited as the " Interstate Horseracing Act of 1978".
SEC. 2. // 15 USC 3001. // (a) The Congress finds that--,
(1) the States should have the primary responsibility for
determining what forms of gambling may legally take place within
their borders;
(2) the Federal Government should prevent interference by one
State with the gambling policies of another, and should act to
protect identifiable national interests; and
(3) in the limited area of interstate off-track wagering on
horseraces, there is a need for Federal action to ensure States
will continue to cooperate with one another in the acceptance of
legal interstate wagers.
(b) It is the policy of the Congress in this Act to regulate
interstate commerce with respect to wagering on horseracing, in order to
further the horseracing and legal off-track betting industries in the
United States.
SEC. 3. For the purposes of this Act // 15 USC 3002. // the term--,
(1) "person" means any individual, association, partnership,
joint venture, corporation, State or political subdivision
thereof, department, agency, or instrumentality of a State or
political subdivision
thereof, or any other organization or entity;
(2) " State" means each State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, and any
territory or possession of the United States;
(3) "interstate off-track wager" means a legal wager placed or
accepted in one State with respect to the outcome of a horserace
taking place in another State;
(4) "on-track wager" means a wager with respect to the outcome
of a horserace which is placed at the racetrack at which such
horserace takes place;
(5) "host State" means the State in which the horserace subject
to the interstate wager takes place;
(6) "off-track State" means the State in which an interstate
off-track wager is accepted;
(7) "off-track betting system" means any group which is in the
business of accepting wagers on horseraces at locations other than
the place where the horserace is run, which business is conducted
by the State or licensed or otherwise permitted by State law;
(8) "off-track betting office" means any location within an
off-track State at which off-track wagers are accepted;
(9) "host racing association" means any person who, pursuant to
a license or other permission granted by the host State, conducts
the horserace subject to the interstate wager;
(10) "host racing commission" means that person designated by
State statute or, in the absence of statute, by regulation, with
jurisdiction to regulate the conduct of racing within the host
State;
(11) "off-track racing commission" means that person designated
by State statute or, in the absence of statute, by regulation,
with jurisdiction to regulate off-track betting in that State;
(12) "horsemen's group" means, with reference to the applicable
host racing association, the group which represents the majority
of owners and trainers racing there, for the races subject to the
interstate off-track wager on any racing day;
(13) "parimutuel" means any system whereby wagers with respect
to the outcome of a horserace are placed with, or in, a wagering
pool conducted by a person licensed or otherwise permitted to do
so under State law, and in which the participants are wagering
with each other and not against the operator;
(14) "currently operating tracks" means racing associations
conducting parimutuel horseracing at the same time of day
(afternoon against afternoon; nighttime against nighttime) as the
racing association conducting the horseracing which is the subject
of the interstate off-track wager;
(15) "race meeting" means those scheduled days during the year
a racing association is granted permission by the appropriate
State racing commission to conduct horseracing;
(16) "racing day" means a full program of races at a specified
racing association on a specified day;
(17) "special event" means the specific individual horserace
which is deemed by the off-track betting system to be of
sufficient national significance and interest to warrant
interstate off-track wagering on that event or events;
(18) "dark days" means those days when racing of the same type
does not occur in an off-track State within 60 miles of an
off-track betting office during a race meeting, including, but not
limited to, a dark weekday when such racing association or
associations run on Sunday, and days when a racing program is
scheduled but does not take place, or cannot be completed due to
weather, strikes and other factors not within the control of the
off-track betting system;
(19) "year" means calendar year;
(20) "takeout" means that portion of a wager which is deducted
from or not included in the parimutuel pool, and which is
distributed to persons other than those placing wagers;
(21) "regular contractual process" means those negotiations by
which the applicable horsemen's group and host racing association
reach agreements on issues regarding the conduct of horseracing by
the horsemen's group at that racing association;
(22) "terms and conditions" includes, but is not limited to,
the percentage which is paid by the off-track betting system to
the host racing association, the percentage which is paid by the
host racing association to the horsemen's group, as well as any
arrangements as to the exclusivity between the host racing
association and the off-track betting system.
SEC. 4. No person may // 15 USC 3003. // accept an interstate
off-track wager except as provided in this Act.
SEC. 5. // 15 USC 3004. // (a) An interstate off-track wager may be
accepted by an off-track betting system only if consent is obtained
from--,
(1) the host racing association, except that--,
in a
State where the distribution of off-track betting
revenues in
that State is set forth by law) must have a written
agreement
with the horsemen's group, under which said racing
association
may give such consent, setting forth the terms and
conditions
relating thereto; provided,
this Act
which contains no provisions referring to interstate
off-track
betting, the terms and conditions of said then-existing
contract
shall be deemed to apply to the interstate off-track
wagers and no additional written agreement need be
entered
into unless the parties to such then-existing contract
agree
otherwise. Where such provisions exist in such
existing contract,
such contract shall govern. Where written consents
exist
at the time of enactment of this Act between an
off-track
betting system and the host racing association
providing for
interstate off-track wagers, or such written consents
are
executed by these parties prior to the expiration of
such then-existing
contract, upon the expiration of such then-existing
contract the written agreement of such horsemen's group
shall thereafter be required as such condition
precedent and
as a part of the regular contractual process, and may
not be
withdrawn or varied except in the regular contractual
process.
Where no such written consent exists, and where such
written agreement occurs at a racing association which
has a
regular contractual process with such horsemen's group,
said
agreement by the horsemen's group may not be withdrawn
or
varied except in the regular contractual process;
(2) the host racing commission;
(3) the off-track racing commission.
(b) (1) In addition to the requirement of subsection (a), any
off-track betting office shall obtain the approval of--,
(A) all currently operating tracks within 60 miles of such
off-track betting office; and
(B) if there are no currently operating tracks within 60 miles
then the closest currently operating track in an adjoining State.
(2) Notwithstanding the provisions of paragraph (1) of this
subsection, any off-track betting office in a State with at least 250
days of on-track parimutuel horseracing a year, may accept interstate
off-track wagers for a total of 60 racing days and 25 special events a
year without the approval required by paragraph (1), if with respect to
such 60 racing days, there is no racing of the same type at the same
time of day being conducted within the off-track betting State within 60
miles of the off-track betting office accepting the wager, or such
racing program cannot be completed. Excluded from such 60 days and from
the consent required by subsection (b) (1) may be dark days which occur
during a regularly scheduled race meeting in said off-track betting
State. In order to accept any interstate off-track wager under the
terms of the preceding sentence the off-track betting office shall make
identical offers to any racing association described in subparagraph (A)
of subsection (b) (1). Nothing in this subparagraph shall be construed
to reduce or eliminate the necessity of obtaining all the approvals
required by subsection (a).
(c) No parimutuel off-track betting system may employ a takeout for
an interstate wager which is greater than the takeout for corresponding
wagering pools of off-track wagers on races run within the off-track
State except where such greater takeout is authorized by State law in
the off-track State.
SEC. 6. // 15 USC 3005. // Any person accepting any interstate
off-track wager in violation of this Act shall be civilly liable for
damages to the host State, the host racing association and the
horsemen's group. Damages for each violation shall be based on the
total of off-track wagers as follows:
(1) If the interstate off-track wager was of a type accepted at
the host racing association, damages shall be in an amount equal
to that portion of the takeout which would have been distributed
to the host State, host racing association and the horsemen's
group, as if each such interstate off-track wager had been placed
at the host racing association.
(2) If such interstate off-track wager was of a type not
accepted at the host racing association, the amount of damages
shall be determined at the rate of takeout prevailing at the
off-track betting system for that type of wager and shall be
distributed according to the same formulas as in paragraph (1)
above.
SEC. 7. // 15 USC 3006. // (a) The host State, the host racing
association, or the horsemen's group may commence a civil action against
any person alleged to be in violation of this Act, for injunctive relief
to restrain violations and for damages in accordance with section 6.
(b) In any civil action under this section, the host State, the host
racing association and horsemen's group, if not a party, shall be
permitted to intervene as a matter of right.
(c) A civil action may not be commenced pursuant to this section more
than 3 years after the discovery of the alleged violation upon which
such civil action is based.
(d) Nothing in this Act shall be construed to permit a State to be
sued under this section other than in accordance with its applicable
laws.
SEC. 8. // 15 USC 3007. // (a) Notwithstanding any other provision
of law, the district courts of the United States shall have jurisdiction
over any civil action under this Act, without regard to the citizenship
of the parties or the amount in controversy.
(b) A civil action under this Act may be brought in any district
court of the United States for a district located in the host State or
the off-track State, and all process in any such civil action may be
served in any judicial district of the United States.
(c) The jurisdiction of the district courts of the United States
pursuant to this section shall be concurrent with that of any State
court of competent jurisdiction located in the host State or the
off-track State.
SEC. 9. (a) The provisions of this Act // 15 USC 3001. // shall
take effect on the date of enactment of this Act, and, except as
provided in subsection (b) of this section, shall apply to any
interstate off-track wager accepted on or after such date of enactment.
(b) (1) The provisions of this Act shall not apply to any interstate
off-track wager which is accepted pursuant to a contract existing on May
1, 1978.
(2) The provisions of this Act shall not apply to any form of legal
non-parimutuel off-track betting existing in a State on May 1, 1978.
(3) The provisions of subsection (b) of section 5 of this Act shall
not apply to any parimutuel off-track betting system existing on May 1,
1978, in a State which does not conduct parimutuel horseracing on the
date of enactment of this Act.
Approved October 25, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 1733 (Comm. on Interstate and Foreign
Commerce).
SENATE REPORTS: No. 95 - 554 (Comm. on Commerce, Science, and
Transportation) and No. 95 - 1117 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Sept. 26, considered and passed Senate.
Oct. 10, H.R. 14089 considered and passed House; passage
vacated, and S. 1185 passed in lieu.
PUBLIC LAW 95-514, 92 STAT. 1803, PUBLIC RANGELANDS IMPROVEMENT ACT
OF 1978
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. That this Act // 43 USC 1901 // may be cited as the "
Public Rangelands Improvement Act of 1978".
SEC. 2. // 43 USC 1901. // (a) The Congress find and declares
that--,
(1) vast segments of the public rangelands are producing less
than their potential for livestock, wildlife habitat, recreation,
forage, and water and soil conservation benefits,and for that
reason are in an unsatisfactory condition;
(2) such rangelands will remain in an unsatisfactory condition
and some areas may decline further under present levels of, and
funding for management;
(3) unsatisfactory conditions on public rangelands present a
high risk of soil loss, desertification, and a resultant
underproductivity for large acreages of the public lands;
contribute significantly to unacceptable levels of siltation and
salinity in major western watersheds including the Colorado River;
negatively impact the quality and availability of scarce western
water supplies; threaten important and frequently critical fish
and wildlife habitat; prevent expansion of the forage resource
and resulting benefits to livestock and wildlife production;
increase surface runoff and flood danger; reduce the value of
such lands for recreational and esthetic purposes; and may
ultimately lead to unpredictable and undesirable long-term local
and regional climatic and economic changes;
(4) the above - mentioned conditions can be addressed and
corrected by an intensive public rangelands maintenance,
management, and improvement program involving significant
increases in levels of rangeland management and improvement
funding for multiple-use values;
(5) to prevent economic disruption and harm to the western
livestock industry, it is in the public interest to charge a fee
for livestock grazing permits and leases on the public lands which
is based on a formula reflecting annual changes in the cost of
production;
(6) the Act of December 15, 1971 (85 Stat. 649, 16 U.S.C. 1331
et seq.), continues to be successful in its goal of protecting
wild free - roaming horses and burros from capture, branding,
harrassment, and death, but that certain amendments are necessary
thereto avoid excessive costs in the administration of the Act,
and to facilitate the humane adoption or disposal of excess wild
free-roaming horses and burros which because they exceed the
carrying capacity of the range, pose a threat to their own
habitat, fish, wildlife, recreation, water and soil conservation,
domestic livestock grazing, and other rangeland values;
(b) The Congress therefore hereby establishes and reaffirms a
national policy and commitment to:
(1) inventory and identify current public rangelands conditions
and trends as a part of the inventory process required by section
201 (a) of the Federal Land Policy and Management Act of 1976 (43
U.S.C. 1711);
(2) manage, maintain and improve the condition of the public
rangelands so that they become as productive as feasible for all
rangeland values in accordance with management objectives and the
land use planning process established pursuant to section 202 of
the Federal Land Policy and Management Act (43 U.S.C. 1712);
(3) charge a fee for public grazing use which is equitable and
reflects the concerns addressed in paragraph (a) (5) above;
(4) continue the policy of protecting wild free-roaming horses
and burros from capture, branding, harassment, or death, while at
the same time facilitating the removal and disposal of excess wild
free - roaming horses and burros which pose a threat to themselves
and their habitat and to other rangeland values;
(c) The policies of this Act shall become effective only as specific
statutory authoority for their implementation is enacted by this Act or
by subsequent legislation, and shall be construed as supplemental to and
not in derogation of the purposes for which public rangelands are
administered under other provisions of law.
SEC. 3. As used in this Act--, // 43 USC 1902. //
(a) The terms "rangelands" or "public rangelands" means lands
administered by the Secretary of the Interior through the Bureau of Land
Management or the Secretary of Agriculture through the Forest Service in
the sixteen contiguous Western States on which there is domestic
livestock grazing or which the Secretary concerned determines may be
suitable for domestic livestock grazing.
(b) The term "allotment management plan" is the same as defined in
section 103 (k) of the Federal Land Policy Management Act of 1976 (43
U.S.C. 1702 (k)), except that as used in this Act such term applies to
the sixteen contiguous Western States.
(c) The term "grazing permit and lease" means any document
authorizing use of public lands or lands in national forests in the
sixteen contiguous Western States for the purpose of grazing domestic
livestock.
(d) The term "range condition" means the quality of the land
reflected in its ability in specific vegetative areas to support various
levels of productivity in accordance with range management objectives
and the land use planning process, and relates to soil quality, forage
values (whether seasonal or year round), wildlife habitat, watershed and
plant communities, the present state of vegetation of a range site in
relation to the potential plant community for that site, and the
relative degree to which the kinds, proportions, and amounts of
vegetation in a plant community resemble that of the desired community
for that site.
(e) The term "native vegetation" means those plant species,
communities, or vegetative associations which are endemic to a given
area and which would normally be identified with a healthy and
productive range conditions occuring as a result of the natural
vegetative process of the area.
(f) The term "range improvement" means any activity or program on or
relating to rangelands which is designed to improve production of
forage; change vegetative composition; control patterns of use;
provide water; stabilize soil and water conditions; and provide
habitat for livestock and wildlife. The term includes, but is not
limited to, structures, treatment projects,and use of mechanical means
to accomplish the desired results.
(g) The term "court ordered environmental impact statement" means any
environmental statements which are required to be prepared by the
Secretary of the Interior pursuant to the final judgment or subsequent
modification thereof as set forth on June 18, 1975, in the matter of
Natural Resources Defense Council against Andrus.
(h) The term " Secretary" unless specifically designated otherwise,
means the Secretary of the Interior.
(i) The term "sixteen contiguous Western States" means the States of
Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada,
New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah,
Washington, and Wyoming.
SEC. 4. (a) Following enactment of this Act, // 43 USC 1903. // the
Secretary of the Interior and the Secretary of Agriculture shall update,
develop (where necessary) and maintain on a continuing basis thereafter,
an inventory of range conditions and record of trends of range
conditions on the public rangelands, and shall categorize or identify
such lands on the basis of the range conditions and trends thereof as
they deem appropriate. Such inventories shall be conducted and
maintained by the Secretary as a part of the inventory process required
by section 201 (a) of the Federal Land Policy and Management Act (43
U.S.C. 1711), and by the Secretary of Agriculture in accordance with
section 5 of the Forest and Rangeland Renewable Resources Planning Act
of 1974 (16 U.S. c. 1603); shall be kept current on a regular basis so
as to reflect changes in range conditions; and shall be available to
the public.
(b) The Secretary shall manage the public rangelands in accordance
with the Taylor Grazing Act (43 U.S.C. 315 - 315(o)), the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1701 - 1782), and other
applicable law consistent with the public rangelands improvement program
pursuant to this Act. Except where the land use planning process
required pursuant to section 202 of the Federal Land Policy and
Management Act (43 U.S.C. 1712) determines otherwise or the Secretary
determines, and sets forth his reasons for this determination, that
grazing uses should be discontinued (either temporarily or permanently)
on certain lands, the goal of such management shall be to improve the
range conditions of the public rangelands so that they become as
productive as feasible in accordance with the rangeland management
objectives established through the land use planning process, and
consistent with the values and objectives listed in section 2 (a) and
(b) (2) of this Act.
SEC. 5. (a) In order to accomplish the purposes of this Act, // 43
USC 1904. // there are hereby authorized to appropriated the sum of an
additional $15,000,000 annually in fiscal year 1980 through 1982; for
fiscal years 1983 through 1986 an amount no less than the amount
authorized for 1982; and for fiscal years 1987 through 1999 an amount
not less than $5,000,000 annually more than the amount authorized for
fiscal year 1986. Such funds shall be in addition to any range,
wildlife, and soil and water management moneys which have been requested
by the Secretary under the provisions of section 318 of the Federal Land
Policy and Management Act, // 43 USC 1748. // and in addition to the
moneys which are available for range improvements under section 401 of
the Federal Land Policy and Management Act (43 U.S.C. 1751).
(b) Any amounts authorized by this section not appropriated in one or
more fiscal years shall be available for appropriation in any subsequent
years.
(c) No less than 80 per centum of such funds provided herein shall be
used for on - the - ground range rehabilitation, maintenance and the
construction of range improvements (including project layout, project
design, and project supervision). No more than 15 per centum of such
funds provided herein shall be used to hire and train such experienced
and qualified personnel as are necessary to implement on - the - ground
supervision and enforcement of the land use plans required pursuant to
section 202 of the Federal Land Policy and Management Act (43 U.S.C.
1712) and such allotment management plans as may be developed. Such
funds shall be distributed as the Secretary deems advisable after
careful and considered consultation and coordination, including public
hearings and meetings where appropriate, with the district grazing
advisory boards established pursuant to section 403 of the Federal Land
Policy and Management Act (43 U.S.C. 1753), and the advisory councils
established pursuant to section 309 of the Federal Land Policy and
Management Act (43 U.S.C. 1739), range user representatives, and other
interested parties. To the maximum extent practicable, and where
economically sound, the Secretary shall give priority to entering into
cooperative agreements with range users (or user groups) for the
installation and maintenance of on - the - ground range improvements.
(d) Prior to the use of any funds authorized by this section the
Secretary shall cause to have prepared an environmental assessment
record on each range improvement project. Thereafter, improvement
projects may be constructed unless the Secretary determines that the
project will have a significant impact on the quality of human
environment, necessitating an environmental impact statement pursuant to
the National Environmental Policy Act // 42 USC 4321. // prior to the
expenditure of funds.
SEC. 6. (a) // 43 USC 1905. // For the grazing years 1979 through
1985, the Secretaries of Agriculture and Interior shall charge the fee
for domestic livestock grazing on the public rangelands which Congress
finds represents the economic value of the use of the land to the user,
and under which Congress finds fair market value for public grazing
equals the .23 base established by the 1966 Western Livestock Grazing
Survey multiplied by the result of the Forage Value Index (computed
annually from data supplied by the Economic Research Service) added to
the Combined Index (Beef Cattle Price Index minus the Price Paid Index)
and divided by 100: Provided, That the annual increase or decrease in
such fee for any given year shall be limited to not more than plus or
minus 25 per centum of the previous year's fee.
(b) The second sentence of section 401 (b)(1) of the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1751 (b) (1)) is hereby
amended by adding the words "or $10,000,000 per annum, whichever is
greater" after the words "50 per centum", and by substituting the word
"sixteen" for the word "eleven" before the words "contiguous Western
States".
SEC. 7. (a) Section 402 (b) (3) of the Federal Land Policy and
Management Act (43 U.S.C. 1752) is amended by striking the period at the
end of the proviso and adding ": Provided further, That the absence of
completed land use plans or court ordered environmental statements shall
not be the sole basis for establishing a term shorter than ten years
unless the Secretary determines on a case - by - case basis that the
information to be contained in such land use plan or court ordered
environmental impact statement is necessary to determine whether a
shorter term should be established for any of the reasons set forth in
items (1) through (3) of this subsection.".
(b) Section 402 (a) of the Federal Land Policy and Management Act is
hereby amended by substituting the word "sixteen" for the word "eleven"
before the words "contiguous Western States".
SE. 8. Sections 402 (d) and (e) (43 U.S.C. 1752 (d) and (e)) are
hereby amended--,
(a) by changing subsection (d) to read as follows:
"(d) All permits and leases for domestic livestock grazing issued
pursuant to this section may incorporate an allotment management plan
developed by the Secretary concerned. However, nothing in this
subsection shall be construed to supersede any requirement for
completion of court ordered environmental impact statements prior to
development and incorporation of allotment management plans. If the
Secretary concerned elects to develop an allotment management plan for a
given area, he shall do so in careful and considered consultation,
cooperation and coordination with the lessees, permittees, and
landowners involved, the district grazing advisory boards established
pursuant to section 403 of the Federal Land Policy and Management Act
(43 U.S.C. 1753), and any State or States having lands within the area
to be covered by such allotment management plan. Allotment management
plans shall be tailored to the specific range condition of the area to
be covered by such plan, and shall be reviewed on a periodic basis to
determine whether they have been effective in improving the range
condition of the lands involved or whether such lands can be better
managed under the provisions of subsection (e) of this section. The
Secretary concerned may revise or terminate such plans or develop new
plans from time to time after such review and careful and considered
consultation, cooperation and coordination with the parties involved.
As used in this subsection, the terms 'court ordered environmental
impact statement' and 'range condition' shall be defined as in the '
Public Rangelands Improvement Act of 1978.'".
(b) by deleting in subsection (e) the words " Prior to October
1, 1988, or thereafter, in" and by inserting " In".
SEC. 9. Nowithstanding any other provision of this Act, // 43 USC
1906. // authority to enter into cooperative agreements and to make
payments under this Act shall be effective only to the extent or in such
amounts as are provided in advance in appropriation Acts.
SEC. 10. Section 403 (a) of the Federal Land Policy and Management
Act of 1976 (43 U.S.C. 1753) is amended by substituting the word
"sixteen" for the word "eleven" before the words "contiguous Western
States".
SEC. 11. All National Grasslands are exempted from the provisions of
this Act. // 43 USC 1907. //
SEC. 12. // 43 USC 1908. // (a) The Secretaries of Interior and
Agriculture are hereby authorized and directed to develop and implement,
on an experimental basis on selected areas of the public rangelands
which are representative of the broad spectrum of range conditions,
trends and forage values, a program which provides incentives to, or
rewards for, the holders of grazing permits and leases whose stewardship
results in an improvement of the range condition of lands under permit
or lease. Such program shall explore innovative grazing management
policies and systems which might provide incentives to improve range
conditions. These may include, but need not be limited to--,
(1) cooperative range management projects designed to foster a
greater degree of cooperation and coordination between the Federal
and State agencies charged with the management of the rangelands
and with local private range users,
(2) the payment of up to 50 per centum of the amount due the
Federal Government from grazing permittees in the form of range
improvement work,
(3) such other incentives as he may deem appropriate.
(b) No later than December 31, 1985, the Secretaries shall report to
the Congress the results of such experimental program, their evaluation
of the fee established in section 6 of this Act and other grazing fee
options, and their recommendations to implement a grazing fee schedule
for the 1986 and subsequent grazing years.
SEC. 13. The first line of section 309 (a) of the Federal Land Policy
and Management Act of 1976 (43 U.S.C. 1739) is amended by deleting "is
authorized to" and inserting in lieu thereof "shall".
SEC. 14. (a) Subsections 3 (b), (c), and (d) of the Act of December
15, 1971 (85 Stat. 649; 16 U.S.C. 1333 (b) (3)) are hereby amended to
read as follows:
"(b) (1) The Secretary shall maintain a current inventory of wild
free - roaming horses and burros on given areas of the public lands.
The purpose of such inventory shall be to: make determinations as to
whether and where an overpopulation exists and whether action should be
taken to remove excess animals; determine appropriate management levels
of wild free - roaming horses and burros on these areas of the public
lands; and determine whether appropriate management levels should be
achieved by the removal or destruction of excess animals, or other
options (such as sterilization, or natural controls on population
levels). In making such determinations the Secretary shall consult with
the United States Fish and Wildlife Service, wildlife agencies of the
State or States wherein wild free - roaming horses and burros ar
located, such individuals independent of Federal and State government as
have been recommended by the National Academy of Sciences, and such
other individuals whom he determines have scientific expertise and
special knowledge of wild horse and burro protection, wildlife,
management and animal husbandry as related to rangeland management.
"(2) Where the Secretary determines on the basis of (i) the current
inventory of lands within his jurisdiction; (ii) information contained
in any land use planning completed pursuant to section 202 of the
Federal Land Policy and Management Act of 1976; // 43 USC 1712. //
(iii) information contained in court ordered environmental impact
statements as defined in section 2 of the Public Range Lands Improvement
Act of 1978; and (iv) such additional information as becomes available
to him from time to time, including that information developed in the
research study mandated by this section, or in the absence of the
information contained in (i - iv) above on the basis of all information
currently available to him, that an overpopulation exists on a given
area of the public lands and that action is necessary to remove excess
animals, he shall immediately remove excess animals from the range so as
to achieve appropriate management levels. Such action shall be taken,
in the following order and priority, until all excess animals have been
removed so as to restore a thriving natural ecological balance to the
range, and protect the range from the deterioration associated with
overpopulation:
"(A) The Secretary shall order old, sick, or lame animals to be
destroyed in the most humane manner possible;
"(B) The Secretary shall cause such number of additional excess
wild free - roaming horses and burros to be humanely captured and
removed for private maintenance and care for which he determines
an adoption demand exists by qualified individuals, and for which
he determines he can assure humane treatment and care (including
proper transportation, feeding, and handling): Provided, That,
not more than four animals may be adopted per year by any
individual unless the Secretary determines in writing
that such individual is capable of humanely caring for more than
four animals, including the transportation of such animals by the
adopting party; and
"(C) The Secretary shall cause additional excess wild
free-roaming horses and burros for which an adoption demand by
qualified individuals does not exist to be destroyed in the most
humane and cost efficient manner possible.
"(3) For the purpose of furthering knowledge of wild horse and burro
population dynamics and their interrelationship with wildlife, forage
and water resources, and assisting him in making his determination as to
what constitutes excess animals, the Secretary shall contract for a
research study of such animals, the Secretary shall contract for a
research study of such animals with such individuals independent of
Federal and State government as may be recommended by the National
Academy of Sciences for having scientific expertise and special
knowledge of wild horse and burro protection, wildlife management and
animal husbandry as related to rangeland management. The terms and
outline of such research study shall be determined by a research design
panel to be appointed by the President of the National Academy of
Sciences. Such study shall be completed and submitted by the Secretary
to the Senate and House of Representatives on or before January 1, 1983.
"(c) Where excess animals have been transferred to a qualified
individual for adoption and private maintenance pursuant to this Act and
the Secretary determines that such individual has provided humane
conditions, treatment care for such animal or animals for a period of
one year, the Secretary is authorized upon application by the transferee
to grant title to not more than four animals to the transferee at the
end of the one-year period.
"(d) Wild free-roaming horses and burros or their remains shall lose
their status as wild free-roaming horses or burros and shall no longer
be considered as falling within the purview of this Act--,
"(1) upon passage of title pursuant to subsection (c) except
for the limitation of subsection (c) (1) of this section; or
"(2) if they have been transferred for private maintenance or
adoption pursuant to this Act and die of natural causes before
passage of title; or
"(3) upon destruction by the Secretary or his designee pursuant
to subsection (b) of this section; or
"(4) if they die of natural causes on the public lands or on
private lands where maintained thereon pursuant to section 4 and
disposal is authorized by the Secretary or his designee; or
"(5) upon destruction or death for purposes of or incident to
the program authorized in section 3 of this Act; Provided, That
no wild free-roaming horse or burro or its remains may be sold or
transferred for consideration for processing into commercial
products."."
(b) A new subsection (f) is added to section 2 of the Act of December
15, 1971, as amended (16 U.S.C. 1332) to read as follows:
"(f) 'excess animals' means wild free-roaming horses or burros
(1) which have been removed from an area by the Secretary pursuant
to applicable law or (2) which must be removed from an area in
order to preserve and maintain a thriving natural ecological
balance and multiple-use relationship in that area."
Approved October 25, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORTS: No. 95-1122 (Comm. on Interior and Insular Affairs)
and No. 95-1737 (Comm. of Conference).
SENATE REPORT No. 95-1237 (Comm. on Energy and Natural Resources).
CONGRESSIONAL RECORD, Vol. 124 (1978):
June 29, considered and passed House.
Sept. 30, considered and passed Senate, amended.
Oct. 10, House agreed to conference report.
Oct. 11, Senate agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 14, No. 43:
Oct. 27, Presidential statement.
PUBLIC LAW 95-513, 92 STAT. 1802
the seven-day period
beginning on May 28, 1979, as " Vietnam Veterans
Week". Whereas members of the Armed Forces of the United States
who
served in Southeast Asia during the Vietnam conflict performed
such service under the most trying conditions because of the
lack
of domestic support for the conflict and because of the nature
of
the conflict itself; Whereas the battlefield performance of
America's soldiers, sailors,
marines, and airmen during the Vietnam conflict was by all
measures
the equal of that of their counterparts in previous conflicts;
Whereas an adverse image has often been unfairly, attached to the
Vietnam veteran as an individual because of the controversial
nature
of the Vietnam conflict; and Whereas the Nation has never
fully expressed its gratitude to those
who gave a substantial portion of their lives at their
Government's
request and in the name of the people of the United States to
serve in
such conflict: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled, That the President is
authorized and requested (1) to issue a proclamation designating the
seven-day period beginning on May 28, 1979, as " Vietnam Veterans Week"
and calling upon the people of the United States and interested groups
and organizations to observe such period with appropriate ceremonies and
activities, and (2) to initiate and coordinate appropriate ceremonies
and activities within the executive branch for the observance of such
period.
Approved October 25, 1978.
LEGISLATIVE HISTORY:
CONGRESSIONAL RECORD, Vol 124 (1978):
Oct. 10, considered and passed House.
Oct. 12, considered and passed Senate.
PUBLIC LAW 95-512, 92 STAT. 1799, COMPTROLLER GENERAL ANNUITY
ADJUSTMENT ACT OF 1978
of a retired Comptroller
General, and for other purposes.
Be it enacted by the Senate and House of Representatives of the Unied
States of America in Congress assembled, That this Act may be cited as
the " Comptroller General Annuity Adjustment Act of 1978". // 31 USC 1
//
Sec. 2. Section 319 of the Budget and Accounting Act, 1921 (31 U.S.
C. 43b) is amended--,
(1) by striking out "3" wherever it appears in subsections (b)
and (c) and inserting "4.5";
(2) by striking out in subsection (e) (2) beginning with
"one-half" through the word "lesser" and inserting the following:
"(A) $1,548, or (B) $4,644 divided by the number of children,
whichever is lesser";
(3) by inserting "(A)" immediately after "equal to" in
subsection (e) (3) and by striking out in such subsection
beginning with "survived," through the word "year" and inserting
"survived, divided by the number of children, or (B) $1,860, or
(C) $5,580, divided by the number of children, whichever is the
lesser"; and
(4) by striking out "the last five years of such service" in
subsection (n) and inserting "the three years of service in which
his annual salary was greatest", and by striking out "37 1/2" in
such subsection and inserting "40".
Sec. 3. The Budget and Accounting Act, 1921, is amended by adding
after section 319 the following new section:
" Sec. 320. (a) Except as provided in subsection (b), // 31 USC 43c.
//
the annuities authorized by sections 303 and 319 of this Act // 31
USC 43, 43b. // shall be increased as follows:
"(1) The Comptroller General shall--,
preceding
year over the Consumer Price Index published for
June of the preceding year, and
Consumer
Price Index published for June of such year over the
Consumer
Price Index published for December of the preceding
"(2) If in any year the per centum change determined under
either paragraph (1) (A) or (1) (B) indicates a rise in the
Consumer Price Index, then--,
later
than such March 1 shall be increased by the per centum
change computed under such paragraph, adjusted to the
nearest one-tenth of 1 per centum, or
an
increase under paragraph (1) (B), each annuity payable
under sections 303 and 319 of this Act
// 31 USC 43, 43b. //
commencing not later
than such September 1 shall be increased by the per
centum
change computed under such paragraph, adjusted to the
nearest one-tenth of 1 per centum.
"(3) The per centum increase authorized by the Comptroller
General under this section shall not exceed the per centum
increase as authorized from time to time by the Civil Service
Commission under section 8340 (b) of title 5, United States Code.
"(b) The annuity authorized by section 303 of this Act shall not, by
reason of the application of subsection (a), exceed the annual rate of
compensation of the Comptroller General.".
Sec. 4. (a) The second paragraph of section 303 of the Budget and
Accounting Act, 1921 (31 U.S.C. 43) is amended by inserting between
the third and fourth sentences the following new sentence: " There
shall be deducted from the salary of any person appointed to the Office
of the Comptroller General after the date of enactment of this sentence
as a contribution to the annuity authorized by this paragraph (1) a sum
equal to 3 1/2 per centum of his salary, in the case of a Comptroller
General who has elected survivor benefits under section 319, or (2) a
sum equal to 8 per centum of his salary, in the case of a Comptroller
General who has not elected such survivor benefits.".
(b) The third paragraph of such section is amended by--,
(1) inserting after "that Act," in the first sentence "and no
deduction from his salary shall be made under the preceding
paragraph,"; and
(2) adding at the end thereof the following new sentence: "
Any person who is appointed to the Office of Comptroller General
after the date of enactment of this sentence and who makes such an
election under this paragraph shall deposit with the General
Accounting Office for covering into the general fund of the
Treasury as miscellaneous receipts as a contribution to the
annuity authorized under the preceding paragraph (1) a sum equal
to 3 1/2 per centum,in the case of a Comptroller General who has
elected survivor benefits under section 319, or (2) 8 per centum,
in the case of a Comptroller General who has not elected such
benefits, of the salary received by him as Comptroller General
prior to the date current deductions begin from his salary, plus
interest thereon at the rate of 3 per centum per annum compounded
on December 31 of each year"..
(c) Such secetion is amended by adding at the end thereof the
following new paragraph:
" Any Comptroller General who is separated from office prior to
becoming eligible to receive an annuity under the second paragraph shall
be entitled to a lump-sum refund of the total amount deducted from his
salary in accordance with the provisions of such paragraph or deposited
by him as a contribution to his annuity in accordance with the
provisions of the preceding paragraph, plus interest thereon at the rate
of 3 per centum per annum compounded on December 31 of each year. The
lump-sum refund authorized by this paragraph shall be paid to the
Comptroller General or to his survivors in the order of precedence of
such survivors established in section 319(j) for survivor benefits".
Approved October 25, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 1241. accompanying H.R. 12196 (Comm. on
Government Operations).
SENATE REPORT No. 95 - 1267 (Comm. on Govermental Affairs).
CONGRESSIONAL RECORD, Vol. 124 (1978):
July 25, H.R. 12196 considered and passed House.
Oct. 9, considered and passed Senate.
Oct. 11, considered and passed House, in lieu of H.R. 12196.
PUBLIC LAW 95-511, 92 STAT. 1783, FOREIGN INTELLIGENCE SURVEILLANCE
ACT OF 1978
AN ACT
intelligence information.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may be
cited as the " Foreign Intelligence Surveillance Act of 1978". // 50 USC
1801 //
STATES
FOR FOREIGN INTELLIGENCE PURPOSES
Sec. 101. Definitions. Sec. 102. Authorization for electronic
surveillance for foreign intelligence
purposes. Sec. 103. Designation of judges. Sec. 104. Application
for an order. Sec. 105. Issuance of an order. Sec. 106. Use of
information. Sec. 107. Report of electronic surveillance. Sec. 108.
Congressional oversight. Sec. 109. Penalties. Sec. 110. Civil
liability. Sec. 111. Authorization during time of war.
Sec. 201. Amendments to chapter 119 of title 18, United States Code.
Sec. 301. Effective date.
Sec. 101. As used in this title: // 50 USC 1801. //
(a) " Foreign power" means--,
substantially
composed of United States persons;
by
such foreign government or governments;
activities
in preparation therefor;
substantially
composed of United States persons; or
(b) " Agent of a foreign power" means--
United
States contrary to the interests of the United
States,
when the circumstances of such person's presence in the
United States indicate that such person may engage in
such activities in the United States, or when such
person
knowingly aids or abets any person in the conduct of
such activities or knowingly conspires with any person
to engage in such activities; or
power,
which activities involve or may involve a violation of
the
criminal statues of the United States;
behalf
of such foreign power, which activities involve or are
about to involve a violation of the criminal statutes of
the United States;
therefor,
for or on behalf of a foreign power; or
(C)
or knowingly conspires with any person to engage in
activities described in subparagraph (A), (B), or
(C).
(c) " International terrorism" means activities that--,
United States
or of any State, or that would be a criminal violation
if committed
within the jurisdiction of the United States or any
State;
intimidation
or coercion; or
assassination
or kidnapping; and
operate
of
chapter 105 of title 18, United States Code,
// 18 USC 2151 //
or that would involve
such a violation if committed against the United
States.
United
States person is necessary to, the ability of the
United States
to protect against--,
intelligence
service or network of a foreign power or by an agent of
a foreign power; or
States
person is necessary to--,
communication
surveillance device of the contents of any wire or
radio communication
sent by or intended to be received by a particular,
known United States person who is in the United
States, if
the contents are acquired by intentionally targeting
that
United States person, under circumstances in which a
person
has a reasonable expectation of privacy and a warrant
would
be required for law enforcement purposes;
communication
to or from a person in the United States, without the
consent of any party thereto, if such acquisition
occurs in the
United States;
mechanical,
or other surveillance device of the contents of any
radio communication,
under circumstances in which a person has a
under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, and if both the
sender
and all intended recipients are located within the
United
States; or
or
other surveilance device in the United States for
monitoring
to acquire information, other than from a wire or radio
communication, under circumstances in which a person has
a reasonable expectation of privacy and a warrant would
be
required for law enforcement purposes.
the
Deputy
Attorney General.
(h) " Minimization procedures", with respect to
electronic surveillance, means--,
light of the
purpose and technique of the particular surveillance,
to minimize
the acquisition and retention, and prohibit the
dissemination,
of nonpublicly available information concerning
unconsenting United States persons consistent with
the need
of the United States to obtain, produce, and
disseminate foreign
intelligence information;
information,
as defined in subsection (e) (1), shall not be
disseminated in
a manner that identifies any United States
person,without
such person's consent, unless such person's identity is
necessary
to understand foreign intelligence information or assess
its importance;
information
that is evidence of a crime which has been, is being,
or is about
to be committed and that is to be retained or
disseminated for
law enforcement purposes; and
pursuant to
section 102(a), procedures that require that no
contents of
any communication to which a United States person is
a party
shall be disclosed, disseminated, or used for any
purpose or
retained for longer than twenty-four hours unless a
court
order under section 105 is obtained or unless the
Attorney
General determines that the information indicates a
threat of
death or serious bodily harm to any person.
United States,
an alien lawfully admitted for permanent residence (as
defined in
section 101(a) (20) of the Immigration and
Nationality Act),
// 8 USC 1101. //
an
unincorporated association a substantial number of
members of
which are citizens of the United States or aliens
lawfully admitted
for permanent residence, or a corporation which is
incorporated
in the United States, but does not include a
corporation
or an association which is a foreign power, as defined
in subsection
(a) (1), (2), or (3).
means
all areas under the territorial sovereignty of the
United States
and the Trust Territory of the Pacific Islands.
of an
electronic surveillance or any other person whose
communications
or activities were subject to electronic surveillance.
connection furnished
or operated by any person engaged as a common carrier
in providing
or operating such facilities for the transmission of
interstate
or foreign communications.
or
employee of the Federal Government, or any group,
entity,association,
corporation, or foreign power.
communication,
includes any information concerning the identity of the
parties to
such communication or the existence, substance,
purport, or meaning
of that communication.
District
of Columbia, the Commonwealth of Puerto Rico, the
Trust Territory
of the Pacific Islands, and any territory or
possession of the
United States.
Sec. 102. // 50 USC 1802. // (a) (1) Notwithstanding any other law,
the President, through tthe Attorney General, may authorize electronic
surveilance without a court order under this title to acquire foreign
intelligence information for periods of up to one year if the Attorney
General certifies in writing under oath that--,
(A) the electronic surveillance is solely directed at--,
transmitted
by means of communications used exclusively between
or among foreign powers, as defined in
section 101(a) (1),
(2), or (3); or
or
premises under the open and exclusive control of a
foreign
power, as defined in section 101(a) (1), (2), or (3);
(B) there is no substantial likelihood that the surveillance
will acquire the contents of any communication to which a United
States person is a party; and
(C) the proposed minimization procedures with respect to such
surveillance meet the definition of minimization procedures under
section 101(h); and
if the Attorney General reports such minimization procedures and any
changes thereto to the House Permanent Select Committe on Intelligence
and the Senate Select Committee on Intelligence at least thirty days
prior to their effective date, unless the Attorney General determines
immediate action is required and notifies the committee immediately of
such minimization procedures and the reason for their becoming effective
immediatley.
(2) An electronic surveillance authorized by this subsection may be
conducted only in accordance with the Attorney General's certification
and the minimization procedures adopted by him. The Attorney General
shall assess compliance with such procedures and shall report such
assessments to the House Permanent Select Committee on Intelligence and
the Senate Select Committee on Intelligence under the provisions of
section 108(a).
(3) The Attorney General shall immediately transmit under seal to the
court established under section 103(a) a copy of his certification.
Such certification shall be maintained under security measures
established by the Chief Justice with the concurrence of the Attorney
General, in consultation with the Director of Central intelligence, and
shall remain sealed unless--,
(A) an application for a court order with respect to the
surveillance is made under sections 101(h) (4) and 104; or
(B) the certification is necessary to determine the legality of
the surveillance under section 106(f).
(4) With respect to electronic surveillance authorized by this
subsection, the Attorney General may direct a specified communication
common carrier to--,
(A) furnish all information, facilities, or technical
assistance necessary to accomplish the electronic surveillance in
such a manner as will protect its secrecy and produce a minimum of
interference with the services that such carrier is providing its
customers; and
(B) maintain under security procedures approved by the Attorney
General and the Director of Central Intelligence any records
concerning the surveillance or the aid furnished which such
carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier
for furnishing such aid.
(b) Applications for a court order under this title are authorized if
the President has, by written authorization, empowered the Attorney
General to approve applications to the court having jurisdiction under
section 103, and a judge to whom an application is made may,
notwithstanding any other law, grant an order, in conformity with
section 105, approving electronic surveillance of a foreign power or an
agent of a foreign power for the purpose of obtaining foreign
intelligence information, except that the court shall not have
jurisdiction to grant any order approving electronic surveillance
directed solely as described in paragraph (1) (A) of subsection (a)
unless such surveillance may involve the acquisition of communications
of any United States person.
Sec. 103. // 50 USC 1803 // (a) The Chief Justice of the United
States shall publicly designate seven district court judges from seven
of the United States judicial circuits who shall constitute a court
which shall have jurisdiction to hear applications for and grant orders
approving electronic surveillance anywhere within the United States
under the procedures set forth in this Act, except that no judge
designated under this subsection shall hear the same application for
electronic surveillance under this Act which has been denied previously
by another judge designated under this subsection. If any judge so
designated denies an application for an order authorizing electronic
surveillance under this Act, such judge shall provide immediately for
the record a written statement of each reason for his decision and, on
motion of the United States, the record shall be transmitted, under
seal, to the court of review established in subsection (b).
(b) The Chief Justice shall publicly designate three judges, one of
whom shall be publicly designated as the presiding judge, from the
United States district courts or courts of appeals who together shall
comprise a court of review which shall have jurisdiction to review the
denial of any application made under this Act. If such court determines
that the application was properly denied, the court shall immediately
provide for the record a written statement of each reason for its
decision and, on petition of the United States for a writ of certiorari,
the record shall be transmitted under seal to the Supreme Court, which
shall have jurisdiction to review such decision.
(c) Proceedings under this Act shall be conducted as expeditiously as
possible. The record of proceedings under this Act, including
applications made and orders granted, shall be maintained under security
measures established by the Chief Justice in consultation with the
Attorney General and the Director of Central Intelligence. (d) Each
judge designated under this section shall so serve for a maximum of
seven years and shall not be eligible for redesignation, except that the
judges first designated under subsection (a) shall be designated for
terms of from one to seven years so that one term expires each year, and
that judges first designated under subsection (b) shall be designated
for terms of three, five, and seven years.
Sec. 104. // 50 USC 1804 // (a) Eac application for an order
approving electronic surveillance under this title shall be made by a
Federal officer in writing upon oath or affirmation to a judge having
jurisdiction under section 103. Each application shall require the
approval of the Attorney General based upon his finding that it
satisfies the criteria and requirements of such application as set forth
in this title. It shall include--,
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the
President of the United States and the approval of the Attorney
General to make the application;
(3) the identity, if known, or a description of the target of
the
electronic surveillance;
(4) a statement of the facts and circumstances relied upon by
the applicant to justify his belief that--,
foreign
power or an agent of a foreign power; and
electronic
surveillance is directed is being used, or is about to
be used, by
a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information
sought and the type of communications or activities to be
subjected
to the surveillance;
(7) a certification or certifications by the Assistant to the
President for National Security Affairs or an executive branch
official or officials designated by the President from among those
executive officers employed in the area of national security or
defense and appointed by the President with the advice and consent
of the Senate-,
(B) that the purposes of the surveillance is to obtain foreign
intelligence information;
certification
that--,
(8) a statement of the means by which the surveillance will be
effected and a statement whether physical entry is required to
effect the surveillance;
(9) a statement of the facts concerning all previous
applications that have been made to any judge under this title
involving any of the persons, facilities, or places specified in
the application, and the action taken on each previous
application;
(10) a statement of the period of time for which the electronic
surveillance is required to be maintained, and if the nature of
the intelligence gathering is such that the approval of the use of
electronic surveillance under this title should not automatically
terminate when the described type of information has first been
obtained, a description of facts supporting the belief that
additional information of the same type will be obtained
thereafter; and
(11) whenever more than one electronic, mechanical or other
surveillance device is to be used with respect to a particular
proposed electronic surveillance, the coverage of the devices
involved and what minimization procedures apply to information
acquired by each device.
(b) Whenever the target of the electronic surveillance is a foreign
power, as defined in section 101(a) (1), (2), or (3), and each of the
facilities or places at which the surveillance is directed is owned,
leased, or exclusively used by that foreign power, the application need
not contain the information required by paragraphs (6), (7) (E), (8),
and (11) of subsection (a), but shall state whether physical entry is
required to effect the surveillance and shall contain such information
about the surveillance techniques and communications or other
information concerning United States persons likely to be obtained as
may be necessary to assess the proposed minimization procedures.
(c) The Attorney General may require any other affidavit or
certification from any other officer in connection with the application.
(d) The judge may require the applicant to furnish such other
information as may be necessary to make the determinations required by
section 105.
Sec. 105. (a) Upon an application made pursuant to section 104, //
50 USC 1805 // the judge shall enter an ex parte order as requested or
as modified approving the electronic surveillance if he finds that--,
(1) the President has authorized the Attorney General to
approve applications for electronic surveillance for foreign
intelligence information;
(2) the application has been made by a Federal officer and
approved by the Attorney General;
(3) on the basis of the facts submitted by the applicant there
is probable cause to believe that--,
no
United States person may be considered a foreign
power or
an agent of a foreign power solely upon the basis of
activities
protected by the first amendment to the Constitution
of the
United States; and
electronic
surveillance is directed is being used, or is about to
be used,
by a foreign power or an agent of a foreign power;
(4) the proposed minimization procedures meet the definition of
minimization procedures under section 101(h); and
(5) the application which has been filed contains all
statements and certifications required by section 104 and, if the
target is a United States person, the certification or
certifications are not clearly erroneous on the basis of the
statement made under section 104(a) (7) (E) and any other
information furnished under section 1047d).
(b) An order approving an electronic surveillance under this section
shal--,
(1) specify--,
target of
the electronic surveillance;
directed;
the
surveillance;
be
effected and whether physical entry will be used to
effect the
surveillance
is approved; and
order, the
authorized coverage of the devices involved and what
minimization
procedures shall apply to information subject to
acquisition by each device; and
(2) direct--,
custodian,
or other specified person furnish the applicant
forthwith all
information, facilities, or technical assistance
necessary to
accomplish the electronic surveillance in such a manner
as
will protect its secrecy and produce a minimum of
interference
with the services that such carrier, landlord,
custodian,
or other person is providing that target of electronic
surveillance;
person
maintain under security procedures approved by the
Attorney
General and the Director of Central Intelligence
any records
concerning the surveillance or the aid furnished that
such
person wishes to retain; and
rate,
such carrier, landlord, custodian, or other person for
furnishing
such aid.
(c) Whenever the target of the electronic surveillance is a foreign
power, as defined in section 101(a) (1), (2), or (3), and each of the
facilities or places at which the surveillance is directed is owned,
leased, or exclusively used by that foreign power, the order need not
contain the information required by subparagraphs (C), (D), and (F) of
subsection (b)(1), but shall generally describe the information sought,
the communications or activities to be subjected to the surveillance,
and the type of electronic surveillance involved, including whether
physical entry is required.
(d)(1) An order issued under this section may approve an electronic
surveillance for the period necessary to achieve its purpose, or for
ninety days, whichever is less, except that an order under this section
shall approve an electronic surveillance targeted against a foreign
power, as defined in section 101(a) (1), (2), or (3), for the period
specified in the application or for one year, whichever is less.
(2) Extensions of an order issued under this title may be granted on
the same basis as an original order upon an application for an extension
and new findings made in the same manner as required for an original
order, except that an extension of an order under this Act for a
surveillance targeted against a foreign power, as defined in section
101(a) (5) or (6), or against a foreign power as defined in section
101(a)(4) that is not a United States person, may be for a period not to
exceed one year if the judge finds probable cause to believe that no
communication of any individual United States person will be acquired
during the period.
(3) At or before the end of the period of time for which electronic
surveillance is approved by an order or an extension, the judge may
assess compliance with the minimization procedures by reviewing the
circumstances under which information concerning United States persons
was acquired, retained, or disseminated.
(e) Notwithstanding any other provision of this title, when the
Attorney General reasonably determines that--,
employment
of electronic surveillance to obtain foreign
intelligence
information before an order authorizing such
surveillance can with
due diligence be obtained; and
title to
approve such surveillance exists;
he may authorize the emergency employment of electronic surveillance if
a judge having jurisdiction under section 103 is informed by the
Attorney General or his designee at the time of such authorization that
the decision has been made to employ emergency electronic surveillance
and if an application in accordance with this title is made to that
judge as soon as practicable, but not more than twenty-four hours after
the Attorney General authorizes such surveillance. If the Attorney
General authorizes such emergency employment of electronic surveillance,
he shall require that the minimization procedures required by this title
for the issuance of a judicial order be followed. In the absence of a
judicial order approving such electronic surveillance, the surveillance
shall terminate when the information sought is obtained, when the
application for the order is denied, or after the expiration of
twenty-four hours from the time of authorization by the Attorney
General, whichever is earliest. In the event that such application for
approval is denied, or in any other case where the electronic
surveillance is terminated and no order is issued approving the
surveillance, no information obtained or evidence derived from such
surveillance shall be received in evidence or otherwise disclosed in any
trial, hearing, or other proceeding in or before any court, grand jury,
department, office, agency, regulatory body legislative committee, or
other authority of the United States, a State, or political subdivision
thereof, and no information concerning any United States person acquired
from such surveillance shall subsequently be used or disclosed in any
other manner by Federal officers or employees without the consent of
such person, except with the approval of the Attorney General if the
information indicates a threat of death or serious bodily harm to any
person. A denial of the application made under this subsection may be
reviewed as provided in section 103.
(f) Notwithstaning any other provision of this title, officers,
employees, or agents of the United States are authorized in the normal
course of their official duties to conduct electronic surveillance not
targeted against the communications of any particular person or persons,
under procedures approved by the Attorney General, solely to--,
(1) test the capability of electronic equipment, if--,
persons
incidentally subjected to the surveillance;
necessary
to determine the capability of the equipment;
the
capability of the equipment, are disclosed only to test
personnel,
and are destroyed before or immediately upon completion
of the test; and:
(2) determine the existence and capability of electronic
surveillance equipment being used by persons not authorized to
conduct electronic surveillance, if--,
and
capability of such equipment; and
States Code,
or section 605 of the Communications Act of 1934,
// 47 USC 605. //
or to protect
information from unauthorized surveillance; or
(3) train intelligence personnel in the use of electronic
surveillance equipment, if--,
otherwise
authorized by this title; or
(B) such electronic surveillance is limited in extent and
duration to that necessary to train the personnel in the use of
the equipment; and
(C) no contents of any communication acquired are retained or
disseminated for any purpose, but are destroyed as soon as
reasonably possible.
(g) Certifications made by the Attorney General pursuant to section
102(a) and applications made and orders granted under this title shall
be retained for a period of at least ten years from the date of the
certification or application.
Sec. 106. // 50 USC 1806 // (a) Information acquired from an
electronic surveillance conducted pursuant to this title concerning any
United States person may be used and disclosed by Federal officers and
employees without the consent of the United States person only in
accordance with the minimization procedures required by this title. No
otherwise privileged communication obtained in accordance with, or in
violation of, the provisions of this title shall lose its privileged
character. No information acquired from an electronic surveillance
pursuant to this title may be used or disclosed by Federal officers or
employees except for lawful purposes.
(b) No information acquired pursuant to this title shall be disclosed
for law enforcement purposes unless such disclosure is accompanied by a
statement that such information, or any information derived therefrom,
may only be used in a criminal proceeding with the advance authorization
of the Attorney General.
(c) Wnenever the Government intends to enter into evidence or
otherwise use or disclose in any trial, hearing, or other proceeding in
or before any court, department, officer, agency, regulatory body, or
other authority of the United States, against an aggrieved person, any
information obtained or derived from an electronic surveillance of that
aggrieved person pursuant to the authority of this title, the Government
shall, prior to the trial, hearing, or other proceeding or at a
reasonable timeprior to an effort to so disclose or so use that
information or submit it in evidence, notify the aggrieved person and
the court or other authority in which the information is to be disclosed
or used that the Government intends to so disclose or so use such
information.
(d) Whenever any State or political subdivision thereof intends to
enter into evidence or otherwise use or disclose in any trial, hearing,
or other proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of a State or a political
subdivision thereof, against an aggrieved person any information
obtained or derived from an electronic surveillance of that aggrieved
person pursuant to the authority of this title, the State or political
subdivision thereof shall notify the aggrieved person, the court or
other authority in which the information is to be disclosed or used, and
the Attorney General that the State or political subdivision thereof
intends to so disclose or so use such information.
(e) Any person against whom evidence obtained or derived from an
electronic surveillance to which he is an aggrieved person is to be, or
has been, introduced or otherwise used or disclosed in any trial,
hearing, or other proceeding in or before any court, department,
officer, agency, regulatory body, or other authority of the United
States, a State, or a political subdivision thereof, may move to
suppress the evidence obtained or derived from such electronic
surveillance on the grounds that--,
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity with an order
of authorization or approval.
Such a motion shall be made before the trial, hearing, or other
proceeding unless there was no opportunity to make such a motion or the
person was not aware of the grounds of the motion.
(f) Whenever a court or other authority is notified pursuant to
subsection (c) or (d), or whenever a motion is made pursuant to
subsection (e), or whenever any motion or request is made by an
aggrieved person pursuant to any other statute or rule of the United
States or any State before any court or other authority of the United
States or any State to discover or obtain applications or orders or
other materials relating to electronic surveillance or to discover,
obtain, or suppress evidence or information obtained or derived from
electronic surveillance under this Act, the United States district court
or, where the motion is made before another authority, the United States
district court in the same district as the authority, shall,
notwithstanding any other law, if the Attorney General files an
affidavit under oath that disclosure or an adversary hearing would harm
the national security of the United States, review in camera and ex
parte the application. order, and such other materials relating to the
surveillance as may be necessary to determine whether the surveillance
of the aggrieved person was lawfully authorized and conducted. In
making this determination, the court may disclose to the aggrieved
person, under appropriate security procedures and protective orders,
portions of the application, order, or other materials relating to the
surveillance only where such disclosure is necessary to make an accurate
determination of the legality of the surveillance.
(g) If the United States district court pursuant to subsection (f)
determines that the surveillance was not lawfully authorized or
conducted, it shall, in accordance with the requirements of law,
suppress the evidence which was unlawfully obtained or derived from
electronic surveillance of the aggrieved person or otherwise grant the
motion of the aggrieved person. If the court determines that the
surveillance was lawfully authorized and conducted, it shall deny the
motion of the aggrieved person except to the extent that due process
requires discovery or disclosure.
(h) Orders granting motions or requests under subsection (g),
decisions under this section that electronic surveillance was not
lawfully authorized or conducted, and orders of the United States
district court requiring review or granting disclosure of applications,
orders, or other materials relating to a surveillance shall be final
orders and binding upon all courts of the United States and the several
States except a United States court of appeals and the Supreme Court.
(i) In circumstances involving the unintentional acquisition by an
electronic, mechanical, or other surveillance device of the contents of
any radio communication, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be required for
law enforcement purposes, and if both the sender and all intended
recipients are located within the United States, such contracts shall be
destroyed upon recognition, unless the Attorney General determines that
the contents indicate a threat of death or serious bodily harm to any
person.
(j) If an emergency employment of electronic surveillance is
authorized under section 105(e) and a subsequent order approving the
surveillance is not obtained, the judge shall cause to be served on any
United States person named in the application and on such other United
States persons subject to electronic surveillance as the judge may
determine in his discretion it is in the interest of justice to serve,
notice of--,
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not
obtained.
On an ex parte showing of good cause to the judge the serving of the
notice required by this subsection may be postponed or suspended for a
period not to exceed ninety days. Thereafter, on a further ex parte
showing of good cause, the court shall forego ordering the serving of
the notice required under this subsection.
Sec. 107. // 50 USC 1807 // In April of each year, the Attorney
General shall transmit to the Administrative Office of the United States
Court and to Congress a report setting forth with respect to the
preceding calendar year--,
extensions
of orders approving electronic surveillance under this
title;
and
Sec. 108. (a) // 50 USC 1808 // On a seminannual basis the Attorney
General shall fully inform the House Permanent Select Committee on
Intelligence and the Senate Select Committee on Intelligence concerning
all electronic surveillance under this title. Nothing in this title
shall be deemed to limit the authority and responsibility of the
appropriate committees of each House of Congress to obtain such
information as they may need to carry out their respective functions and
duties.
(b) On or beforeone year after the effective date of this Act and on
the same day each year for four years thereafter, the Permanent Select
Committee on Intelligence and the Senate Select Committee on
Intelligence shall report respectively to the House of Representatives
and the Senate, concerning the implementation of this Act. Said reports
shall include but not be limited to an analysis and recommendations
concerning whether this Act should be (1) amended, (2) repealed, or (3)
permitted to continue in effect without amendment.
Sec. 109. // 50 USC 1809 // (a) Offense.--A person is guilty of an
offense if he intentionally--,
except
as authorized by statute; or
law
by electronic surveillance, knowing or having reason to
know that
the information was obtained through electronic
surveillance not
authorized by statute.
(b) Defense.--It is a defense to a prosecution under subsection (a)
that the defendant was a law enforcement or investigative officer
engaged in the course of his official duties and the electronic
surveillance was authorized by and conducted pursuant to a search
warrant or court order of a court of competent jurisdiction.
(c) Penalty.--An offense described in this section is punishable by a
fine of not more than $10,000 or imprisonment for not more than five
years, or both.
(d) Jurisdiction.--There is Federal jurisdiction over an offense
under this section if the person committing the offense was an officer
or employee of the United States at the time the offense was committed.
Sec. 110. // 50 USC 1810 // Civil Action.--An aggrieved person, other
than a foreign power or an agent of a foreign power, as defined in
section 101(a) or (b)(1)(A), respectively, who has been subjected to an
electronic surveillance or about whom information obtained by electronic
surveillance of such person has been disclosed or used in violation of
section 109 shall have a cause of action against any person who
committed such violation and shall be entitled to recover--,
(a) actual damages, but not less than liquidated damages of
$1,000 or $100 per day for each day of violation, whichever is
greater;
(b) punitive damages; and
(c) reasonable attorney's fees and other investigation and
litigation costs reasonably incurred.
Sec. 111. // 50 USC 1811 // Notwithstanding any other law, the
President, through the Attorney General, may authorize electronic
surveillance without a court order under this title to acquire foreign
intelligence information for a period not to exceed fifteen calendar
days following a declaration of war by the Congress.
STATES CODE
Sec. 201. Chapter 119 of title 18, United States Code, is amended as
follows:
(a) Saection 2511(2)(a)(ii)
// 18 USC 2511 // is amended to read as follows:
"(ii) Notwithstanding any other law, communication common carries,
their officers, employees, and agents, landlords, custodians, or other
persons, are authorized to provide information, facilities, or technical
assistance to persons authorized by law to intercept wire or oral
communications or to conduct electronic surveillance, as defined in
section 101 of the Foreign Intelligence Surveillance Act of 1978, if the
common carrier, its officers, employees, or agents, landlord, custodian,
or other specified person, has been provided with--,
"(A) a court order directing such assistance signed by the
authorizing judge, or
"(B) a certification in writing by a person specified in
section 2518(7) of this title
// 18 USC 2518 // or the Attorney General of the United States
that no warrant or court order is required by law, that all
statutory requirements have been met, and that the specified
assistance is required,
setting forth the period of time during which the provision of the
information, facilities, or technical assistance is authorized and
specifying thew information, facilities, or technical assistance
required. No communication common carrier, officer, employee, or agnet
thereof, or landlord, custodian, or other specified person shall
disclose the existence of any interception or surveillance or the device
used to accomplish the interception or surveillance with respect to
which the person has been furnished an order or certification under this
subparagraph, except as may otherwise be required by legal process and
then only after prior notification to the Attorney General or to the
principal prosecuting attorney of a State or any political subdivision
of a State, as may be appropriate. Any violation of this subparagraph
by a communication common carrier or an officer, employee, agent
thereof, shall render the carrier liable for the civil damages provided
for in section 2520. // 18 USC 2520. // No cause of action shall lie in
any court against any communication common carrier, its officers,
employees, or agents, landlord, custodian, or other specified person for
providing information, facilities, or assistance in accordance with the
terms of an order or certification under this paragraph.".
(b) Section 2511(2)
// 18 USC 2511 //
is amended by adding at the end thereof the following new
provisions:
"(e) Notwithstanding any other provision of this title or section 605
or 606 of the Communications Act of 1934, // 47 USC 605, 606 // it shall
be unlawful for an officer, employee, or agent of the United States in
the normal course of his official duty to conduct electronic
surveillance, as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978, as authorized by that Act.
"(f) Nothing contained in this chapter, or section 605 of the
Communications Act of 1934, shall be deemed to affect the acquisition by
the United States Government of foreign intelligence information from
international or foreign communications by a means other than electronic
surveillance as defined in secion 101 of the Foreign Intelligence
Surveillance Act of 1978,, and procedures in this chapter and the
Foreign Intelligence Surveillance Act of 1978 shall be the exclusive
means by which electronic surveillance, as defined in section 101 of
such Act, and the interception of domestic wire and oral communications
may be conducted.".
(c) Section 2511(3)
// 18 USC 2511 //
repealed.
(d) Section 2518(1)
// 18 USC 2518 //
is amended by inserting "under this chapter" after communication".
(e) Section 2518(4) is amended by inserting "under this
chapter" after both appearances of "wire or oral communication".
(f) Section 2518(9) is amended by striking out "intercepted"
and inserting "intercepted pursuant to this chapter" after
"communication".
(g) Section 2518(10)
// 18 USC 2518 //
is amended by striking out "intercepted" and inserting
"intercepted pursuant to this chapter" after the first appearance
of "communication".
(h) Section 2519(3)
// 18 USC 2519 //
is amended by inserting "pursuant to this chapter" after "wire or
oral communications" and after "granted or denied".
Sec. 301. The provisions of this Act // 50 USC 1801 // and the
amendments made hereby shall become effective upon the date of enactment
of this Act, except that any electronic surveillance approved by the
Attorney General to gather foreign intelligence information shall not be
deemed unlawful for failure to follow the procedures of this Act, if
that surveillance is terminated or an order approving that surveillance
is obtained under title I of this Act within ninety days following the
designation of the first judge pursuant to section 103 of this Act.
Approved October 25, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORTS: No. 95 - 1283, Pt. I accompanying H.R. 7308 (Comm.
on the Judiciary) and (Select Comm. on Intelligence) and No. 95 - 1720
(Comm. of Conference).
SENATE REPORTS: No. 95 - 604 and No. 95 - 604, Pt. II( Comm. on the
Judiciary) and No. 95 - 701(Select Comm. on Intelligence).
CONGRESSIONAL REOCRD, Vol. 124(1978):
Apr. 20, considered and passed Senate.
Sept. 6, 7, considered and passed House, amended.
Sept. 12, Senate disagreed to House amendments.
Oct. 9, Senate agreed to conference report.
Oct. 12, House agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 14, No. 43:
Oct. 25, Presidential statement.
PUBLIC LAW 95-510, 92 STAT. 1780,
thereto those provisions of the
Domestic Volunteer Service Act of 1973 affecting
the operation of volunteer
programs to assist small business, to increase the
maximum allowable compensation
and travel expenses for experts and consultants, and
for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
Sec. 101. Section 8(b) (1) of the Small Business Act (15 U.S.C. 637(
b) (1) is amended by striking subparagraph (1) (B) and inserting in lieu
thereof the following subparagraphs:
"(B) To establish, conduct, and publicize, and to recruit,
select, and train volunteers for (and to enter into contracts,
grants, or cooperative agreements therefor), volunteer programs,
including a Service Corps of Retired Executives (SCORE) and an
Active Corps of Executive (ACE) for the purposes of section 8(b)
(1) (A) of this Act; and to facilitate the implementation of such
volunteer programs the Administration may maintain at its
headquarters and pay the expenses of a team of volunteers subject
to such conditions and limitations as the Administration deems
appropriate: Provided, That any such payments made pursuant to
this subparagraph shall be effective only to such extent or in
such amounts as are provided in advance in appropriation Acts.
"(C) To allow any individual or group of persons participating
with it in furtherance of the purposes of subparagraphs (A) and
(B) to use the Administration's office facilities and related
material and services as the Administration deems appropriate,
including clerical and stenographic services:
employees
for the purposes of the Federal tort claims provisions
in
title 28, United States Code; and for the purposes
of subchapter
I of chapter 81 of title 5, United States Code
// 5 USC 8101. //
(relative
to compensation to Federal employees for work injuries)
shall be deemed civil employees of the United States
within
the meaning of the term 'employee' as defined in
section 8101
of title 5, United States Code, and the provisions
of that
subchapter shall apply except that in computing
compensation
benefits for disability or death, the monthly pay of a
volunteer shall be deemed that received under the
entrance
salary for a grade GS-11 employee;
volunteers
for all necessary out-of-pocket expenses incident to
their provision of services under this Act, or in
connection
with attendance at meetings sponsored by the
Administration,
or for the cost of malpractice insurance, as the
Administrator
shall determine, in accordance with regulations which
he or she shall prescribe, and, while they are carrying
out such
activities away from their homes or regular places of
business,
for travel expenses (including per diem in lieu of
subsistence)
as authorized by section 5703 of title 5, United
States Code,
for individuals serving without pay; and
a
client of such Administration with a delinquent loan
outstanding,
except upon a specific request signed by such client
for assistance in connection with such matter.
"(D) Notwithstanding any other provision of law, no payment for
suportive services or reimbursement of out-of-pocket expenses made
to persons serving pursuant to section 8(b) (1) of this Act
// 15 USC 637. //
shall be subject to any tax or charge or be treated as wages or
compensation for the purposes of unemployment, disability,
retirement, public assistance, or similar benefit payments, or
minimum wage laws.
"(E) Notwithstanding any other provision of law and pursuant to
regulations which the Administrator shall prescribe, counsel may
be employed and counsel fees, court costs, bail, and other
expenses incidental to the defense of volunteers may be paid in
judicial or administrative proceedings arising directly out of the
performance of activities pursuant to section 8(b) (1) of this
Act, as amended (15 U.S.C. 637(b) (1) to which volunteers have
been made parties.
"(F) In carrying out its functions under section 8(b) (1) of
this Act, the Administration is authorized to accept, in the name
of the Administration, and employ or dispose of in furtherance of
the purposes of this Act, any money or property, real, personal,
or mixed, tangible, or intangible, received by gift, devise,
bequest, or otherwise; and, further, to accept gratuitous
services and facilities.".
Sec. 102. (a) Title III of the Domestic Volunteer Service Act of 1973
(42 U.S.C. 5031 et seq.), is hereby repealed.
(b) Section 503 of the Domestic Volunteer Service Act of 1973 (42 U.
S.C. 5083), is hereby repealed.
Sec. 103. Section 5(c) of the Small Business Act (15 U.S.C. 634(c)),
is amended by striking the last sentence and inserting in lieu thereof
the following: " Any individual so employed may be compensated at a
rate not in excess of the daily equivalent of the highest rate payable
under section 5332 of title 5, United States Code, including traveltime,
and, while such individual is away from his or her home or regular place
of business, he or she may be allowed travel expenses (including per
diem in lieu of subsistence) as authorized by section 5703 of title 5,
United States Code".
Sec. 104. Section 7(k) (4) of the Small Business Act (15 U.S.C. 636(
k) (4) is amended by striking out "$100 per diem" and inserting in lieu
thereof "the daily equivalent of the highest rate payable under section
5332 of title 5, United States Code".
Sec. 105. This Act // 15 USC 634. // shall be effective October 1,
1979.
Approved October 24, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 375 (Comm. on Small Business).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Sept. 25, considered and passed House.
Oct. 11, considered and passed Senate.
PUBLIC LAW 95-509, 92 STAT. 1775, DEPARTMENT OF ENERGY NATIONAL
SECURITY AND MILITARY APPLICATIONS OF NUCLEAR ENERGY AUTHORIZATION Act
Of 1979
Energy for national security
programs for fiscal year 1979, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may be
cited as the " Department of Energy National Security and Military
Applications of Nuclear Energy Authorization Act of 1979".
Sec. 101. Funds are hereby authorized to be appropriated to the
Department of Energy (hereinafter in this title referred to as the "
Department") for fiscal year 1979 for operating expenses incurred in
carrying out national security programs, including scientific research
and development in support of the armed services, strategic and critical
materials necessary for the common defense, and military applications of
nuclear energy as follows:
(1) For Weapons Activities, $1,237,194,000;
(2) For Special Materials Production, $514,500,000;
(3) For Inertial Confinement Fusion, $104,000,000;
(4) For Naval Reactor Development, $265,600,000;
(5) For Defense Intelligence and Arms Control, $32,600,000;
(6) For Nuclear Materials Security and Safeguards, $45,089,000;
and
(7) For Program Direction and Management Support Related to
National Security Programs, $47,151,000.
Sec. 102. Funds are hereby authorized to be appropriated to the
Department for fiscal year 1979, for plant and capital equipment,
including planning, construction, acquisition, or modification of
facilities (including land acquisition), and for acquisition and
fabrication of capital equipment not related to construction, necessary
for national security programs, as follows:
(1) For weapons activities:
Project 79-7-a Tonopah Test Range upgrade, Phase II, Sandia
Laboratories, Albuquerque, New Mexico, $4,000,000.
Project 79-7-b, fire protection improvements, Los Alamos
Scientific Laboratory, Los Alamos, New Mexico (A-E and long lead
procurement only), $2,000,000.
Project 79-7-c, proton storage ring, Los Alamos Scientific
Laboratory, Los Alamos, New Mexico, $5,000,000.
Project 79-7-d, water cooling station upgrade, Lawrence
Livermore Laboratory, Livermore, California, $2,300,000.
Project 79-7-e, production and assembly facilities, Pantex
Plant, Amarillo, Texas, $10,000,000.
Project 79-7-f, stockpile quality evaluation facility, Y-12
Plant, Oak Ridge, Tennessee, $2,300,000.
Project 79-7-1, Systems R&D Lab, Sandia Laboratories,
Albuquerque, New Mexico (A-E), $1,000,000.
Project 79-7-m, Weapons Materials Analytical Lab, Pantex Plant,
Amarillo, Texas, $1,500,000.
Project 79-7-n, utility systems restoration, Y-12 Plant, Oak
Ridge, Tennessee, $2,200,000.
Project 79-7-o, universal pilot plant, high explosives, Pantex
Plant, Amarillo, Texas, $3,500,000.
Project 79-7-p, facilities for new modern strategic bomb,
various locations, $28,000,000.
(2) For special materials production:
Project 79-7-h, utilities replacement and expansion, Idaho
Chemical Processing Plant, Idaho National Engineering Laboratory,
Idaho Falls, Idaho, $10,500,000.
Project 79-7-i, transmission and distribution systems
upgrading, Richland, Washington, $7,000,000.
Project 79-7-j, pollutant discharge elimination, Savannah
River, South Carolina, $9,000,000.
(3) For defense waste management:
Project 79-7-k, waste management facilities, Savannah River,
South Carolina, $25,000,000.
(4) For project 79-6, general plant projects--,
(A) for weapons activities, $26,400,000;
(B) for special materials production, $15,250,000;
(C) for naval reactor development, $3,000,000; and
(D) for waste management, $5,950,000.
(5) For project 79-8, plant engineering and design--,
(A) for special materials production, $1,500,000;
(B) for defense waste management, $12,000,000;
(C) for military application, $32,000,000; and
(D) for inertial confinement fusion, $1,000,000.
(6) For capital equipment not related to construction--,
(A) for weapons activities, $86,400,000;
(B) for special materials production, $32,000,000;
(C) for waste management, $8,000,000;
(D) for inertial confinement fusion, $8,200,000;
(E) for naval reactor development, $22,000,000;
(F) for nuclear material security and safeguards, $3,000,000;
and
(G) for program direction and management support, $300,000.
PROJECTS
Sec. 103. Funds are hereby authorized to be appropriated to the
Department for fiscal year 1979, for national security projects
previously authorized by law, as follows:
(1) For project 74-1-b, replacement ventilation air filter, F
Chemical Separations Area, Savannah River, South Carolina,
$2,100,000; for a total authorization of $7,300,000.
(2) For project 75-7-c, intermediate-level waste management
facilities, Oak Ridge National Laboratory, Oak Ridge, Tennessee,
$1,000,000; for a total authorization of $11,500,000.
(3) For project 77-13-a, fluorinel dissolution process and fuel
receiving improvements, Idaho Chemical Processing Plant, Idaho
National Engineering Laboratory, Idaho Falls, Idaho, $50,000,000;
for a total authorization of $65,000,000.
(4) For project 77-13-f, waste isolation pilot plant, Delaware
Basin, southeast New Mexico, $40,000,000; for a total
authorization of $68,000,000.
(5) For project 77-13-g, safeguards and security upgrading,
production facilities, multiple sites, $3,800,000; for a total
authorization of $20,200,000.
(6) For project 78-4-a, a high energy laser facility (NOVA),
Lawrence Livermore Laboratory, Livermore, California,
$187,000,000; for a total authorization of $195,000,000.
(7) For project 78-16-c, high explosive flash radiography
facility, Lawrence Livermore Laboratory, Livermore, California,
$5,900,000; for a total authorization of $10,900,000.
(8) For project 78-16-d, weapons safeguards, various locations,
$9,000,000; for a total authorization of $26,000,000.
(9) For project 78-16-g, radioactive liquid waste improvement,
Los Alamos Scientific Laboratory, Los Alamos, New Mexico,
$5,700,000; for a total authorization of $6,300,000.
(10) For project 78-16-i; laboratory support complex, Los
Alamos Scientific Laboratory, Los Alamos, New Mexico, $14,000,000;
for a total authorization of $16,000,000.
(11) For project 78-17-a, production component warehouse,
Pantex Plant, Amarillo, Texas, $2,550,000; for a total
authorization of $2,800,000.
(12) For project 78-17-c, core facilities office building,
utilities and roads, Lawrence Livermore Laboratory, Livermore,
California, $11,000,000; for a total authorization of
$12,300,000.
(13) For project 78-17-d, steam plant improvements, Y-12 Plant,
Oak Ridge, Tennessee, $7,000,000; for a total authorization of
$10,000,000.
(14) For project 78-18-a, high level waste storage and waste
management facilities, Richland, Washington, $9,000,000; for a
total authorization of $27,000,000.
(13) For project 78-18-c, environmental, safety and security
improvements to waste management and materials processing
facilities, Richland, Washington, $13,000,000; for a total
authorization of $28,500,000.
Sec. 201. Except as otherwise provided in this Act--,
(1) no amount appropriated pursuant to this Act may be used for
any program in excess of the amount actually authorized for that
particular program by this Act, and
(2) no amount appropriated pursuant to this Act may be used for
any program which has not been presented to, or requested of, the
Congress,
unless a period of 30 calendar days (not including any day in which
either House of Congress is not in session because of adjournment of
more than three calendar days to a day certain) has passed after the
receipt by the appropriate committees of Congress of notice given by the
Secretary of Energy (hereinafter in this title referred to as the "
Secretary") containing a full and complete statement of the action
proposed to be taken and the facts and circumstances relied upon in
support of such proposed action, or unless each such committee before
the expiration of such period has transmitted to the Secretary written
notice to the effect that such committee has no objection to the
proposed action.
Sec. 202. (a) No project for which appropriations are authorized in
section 102 (1), (2), or (3) may be started if the current estimated
cost of such project exceeds by more than 25 percent the amount
authorized for such project.
(b) At any time the current estimated cost of any such project under
construction exceeds by more than 25 percent the total amount authorized
by law for such project, the Secretary shall (1) promptly notify the
appropriate committees of the Congress of such fact and include in the
notification an explanation for the increased cost of the project and
the revised current estimated cost figures for such project, and (2) not
proceed with such project unless and until additional funds for such
project are authorized by law.
(c) The provisions of this section shall not apply to any project
which has a current estimated cost of less than $5,000,000.
Sec. 203. The Secretary is authorized to start any project set forth
under section 102(4) only if--,
(1) the then maximum currently estimated cost of such project
does not exceed $750,000 and the then maximum currently estimated
cost of any building included in such project does not exceed
$300,000, except that the building cost limitation may be exceeded
if the Secretary determines that it is necessary to do so in the
interest of efficiency and economy; and
(2) the total cost of all projects undertaken under such
section does not exceed the estimated cost set forth in such
section by more than 25 percent.
Sec. 204. Subject to the provisions of appropriations Acts, amounts
appropriated pursuant to sections 101 and 102 of this Act for policy and
management activities, for general plant projects, and for plant
engineering and design are available for use, when necessary, in
connection with all national security programs of the Department of
Energy.
Sec. 205. The Secretary is authorized to perform construction design
services for any construction project of the Department of Energy in
support of national security programs which have been presented to, or
requested of, the Congress in amounts not in excess of the amount
specified in section 102(5). In any case in which the estimated design
cost for any project is in excess of $300,000, the Secretary shall
notify the appropriate Committees of Congress in writing of the
estimated design cost for such project at least 30 days before any funds
are obligated for design services for such project.
Sec. 206. Appropriations authorized by this Act for salary, pay,
retirement, or other benefits for Federal employees may be increased by
such amounts as may be necessary for increases in such benefits
authorized by law.
Sec. 207. No funds authorized to be appropriated by this Act may be
used for the testing, modernization, rebuilding, or replacement of any
component of the B43 bomb, except that such funds may be used for
quality and reliability testing of such bomb and for the replacement of
limited-life components of such bomb.
Sec. 208. The Secretary shall submit to the Congress for fiscal year
1980, and for each subsequent fiscal year, a single request for
authorizations for appropriations for all programs of the Department of
Energy involving scientific research and development in support of the
armed forces, military applications of nuclear energy, strategic and
critical materials necessary for the common defense, and other programs
which involve the common defense and security of the United States.
Sec. 209. (a) The Secretary shall conduct a study of the status of
all Government-owned, contractor-operated, plant, capital equipment,
facilities, and utilities which support the United States nuclear
weapons program and submit the results of such study to the Congress at
the same time that the Department of Energy authorization request for
fiscal year 1980 is submitted to the Congress.
(b) The Secretary shall include in such report--,
(1) an analysis of the measures required to restore the nuclear
weapons complex of the United States to a satisfactory condition,
and
(2) a plan containing proposed schedules for carrying out and
funding any restoration found to be necessary.
DEPARTMENT OF
ENERGY TO BE INCLUDED IN AUTHORIZED END
STRENGTHS
Sec. 210. Section 625(b) of the Department of Energy Organization
Act (91 Stat. 598) // 42 USC 7235 // is amended by striking out the
second sentence.
Sec. 211. None of the funds authorized to be appropriated by this or
any other Act may be obligated or expended for the development of a
nuclear warhead for the SM-2 standard missile until an arms control
impact statement for such warhead has been filed with the Congress.
Approved October 24, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95-1108 (Comm. on Armed Services).
SENATE REPORT No. 95-961 accompanying S. 2693 (Comm. on Armed
Services) and (Comm. on Energy and Natural Resources).
CONGRESSIONAL RECORD, Vol. 124 (1978):
May 16, 17, considered and passed House.
Sept. 30, considered and passed Senate, amended, in lieu of S.
2693.
Oct. 11, House concurred in Senate amendment.
PUBLIC LAW 95-508, 92 STAT. 1774
suspension of duties on
certain metal waste and scrap, unwrought metal, and
other articles of metal,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That (a) subpart B of
part 1 of the Appendix to the Tariff Schedules of the United States (19
U.S.C. 1202) // 19 USC 1202 // is amended--,
(1) by striking out the colon at the end of the superior
heading to items 911.10, 911.11, and 911.12 and inserting in lieu
thereof "or to be processed by shredding, shearing, compacting, or
similar processing which renders them fit only for the recovery of
the metal content:"; and
(2) by striking out "6/30/78" in each of items 911.10, 911.11,
and 911.12 and inserting in lieu thereof "6/30/81".
(b) The amendments made by subsection (a) // 19 USC 1202 // shall
apply with respect to articles entered, or withdrawn from warehouse, for
consumption on or after the date of the enactment of this Act. // 19 USC
1202 //
(c) Upon request therfore filed with the customs officer concerned on
or before the ninetieth day after the date of the enactment of this Act,
the entry or withdrawal of any article--,
(1) which was made after June 30, 1978, and before the date of
the enactment of this Act, and
(2) with respect to which there would have been no duty if the
amendment made by subsection (a)(2) applied to such entry or
withdrawal,
shall, notwithstanding section 514 of the Tariff Act of 1930 or any
other provision of law, be liquidated or reliquidated as though such
entry or withdrawal had been made on the date of the enactment of this
Act.
Sec. 2. (a) Subpart B of part 1 of the Appendix to the Tariff
Schedules of the United States (19 U.S.C. 1202) // 19 USC 1202 // is
amended by adding in numerical sequence the following new item:
' 903.60 Mixtures of mashed or macerated hot red
peppers and salt
(provided for in item 141.77 or 141.81, part 8 C,
schedule 1)..
Fr ee No change On or before
6/30/81".
(b) The amendment made by subsection (a) // 19 USC 1202 // shall
apply with respect to articles entered, or withdrawn from warehouse, for
consumption on or after the date of enactment of this Act.
Approved October 24, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95-1361 (Comm. on Ways and Means).
SENATE REPORT No. 95-1243 (Comm. on Finance).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Sept. 12, considered and passed House.
Sept. 30, considered and passed Senate, amended.
Oct. 10, House concurred in Senate amendments.
PUBLIC LAW 95-507, 92 STAT. 1757
Business Investment Act of 1958.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
Sec. 101. Section 303(c)(1) of the Small Business Investment Act of
1958 // 15 USC 683. // is amended to read as follows:
"(1) shares of nonvoting stock (or other corporate securities
having similar characteristics), provided-
such
securities; and prior to any distribution (other than
to the
Administration) the Administration shall be paid any
amounts as may be due pursuant to subparagraph (i) of
this
paragraph;
outstanding
at any one time shall not exceed--
" The amount of such securities purchased by the Administration in
excess of 100 per centum of such capital and surplus from any
company described in clause (A) or (C) may not exceed an amount
equal to the amount of its funds invested in or legally committed
to be invested in equity securities. For the purposes of the
subsection, the term 'equity securities' means stock of any class
(including preferred stock) or limited partnership interests, or
shares in a syndicate, business trust, joint stock company or
association, mutual corporation, cooperative or other joint
ventures for profit, or unsecured debt instruments which are
subordinated by their terms to all other borrowings of the
issuer.".
Sec. 102. The last sentence of section 308 (b) of the Small Business
Investment Act of 1958 // 15 USC 687. // is amended to read as follows:
"such companies are authorized to invest funds not reasonably needed
for their operations in direct obligations of, or obligations guaranteed
as to principal and interest by, the United States, or in certificates
of deposit maturing within one year or less, issued by any institution
the accounts of which are insured by the Federal Deposit Insurance
Corporation or the Federal Saving and Loan Insurance Corporation, or in
savings accounts of such institutions.".
Sec. 103. The last sentence of section 317 of the Small Business
Investment Act of 1958 // 15 USC 687i. //
Sec. 104 Section 301(d) of the Small Business Investment Act of 1958
// 15 USC 681. // is amended by insertin "or formed as a limited
partnership," immediately after "statutes,".
Sec. 105. Section 302(a) of the Small Business Investment Act of 1958
is amended to read as follows:
" Sec. 302(a). The combined private paid-in capital and paid-in
surplus of any company licensed pursuant to sections 301(c) and (d) of
this Act shall not be less than $150,000: Provided, however, That the
combined private paid-in capital and paid-in surplus of any company
licensed on or after October 1, 1979 pursuant to sections 301(c) and (d)
of this Act shall be not less than $500,000. In all cases, such capital
and surplus shall be adequate to assure a reasonable prospect that the
company will be operated soundly and profitably, and managed actively
and prudently in accordance with its articles.".
Sec. 110. Section 410(4) of the Small Business Investment Act of 1958
// 15 USC 694a // is amended by--
(1) deleting the word "or" after the phrase "conditions of the
contract,"; and
(2) deleting the period after the phrase "fails to make prompt
payment" and inserting in lieu thereof ", or (D) is an agent,
independent agent, underwriter, or any other company or individual
empowered to act on behalf of such person.".
Sec. 111 Section 411 of the Small Business Investment Act of 1958 //
15 USC 694b // is amended to read as follows.
" Sec. 411. (a) The Administration may, upon such terms and
conditions as it may prescribe, guarantee and enter into commitments to
guarantee any surety (the terms and conditions of said guarantees and
commitments may vary from surety to surety on the basisof the
Administration's experience with the particular surety) against loss, as
hereinafter provided, as the result of a breach of the terms of a bid
bond, payment bond, performance bond, or bonds ancillary and coterminous
therewith, by a principal on any contract up to $1,000,000, subject to
the following conditions:
"(1) the person who would be the principal of the bond is a
small business concern;
"(2) the bond is required in order for such person to bid on a
contract, or to serve as a prime contractor or subcontractor
thereon;
"(3) such person is not able to obtain such bond on reasonable
terms and conditions without a guarantee under this section;
"(4) the Administration determines that there is a reasonable
expectation that such person will perform the covenants and
conditions of the contract with respect to which the bond is
required;
"(5) the contract meets requirements established by the
Administration for feasibility of successful completion and
reasonableness of cost; and
"(6) the terms and conditions of any bond guaranteed under the
authority of this part are reasonable in light of the risks
involved and the extent of the surety's participation.
"(b) Subject to the provisions of this section, in connection with
the issuance by the Administration of a guarantee to a surety as
provided by subsection (a), the Administration may agree to indemnify
such surety against a loss sustained by such surety in avoiding or
attempting to avoid a breach of the terms of a bond guaranteed by the
Administration pursuant to subsection (a): Provided, however-
"(1) prior to making any payment under this subsection, the
Administration shall first determine that a breach of the terms of
such bond was imminent;
"(2) no payment by the Administration pursuant to this
subsection shall exceed 10 per centum of the contract price unless
the Administrator determines that a greater payment should be made
as a result of a finding by the Administrator that the surety's
loss
sustained in avoiding or attempting to avoid such breach was
necessary and reasonable; and
"(3) no new agreements to indemnify shall be entered into
pursuant to this subsection subsequent to two years after the date
of its enactment.
"(c) Any guarantee or agreement to indemnify under this section shall
obligate the Administration to pay to the surety a sum not to exceed (1)
in the case of a breach of contract, 90 per centum of the loss incurred
and paid by the surety to or on behalf of the obligee, or to labor and
materialmen, in fulfilling the terms of the contract as the result of
the breach; or (2) in a case to which subsection (b) applies, the
amount determined under subsection (b).
"(d) The Administration may establish and periodically review
regulations for participating sureties which shall require such sureties
to meet Administration standards for underwriting, claim practices, and
loss ratios.
"(e) Pursuant to any such guarantee or agreement, the Administration
shall reimburse the surety, as provided in subsection (c) of this
section, except that the Administration shall be relieved of all
liability if-
"(1) the surety obtained such guarantee or agreement, o applied
for such reimbursement, by fraud or material misrepresentation, or
"(2) the total contract amount at the time of execution of the
bond or bonds exceeds $1,000,000.
"(f) The Administration may, upon such terms and conditions as it may
prescibe, adopt a procedure for reimbursing as surety for its paid
losses billed each month, based upon prior monthly payments to such
surety, with subsequent adjustments after such disbursement.
"(g) The Administration may at all reasonable times audit in the
offices of a participating surety all documents, files, books, records,
and other material relevant to the Administration's guarantee,
commitments to guarantee, or agreements to indemnify any surety pursuant
to this section.
"(h) The Administration shall administer this Part on a prudent and
economically justifiable basis and establish such fee or fees for small
business concerns and premium or premiums for sureties as it deems
reasonable and necessary, to be payable at such time and under such
conditions as may be determined by the Administration.
"(i) The provisions of section 402 // 15 USC 693. // shall apply in
the administration of this section.".
Sec.112. Section 502 of the Small Business Investment Act of 1958 //
15 USC 696. // is amended by adding at the end of paragraph (4) the
following new sentence: " Community injection funds may be derived, in
whole or in part, from-
"(A) State or local governments;
"(B) banks or other financial institutions;
"(C) foundations or other not-for-profit institutions; or
"(D) a small business concern (or its owners, stockholders,or
affiliates) receiving assistance through bodies authorized under
this title.".
Sec.201. Section 2 of the Small Business Act // 15 USC 631 //
is amended by adding at the end thereof the following new subsection:
"(e)(1) with respect to the Administration's business development
programs the Congress finds-
"(A) that the opportunity for full participation in our free
enterprise system by socially and economically disadvantaged
persons is essential if we are to obtain social and economic
equality for such persons and improve the functioning of our
national economy;
"(B) that many such persons are socially disavantaged because
of their identification as members of certain groups that have
suffered the effects of discriminatory practices or similar
invidious circumstances over which they have no control;
"(C) that such groups include, but are not limited to, Black
Americans, Hispanic Americans, Native Americans, and other
minorities;
"(D) that it is in the national interest to expeditiously
ameliorate the conditions of socially and economically
disadbsntaged groups;
"(E) that such conditions can be improved by providing the
maximum practicable opportunity for the development of small
business concerns owned by members of socially and economically
disadvantaged groups;
"(F) that such development can be materially advanced through
the procurement by the United States of articles, equipment
supplies, services, materials, and construction work from such
concerns; and
"(G) that such procurements also benefit the United States by
encouraging the expansion of suppliers for such procurements,
thereby encouraging competition among such suppliers and promoting
economy in such procurements.
"(2) It is, therefore, the purpose of section 8(a) to-
"(A) foster business ownership by individuals who are both
socially and economically disadvantaged;
"(B) promote the competitive viability of such firms by
providing such available contract, financial, technical, and
management assistance as may be necessary; and
"(C) clarify and expand the program for the procurement by the
United States of articles, equipment, supplies, services,
materials, and construction work from small business concerns
owned by socially and economically disadvantaged individuals.".
Sec.202. (a) Section 8(a) of the Small Business Act (15 U.S.C. 637
(a)) is amended to read as follows:
" Sec. 8. (a) (1) It shall be the duty of the Administration and it
is hereby empowered, whenever it determines such action is necessary or
appropriate-
"(A) to enter into contracts with the United States Government
and any department, agency, or officer thereof having procurement
powers obligating the Administration to furnish articles,
equipment, supplies, services, or materials to the Government of
to perform construction work for the Government. In any case in
which the Administration certifies to any officer of the
Government having procurement powers that the Administration is
competent and responsible to perform any specific Government
procurement contract to be let by any such officer, such officer
shall be authorized in his discretion to let such procurement
contract to the Administration upon such terms and conditions as
may be agreed upon between the Administration and the procurement
officer. Whenever the Administration and such procurement officer
fail to agree, the matter shall be submitted for determination to
the Secretary or the head of the appropriate department or agency
by the Administrator;
"(B) to enter into contracts with such agency, as shall be
designated by the President within 60 days after the effective
date of this paragraph, to furnish articles, equipment, supplies,
services, or materials, or to perform construction work for such
agency. In any case in which the Administration certifies to any
officer of such agency having procurement powers that the
Administration is competent and responsible to perform any
specific procurement contract to be let any such officer, such
officer shall let such procurement contract to the Administration
upon such terms and conditions as may be agreed upon between the
Administration and the procurement officer. If the Administration
and such procurement officer fail to agree on such terms and
conditions, either the Administration or such officer shall
promptly notify, in writing, the head of such agency. The head of
such agency shall have five days (exclusive of Saturdays, Sundays,
and legal holidays) to establish the terms and conditions upon
which such procurement contract may be let to the Administration,
and shall communicate in writing to the Administration the terms
and conditions so established. Within five days (exclusive of
Saturdays, Sundays, and legal holidays) after the receipt of such
written communication, the Administration shall decide whether to
perform such procurement contract or withdraw its prior
certification that the Administration is competent and responsible
to perform such contract; and
"(C) to arrange for the performance of such procurement
contracts by negotiating or otherwise letting subcontracts to
socially and economically disadvantaged small business concerns
for construction work, services, or the manufacture, supply,
assembly of such articles, equipment, supplies, materials, or
parts thereof, or servicing or processing in connection therewith,
or such management services as may be necessary to enable the
Administration to perform such contracts.
" No contract may be entered into under subparagraph (B) after
September 30, 1980.
"(2) Notwithstanding subsections (a) and (c) of the first section of
the Act entitled ' An Act requiring contracts for the construction,
alteration, and repair of any public building or public work of the
United States to be accompanied by a performance bond protecting the
United States and by additional bond for the protection of persons
furnishing material and labor for the construction, alteration, or
repair of said public buildings or public work,' approved August 24,
1935 (49 Stat. 793) no small business concern shall be required to
provide any amount of any bond as a condition of receiving any
subcontract under this subsection if the Administrator determines that
such amount is inappropriate for such concern in performing such
contract: Provided, That the Administrator shall exercise the authority
granted by the paragraph only if-
"(A) the Administration takes such measures as it deems
appropriate for the protection of persons furnishing materials and
labor to a small business receiving any benefit pursuant to this
paragraph;
"(B) the Administration assists, insofar as practicable, a
small business receiving the benefits of this paragraph to
develop, within a reasonable period of time, such financial and
other capability as may be needed to obtain such bonds as the
Administration may subsequently require for the successful
completion of any program conducted under the authority of this
subsection;
"(C) the Administration finds that such small business is
unable to obtain the requisite bond or bonds from a surety and
that no surety is willing to issue such bond or bonds subject to
the guarantee provisions of Title IV of the Small Business
Investment Act of 1958; and
"(D) the small business is determined to be a start-up concern
and such concern has not been participating in any program
conducted under the authority of this subsection for a period
exceeding one year.
" This paragraph shall not apply after September 30, 1980.
"(3) Any small business concern selected by the Administration to
perform any Federal Government procurement contract to be let pursuant
to this subsection shall, when practicable, participate in any
negotiation of the terms and conditions of such contract.
"(4) For purposes of this section, the term 'socially and
economically disadvantaged small business concern' means any small
business concern-
"(A) which is at least 51 per centum owned by one or more
socially and economically disadvantaged individuals; or, in the
case of any publicly owned business, at least 51 centum of the
stock of which is owned by one or more socially and economically
disadvantaged individuals; and
"(B) whose management and daily business opeartions are
controlled by one or more of such individuals.
"(5) Socially disadvantaged individuals are those who have been
subjected to racial or ethnic prejudice or cultural bias because of
their identity as a member of a group without regard to their individual
qualities.
"(6) Economically disadvantaged individuals are those socially
disadvantaged individuals whose ability to compete in the free
enterprise system has been impaired due to diminished capital and credit
opportunities as compared to others in the same business area who are
not socially disadvantaged. In determining the degree of diminished
credit and capital opportunities the Administration shall consider, but
not be limited to, the assets and net worth of such socially
disadvantaged individual.
"(7) No small business concern shall be deemed eligible for any
assistance pursuant to this subsection unless the Administration
determines that with contract, financial, technical, and management
support the small business concern will be able to perform contracts
which may be awarded to such concern under paragraph (1) (C) and has
reasonable prospects for success in competing in the private sector.
"(8) All determinations made pursuant ot paragraphs (4), (5), (6) and
(7), shall be made by the Associate Administrator for Minority Small
Business and Capital Ownership Development.
"(9) Within ninety days after the effective date of this paragraph,
the Administration shall publish in the Federal Register rules setting
forth those conditions or circumstances pursuant to which a firm
previously deemed eligible by the Administration may be denied
assistance under the provisions of this subsection: Provided, That no
such firm shall be denied total participation in any program conducted
under the authority of this subsection without first being afforded a
hearing on the record in accordance with chapter 5 of title 5, United
States Code.
"(10) The Administration shall develop and implement an outreach
program to inform and recruit small business concerns to apply for
eligibility for assistance under this subsection.
"(11) To the maximum extent practicable, consturction subcontracts
awarded by the Administration pursuant to this subsection shall be
awarded within the county or State where the work is to be performed.
"(12) To the maximum extent practicable the Associate Administrator
for Minority Small Business and Capital Ownership Development shall
submit, no less frequently than annually, a yearly estimate of the
dollar amounts and types of contracts required for the efficient use of
any program conducted under the authority of this subsection, to each
agency which may participate in such program.".
(b) Not later than June 30, 1980, the General Accounting Office shall
submit to the Congress a report which, with respect to provisions of
paragraphs (1)(b) and (2) of section 8(a) of the Small Business Act,
shall evaluate the implementation of such provisions and whether such
implementation furthered the purpose under section 2(e) of the Small
Business Act.
" Sec.203. Section 2(c) of the Small Business Act // 15 USC 631. //
is amended by inserting "(1) after "(c)" and by adding at the end
thereof the following new paragraph:
"(2) (A) With respect to the programs authorized by section 7(j) of
this Act, the Congress finds-
"(i) that ownership and control of productive capital is
concentrated in the economy of the United States and certain
groups, therefore, own and control little productive capital;
"(ii) that certain groups in the United States own and control
little productive capital because they have limited opportunities
for small business ownership;
"(iii) that the broadening of small business ownership among
groups that presently own and control little productive capital is
essential to provide for the well-being of this Nation by
promoting their increased participation in the free enterprise
system of the United States;
"(iv) that such development of business ownership among groups
that presently own and control little productive capital will be
greatly facilitated through the creation of a small business
ownership development program, which shall provide services,
including, but not limited to, financial, management, and
technical assistance.
"(v) that the power to let sole source Federal contracts
pursuant to section 8(a) of the Small Business Act can be an
effective procurement assistance tool for development of business
ownership among groups that own and control little productive
capital; and
"(vi) that the procurement authority under section 8(a) of the
Small Business Act shall be used only as a tool for developing
business ownership among groups that own and control little
productive capital.
"(B) It is, therefore, the purpose of the programs authorized by
section 7(j) of this Act to-
"(i) foster business ownership by individuals in groups that
own and control little productive capital; and
"(ii) promote the competitive viability of such firms by
creating a small business and capital ownership development
program to provide such available financial, technical, and
management assistance as may be necessary.".
Sec.204. Section 7(j) of the Small Business Act is amended to read
as follows:
"(j)(1) The Administration shall provide financial assistance to
public or private organizations to pay all or part of the cost of
projects designed to provide technical or management assistance to
individuals or enterprises eligible for assistance under sections 7(i),
7(j)(10), and 8(a) of this Act, with special attention to small business
located in areas of high concentration of unemployed or lowincome
individuals to small business eligible ot receive contracts pursuant to
section 8(a) of this Act.
"(2) Financial assistance under this subsection may be provided for
projects, including, but not limited to-
"(A) planning and research, including feasibility studies and
market research;
"(B) the identification and development of new business
opportunities;
"(C) the furnishing of centralized services with regard to
public services and Federal Government programs including programs
authorized under section 7 (i), (7), (j), (10), and 8 (a) of this
Act;
"(D) the establishment and stregthening of business service
agencies, including trade associations and cooperatives; and
"(E) the furnishing of business counseling, management
training, and legal and other related services, with special
emphasis on the development of management training programs using
the resources of the business community, including the development
of management training opportunities in exishing business and with
emphasis in all cases upon providing management training of
sufficient scope and duration to develop entrepreneurial and
managerial self-sufficiency on the part of the individuals served.
"(3) The Administration shall encourage the placement of subcontracts
by businesses with small business concerns located in area of high
concentration of unemployed or low-income individuals, with small
businesses owned by low-income individuals, and with small businesses
eligible to receive contracts pursuant to section 8(a) of this Act. The
Administration may provide incentives and assistance to such businesses
that will aid in the training and upgrading of potential subcontractors
or other small business concerns eligible for assistance under sections
7(i), 7(j), and 8(a) of this Act. // 15 USC 636. //
"(A) An advisory committee composed of five high-level officers
from five United States business and five representtatives of
minority small businesses shallbe created to facilitate the
achievement of the purposes of this paragraph. The members of the
advisory committee shall be appointed by the President. The
chairman of the advisory committee, who shall be designated by the
President shall report annually to the President and to the
Congress on the activities of the advisory committee.
"(B) The General Accounting Office shall evaluate the
activities taken by the Administration to achieve the purpose of
this paragraph and evaluate the success of these activities in
achieving the purposes of this paragraph. The General Accounting
Office shall report to the Congress by January 1, 1981, and at any
time thereafter at the discretion of the of the Comptroller
General, on the findings of this evaluation and shall make
recommendations on actions needed to improve the Administration's
performance pursuant to this paragraph.
"(4) The Administration shall give preference to projects which
promote the ownership, participation in ownership, or management of
small business owned by low-income individuals and small businesses
eligible to receive contracts pursuant to section 8(a) of this Act.
"(5) The financial assistance authorized for projects under this
subseciton includes assistance advanced by grant, agreement, or
contract.
"(6) The Administration is authorized to make payments under grants
and contracts entered into under this subsection in lump sum or
installments, and in advance or by way of reimbursement, and in the case
of grants, with necessary adjustments on account of overpayments or
underpayments.
"(7) To the extent feasible, services under this subsection shall be
provided in a location which is easily accessible to the individuals and
small business concerns served.
"(8) The General Accounting Office shall provide for an independent
and continuing evaluation of programs under sections 7 (i), 7 (j), and 8
(a) of this Act, including full information on, and analysis of, the
character and impact of managerial assistance provided, the location,
income characteristics, and extent to which private resources and skills
have been involved in these programs. Such evaluation together with any
recommendations deemed advisable by the Comptroller General shall be
reported to the Congress by January, 1, 1981, and at any time thereafter
at the discretion of the Comptroller General.
"(9) The Administration shall take such steps as may be necessary and
appropriate, in coordination and cooperation with the heads of other
Federal departments and agencies, to insure that contracts,
subcontracts, and deposits made by the Federal Government or with
programs aided with Federal funds are placed in such way as to further
the purposes of sections 7(i), 7(j), and 8(a) of this Act.
"(10) There is established within the Administration a small business
and capital ownership development program (hereinafter referred to as
the ' Program') which shall provide assistance exclusively for small
business concerns eligible to receive contracts pursuant to section 8
(a) of this Act. The management of the Program shall be vested in the
Associate Administrator for Minority Small Business and Capital
Ownership Development who shall also manage all other services and
activities authorized under sections 7(j) and 8(a) of this Act.
"(A) The Program shall-
specific
business targets, objectives, and goals;
deemed
necessary for the establishment, preservation, and
growth
of small business concerns participating in the
Program,
including but not limited to (I) loan packaging, (Ii)
financial
counseling, (Iii) accounting and bookkeeping
assistance,
(IV) marketing assistance, and (V) management
assistance;
participating
in the Program to assure compliance with their business
plans;
Program;
and
to, (I)
the preparation of application forms required to
receive a
surety bond, (Ii) special management and technical
assistance
disigned to meet the specific needs of small business
concerns participating in the Program and which have
received or are applying to receive a surety bond, and
(III)
preparation of all forms necessary to receive a surety
bond
guarantee from the Administration pursuant to title
IV, part
B of the Small Business Investment Act of 1958.
// 15 USC 694a. //
"(B) Small business concerns eligible to receive contracts
pursuant to section 8 (a) of this Act shall participate in the
Program.
"(C) No small business concern shall receive a contract
pursuant to section 8(a) of this Act unless the Program is able to
provide such small business concern with, but not limited to, such
management, technical, and financial services as may be necessary
to promote the competitive viability of the small business concern
within a reasonable period of time.
"(11) The Associate Administrator for Minority Small Business and
Capital Owership Development shall be responsible for coordinating and
formulating policies relating to Federal assistance to small business
concerns eligible for assistance under section 7(i) of this Act and
small business concerns eligible to receive contracts pursuant to
section 8(a) of this Act.
Sec. 205. Section 7(k) of the Small Business Act is amended by
striking the words "7(i) and 7(j)" and inserting in lieu thereof "7(i),
7(j), and 8(a)".
Sec. 206. Section 4 (b) of the Small Business Act // 15 USC 633. //
is amended by striking " Associate Administrator for Minority Small
Business" where it appears therein and by substituting the following: "
Associate Adminstrator for Minority Small Business and Capital Ownership
Development".
Sec. 207. Nothing in this chapter // 15 USC 647 // is intended to
duplicate or limit any programs or projects administered by the
Department of Commerce.
Sec. 211. Section 8(d) of the Small Business Act // 15 USC 637. //
is amended to read as follow:
"(d) (1) It is the policy of the United States that small business
concerns, and small business concerns owned and controlled by socially
and economically disadvantaged individuals, shall have the maximum
practicable opportunity to participate in the performance of contracts
let by any Federal agency.
"(2) The clause stated in paragraph (3) shall be included in all
contracts let by any Federal agency except any contract which--,
will be performed entirely outside of any State, territory, or
possession of the United States, the District of Columbia, or the
Commonwealth of Puerto Rico; or
"(3) The clause required by paragraph (2) shall be as follows:
"'(A) It is the policy of the United States that small business
concerns and small business concerns owned and controlled by
socially and economically disadvantaged individuals shall have the
maximum practicable opportunity to participate in the performance
of contracts let by any Federal agency.
"'(B) The contractor hereby agrees to carry out this policy in
the awarding of subcontracts to the fullest extent consistent with
the efficient performance of this contract. The contractor
further agrees to cooperate in any studies or surveys as may be
conducted by the United States Small Business Administration or
the awarding agency of the United States as may be necessary to
determine the extent of the contractor's compliance with this
clause.
"'(C) As used in this contract, the term "small business
concern" shall mean a small business as defined pursuant to
section 3 of the Small Business Act
// 15 USC 632. //
and relevant regulations promulgated pursuant thereto. The term
"small business concern owned and controlled by socially and
economically disadvantaged individuals" shall mean a small
business concern--,
or, in
the case of any publicly owned business, at least 51
per centum
of the stock of which is owned by one or more socially
and
economically disadvantaged individuals; and
"' The contractor shall presume that socially and economically
disadvantaged individuals include Black Americans, Hispanic
Americans, Native Americans, and other minorities, or any other
individual found to be disadvantaged by the Administration
pursuant to section 8 (a) of the Small Business Act.
"'(D) Contractors acting in good faith may rely on written
representations by their subcontractors regarding their status as
either a small business concern or a small business concern owned
and controlled by socially and economically disadvantaged
individuals.'
"(4) (A) Each solicitation of an offer for a contract to be let
by a Federal agency which is to be awarded pursuant to the
negotiated method of procurement and which may exceed $1,000,000,
in the case of a contract for the construction of any public
facility, or $500,000, in the case of all other contracts, shall
contain a clause notifying potential offering companies of the
provisions of this subsection relating to contracts awarded
pursuant to the negotiated method of procurement.
"(B) Before the award of any contract to be let, or any
amendment or modification to any contract let, by any Federal
agency which--,
negotiated
method of procurement,
paragraph (3),
for the
construction of any public facility, or $500,000 in the
case of all
other contracts, and
the apparent successful offeror shall negotiate with the
procurement authority a subcontracting plan which incorporates the
information presciribed in paragraph (6). The subcontracting plan
shall be included in and made a material part of the contract.
"(C) If, within the time limit prescribed in regulations of the
Federal agency concerned, the apparent successful offeror fails to
negotiate the subcontracting plan required by this paragraph, such
offeror shall become ineligible to be awarded the contract. Prior
compliance of the offeror with other such subcontracting plans
shall be considered by the Federal agency in determining the
responsibility of that offeror for the award of the contract.
"(D) No contract shall be awarded to any offeror unless the
procurement authority determines that the plan to be negotiated by
the offeror pursuant to this paragraph provides the maximum
practicable opportunity for small business concerns and small
business concerns owned and controlled by socially and
economically disadvantaged individuals to participate in the
performance of the contract.
"(E) Notwithstanding any other provision of law, every Federal
agency, in order to encourage subcontracting opportunities for
small business concerns and small business concerns owned and
controlled by the socially and economically disadvantaged
individuals as defined in paragraph (3) of this subsection, is
hereby authorized to provide such incentives as such Federal
agency may deem appropriate in order to encourage such
subcontracting opportunities as may be commensurate with the
efficient and economical performance of the contract: Provided,
That, this subparagraph shall apply only to contracts let pursuant
to the negotiated method of procurement.
"(5) (A) Each solicitation of a bid for any contract to be let,
or any amendment or modification to any contract let, by any
Federal agency which--,
method
of procurement,
paragraph (3)
of this subsection,
for the
construction of any public facility, or $5000,000, in
the case of all
other contracts, and
shall contain a clause requiring any bidder who is selected to be
awarded a contract to submit to the Federal agency concerned a
subcontracting plan which incorporates the information prescribed
in paragraph (6). "(B) If, within the time limit prescribed in
regulations of the Federal agency concerned, the bidder selected
to be awarded the contract fails to submit the subcontracting plan
required by this paragraph, such bidder shall become ineligible to
be awarded the contract. Prior compliance of the bidder with other
such subcontracting plans shall be considered by the Federal
agency in determining the responsibility of such bidder for the
award of the contract. The subcontracting plan of the bidder
awarded the contract shall be included in and made a material part
of the contract.
"(6) Each subcontracting plan required under paragraph (4) or
(5) shall include--,
subcontractors of
small business concerns and small business concerns
owned and
controlled by socially and economically disadvantaged
individuals;
subcontracting program
of the offeror or bidder and a description of the
duties of
such individual;
will take
to assure that small business concerns and small
business concerns
owned and controlled by the socially and economically
disadvantaged
individuals will have an equitable opportunity to
compete
for subcontracts;
the
clause required by paragraph (2) of this subsection in
all subcontracts
which offer further subcontracting opportunities, and
that the offeror or bidder will require all
subcontractors (except
small business concerns) who receive subcontracts in
excess of
$1,000,000 in the case of a contract for the
construction of any
public facility, or in excess of $500,000 in the case
of all other
contracts, to adopt a plan similar to the plan required
under
paragraph (4) or (5);
such
periodic reports and cooperate in any studies or
surveys as may
be required by the Federal agency or the
Administration in order
to determine the extent of compliance by the offeror or
bidder
with the subcontracting plan; and
offeror
or bidder will maintain to demonstrate procedures which
have
been adopted to comply with the requirements and goals
set forth
in this plan, including the establishment of source
lists of small
business concerns and small business concerns owned and
controlled
by socially and economically disadvantaged individuals;
and efforts to identify and award subcontracts to such
small
business concerns.
"(7) The provisions of paragraphs (4), (5), and (6) shall not apply
to offerors or bidders who are small business concerns.
"(8) The failure of any contractor or subcontractor to comply in good
faith with--,
subsection,
or
contract or
subcontract,
shall be a material breach of such contract or subcontract.
"(9) Nothing contained in this subsection shall be construed to
supersede the requirements of Defense Manpower Policy Number 4 A (32 A
CFR Chap. 1) or any successor policy.
"(10) In the case of contracts within the provisions of paragraphs
(4), (5), and (6), the Administration is authorized to--,
"(A) assist Federal agencies and businesses in complying with
their responsibilities under the provisions of this subsection,
including the formulation of subcontracting plans pursuant to
paragraph (4);
"(B) review any solicitation for any contract to be let
pursuant to paragraphs (4) and (5) to determine the maximum
practicable opportunity for small business concerns and small
business concerns owned and controlled by socially and
economically disadvantaged individuals to participate as
subcontractors in the performance of any contract resulting from
any solicitation, and to submit its findings, which shall be
advisory in nature, to the appropriate Federal agency; and
"(C) evaluate compliance with subcontracting plans, either on a
contract-by-contract basis, or in the case contractors having
multiple contracts, on an aggregate basis.
"(11) At the conclusion of each fiscal year, the Administration shall
submit to the Senate Select Committee on Small Business and the
Committee on Small Business of the House of Representatives a report on
subcontracting plans found acceptable by any Federal agency which the
Administration determines do not contain maximum practicable
opportunities for small business concerns and small business concerns
owned and controlled by socially and economically disadvantaged
individuals to participate in the performance of contracts described in
this subsection.".
Sec. 221. Section 15 of the Small Business Act // 15 USC 644. // is
amended by adding at the end of subsection (f) the following new
subsections:
"(g) The head of each Federal agency shall, after consultation with
the Administration, establish goals for the participation by small
business concerns, and by small business concerns owned and controlled
by socially and economically disadvantaged individuals, in procurement
contracts of such agency having values of $10,000 or more. Goals
established under this subsection shall be jointly established by the
Administration and the head of each Federal agency and shall
realistically reflect the potential of small business concerns and small
business concerns owned and controlled by socially and economically
disadvantaged individuals to perform such contracts and to perform
subcontracts under such contracts. Whenever the Administration and the
head of any Federal agency fail to agree on established goals, the
disagreement shall be submitted to the Administrator of the Office of
Federal Procurement Policy for final determination.
"(h) At the conclusion of each fiscal year, the head of each Federal
agency shall report to the Administration on the extent of participation
by small business concerns and small business concerns owned and
controlled by socially and economically disadvantaged individuals in
procurement contracts of such agency. Such reports shall contain
appropriate justifications for failure to meet the goals established
under subsection (g) of this section. The Administration shall submit
to the Select Committee on Small Business of the Senate and the
Committee on Small Business of the House of Representatives information
obtained from such reports, together with appropriate comments.
"(i) Nothing in this Act or any other provision of law precludes
exclusive small business set-asides for procurements of architectural
and engineering services, research, development, test and evaluation,
and each Federal agency is authorized to develop such set-asides to
further the interests of small business in those areas.
"(j) Each contract for the procurement of goods and services which
has an anticipated value of less than $10,000 and which is subject to
small purchase procedures shall be reserved exclusively for small
business concerns unless the contracting officer is unable to obtain
offers from two or more small business concerns that are competitive
with market prices and in terms of quality and delivery of the goods or
services being purchased. In utilizing small purchase procedures,
contracting officers shall, wherever circumstances permit, choose a
method of payment which minimizes paperwork and facilitates prompt
payment to contrators.
"(k) There is hereby established in each Federal agency having
procurement powers an office to be known as the ' Office of Small and
Disadvantaged Business Utilization'. The management of each such office
shall be vested in an officer or employee of such agency who shall--,
"(1) be known as the ' Director of Small and Disadvantaged
Business Utilization' for such agency,
"(2) be appointed by the head of such agency,
"(3) be responsible only to, and report directly to, the head
of such agency or to his deputy,
"(4) be responsible for the implementation and execution of the
functions and duties under sections 8 and 15 of this Act
// 15 USC 637, 644. //
which relate to such agency,
"(5) have supervisory authority over personnel of such agency
to theextent that the functions and duties of such personnel
relate to functions and duties under sections 8 and 15 of this
Act,
"(6) assign a small business technical adviser to each office
to which the Administration has assigned a procurement center
representative--,
trained and
familiar with the supplies or services purchased at the
activity,
and
Administration
procurement center representative in his duties and
functions relating to section 8 and 15 of this Act, and
"(7) cooperate, and consult on a regular basis, with the
Administration with respect to carrying out the functions and
duties described in paragraph (4) of this subsection.
" This subsection shall not apply to the Administration.".
Sec. 222. The Administrator of the Office of Federal Procurement
Policy is authorized and directed, pursuant to the authority conferred
by Public Law 93 - 400 // 41 USC 405a. // and subject to the procedures
set forth in such Public Law, to promulgate a single, simplified,
uniform Federal procurement regulation and to establish procedures for
insuring compliance with such provisions by all Federal agencies. In
formulating such regulations and procedures the Administrator of the
Office of Federal Procurement Policy shall, in consultation with the
Small Business Administration, conduct analyses of the impact on small
business concerns resulting from revised procurement regulations, and
incorporate into revised procurement regulations simplified bidding,
contract performance, and contract administration procedures for small
business concerns.
Sec. 223. // 15 USC 637b. // (a) For any contract to be let by any
Federal agency, such agency shall provide to any small business concern
upon its request--,
(1) a copy of bid sets and specifications with respect to such
contract;
(2) the name and telephone number of an employee of such agency
to answer questions with respect to such contract; and
(3) adequate citations to each major Federal law or agency rule
with which such business concern must comply in performing such
contract.
(b) Subsection (a) shall not apply to any contract or subcontract
under such contract which--,
(1) will be performed entirely outside any State, territory, or
possession of the United States, the District of Columbia,or the
Commonwealth of Puerto Rico;or
(2) is for services which are personal in nature.
Sec. 224. (a) For purposes of this Act--, // 15 USC 637c. //
(1) the term " Administrator" means the Administrator of the
Small Business Administration;
(2) the term " Federal agency" has the meaning given the term
"agency" by section 551 (1) of title 5, United States Code, but
does not include the United States Postal Service or the General
Accounting Office; and
(3) the term " Government procurement contract" means any
contract for the procurement of any goods or services by any
Federal agency.
(b) Section 3 of the Small Business Act // 15 USC 632. // is amended
by inserting "(a)" after " Sec. 3." and by adding at the end thereof the
following new subsection:
"(b) For purposes of this Act, any reference to an agency or
department of the United States, and the term ' Federal agency', shall
have the meaning given the term 'agency' by section 551 (1) of title 5,
United States Code, but does not include the United States Postal
Service or the General Accounting Office.".
Sec. 231. Section 7 (a) of the Small Business Act // 15 USC 636. //
is amended by inserting after the phrase " The Administration is
empowered to make loans to enable small-business concerns" the phrase ",
or small-business concerns 100 percent owned and controlled by an Indian
tribe as defined in section 4(a) of the Indian Self-Determination and
Education Assistance Act,". // 25 USC 450b. //
Sec. 232. Sectin 15 (f) of the Small Business Act // 15 USC 644. //
is amended by striking out " September 30, 1979" and inserting in lieu
thereof " September 30, 1980".
Sec. 233. Section 15 of the Small Business Act is amended by adding
at the end thereof the following new subsection:
"(l) (1) The President shall, not later than October 1, 1979,
transmit to the Select Committee on Small Business and the Committee on
Armed Services of the Senate and to the Committee on Small Business and
the Committee on Armed Services of the House of Representatives a report
on the labor surplus area procurement program under this section and the
manpower policy described in subparagraph (D). Such report, together
with recommendations, shall include, but not be limited to--,
"(A) an analysis of the effectiveness of such labor surplus
area procurement program, including its effectiveness in creating
jobs in the areas of high unemployment and the method by which
labor markets are classified and designated as labor surplus
areas;
"(B) its potential benefits to Federal, State and local
governments, including tax benefits, reductions in Federal
payments to labor surplus areas, and reductions in State
unemployment costs where such information is available;
"(C) its potential costs, including its impact on the efficient
utilization of Federal resources, its effect on the local economy
of non-labor surplus areas, its impact on small business concerns
not in labor surplus areas to the extent such information is
available, and its impact on contract costs to the Federal
Govenment; and
"(D) with respect to the implementation by the Department of
Defense of Defense Manpower Policy Number 4 A (32 A CFR Chapter 1)
or any successor policy, in addition to the matters required by
subparagraphs (A), (B), and (C), information concerning the impact
on such matters of the expenditure of any funds which were
available for procurement and which were not obligated for
expenditure on September 30, 1977.
Approved October 24, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORTS: No. 95 - 949 (Comm. on Small Business) and No. 95 -
1714 (Comm. of Conference).
SENATE REPORTS: No. 95 - 1070 (Select Comm. on Small Business) and
No. 95 - 1140 (Comm. on Governmental Affairs).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Mar.20, considered and passed House.
Sept. 15, considered and passed Senate, amended.
Oct. 6, House agreed to conference report.
Oct. 10, Senate agreed to conference report.
PUBLIC LAW 95-506, 92 STAT. 1756
Services Act of 1949 to
permit the recovery of replacement cost of motor
vehicles and other related
equipment and supplies.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That section 211(d) of
the Federal Property and Administrative Services Act of 1949 (40 U.S.C
491(d) // 40 USC 756. // is amended to read as follows:
"(d)(1) The General Supply Fund provided for in section 109 shall be
available for use by or under the direction and control of the
Administrator for paying all elements of cost (including the purchase or
rental price of motor vehicles and other related equipment and supplies)
incident to the establishment,maintenance, and operation (including
servicing and storage) of motor vehicle pools or systems for the
transportation of property or passengers, and to the furnishing of such
motor vehicles and equipment and related services pursuant to subsection
(b).
"(2) Payments by requisitioning agencies so served shall be at prices
fixed by the Administrator at levels which will recover, so far as
practicable, all such elements of cost, and may, in the Administrator's
discretion, include increments for the estimated replacement cost of
such motor vehicles, equipment, and supplies. Such increments may,
notwithstanding section 109(e) of this Act, be retained as part of the
capital of the General Supply Fund, but shall be available only for
replacement of such motor vehicles, equipment, and supplies. The
purchase price, plus such increments for the estimated replacement cost,
of such motor vehicles and equipment shall be recovered only through
charges for the cost of amortization. Such costs shall be determined in
accordance with the accrual accounting method; and financial reports
shall be prepared on the basis of such accounting.".
Approved October 24, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 1529 (Comm. on Government Operations).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Sept. 25, considered and passed House.
Oct. 10, considered and passed Senate.
PUBLIC LAW 95-505, 92 stat. 1755
to permit the guarantee
of obligations for financing Great Lakes vessels in
an amount not exceeding
87 one-half per centum of the actual or depreciated
actual cost of each vessel.
Be it enacted by the Senate and House of Representatives of the
United States of Amercia in Congress assembled, That section 509 of the
Merchant Marine Act, 1936, as amended (46 U.S.C. 1159), is amended by
striking the words "fourteen knots" in the fourth sentence, and
inserting in lieu thereof the words "ten knots".
Approved October 24, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 1528 (Comm.on Merchant Marine and Fisheries).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Oct. 3, considered and passed House.
Oct. 6, considered and passed Senate.
PUBLIC LAW 95-504, 92 STAT. 1705, AIRLINE DEREGULATION ACT OF 1978
encourage, develop, and attain
an air transportation system which relies on
competitive market forces to
determine the quality, variety, and price of air
services, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
Section 1. This Act // 49 USC 1301 // may be cited as the " Airline
Deregulation Act of 1978".
Sec. 2. (a) Section 101 of the Federal Aviation Act of 1958 (49 U.S.
C. 1301) is amended--,
(1) by inserting after paragraph (13) the following new
paragraphs:
"(14) ' Charter air carrier' means an air carrier holding a
certificate of public convenience and necessity authorizing it to engage
in charter air transportation.
"(15) ' Charter air transportation' means charter trips, including
inclusive tour charter trips, in air transportation, rendered pursuant
to authority conferred under this Act under regulations prescribed by
the Board.";
(2) by inserting after paragraph (32) the following new
paragraph:
"(33) ' Predatory' means any practice which would constitute a
violation of the antitrust laws as set forth in the first section of the
Clayton Act (15 U.S.C. 12).";
(3) by inserting after paragraph (35) the following new
paragraph:
"(36) ' State agency' means that department, agency, officer, or
other entity of a State government which has been designated according
to State law as--,
"(A) the recipient of any notice required under title IV of
this Act to be given to a State agency; or
"(B) the representative of the State in any matter about which
the Board is required, under such title IV, to consult with or
consider the views of a State agency."; and
(4) by striking out paragraphs (36) and (37).
(b) Section 101 of such Act is amended by renumbering the paragraphs
of such section, including all references thereto, as paragraphs (1)
through (41), respectively.
Sec. 3. (a) Section 102(a) of the Federal Aviation Act of 1958 (49
U.S.C. 1302(a)) is amended to read as follows:
TRANSPORTATION
" Sec. 102. (a) In the exercise and performance of its powers and
duties under this Act with respect to interstate and overseas air
transportation, the Board shall consider the following, among other
things, as being in the public interest, and in accordance with the
public convenience and necessity:
"(1) The assignment and maintenance of safety as the highest
priority in air commerce, and prior to the authorization of new
air transportation services, full evaluation of the
recommendations of the Secretary of Transportation on the safety
implications of such new services and full evaluation of any
report or recommendation submitted under section 107 of this Act.
"(2) The prevention of any deterioration in established safety
procedures, recognizing the clear intent, encouragement, and
dedication of the Congress to the furtherance of the highest
degree of safety in air transportation and air commerce, and the
maintenance of the safety vigilance that has evolved within air
transportation and air commerce and has come to be expected by the
traveling and shipping public.
"(3) The availability of a variety of adequate, economic,
efficient, and low-price services by air carriers without unjust
discriminations, undue preferences or advantages, or unfair or
deceptive practices, the need to improve relations among, and
coordinate transportation by, air carriers, and the need to
encourage fair wages and equitable working conditions.
"(4) The placement of maximum reliance on competitive market
forces and on actual and potential competition (A) to provide the
needed air transportation system, and (B) to encourage efficient
and well-managed carriers to earn adequate profits and to attract
capital.
"(5) The development and maintenance of a sound regulatory
environment which is responsive to the needs of the public and in
which decisions are reached promptly in order to facilitate
adaption of the air transportation system to the present and
future needs of the domestic and foreign commerce of the United
States, the Postal Service, and the national defense.
"(6) The encouragement of air service at major urban areas
through secondary or satellite airports, where consistent with
regional airport plans of regional and local authorities, and when
such encouragement is endorsed by appropriate State entities
encouraging such service by air carriers whose sole responsibility
in any specific market is to provide service exclusively at the
secondary or satellite airport, and fostering an environment which
reasonably enables such carriers to establish themselves and to
develop their secondary or satellite airport services.
"(7) The prevention of unfair, deceptive, predatory, or
anticompetitive practices in air transportation, and the avoidance
of--,
air carriers
unreasonably to
increase prices, reduce services, or exclude
competition in air
transportation.
"(8) The maintenance of a comprehensive and convenient system
of continuous scheduled airline service for small communities and
for isolated areas, with direct Federal assistance where
appropriate.
"(9) The encouragement, development, and maintenance of an air
transportation system relying on actual and potential competition
to provide efficiency, innovation, and low prices, and to
determine the variety, quality, and price of air transportation
services.
"(10) The encouragement of entry into air transportation
markets by new air carriers, the encouragement of entry into
additional air transportation markets by existing air carriers,
and the continued strengthening of small air carriers so as to
assure a more effective, competitive airline industry.".
(b) Section 102 of such Act // 49 USC 1302 // is amended by adding at
the end thereof the following new subsection:
"(c) In the exercise and performance of its powers and duties under
the Act with respect to foreign air transportation, the Board shall
consider the following, among other things, as being in the public
interest, an in accordance with the public convenience and necessity:
"(1) The encouragement and development of an air transportation
system properly adapted to the present and future needs of the
foreign and domestic commerce of the United States, of the Postal
Service, and of the national defense.
"(2) The regulation of air transportation in such manner as to
recognize and preserve the inherent advantages of, assure the
highest degree of safety in, and foster sound economic conditions
in, such transportation, and to improve the relations between and
coordinate transportation by air carriers.
"(3) The promotion of adequate, economical, and efficient
service by air carriers at reasonable charges, without unjust
discriminations, undue preferences or advantages, or unfair or
destructive competitive practices.
"(4) Competition to the extent necessary to assure the sound
development of an air transportation system properly adapted to
the needs of the foreign and domestic commerce of the United
States, of the Postal Service, and of the national defense.
"(5) The promotion of safety in air commerce.
"(6) The promotion, encouragement, and development of civil
aeronautics.".
(c) That portion of the table of contents contained in the first
section of such Act which appears under the side heading
" Sec. 102. Declaration of Policy: The Board." is amended by
striking out
"(a) General factors for consideration.
"(b) Factors for all-cargo air service."
and inserting in lieu thereof
"(a) Factors for interstate and overseas air transportation.
"(b) Factors for all-cargo air service.
"(c) Factors for foreign air transportation.".
Sec. 4. (a) Title I of the Federal Aviation Act of 1958 (49 U.S.C.
1301 et seq.) is amended by adding at the end thereof the following new
section:
" Sec. 105. (a)(1) Except as provided in paragraph (2) of this
subsection, section, // 49 USC 1305. // no State or political
subdivision thereof and no interstate agency or other political agency
of two or more States shall enact or enforce any law, rule, regulation,
standard, or other provision having the force and effect of law relating
to rates, routes, or services of any air carrier having authority under
title IV of this Act // 49 USC 1371. // to provide interstate air
transportation.
"(2) Except with respect to air transportation (other than charter
air transportation) provided pursuant to a certificate issued by the
Board under section 401 of this Act, // 49 USC 1371 // the provisions of
paragraph (1) of this subsection shall not apply to any transportation
by air of persons, property, or mail conducted wholly within the State
of Alaska.
"(b)(1) Nothing in subsection (a) of this section shall be construed
to limit the authority of any State or political subdivision thereof or
any interstate agency or other political agency of two or more States as
the owner or operator of an airport served by any air carrier
certificated by the Board to exercise its proprietary powers and rights.
"(2) Any aircraft operated between points in the same State (other
than the State of Hawaii) which in the course of such operation crosses
a boundary between two States, or between the United States and any
other country, or between a State and the beginning of the territorial
waters of the United States, shall not, by reason of crossing such
boundary, be considered to be operating in interstate or overseas air
transportation.
"(c) When any intrastate air carrier which on August 1, 1977, was
operating primarily in intrastate air transportation regulated by a
State receives the authority to provide interstate air transportation,
any authority received from such State shall be considered to be part of
its authority to provide air transportation received from the Board
under title IV of this Act, until modified, suspended, amended, or
terminated as provided under such title.
"(d) For purposes of this section, the term ' State' means any State,
the District of Columbia, the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands, Guam, the Virgin Islands,
and any territory or possession of the United States.".
(b) That portion of the table of contents contained in the first
section of such Act which appears under the center heading
is amended by adding at the end thereof
" Sec. 105. Federal preemption.
"(a) Preemption.
"(b) Proprietary powers and rights.
"(c) Existing State authority.
"(d) Definition.".
AIR SAFETY,
AND REPORT ON AIR CARRIER MARKETING OF TOURS
Sec. 5. (a) Title I of the Federal Aviation Act of 1958 (49 U.S.C.
1301 et seq.) is further amended by adding at the end thereof the
following new sections:
" Sec. 106. // 49 USC 1306 // Not later than January 1, 1980, the
Board and the Secretary of Transportation, shall, separately or jointly,
submit a comprehensive report to the Congress on the feasibility and
appropriateness of devising formulas by which States and their political
subdivisions could share part of the costs being incurred by the United
States under sections 406 and 419 of this Act // 49 USC 1376. // Such
report shall include any recommendations of the Board and the Secretary
for the implementation of such cost-sharing formulas.
" Sec. 107. // 49 USC 1307 // (a) The Congress intends that the
implementation of the Airline Deregulation Act of 1978 result in no
diminution of the high standard of safety in air transportation attained
in the United States at the time of the enactment of such Act.
"(b) Not later than January 31, 1980, and each January 31 thereafter,
the Secretary of Transportation shall prepare and submit to the Congress
and the Board a comprehensive annual report on the extent to which the
implementation of the Airline Deregulation Act of 1978 has affected,
during the preceding calendar year, or will affect, in the succeeding
calendar year, the level of air safety. Each such report shall, at a
minimum, contain an analysis of each of the following:
"(1) All relevant data on accidents and incidents occurring
during the calendar year covered by such report in air
transportation and on violations of safety regulations issued by
the Secretary of Transportation occurring during such calendar
year.
"(2) Current and anticipated personnel requirements of the
Administrator with respect to enforcement of air safety
regulations.
"(3) Effects on current levels of air safety of changes or
proposals for changes in air carrier operating practices and
procedures which occurred during the calendar year covered by such
report.
"(4) The adequacy of air safety regulations taking into
consideration changes in air carrier operating practices and
procedures which occurred during the calendar year covered by such
report.
Based on such report, the Secretary shall take those steps necessary to
ensure that the high standard of safety in air transportation referred
to in subsection (a) of this section is maintained in all aspects of air
transportation in the United States.
"(c) Not later than January 31, 1980, and each January 31 thereafter,
the Secretary of Transportation shall submit to the Congress and the
Board recommendations with respect to the level of surveillance
necessary to enforce air safety regulations and the level of staffing
necessary to carry out such surveillance. The Secretary of
Transportation's recommendations shall include proposals for any
legislation needed to implement such recommendations.
"(d) Not later than July 1, 1979, the Secretary of Transportation
shall complete a thorough review, and submit a report thereon to the
appropriate authorizing committees of the Congress and to the
Administrator, of the safety regulations and inspection procedures
applicable to each class of air carriers subject to the provisions of
title IV of this Act, // 49 USC 1371. // in order to ensure that all
classes of air carriers are providing the highest possible level of
safe, reliable air transportation to all the communities served by those
air carriers. Based on such review, the Administrator shall promulgate
such safety regulations and establish such inspection procedures as the
Administrator deems necessary to maintain the highest standard of safe,
reliable air transportation in the United States.
" Sec. 108. // 49 USC 1308 // Not later than May 1, 1979, the Board
shall prepare and submit a report to the Congress which sets forth the
recommendations of the Board on whether this Act and regulations of the
Board should be amended to permit air carriers to sell tours directly to
the public and to acquire control of persons authorized to sell tours to
the public. The report shall evaluate the effects on the following
groups of allowing air carriers to sell tours:
"(1) The traveling public.
"(2) The independent tour operator industry.
"(3) The travel agent industry.
"(4) The different classes of air carriers.".
(b) That portion of the table of contents contained in the first
section of such Act which appears under the center heading
is amended by adding at the end thereof
" Sec. 106. Report on subsidy cost-sharing.
" Sec. 107. Safety study. "(a) Policy. "(b) Report. "(c)
Recommendations. "(d) Regulations and inspection procedure.
" Sec. 108. Report on air carrier marketing of tours.".
Sec. 6. Section 401(b) of the Federal Aviation Act of 1958 (49 U.S.
C. 1371(b)) is amended--,
(1) by striking out "and shall be so verified"; and
(2) by inserting", and upon any community affected" immediately
before the period.
Sec. 7. (a) Section 401(c) of the Federal Aviation Act of 1958 (49
U.S.C. 1371(c)) is amended to read as follows:
"(c)(1) Upon the filing of any application pursuant to subsection (b)
of this section, the Board shall give due notice thereof to the public
by posting a notice of such application in the office of the secretary
of the Board and to such other persons as the Board may by regulation
determine. The Board shall--,
"(A) set such application for a public hearing;
"(B) begin to make a determination with respect to such
application under the simplified procedures established by the
Board in regulations pursuant to subsection (p); or
"(C) dismiss such application on the merits; not later than
ninety days after the date the application is filed with the
Board. Any interested person may file with the Board a protest or
memorandum of opposition to or in support of the issuance of the
certificate requested by such application. Any order of dismissal
of an application issued by the Board without setting such
application for a hearing or beginning to make a determination
with respect to such application under such simplified procedures,
shall be deemed a final order subject to judicial review in
accordance with the provisions of section 1006 of this Act.
// 49 USC 1486. //
"(2) If the Board determines that any application should be set for a
public hearing under clause (A) of the second sentence of paragraph (1)
of this subsection, an initial or recommended decision shall be issued
not later than one hundred and fifty days after the date of such
determination by the Board. Not later than ninety days after the
initial or recommended decision is issued, the Board shall make its
final order with respect to such application. If the Board does not act
within such ninety-day period--,
"(A) in the case of an application for a certificate to engage
in interstate or overseas air transportation, the initial or
recommended decision shall become the final decision of the Board
and shall be subject to judicial review in accordance with the
provisions of section 1006 of this Act; and
"(B) in the case of an application for a certificate to engage
in foreign air transportation, the initial or recommended decision
shall be transmitted to the President pursuant to section 801 of
this Act.
// 49 USC 1461 //
"(3) Not later than the one-hundred-eightieth day after the Board
begins to make a determination with respect to an application under the
simplified procedures established by the Board in regulations pursuant
to subsection (p) of this section, the Board shall issue its final order
with respect to such application.
"(4) If an applicant fails to meet the procedural schedule adopted by
the Board in a particular proceeding, the applicable period prescribed
in paragraph (2) or (3) of this subsection may be extended by the Board
for a period equal to the period of delay caused by the applicant. In
addition to any extension authorized by the preceding sentence, in
extraordinary circumstances, the Board may, by order delay an initial or
recommended decision for not to exceed thirty days beyond the final date
on which the decision is required to be made.".
(b) The amendments made by subsection (a) of this // 49 USC 1371 //
shall apply to any application filed under section 401(b) of the Federal
Aviation Act of 1958 // 49 USC 1371 // on or after the
one-hundred-eightieth day after the date of enactment of this Act.
(c) That portion of the table of contents contained in the first
section of such Act which appears under the side heading
" Sec. 401. Certificate of public convenience and necessity." is
amended by striking out
"(c) Notice of application."
and inserting in lieu thereof
"(c) Route applications."
Sec. 8. Paragraphs (1), (2), and (3) of section 401(d) of the Federal
Aviation Act of 1958 (49 U.S.C. 1371(d)(1)-(3) are amended to read as
follows:
"(d)(1) The Board shall issue a certificate authorizing the whole or
any part of the transportation covered by the application, if it finds
that the applicant is fit, willing, and able to perform such
transportation properly and to conform to the provisions of this Act and
the rules, regulations, and requirements of the Board hereunder, and
that such transportation--,
"(A) in the case of interstate or overseas air transportation,
is consistent with the public convenience and necessity; and
"(B) in the case of foreign air transportation, is required by
the public convenience and necessity;
otherwise such application shall be denied.
"(2) In the case of an application for a certificate to engage in
temporary air transportation, the Board may issue a certificate
authorizing the whole or any part thereof for such limited periods--,
"(A) in the case of an application for interstate or overseas
air transportation, as is consistent with the public convenience
and necessity; and
"(B) in the case of an application for foreign air
transportation, as may be required by the public convenience and
necessity;
if it finds that the applicant is fit, willing, and able properly to
perform such transportation and to conform to the provisions of this Act
and thee rules, regulations, and requirements of the Board hereunder.
"(3) In the case of an application for a certificate to engage in
charter air transportation, the Board may issue a certificate to any
applicant, not holding a certificate under paragraph (1) or (2) of this
subsection on January 1, 1977, authorizing interstate air transportation
of person, which authorizes the whole or any part thereof--,
"(A) in the case of an application for interstate or overseas
air transportation, for such periods, as is consistent with the
public convenience and necessity; and
"(B) in the case of an application for foreign air
transportation, for such periods, as may be required by the public
convenience and necessity;
if it finds that the applicant is fit, willing, and able properly to
perform the transportation covered by the application and to conform to
the provisions of this Act and the rules, regulations, and requirements
of the Board hereunder.".
Sec. 9. Paragraph (4) of section 401(d) of the Federal Aviation Act
of 1958 (49 U.S.C. 1371(d)(4) is amended to read as follows: "(4)(A)
Notwithstanding any other provision of this Act, any citizen of the
United States who undertakes, within any State, the carriage of persons
or property as a common carrier for compensation or hire with aircraft
capable of carrying thirty or more persons pursuant to authority for
such carriage within such State granted by the appropriate State agency
is authorized--,
"(i) to establish services for persons and property which
includes transportaion by such citizen over its routes in such
State and transportation by an air carrier or a foreign air
carrier in air transportation; and
"(ii) subject to the requirements of section 412 of this title,
// 49 USC 1382. //
to enter into an agreement with any air carrier or foreign air
carrier for the establishment of joint fares, rates, or services
for such through services.
"(B) The joint fares or rates established under clause (ii) of
subparagraph (A) of this paragraph shall be the lowest of--,
"(i) the sum of the applicable fare or rate for service in the
State approved by the appropriate State agency, and the applicable
fare or rate for that part of the through service provided by the
air carrier or foreign air carrier;
"(ii) a joint fare or rate established and filed in accordance
with section 403 of this Act;
// 49 USC 1373. //
or
"(iii) a joint fare or rate established by the Board in
accordance with section 1002 of this Act.".
// 49 USC 1482. //
Sec. 10. (a) Section 401(d) of the Federal Aviation Act of 1958 (49
U.S.C. 1371(d)) is amended by adding at the end thereof the following
new paragraph:
"(5)(A) Except as provided in subparagraphs (B) and (G)(i) of this
paragraph, if an air carrier is authorized by its certificate to provide
round trip service nonstop each way between any two points in the
forty-eight contiguous States or between any two points in overseas air
transportation and if such air carrier fails to provide such service
pursuant to published flight schedules at a minimum of five round trips
per week for at least thirteen weeks during any twenty-six-week period
(other than such a period during which service was interrupted by a
labor dispute which lasted more than six weeks) the last day of which
ends on or after the date of enactment of this paragraph and if such
service, at a minimum of five round trips per week, has been provided
between such points for at least thirteen weeks during such
twenty-six-week period, pursuant to published flight schedules, by no
more than one other air carrier, then the Board shall issue a
certificate to the first applicant who, within thirty days after the
last day of such twenty-six-week period, submits an application which
certifies that its aircraft meet all requirements established by the
Secretary of Transportation for the carriage by aircraft of persons or
property as a common carrier for compensation or hire or the carriage of
mail by aircraft in commerce and that it is able to conform to the
rules, regulations, and reequirements of the Board promulgated pursuant
to this Act.
"(B) Except as provided in subparagraph (G)(ii) of this paragraph, if
an air carrier is authorized to provide seasonal round trip service
nonstop each way between any two points in the forty-eight contiguous
States in interstate air transportation or between any two points in
overseas air transportation and if such air carrier fails to provide
such service pursuant to published flight schedules at a minimum of five
round trips per week during half of the weeks during such season (other
than such a season during which service was interrupted by a labor
dispute which lasted more than 25 per centum of such season) the last
day of which ends on or after the date of enactment of this paragraph
and if such service, at a minimum of five round trips per week, has been
provided between such points for at least half of the weeks during such
season, pursuant to published flight schedules, by no more than one
other air carrier, then the Board shall issue a certificate to the first
applicant who, within thirty days after the last day of such season,
submits an application which certifies that its aircraft meet all
requirements established by the Secretary of Transportation for the
carriage by aircraft of persons or property as a common carrier for
compensation or hire or the carriage of mail by aircraft in commerce and
that it is able to conform to the rules, regulations, and requirements
of the Board promulgated pursuant to this Act.
"(C) With respect to any application which is submitted pursuant to
subparagraph (A) or (B) of this paragraph, except as provided in
subparagraph (G), the Board shall issue a final order granting such
certificate within fifteen days of the date of such application.
"(D) Except as provided in subparagraphs (E) and (G)(i) of this
paragraph, if an air carrier is authorized by its certificate to provide
round trip service nonstop each way between any two points in the
forty-eight contiguous States or between any two points in overseas air
transportation and if such air carrier fails to provide such service
pursuant to published flight schedules at a minimum of five round trips
per week for at least thirteen weeks during any twenty-six-week period
(other than such a period during which service was interrupted by a
labor dispute which lasted more than six weeks) the last day of which
ends on or after the date of enactment of this paragraph and if such
service, at a minimum of five round trips per week, has been provided
between such points for at least thirteen weeks during such twenty-six-
week period, pursuant to published flight schedules, by two or more
other air carriers, then the Board, subject to subparagraph (F) of this
paragraph, shall issue a certificate to the first applicant who, within
thirty days after the last day of such twenty-six-week period, submits
an application which certifies that its aircraft meet all requirements
established by the Secretary of Transportation for the carriage by
aircraft of persons or property as a common carrier for compensation or
hire or the carriage of mail by aircraft in commerce and that it is able
to conform to the rules, regulations, and requirements of the Board
promulgated pursuant to this Act.
"(E) Except as provided in subparagraph (G)(ii) of this paragraph, if
an air carrier is authorized to provide seasonal round trip service
nonstop each way between any two points in the forty-eight contiguous
States in interstate air transportation or between any two points in
overseas air transportation and if such air carrier fails to provide
such service pursuant to published flight schedules at a minimum of five
round trips per week during half of the weeks during such season (other
than such a season during which service was interrupted by a labor
dispute which lasted more than 25 per centum of such season) the last
day of which ends on or after the date of enactment of this paragraph
and if such service, at a minimum of five round trips per week, has been
provided between such points for at least half of the weeks during such
season, pursuant to published flight schedules, by two or more other air
carriers, then the Board, subject to subparagraph (F) of this paragraph,
shall issue a certificate to the first applicant who, within thirty days
after the last day of such season, submits an application which
certifies that its aircraft meet all requirements established by the
Secretary of Transportation for the carriage by aircraft of persons or
property as a common carrier for compensation or hire or the carriage of
mail by aircraft in commerce and that it is able to conform to the
rules, regulations, and requirements of the Board promulgated pursuant
to this Act.
"(F) (i) Except as provided in subparagraph (G) of this paragraph,
with respect to any application which is submitted pursuant to
subparagraph (D) or (E) of this paragraph, the Board shall issue a final
order granting such certificate within sixty days of the date of such
application, unless the Board finds that the issuance of such
certificate is inconsistent with the public convenience and necessity.
Prior to issuing such final order, the Board shall afford adequate
notice and opportunity for interested persons to file appropriate
written evidence and argument, but the Board need not hold oral
evidentiary hearings.
"(ii) For purposes of clause (i) of this subparagraph, there shall be
a rebuttable presumption that any transportation covered by an
application for a certificate submitted pursuant to subparagraph (D) or
(E) of this paragraph is consistent with the public convenience and
necessity.
"(G) (i) If, after the failure of any air carrier to provide the
minimum level of service between any pair of points for the period of
time specified in subparagraph (A) or (D) of this paragraph and before
the Board receives an application from any applicant for a certificate
under such subparagraph to provide air transportation between such
points, the Board receives notice from such air carrier that it intends
to commence service within thirty days of such notice and to provide a
minimum of five round trips per week for thirteen consecutive weeks
between such points and the Board has not previously received notice
from such air carrier with respect to such points, the Board shall not
approve such application for a certificate to provide service between
such points during such thirteen-week period based upon such failure,
unless such air carrier fails to provide such service during such
thirteen-week period.
"(ii) If, after the failure of any air carrier to provide the minimum
level of service between any pair of points for the period of time
specified in subparagraph (B) or (E) of this paragraph and before the
Boardd receives an application from any applicant for a certificate
under such subparagraph to provide air transportation between such
points, the Board receives notice from such air carrier that it intends
to commence service within fifteen days of the first day of the next
season and to provide a minimum of five round trips per week for the
first half of such season between such points and the Board has not
previously received notice from such air carrier with respect to such
points, the Board shall not approve such application for a certificate
to provide service between such points during the first half of such
period based upon such failure, unless such air carrier fails to provide
such service during the first half of such period.
"(H) (i) Whenever the Board issues a certificate pursuant to
subparagraph (A) or (D) of this paragraph, the air carrier receiving
such certificate shall commence service pursuant to such certificate
within forty-five days of such issuance. If such air carrier fails to
commence service within such period, the Board shall revoke such
certificate.
"(ii) Whenever the Board issues a certificate pursuant to
subparagraph (B) or (E) of this paragraph to provide seasonal service,
the air carrier receiving such certificate shall commence service
pursuant to such certificate within fifteen days after the beginning of
the first such season which begins on or after the date of such
issuance. If such air carrier fails to commence service within such
period, the Board shall revoke such certificate.
"(I) Not more than one certificate shall be issued under this
paragraph for round trip nonstop service between two points in
interstate air transportation based upon the failure of the same air
carrier to provide such service between such points.
"(J) Whenever the Board issues a certificate pursuant to subparagraph
(A) of this paragraph based upon the failure of any air carrier to
provide the round trip service described in such subparagraph, the Board
shall suspend the authority of such air carrier to provide such service,
and suspend the authority of any other air carrier which failed to
provide such service during the same twenty- six-week period for
twenty-six weeks after the date of issuance of such certificate pursuant
to subparagraph (A), or until such time within such twenty-six weeks as
the air carrier to which a certificate is issued under such subparagraph
fails to provide such service at a minimum of five round trips per week
for at least thirteen weeks, whichever first occurs, except that the
Board shall not suspend the authority of such air carriers under this
subparagraph if the Board finds that such suspension is not necessary to
encourage continued service between such points by the air carrier which
received a certificate under subparagraph (A).".
(b) Section 401 (f) of such Act is amended by striking out
"hereinafter provided" and inserting in lieu thereof "provided in this
section".
Sec. 11. Section 401(d) of the Federal Aviation Act of 1958 (49 U.S.
C. 1371(d)) is further amended by adding at the end thereof the
following new paragraph:
"(6) Any air carrier holding a valid certificate to engage in foreign
air transportation is authorized, on any scheduled flight in foreign air
transportation, to transport persons, property, and mail between points
in the United States between which it is authorized to operate during
such flight. The authority described in the preceding sentence shall be
limited to one round-trip flight per day between any such pair of
points, unless the Board authorizes more than one round-trip flight per
day between any such pair of points.".
Sec. 12. Section 401(d) of the Federal Aviation Act of 1958 (49 U.S.
C. 1371(d)) is further amended by adding at the end thereof the
following new paragraph:
"(7) (A) After the first business day of each of the calendar years
1979, 1980, and 1981 and before the thirtieth day of such calendar
year--,
"(i) any air carrier which (I) has operated during the
preceding
calendar year in accordance with a certificate issued by the
Board under this section which has been in force during such
entire preceding calendar year and (II) has provided air
transportation of persons during such calendar year; and
"(ii) any intrastate air carrier which has a valid certificate
or
license issued by a State regulatory authority to engage in
intrastate air transportation and which has operated more than one
hundred million available seat-miles in intrastate air
transportation in the preceding calendar year;
may apply to the Board for a certificate under this subparagraph to
engage in nonstop service between any one pair of points in interstate
or overseas air transportation (other than a pair of points either point
of which is in the State of Hawaii) in additon to any pair of points
authorized by any existing certificate or license held by such air
carrier or intrastate air carrier, except that no air carrier may apply
to engage in nonstop service between such pair of points if any air
carrier has filed written notice to the Board pursuant to subparagraph
(C) of this paragraph with respect to such pair of points. Not later
than the sixtieth day after the date on which the Board receives an
application from an applicant under this subparagraph, the Board shall
issue a certificate to such applicant for the nonstop service specified
in such application, unless within such sixty-day period the Board
determines that the applicant is not fit, willing, and able to provide
such nonstop service and to conform to the provisions of this Act and
the rules, regulations, and requirements of the Board issued under this
Act.
"(B) Not later than the one-hundred-twentieth day of calendar year
1979, 1980, or 1981, any air carrier which submitted an application to
the Board in accordance with subparagraph (A) of this paragraph in such
calendar year and--,
"(i) which did not receive a certificate to provide service
between the pair of points set forth in the application because of
a determination by the Board under such subparagraph (A); or
"(ii) which received a certificate to provide service between
such pair of points, but was not the only air carrier to receive a
certificate under such subparagraph (A) during such calendar
year to provide nonstop service between such pair of points;
may reapply to the Board for a certificate to engage in nonstop service
between any one pair of points in interstate or overseas air
transportation (other than the pair of points specified in the first
application submitted to the Board by such air carrier in such calendar
year and other than a pair of points either point of which is in the
State of Hawaii) in addition to any pair of points authorized by any
existing certificate or license held by such air carrier or intrastate
air carrier, except that no air carrier may apply to engage in nonstop
service between such pair of points if any air carrier has filed written
notice to the Board pursuant to subparagraph (C) of this paragraph with
respect to such pair of points. Not later than the sixtieth day after
the date on which the Board receives an application under this
subparagraph, the Board pursuant to subparagraph (C) of this paragraph
with nonstop service, unless within such sixty-day period the Board
makes a determination with respect to the issuance of such certificate
in accordance with the second sentence of subparagraph (A) of this
paragraph. If the Board issues a certificate to an applicant under this
subparagraph, it shall revoke any authority in any certificate which itt
granted to such applicant in the same calendar year under subparagraph
(A) of this paragraph.
"(C)(i) Subject to clause (ii) of this subparagraph, any air carrier
which is authorized pursuant to paragraph (1) or (2) of this subsection
to engage in nonstop service between any pair of points in interstate or
overseas air transportation on the first business day of calender year
1979, 1980, or 1981 and which wants to preclude any other air carrier
from obtaining authority under subparagraph (A) or (B) of this paragraph
to engage in nonstop service between such pair of points during such
calendar year may, on such day, file written notice to the Board which
sets forth such pair of points. Upon receipt of any written notice
under the preceding sentence, the Board shall make such notice available
to the public.
"(ii) No air carrier may file a written notice under clause (i) of
this subparagraph during any calendar year with respect to more than one
pair of points in interstate or overseas air transportation.
"(D) (i) The Board shall, on an emergency basis, by rule, modify the
program established by this paragraph, if the Board finds that--,
"(I) the operation of such program is causing substantial
public harm to the national air transportation system, or a
substantial reduction in air service to small and medium sized
communities in any region of the country;
"(II) the modification proposed by the Board is required by the
public convenience and necessity in order to alleviate such harm
or reduction; and
"(III) such harm or reduction identified by the Board cannot be
rectified by any reasonably available means other than the
modification proposed by the Board.
Any emergency modification proposed by the Board under this subparagraph
shall modify such program only to the minimum extent necessary to
rectify the harm or reduction identified by the Board. Any emergency
modification of such program may be limited to any pair of points.
"(ii) The findings of fact by the Board in any proceeding held
pursuant to this subparagraph, if supported by substantial evidence,
shall be conclusive. No objection to a modification of the program
proposed by the Board under this subparagraph shall be considered by a
court unless such objection shall have been submitted to the Board, of
if it was not so submitted, unless there were reasonable grounds for
failure to do so.
"(E) The Board shall conduct a study of the procedure for
certification of air carriers and intrastate air carriers set forth in
subparagraphs (A) and (B) of this paragraph to evaluate--,
"(i) whether such procedure is consistent with the criteria set
forth in section 102 of this Act:
// 49 USC 1302. //
and
"(ii) the relative effectiveness of such procedure as compared
with other procedures for certification set forth in this Act,
including but not limited to, the procedures set forth in
paragraphs (5) and (6) of this subsection and in subsection (p) of
this section.
Not later than December 31, 1980, the Board shall complete such study
and report the results of such study to the Congress.".
Sec. 13. Section 401(d) of the Federal Aviation Act of 1958 (49 USC
1371(d)) is further amended by adding at the end thereof the following
new paragraph:
"(8) The Board may grant an application under subsection (d)(1), (2)
or (3) of this section (whether the application be for permanent or
temporary authority) for only a temporary period of time whenever the
Board determines that a test period is desirable in order to determine
if projected services, efficiencies, methods, rates, fares, charges, or
other projected results will in fact materialize and remain for a
sustained period of time, or to assess the impact of the new services on
the national air route structure, or otherwise to evaluate the proposed
new services. In any case where the Board has issued a certificate
under any one of such subsections on the basis that the air carrier
holding such certificate will provide innovative or low-priced air
transportation under such certificate, the Board upon petition, or its
own motion, may review the performance of such air carrier, and may
alter, amend, modify, suspend, or revoke such certificate or authority
in accordance with the procedures prescribed in section 401(g) of this
title, // 49 USC 1371 // on the grounds that such air carrier has not
provided, or is not providing, such air transportation.".
Sec. 14. Section 401(d) of the Federal Aviation Act of 1958 (49 USC
1371(d)) is further amended by adding at the end thereof the following
new paragraph:
"(9)(A) In any determination as to whether or not any applicant is
fit, willing, and able to perform properly the air transportation
specified in the application for a certificate described in paragraph
(1) (A), (2) (A), or (3) (A) of this subsection and to conform to the
provisions of this Act, the applicant shall have the burden of showing
that it is so fit, willing, and able.
"(B) In any determination as to whether the air transportation
specified in any application for a certificate described in paragraph
(1)(A), (2)(A), or (3)(A) of this subsection is or is not consistent
with the public convenience and necessity, an opponent of the
application shall have the burden of showing that such air
transportation is not consistent with the public convenience and
necessity.
"(C) Transportation covered by any application for a certificate
described in paragraph (1)(A),(2)(A), or (3)(A) of this subsection
shall, for the purposes of such paragraphs, be deemed to be consistent
with the public convenience and necessity, unless the Board finds based
upon a preponderance of the evidence that such transportation is not
consistent with the public convenience and necessity.".
Sec. 15. (a) Paragraph (3) of section 401(e) of the Federal Aviation
Act of 1958 (49 USC 1371 (e)(3)) is amended by striking out
"supplemental air transportation" and inserting in lieu thereof "foreign
charter air transportation".
(b) Paragraph (4) of section 401(e) of such Act is amended by
striking out the semicolon and all that follows down through the period
and inserting in lieu thereof a period.
(c) Paragraph (6) of section 401(e) of such Act is amended by
striking out "supplemental air carrier" and inserting in lieu thereof
"charter air carrier".
Sec. 16. Section 401(e) of the Federal Aviation Act of 1958 (49 U.
S.C. 1371(e)) is further amended by adding at the end thereof the
following new paragraph:
"(7) (A) On and after the date of enactment of this paragraph, the
Board shall not atach a closed-door restriction to any certificate
issued under this section. Any closed-door restriction attached to any
certificate issued before such date shall, on and ater such date, have
no force or effect. This subparagraph shall not apply to (i) a
closed-door restriction applicable to air transportation between two
points both of which are in the State of Hawaii, or (ii) a closed-door
restriction in effect on such date which resulted from a sale, exchange,
or transfer by any air carrier of its authority to provide air
transportation to another air carrier.
"(B) Upon application of any air carrier seeking removal or
modification of a term, condition, or limitation attached to a
certificate issued under this section to engage in interstate, overseas,
or fireign air transportation, the Board shall, within sixty days after
the filing of such application, set such application for oral
evidentiary hearings on the record or begin to consider such application
under the simplified procedures established by the Board in regulations
pursuant to subsection (p) of this section for purposes of eliminating
or modifying any such term, condition, or limitation which it finds is
inconsistent with the criteria set forth in section 102 of this Act. //
49 USC 1302. // Applications under this paragraph shall not be subject
to dismissal pursuant to section 401(c) (1) of this Act.
"(C) For purposes of this paragraph, the term 'closed-door
restriction' means any condition attached to a certificate to provide
interstate or overseas air transportation issued to any air carrier
under this section which prohibits such air carier from providing local
passenger service between any pair of points between which it is
authorized to operate pursuant to such certificate.".
Sec. 17. Section 401(f) of the Federal Aviation Act of 1958 (49 U.
S.C. 1371(f)) is amended by striking out "ceased:" and all that follows
down through the period and inserting in lieu thereof "ceased.".
Sec. 18. The first sentence of section 401(g) of the Federal
Aviation Act of 1958 (49 U.S.C 1371(g)) is amended by inserting "or
pursuant to the simplified procedures under subsection (p) of this
section" after "notice and hearings".
Sec. 19. (a) Section 401(j) of the Federal Aviation Act of 1958 is
amended to read as follows:
"(j)(1) No air carrier holding a certificate issued under this
section shall--,
"(A) terminate or suspend all air transportation which it is
providing to a point under such certificate; or
"(B) reduce any such air transportation below that which the
Board has determined to be essential air transportation for such
point;
unless such air carrier has first given the Board, any community
affected, and the State agency of the State in which such community is
located, at least 90 days notice of its intent to so terminate, suspend,
or reduce such air transportation. The Board may, by regulation or
otherwise, authorize such temporary suspension of service as may be in
the public interest.
"(2) If an air carrier holding a certificate issued pursuant to
section 401 of this Act // 49 USC 1371. // proposes to terminate or
suspend nonstop or single-plane air transportation between two points
being provided by such air carrier under such certificate, and such air
carrier is the only air carrier certificated pursuant to such section
401 providing nonstop or single plane air transportation between such
points, at least sixty days before such proposed termination or
suspension, such air carrier shall file with the Board and serve upon
each community to be directly affected notice of such termination or
suspension.".
(b) That portion of the table of contents contained in the first
section of such Act which appears under the side heading
" Sec. 401. Certificate of public convenience and necessity." is
amended by striking out
"(j) Application for abandonment."
and inserting in lieu thereof
"(j) Terminations, reductions, and suspensions of service.".
TO
CHARTER AIR CARRIERS
Sec. 20. (a) The center heading for section 401(n) of the Federal
Aviation Act of 1958, // 49 USC 1371. // is amended by striking out "
SUPPLEMENTAL" and inserting in lieu thereof " CHARTER".
(b) Paragraphs (1) through (4) of section 401(n) of such Act are
amended to read as follows:
"(n)(1) No air carrier providing air transportation under a
certificate issued under this section shall commingle, on the same
flight, passengers being transported in interstate or overseas charter
air transportation with passengers being transported in scheduled
interstate or overseas air transportation, except that this subsection
shall not apply to the carriage of passengers in air transportation
under group fare tariffs.
"(2) No rule, regulation, or order issued by the Board shall restrict
the marketability, flexibility, accessibility, or variety of charter
trips provided under a certificate issued under this section except to
the extent required by the public interest, and shall in no event be
more restrictive than those regulations regarding charter air
transportation in effect October 1, 1978.
"(3) Notwithstanding any other provision of this title, no
certificate issued under this section shall authorize the holder thereof
to provide charter air transportation between two points within the
State of Alaska unless, and then only to the extent to which, the Board,
in issuing or amending such certificate, may authorize after determining
that such charter air transportation is required by the public
convenience and necessity. This subsection shall not apply to a
certificate issued under this section to a person who, before July 1,
1977, minrinws its principal place of business within the State of
Alaska and conducted air transport operations between points within the
State of Alaska with aircraft having a certificated gross thakeoff
weight of more than 40,000 pounds.
"(4) No certificate issued under this section shall permit a charter
air carrier to sell or offer for sale an inclusive tour in air
transportation by selling or offering for sale individual tickets
directly to members of the general public, or to do so indirectly by
controlling, being controlled by or under common control with, a person
authorized by the Board to make such sales.".
(c) Paragraph (5) of section 401(n) of such Act // 49 USC 1371. //
is amended--,
(1) in the first sentence, by striking out "a supplemental air
carrier to comply with the provisions of paragraph (1), (3), or
(4) of this subsection" and inserting in lieu thereof "a charter
air carrier to comply with the provisions of subsection (q) or (r)
of this section"; and
(2) in the last sentence, by striking out "paragraphs (1), (3),
and (4) of this subsection" and inserting in lieu thereof
"subsections (q) and (r) of this section".
(d)(1) Section 401 of such Act is amended by adding at the end
thereof the following new subsections:
"(q)(1) No certificate shall be issued or remain in effect unless the
applicant for such certificate or the air carrier, as the case may be,
complies with regulations or orders issued by the Board governing the
filing and approval of policies of insurance or plans for self-insurance
in the amount prescribed by the Board which are conditioned to pay,
within the amount of such insurance, amounts for which such applicant or
such air carrier may become liable for bodily injuries to or the death
of any person, or for loss or damage to property of others, resulting
from the operation or maintenance of aircraft under such certificate.
"(2) In order to protect travelers and shippers by aircraft operated
by certificated air carriers, the Board may require any such air carrier
to file a performance bond or equivalent security arrangement, in such
amount and upon such terms as the Board shall prescribe, to be
conditoned upon such air carrier's making appropriate compensation to
such travelers and shippers, as prescribed by the Board, for failure on
the part of such carrier to perform air transportation services in
accordance with agreements therefor.
"(r) The requirement that each applicant for a certificate or any
other authority under this title must be found to be fit, willing, and
able to perform properly the transportation covered by its application
and to conform to the provisions of this Act and the rules, regulations,
and requirements of the Board under this Act, shall be a continuing
requirement applicable to each such air carrier with respect to the
transportation authorized by the Board. The Board shall by order,
entered after notice and hearing, modify, suspend, or revoke such
certificate or other authority, in whole or in part, for failure of such
air carrier to comply with the continuing requirement that the air
carrier be so fit, willing, and able, or for failure to file such
reports as the Board may deem necessary to determine whether such air
carrier is so fit, willing, and able.".
(2) That portion of the table of contents contained in the first
section of such Act which appears under the side heading
" Sec. 401. Certificates of public convenience and necessity." is
amended--,
(A) by striking out
to supplemental
air carriers."
and inserting in lieu thereof
to charter
air carriers";
and
(B) by adding at the end thereof
Sec. 21. (a) (1) Section 401 of the Federal Aviation Act of 1958 (49
U.S.C. 1371) is amended by adding at the end thereof the following new
subsection:
CERTIFICATES
"(p) (1) The Board shall promulgate rules establishing simplified
procedures for--,
"(A) the disposition of applications for a certificate to
engage in air transportation pursuant to subsection (d) (1), (2),
or (3) of this section; and
"(B) the alteration, amendment, modification, suspension, or
transfer of all or any part of any certificate pursuant to
subsection (f), (g), or (h) of this section.
// 49 USC 1371. // Such rules shall provide for adequate notice and an
opportunity for any interested person to file appropriate written
evidence and argument, but need not provide for oral evidentiary
hearings. Such rules may provide that such written evidence and
argument shall be filed by such person as part of a protest or
memorandum filed with respect to such application under subsection (c)
of this section.
"(2) The Board may use such simplified procedures in any case if the
Board determines that the use of such simplified procedures is in the
public interest. The rules adopted by the Board pursuant to this
subsection shall, to the extent the Board finds it practicable, set
forth the standards it intends to apply in determining whether to employ
such simplified procedures, and in deciding cases in which such
procedures are employed.".
(2) That portion of the table of contents contained in the first
section of such Act which appears under the side heading
" Sec. 401. Certificate of public convenience and necessity." is
amended by inserting at the end thereof
certificates.".
(b) (1) Section 402 of the Federal Aviation Act of 1958 (49 U.S.C.
1372) is amended by adding at the end thereof the following new
subsection:
"(h) The Board shall promulgate rules establishing simplified
procedures for--,
"(1) the disposition of applications for a permit to engage in
foreign air transportation pursuant to this section; and
"(2) the alteration, amendment, modification, suspension, or
transfer of all or any part of any permit pursuant to subsection
(f) of this section.
Such rules shall provide for adequate notice and an opportunity for all
interested persons to file appropriate written evidence and argument,
but need not provide for oral evidentiary hearings.".
(2) That portion of the table of contents contained in the first
section of such Act which appears under the side heading
" Sec. 402. Permits to foreign air carriers."
is amended by inserting at the end thereof
"(h) Procedures for processing applications for permits.".
Sec. 22. Section 403(c) of the Federal Aviation Act of 1958 (49 U.
S.C. 1373(c)) is amended to read as follows:
"(c) (1) Except as provided in paragraph (2) of this subsection, no
change shall be made in any rate, fare, or charge, or any
classification, rule, regulation, or practice affecting such rate, fare,
or charge, or the value of the service thereunder, specified in any
effective tariff of any air carrier until thirty days after notice of
the proposed change has been filed, posted, and published in accordance
with subsection (a) of this section, except the Board may establish an
alternative notice requirement, of not less than twenty-five days, to
allow an air carrier to match the fares or charges specified in another
air carrier's proposed tariff. Any notice specified under this
subsection shall plainly state the change proposed to be made and the
time such change will take effect.
"(2) If the effect of any proposed tariff change would be to
institute a fare that is outside of the applicable range of fares
specified in subparagraphs (A) and (B) of section 1002(d) (4) of this
Act, or specified by the Board under section 1002(d) (7) of this Act, or
would be to institute a fare to which such range of fares does not
apply, then such proposed change shall not be implemented except after
sixty days' notice filed in accordance with regulations prescribed by
the Board.
"(3) In exercising its power to suspend tariffs under sections 1002(
g) and 1002(j) of this Act, // 49 USC 1482. // the Board shall file and
deliver a statement in writing of its reasons for such suspension, as
required under section 1002(g), at least thirty days before the date on
which the affected tariff would otherwise go into effect.".
Se c. 23. Section 404(a) (1) of the Federal Aviation Act of 1958 (49
U.S.C. 1374(a) (1)) is amended by inserting "authorized to engage in
scheduled air transportation by certificate or by exemption under
section 416(b) (3) of this title" // 49 USC 1386. // immediately before
the first semicolon.
Sec. 24. (a) (1) Clause (3) of the second sentence of section 406(b)
of the Federal Aviation Act of 1958 (49 U.S.C. 1376(b) is amended to
read as follows: "(3) the need of each such air carrier (other than a
charter air carrier) for compensation for the transportation of mail
sufficient to insure the performance of such service, and--,
"(A) during the period beginning on the date of enactment of
this clause and ending on January 1, 1983, both dates inclusive,
together with all other revenue of the air carrier from the
service for which the compensation is being paid; and
"(B) after January 1, 1983, together with all other revenue of
the air carrier;
to enable such air carrier under honest, economical, and efficient
management, to provide (except for modifications with respect to an
individual point determined after January 1, 1983, to be required by the
public interest, after giving interested parties an opportunity for an
evidentiary hearing with respect to air transportation for such
individual point) air transportation of at least the same extent,
character, and quality as that provided during the year ending December
31, 1977, to maintain and continue the development of air transportation
to the extent and of the character and quality required for the commerce
of the United States, the Postal Service, and the national defense.".
(2) Section 406(b) of the Federal Aviation Act of 1958 is amended by
inserting after the second sentence the following new sentences: "
Notwithstanding any other provision of this section, rates of
compensation paid to any carrier under this section for service
performed between the date of enactment of this sentence and January 1,
1983, shall be based on the subsidy need of such carrier with respect to
service performed to points for which such carrier was entitled to
receive compensation for serving during calendar year 1977. In the case
of any local service carrier, such subsidy need shall be based on the
adjusted eligible need of such carrier determined in a matter consistent
with the provisions of Local Service Class Subsidy Rate VIII, with
technical adjustments, and in the case of any other carrier receiving
compensation during the twelve months ended June 30, 1978, such subsidy
need shall be determined pursuant to the method in effect during the
twelve months ended June 30, 1978. Any air carrier receiving
compensation from the Board pursuant to this section which, before
January 1, 1986, terminates service to a point for which such
compensation is paid shall not, if such service is resumed by such air
carrier, be eligible for compensation from the Board under this section
for such service. Nothing in this subsection shall be construed as
prohibiting any air carrier specified in the preceding sentence from
applying for and receiving compensation for such service under section
419 of this title.".
(b) Subsection (c) of such section 406 (49 U.S.C. 1376 (c) is amended
by adding at the end thereof the following new sentence: " The Board
shall make no payments under this section for any services performed
after January 1, 1986.".
Sec. 25. (a) The last sentence of section 406(b) of the Federal
Aviation Act of 1958 (49 U.S.C. 1376 (b) is amended as follows:
(1) By striking out "the year 1966" and inserting in lieu
thereof "the years 1964, 1965, and 1966".
(2) By striking out " Rate III- A" and inserting in lieu
thereof " Rates III and III- A".
(3) By striking out "order E-23850 (44 CAB 138 et seq. and 44
CAB 637 et seq.)".
(b) Section 12(b) of Public Law 95 - 163, Ninety-fifth Congress,
approved November 9, 1977, // 49 USC 1376. // is amended by striking
out "the year 1966" and inserting in lieu thereof "the year 1964, 1965,
or 1966".
Sec. 26. (a) Section 408 of the Federal Aviation Act of 1958 (49 U.
S.C. 1378) is amended as follows:
(1) Subsection (a) of such section 408 (49 U.S.C. 1378(a)) is
amended to read as follows:
" Sec. 408. (a) Except as provided in subsection(b) of this section,
it shall be unlawful--,
"(1) for two or more air carriers, or for any air carrier and
any other common carrier or any person substantially engaged in
the business of aeronautics, to consolidate or merge their
properties, or a substantial portion thereof, into one person for
the ownership, management, or operation of the properties
previously in separate ownerships;
"(2) for any air carrier, any person controlling an air
carrier, any other common carrier, or any person substantially
engaged in the business of aeronautics, to purchase, lease, or
contract to operate all or a substantial portion of the properties
of any air carrier;
"(3) for any air carrier or person controlling an air carrier
to purchase, lease, or contract to operate all or a substantial
portion of the properties of any person substantially engaged in
the business of aeronautics otherwise than as an air carrier;
"(4) for any foreign air carrier or person controlling a
foreign air carrier to acquire control in any manner whatsoever of
any citizen of the United States substantially engaged in the
business of aeronautics;
"(5) for any air carrier or person controlling an air carrier,
any other common carrier, or any person substantially engaged in
the business of aeronautics to acquire control of any air carrier
in any manner whatsoever;
"(6) for any air carrier or person controlling a certificated
air carrier to acquire control, in any manner whatsoever, of any
person substantially engaged in the business of aeronautics other
than as an air carrier; or
"(7) for any person to continue to maintain any relationship
established in violation of any of the foregoing paragraphs of
this subsection.".
(2) Subsection (b) of such section 408 (49 U.S.C. 1378(b)) is
amended to read as follows:
"(b)(1) In any case in which one or more of the parties to a
consolidation,
merger, purchase, lease, operating contract, or acquistion of
control, specified in subsection (a) of this section is an air
carrier
holding a valid certificate issued by the Board under section 401(d) of
this section to engage in interstate or overseas air transportation, a
foreign air carrier, or a person controlling, controlled by, or under
common control with, such an air carrier or a foreign air carrier, the
person seeking approval of such transaction shall present an application
to the Board, and at the same time, a copy to the Attorney General and
the Secretary of Transpotation, and thereupon the Board shall notify the
persons involved in the transaction and other persons known to have a
substantial interest in the proceeding, of the manner in which the Board
will proceed in disposing of such application. Unless, after a hearing,
the Board finds that the transaction will not be consistent with the
public interest or that the conditions of this section will not be
fulfilled, it shall, by order, approve such transaction, upon such terms
and conditions as it shall find to be just and reasonable and with such
modifications as it may prescribe, except the Board shall not approve
such transaction-,
"(A) if it would result in a monopoly or would be in
furtherance of any combination or conspiracy to monopolize or to
attempt to monopolize the business of air transportation in any
region of the United States; or
"(B) the effect of which in any region of the United States may
be substantially to lessen competition, or to tend to create a
monopoly, or which in any other manner would be in restraint of
trade, unless the Board finds that the anticompetitive effects of
the proposed transaction are outweighted in the public interest by
the probable effect of the transaction in meeting significant
transportation conveniences and needs of the public, and unless it
finds that such singnificant transportation conveniences and needs
may not be satified by a reasonably available alternative having
materially less anticompetitive effects.
The party challenging the transaction shall bear the burden of proving
the anticompetitive effects of such transaction, and the proponents of
the transaction shall bear the burden of proving that it meets the
significant transportation conveniences and needs of the public and that
such conveniences and needs may not be satisfied by a less
anticompetitive alternative.
"(2) In any case in which the Board determines that the transaction
which is the subject of the application does not affect the control of
an air carrier directly engaged in the operation of aircraft in air
transportation and determines that neither the Attorney General, nor the
Secretary, nor any other person disclosing a substantial interest in the
transaction then currently is requesting a hearing, the Board, no sooner
than 30 days after publication in the Federal Register of notice of the
Board's intention to dispose of such application without a hearing (a
copy of which notice shall be furnished by the Board to the Attorney
General and the Secretary not later than the day following the date of
such publication), may determine that the public interest does not
require a hearing and, in accordance with the standards set forth in
subparagraphs (A) and (B) of paragraph (1) of this subsection, by
order,approve or disapprove such transaction.
"(3)(A) In any case in which none of the parties to a consolidation,
merger, purchase, lease, operating contract, or acquisition of control,
specified in subsection (a) of this section, is an air carrier holding a
valid certificate issued by the Board under section 401(d) of this title
to engage in interstate or overseas air transportation, a foreign air
carrier, or a person controlling, controlled by, or under common control
with, such an air carrier or a foreign air carrier, any person seeking
approval of such transaction shall file with the Board not later than
the forty-fifth day before the effective date of such transaction, a
statement of its intent to enter into any of the prohibited acts set
forth in subsection (a) of this section. The Board may, within
forty-five days after the date of such filing, require such person to
file an application for approval pursuant to the requirements of
paragraph (1) of this subsection if it finds either that the proposed
transaction may monopolize, tend to monopolize, or otherwise restrain
competition in air transportation in any section of the country or that
the person may not be fit, willing, and able to properly perform the
transportation authorized by any license which is a part of such
transaction and to conform to the provisions of this Act and the rules,
regulations, and requirements of the Board issued pursuant to this Act.
Subject to subparagraph (B) of this paragraph, if the Board fails to
require such person to file an application pursuant to such paragraph
(1) within such forty-five days, the proposed transaction shall not be
subject to subsection (a) of this section.
"(B) If the Board determines that any transaction is not subject to
subsection (a) of this section as a result of the last sentence of
subparagraph (A) of this paragraph and such transaction received such
statutory exemption due to any fraud, misrepresentation, or omission of
relevant and material facts, the Board may, pursuant to rules which it
is authorized to prescribe, make such transaction subject to subsection
(a) of this section.".
(b) Section 408(c) of such Act // 49 USC 1378 //
is amended by inserting "any person controlling such air carrier,"
after "air carrier," the first place it appears in such subsection.
Sec. 27. (a) Section 409 of the Federal Aviation Act of 1958 (49 U.
S.C. 1379) is amended by striking out the center heading of such section
and the center heading for subsection (a) of such section and inserting
in lieu thereof the following section center heading:
(b) Section 409 of the Federal Aviation Act of 1958 is also amended
by striking out " Sec. 409. (a)" and inserting in lieu thereof " Sec.
409.".
(c) Section 409 (as amended by subsections (a) and (b) of this
section) is amended as follows:
(1) Paragraphs (1), (2), and (3) are each amended by striking
out "is engaged in any phase of" and inserting in lieu thereof
"is substantially engaged in the business of".
(2) Paragraphs (4), (5), and (6) are each amended by striking
out "engaged in any phase of" and inserting in lieu thereof
"substantially
engaged in the business of".
(d) Section 409(b) of the Federal Aviation Act of 1958 (49 U.S.C
1379(b)) is hereby repealed.
(e) That portion of the table of contents contained in the first
section of the Federal Aviation Act of 1958 which appears under the
center heading
is amended by striking out
" Sec. 409. Prohibited interests.
"(a) Interlocking relationships.
"(b) Profit from transfer of securities."
and inserting in lieu thereof
" Sec. 409. Interlocking reationships.".
Sec. 28. (a) Section 412(a) of the Federal Aviation Act of 1958(49
U.S.C. 1382(a)) is amended-,
(1) by inserting in the subsection center heading " AFFECTING
FOREIGN AIR TRANSPORTATION" immediately after " AGREEMENTS"; and
(2) by inserting "foreign" immediately after "affecting".
(b) Section 412(b) of such Act is amended by inserting "affecting
foreign air transportation" immediately after "agreement" each place it
appears in such section.
(c) Section 412 of such Act is further amended by adding at the end
thereof the following new subsections:
INTERSTATE OR
OVERSEAS AIR TRANSPORTATION
"(c)(1) Any air carrier may file with the Board a true capy, or, if
oral, a true and complete memorandum, of any contract or agreement
(whether enforceable by provisions for liquidated damages, penalties,
bonds, or otherwise), or a request for authority to discuss possible
cooperative working arrangements, affecting interstate or overseas air
transportation and in force on the effective date of this subsection, or
thereafter entered into, or any modification or cancellation thereof,
between such air carrier and any other air carrier, foreign air carrier,
or other carrier.
"(2)(A) The Board shall by order disapprove any contract, agreement,
or request filed pursuant to paragraph (1) of this subsection, whether
or not previously approved by it, that it finds to be adverse to the
public interest or in violation of this Act, and shall by order approve
any contract, agreement, or request, or any modification or cancellation
thereof, that it does not find to be adverse to the public interest, or
in violation of this Act, except that-,
"(i) the Board may not approve or, after periodic review,
continue its approval of any such contract, agreement, or request,
or any modification or cancellation thereof, which substantialll
reduces or eliminates competition, unless it finds that the
contract, agreement, or request is necessary to meet a serious
transportation
need or to secure important public benefits and it does not find
that such need can be met or such benefits can be secured by
reasonably available alternative means having materially less
anticompetitive effects;
"(ii) the Board may not approve any contract or agreement
between an air carrier not directly engaged in the operation of
aircraft in air transportation and a common carrier subject to the
Interstate Commerce Act, as amended, governing the compensation to
be received by such common carrier for transportation services
perfomed by it; and
"(iii) the Board may not approve any such contract or
agreement, or any modification or cancellation thereof, that
limits the level of capacity among air carriers in markets in
which they compete, that fixes rates, fares, or charges between or
among air carriers (except for joint rates, fares, or charges).
"(B) In any proceeding before the Board involving the application of
the standards set forth in subparagraph (A)(i) of this paragraph, the
party opposing the proposed contract, agreement, or request shall have
the burden of proving the reduction or elimination of competition, and
the availability of alternative means having less anticompetitive
effects, and the party defending the proposed contract, agreement, or
request shall have the burden of proving transportation need or public
benefits.
"(C) The findings required by subparagraph (A)(i) of this paragraph,
shall be included in any order of the Board approving or disapproving
any contract or agreement, or any memorandum of any contract or
agreement, or any modification or cancellation thereof, or any request.
"(d) Upon the filing of any contract or agreement, or any
modification or cancellation thereof, or any request for authority to
discuss possible cooperative working arrangements, pursuant to
subsection (a) or (c) of this section, the Board, in accordance with
regulations which it prescribes, shall provide to the Attorney General
and the Secretary of Transportation written notice of, and an
opportunity to submit written comments on, the filed document. The
Board may, upon its own initiative or if requested by the Attorney
General or such Secretary, hold a hearing, in accordance with
regulations prescribed by the Board, to determine if a contract or
agreement or request for discussion authority, whether or not previously
approved, is consistent with the provisions of this Act.".
(d) That portion of the table of contents which appears under the
side heading
" Sec. 412. Pooling and other agreements." is amended by striking
out
"(a) Filing of agreements required.
"(b) Approval by Board."
and inserting in lieu thereof
"(a) Filing of agreements affecting foreign air transportation
required.
"(b) Approval by Board.
"(c) Filing and approval of agreements affecting interstate or
overseas air transportation.
"(d) Proceedings upon filing.".
Sec. 29. (a) Section 412 of the Federal Aviation Act of 1958 (49 U.
S.C. 1382) is amended by adding at the end thereof the following new
subsection:
"(e)(1) Notwithstanding any other provision of law, any mutual aid
agreement between air carriers which was approved by the Board before
the date of enactment of this subsection and which is in effect on such
date of enactment shall be deemed disapproved and not in effect on and
after such date of enactment.
"(2) No air carrier shall enter into any mutual aid agreement with
any other air carrier, unless such air carrier files a true copy of such
agreement with the Board and the Board approves such agreement pursuant
to the provisions of this section. Notwithstanding subsection (c) of
this section, the Board shall not approve any such agreement unless such
agreement provides (A) that any air carrier will not receive payments
for any period which exceed 60 per centum of the direct operating
expenses during such period, (B) that benefits under the agreement are
not payable for more than eight weeks during any labor strike, and that
such benefits may not be for losses incurred during the first thirty
days of any labor strike, and (C) that any party to such agreement will
agree to submit the issues causing any labor strike to binding
arbitration pursuant to the Railway Labor Act // 45 USC 151 // if the
striking employees request such binding arbitration.
"(3) For purposes of this subsection, the term-,
"(A) 'mutual aid agreement' means any contract or agreement
between air carriers which provides that any such air carrier will
receive payments from the other air carriers which are parties to
such contract or agreement for any period during which such air
carrier is not engaging in air transportation, or is providing
reduced levels of service in air transportation, due to a labor
strike; and
"(B) 'direct operating expenses' includes interest expenses but
does not include depreciation or amortization expenses.".
(b) That portion of the table of contents contained in the first
section of the Federal Aviation Act of 1958 which appears under the side
heading
" Sec. 412. Pooling and other agreements." is amended by inserting
at the end thereof
"(e) Mutual aid agreements.".
Sec. 30. (a) Section 414 of the Federal Aviation Act of 1958 (49 U.
S.C. 1384) is amended to read as follows:
// 49 USC 1378, 1379, 1382. //
" Sec. 414. In any order made under section 408, 409, or 412 of this
Act, the Board may, as part of such order, exempt any person affected by
such order from the operations of the 'antitrust laws' set forth in
subsection (a) of the first section of the Clayton Act (15 U. S.C. 12)
to the extent necessary to enable such person to proceed with the
transaction specifically approved by the Board in such order and those
transactions necessarily contemplated by such order, except that the
Board may not exempt such person unless it determines that such
exemption is required in the public interest."
(b) That protion of the table of contents contained in the first
section of such Act which appears under the center heading
is amended by striking out
" Sec. 414. Legal restraints." and inserting in lieu thereof
" Sec. 414. Antitrust exemption.".
Sec. 31. (a) Section 416(b)(1) of the Federal Aviation Act of 1958
(49 U.S.C. 1386(b)(1)) is amended to read as follows:
"(b)(1) Except as povided in paragraph (2) of this subsection, the
Board, from time to time and to the extent necessary, may exempt from
the requirements of this title or any provision thereof, or any rule,
regulation, term, condition, or limitation prescribed thereunder, any
person or class of persons if it finds that the exemption is consistent
with the public interest.
(b) Section 416(b) of such Act // 49 USC 1386. // is amended by
adding at the end thereof the following new paragraph:
"(3) The Board may by order relieve foreign air carriers who are not
directly engaged in the operation of aircraft in foreign air
transportation from the provisions of this Act to the extent and for
such periods as such relief may be in the public interest.".
Sec. 32. Section 416(b) of the Federal Aviation Act of 1958 (49 U.S.
C. 1386(b)) is further amended by adding at the end thereof the
following new paragraphs:
"(4) Subject to paragraph (5) of this subsection, any air carrier in
air transportation which provides (A) passenger service solely with
aircraft having a maximum passenger capacity of less than fifty-six
passengers, or (B) cargo service in air transportation solely with
aircraft having a maximum payload capacity of less than eighteen
thousand pounds, shall be exempt from the requirements of subsection (a)
of section 401 of this title, // 49 USC 1371. // and of such other
sections of this Act as may be prescribed in regulations promulgated by
the Board, if such air carrier conforms to such liability insurance
requirements and such other reasonable regulations as the Board shall
from time to time adopt in the public interest. The Board may by
regulation increase the passenger or property capacities specified in
this paragraph when the public interest so requires.
"(5) The exemption from section 401 of this title or any other
requirement of this Act shall not apply to any air transportation by any
air carrier between points both of which are in the State of Alaska, or
one of which is in the State of Alaska and the other in Canada, unless
such air carrier also holds authority to provide such air transportation
from the State of Alaska.
"(6) Any air carrier operating within the State of Alaska pursuant to
the exemption from section 401 of this title shall not be subject to any
limitation, promulgated by the Board, on the number or location of
points to be served by such air carrier, or any limitation on the
frequency of service by such air carrier to points within such State,
unless the Board, after a hearing, finds that the operation of such air
carrier substantially impairs the ability of a certificated air carrier
to provide the service authorized by its certificate, including but not
limited to, the minimum service for such State specified in section
419(c)(2) of this title.".
Sec. 33. (a) Title IV of the Federal Aviation Act of 1958 is amended
by adding at the end thereof the following new section.
" Sec. 419. (a)(1) For purposes of this subsection, // 49 USC 1389 //
the term 'eligible point' means any point in the United States to which,
on the date of enactment of this section, any air carrier--,
"(A) is providing service pursuant to a certificate issued to
such carrier under section 401 of this title; or
"(B) is authorized pursuant to such certificate to provide such
service, but such service is suspended on such date of enactment.
"(2)(A) With respect to each eligible point which on the date of
enactment of this section is served by not more than one air carrier
holding a certificate issued under section 401 of this title, // 49 USC
137. // not later than the last day of the one-year period beginning on
such date of enactment, the Board, after considering the views of any
interested community and the State agency of the State in which such
community is located, shall determine what is essential air
transportation for such point.
"(B) With respect to any eligible point which on the date of
enactment of this section is served by more than one air carrier holding
a certificate issued under section 401 of this title and which
thereafter recives service by not more than one such air carrier, not
later than the last day of the six-month period beginning on the date on
which the Board receives notice that service to such point will be
provided by not more than one such air carrier, the Board, after
considering the views of any interested community and the State agency
of the State in which such community is located, shall determine what is
essential air transportation to such point.
"(C) The Board shall periodicall review the determination of what is
esssential air transportation to each eligible point, and may, based
upon such review and consultations with any interested community and the
State agency of the State in which such community is located, make
appropriate adjustments as to what is essential air transportation to
such point.
"(3) No air carrier shall terminate, suspend, or reduce air
transportation to any eligible point below the level of essential air
transportation established by the Board under paragraph (2) unless such
air carrier--,
"(A) if such air carrier--,
compensation
pursuant to paragraph (5) of this subsection for
service to such eligible point,
has given the Board, the appropriate State agency or agencies,
and the communities affected at least ninety days notice prior to
such termination, suspension, or reduction; and
"(B) if such air carrier does not hold such a ceritficate and
is not receiving compensation pursuant to paragraph (5) of this
subsection for service to such eligible point, has given the
Board, the appropriate State agency or agencies, and the
communities affected at least thirty days notice prior to such
termination, suspension, or reduction.
"(4) Whenever the Board determines that essential air transportation
will not be provided to any eligible point without compensation--,
"(A) the Board shall provide notice that applications may be
submitted by any air carrier which is willing to provide essential
air transportation to such point for compensation under this
subsection In selecting an applicant to provide essential air
transportation to such point for compensation the Board shall,
among other factors, specifically consider--,
communities
involved;
scheduled
air service in the vicinity of the communities for
which essential
air transportation is proposed to be provided; and
the experience
of an applicant in providing scheduled air service, or
significant patterns of nonscheduled air service
pursuant to an
exemption granted pursuant to section 416 of this title,
// 49 USC 1386. //
in
Alaska; and
"(B) the Board shall establish, in accordance with the
guidelines promulgated under subsection (d) of this section, a
rate of compensation to be paid for providing such essential air
transportation.
"(5) The Board shall make payments of compensation under this
subsection at times and in a manner determined by the Board to be
appropriate. The Board shall continue to pay compensation to any air
carrier to provide essential air transportation to any eligible point
only for so long as the Board determines it is necessary in order to
maintain essential air transportation to such eligible point.
"(6) Notwithstanding section 401(j) of this title, if an air carrier
has provided notice to the Board under paragraph (3) of such air
carriers intention to suspend, terminate, or reduce service to any
eligible point below the level of essential air transportation to such
point, and if at the conclusion of the applicable period of notice the
Board has not been able to find another air carrier to provide essential
air transportation to such point, the Board shall require the carrier
which provided such notice to continue such service to such point for an
additional 30-day period, or until another air carrier has begun to
provide essential air transportation to such point, whichever first
occurs. If at the end of such 30-day period the Board determines that
no other air carrier can be secured to provide essential air
transportation to such eligible point on a continuing basis, either with
or without compensation, then the Board shall extend such requirement
for such additional 30-day periods (making the same determination at the
end of each such period) as may be necessary to continue air
transportation to such eligible point until an air carrier can be
secured to provide essential air transportation to such eligible point
on a continuing basis.
"(7)(A) If any air carrier (i) which is providing air transportation
to any eligible point, and (ii) which is receiving compensation under
this subsection, // 49 USC 1376. // or under section 406 of this title
for providing such air transportation to such point, is required by the
Board to continue service to such point beyond the date on which such
air carrier would, but for paragraph (6) of this subsection, be able to
suspend, terminate, or reduce service to such point below the level of
essential air transportation to such point, then after such date such
air carrier shall continue to receive such compensation until the Board
finds another air carrier to provide essential air transportation to
such point.
"(B) If the Board requires an air carrier which holds a certificate
issued under section 401 of this title, // 49 USC 1371 // and which is
providing air transportation to any eligible point without compensation
pursuant to paragraph (5) of this subsection or section 406 of this
title to continue to provide essential air transportation to such point
beyond the 90-day notice period after which, but for paragraph (6) of
this subsection, such air carrier would be able to suspend, terminate,
or reduce service to such point below essential air transportation for
such point, then the Board shall compensate such air carrier for any
losses that the air carrier incurs in complying with this subparagraph
after the last day of such 90-day period, except that the Board shall
not make any payments under this subparagraph, to any trunk air carrier
for service to such point after the last day of the one-year period
beginning on the date on which any payment is made to such air carrier
under this subparagraph for service to such point.
"(C) If the Board requires an air carrier which does not hold a
certificate issued under section 401 of this title, // 49 USC 1371 //
but which is providing air transportation to any eligible point without
compensation pursuant to paragraph (5) of this subsection or section 406
of this title, // 49 USC 1376. // to continue to provide essential air
transportation to such point beyond the 30-day notice period after
which, but for paragraph (6) of this subsection, such air carrier would
be able to suspend, terminate, or reduce service to such point below
essential air transportation for such point, then the Board shall
compensate such air carrier for any losses that such air carrier incurs
in complying with this paragraph after the last day of such 30-day
period.
"(9) During any period for which the Board requires any air carrier
to continue providing air transportation to an eligible point which such
air carrier has proposed to terminate, reduce, or suspend, the Board
shall continue to make every effort to secure an air carrier to provide
at least essential air transportation to such eligible point, on a
continuing basis.
"(10) Unless the Board has determined what is essential air
transportation for any eligible point pursuant to paragraph (2) of this
subsection, the Board shall, upon petition of any appropriate
representative of such point, prohibit any termination, suspension, or
reduction of air transportation which reasonably appears to deprive such
point of essential air transportation, until the Board has completed
such determination.
"(11)(A) After January 1, 1983, any air carrier may file an
application with the Board seeking to have any compensation provided
under section 406 of this title to the air carrier then serving an
eligible point terminated in order to allow the applicant air carrier to
provide air transportation to that eligible point for compensation under
this section. The Board shall grant such application, after notice and a
hearing if requested by the air carrier receiving subsidy under section
406, taking into consideration the objectives specified in subparagraphs
(A) (i) and (ii) of paragraph (5) of this subsection, if the applicant
can show that termination of the compensation being paid under section
406, and that the provision of service by such applicant with
compensation under this section, will result in a substantial--,
"(i) improvement in the air service being provided such
eligible point; and
"(ii) decrease in the amount of compensation that will be
required to continue essential air transportation to such eligible
point.
"(B) After January 1, 1983, any air carrier may file an application
with the Board seeking to have the compensation provided under this
section to the air carrier then serving an eligible point, and which has
been serving such eligible point for at least two years preceding the
date on which such application is filed, terminated in order to allow
the applicant air carrier to provide essential air transportation to
such eligible point for compensation under this section. The Board
shall grant such application, after notice and a hearing if requested by
an air carrier receiving compensation under this section, taking into
consideration the objectives specified in subparagraphs (A)(i) and (ii)
of paragraph (4) of this subsection, if the applicant air carrier can
show that termination of the compensation being provided to the air
carrier then serving such eligible point, and the provision of essential
air transportation for compensation under this section by the applicant
air carrier will result in a substantial--,
"(ii) improvement in the air transportation being provided such
eligible point with no increase in the amount of compensation then
being paid; or
"(ii) decrease in the amount of compensation that will be
required to continue essential air transportation to that eligible
point.
(C) In disposing of each application filed under this subsection, the
Board shall, in addition to considering the objectives specified in
subparagraphs (A)(i) and (ii) of paragraph (4), solicit and give great
weight to the opinions of the communities affected by the proposed
replacement of an air carrier under this subsection.
"(b)(1) For purposes of this subsection, the term 'eligible point'
means--,
"(A) any point in the United States which has been deleted
from a certificate issued under section 401 of this title, // 49 USC
1371. //
between
July 1, 1968, and the date of enactment of this section, both
dates inclusive, and which the Board designates pursuant to
paragraph 2 of this subsection; and
"(B) any other point in the State of Alaska or Hawaii
designated by the Board under paragraph 2 of this subsection.
"(2)(A) Not later than January 1, 1980, after considering the views
of State agencies and other interested parties, the Board shall, by
rule, establish objective criteria for designating points as eligible
points. In establishing or modifying such criteria, the Board shall
consider, amoung other factors, the level of traffic generated by the
point concerned, its future traffic generating potential, the cost to
the Federal Government of providing essential air transportation to such
point, the alternative means of transportation available to the
residents of such point for access to the national transportation system
and its principal communities of interest, and the degree of isolation
of such point from the national air transportation system. The Board
may, ffrom time to time, by rule, modify the criteria established by it
under this subparagraph.
"(B) Not later than january 1, 1980, the Board shall begin to review
each point described in paragraph (1)(A) of this subsection to determine
whether such point shall be designated as an eligible point under the
criteria established under subparagraph (B) of this paragraph. The
review and designation of each such point shall be completed before
January 1, 1982.
"(C) On or after January 1, 1982, the Board, upon application by any
interested party, may designate any point an eligible point under the
criteria established under subparagraph (B) of this paragraph (i) if
such point is in the State of Alaska or the State of Hawaii, and (ii) if
such designation would not increase the total number of points receiving
a subsidy under this section and section 406 of this title, // 49 USC
1376. // above the total number of points receiving a subsidy under
such section 406 on July 1, 1968.
"(3) The designation of any point by the Board under paragraph (2) of
this subsection as an eligible point may be withdrawn if the point no
longer meets the criteria for designation as an eligible point.
"(4) (A) With respect to any point which the Board designates as an
eligible point pursuant to pragraph (2) of this subsection, not later
than the day of the six-month period beginning on the date on which the
Board makes such designation, the Board, after considering the views of
any interested community and the State agency of the State in which such
community is located, shall determine what is essential air
transportation to such point.
"(B) The Board shall periodically review the determination of what is
essential air transportation to each eligible point, and may, based upon
such review and consultations with any interested community and any
State agency of the State in which such community is located, make
appropriate adjustments as to what is essential air transportation to
such point.
"(5) Whenever the Board determines that essential air transportation
will not be provided to any eligible point without compensation--
"(A) the Board shall provide notice that applications may be
submitted by any air carrier which is willing to provide essential
air transportation to such point for compensation under this
subsection. In selecting an applicant to provide essential air
transportation to such point for compensation, the Board shall,
among other factors, specifically consider--,
communities
involved;
scheduled
air service in the vicinity of the communities for which
essential air transportation is proposed to be
provided; and
the
experience of an applicant in providing scheduled air
service,
or significant patterns of nonscheduled air service
pursuant
to an exemption granted pursuant to section 416 of this
title,
// 49 USC 1386. //
in Alaska; and
"(B) the Board shall establish, in accordance with the
guidelines promulgated under subsection (d) of this section, a
rate of compensation to be paid for providing such essential air
transportation.
"(6) The Board shall make payments of compensation under this
subsection at times and in a manner determined by the Board to be
appropriate. The Board shall continue to pay compensation to any air
carrier to provide essential air transportation to any eligible point
only for so long as the Board determines it is necessary in order to
maintain essential air transportation to such eligible point.
"(7) Prior to terminating, suspending, or reducing essential air
transportation to any eligible point, an air carrier--,
"(A) if such air carrier--,
// 49 USC 1371. //
or
compensation
the appropriate
State agency or agencies, and the communities affected
at least ninety days notice prior to such termination,
suspension, or reduction; and
"(B) if such air carrier does not hold such a certificate and
is not receiving compensation pursuant to paragraph (6) of this
subsection for service to such eligible point, shall give the
Board, the appropriate State agency or agencies, and the
communities affected such notice (not to exceed 30 days), as the
Board shall by regulation prescribe.
"(8) (A) After January 1, 1983, any air carrier may file an
application with the Board seeking to have the compensation provided
under this subsection to the air carrier then serving an eligible point,
and which has been serving such eligible point for at least 2 years
preceding the date on which such application is filed, terminated in
order to allow the applicant air carrier to provide essential air
transportation to such eligible point for compensation under this
subsection. The Board shall grant such application, after notice and a
hearing if requested by an air carrier receiving compensation under this
section, taking into consideration the objectives specified in
subparagraphs (A) (i) and (ii) of paragraph (5) of this subsection, if
the applicant can show that termination of the compensation being
provided to the air carrier then serving such eligible point, and that
the provisions of essential air transportation for compensation under
this subsection by the applicant, will result in a substantial--,
"(i) improvement in the air transportation being provided such
eligible point with no increase in the amount of compensation then
being paid; or
"(ii) decrease in the amount of compensation that will be
required to continue essential air transportation to that eligible
point.
"(B) In disposing of each applicant filed under this paragraph, the
Board shall, in addition to considering the objectives specified in
subpragraphs (A) (i) and (ii) of paragraph (5), solicit and give great
weight to the opinions of the communities affected by the proposed
replacement of an air carrier under this subsection.
"(c) (1) For purposes of this subsection the term 'commuter air
carrier' means an air carrier exempt from any requirement of this Act
under section 416 (b) (3) of this title.
"(2) Notwithstanding section 416 (b) of this title, the Board shall
not provide any compensation under this section to any commuter air
carrier to provide service to any eligible point, and the Board shall
prohibit any commuter air carrier from providing service to any eligible
point, unless the Board determines that such commuter air carrier--,
"(A) is fit, willing, and able to perform such service; and
"(B) that all aircraft which will be used to perform such
service and all operations relating to such service will conform
to the
safety standards established by the Administrator under paragraph
(3) of this subsection.
"(3) Not later than the one-hundred-eightieth day after the date of
enactment of this paragraph, the Administrator, by regulation, shall
establish safety standards (A) for aircraft being used by commuter air
carrier to provide any service described in paragraph (2) of this
subsection, and (B) for all operations relating to such service. Such
safety standards shall become effective not later than the last day of
the eighteenth month which begins after such date of enactment and shall
impose requirements upon such commuter air carrier to assure that the
level of safety provided to persons traveling on such commuter air
carriers is, to the maximum feasible extent, equivalent to the level of
safety provided to persons traveling on air carriers which provide
service pursuant to certificates issued under section 401 of this title.
// 49 USC 1371. //
"(d) The Board shall, by rule, establish guidelines to be used by the
Board in computing the fair and reasonable amount of compensation
required to insure the continuation of essential air transportation to
any eligible point. Such guidelines shall include expense elements
based upon representative costs of air carriers providing scheduled air
transportation of persons, property, and mail, using aircraft of the
type determined by the Board to be apporpriate for providing essential
air transportation to the eligible point.
"(e) No air carrier shall receive any compensation under this section
unless such air carrier complies with regulations or orders issued by
the Board governing the filing and approval of policies of insurance or
plans for self-insurance in the amount prescribed by the Board which are
conditioned to pay, within the amount of such insurance, amounts for
which such air carrier may become liable for bodily injuries to or the
death of any person, or for loss of or damage to property of others,
resulting from the operation or maintenance of aircraft.
"(f) For purposes of this section, the term 'essential air
transportation
means scheduled air transportation of persons to a point provided under
such criteria as the Board determines satisfies the needs of the
community concerned for air transportation to one or more communities of
interest and insures access to the Nation's air transportation system,
at rates, fares, and charges which are not unjust, unreasonable,
unjustly discriminatory, unduly preferential, or unduly prejudicial,
and--,
"(1) with respect to air transportation to any point (other
than in the State of Alaska), in no case shall essential air
transportation be specified as fewer than two daily round trips, 5
days per week, or the level of service provided by air carriers to
such point based on the schedules of such air carriers in effect
for calendar year 1977, whichever is less; and
"(2) with respect to air transportation to any point in Alaska,
essential air transportation shall not be specified at a level of
service less than that which existed for such point during
calendar year 1976, or two round trips per week, whichever is
greater. unless otherwise specified under an agreement between the
Board and the State agency of the State of Alaska, after
consultation with the community affected.
"(g) This section shall cease to be in effect after the last day of
the ten-year period which begins on the date of enactment of this
section."
(b) That portion of the table of contents which appears under the
center heading
" Sec. 419. Small community air service.
"(a) Guaranteed essential air transportation.
"(b) Other air service.
"(c) Level of safety.
"(d) Guidelines for compensation.
"(e) Insurance.
"(f) Definitions.
"(g) Duration of program.".
Sec. 34. Section 801 (a) of the Federal Aviation Act of 1958 (49 U.
S.C. 1461 (a) is amended to read as follows:
" Sec. 801. (a) The issuance, denial, transfer, amendment,
cancellation, suspension, or revocation of, and the terms, conditions,
and limitations contained in, any certificate authorizing an air carrier
to engage in foreign air transportation, or any permit issuable to any
foreign air carrier under section 402 of this Act, // 49 USC 1372. //
shall be presented to the President for review. The President shall
have the right to disapprove any such Board action concerning such
certificates or permits soley upon the basis of foreign relations or
national defense considerations which are within the President's
jurisdiction, but not upon the basis of economic or carrier selection
considerations. Any such disapproval shall be issued in a public
document, setting forth the reasons for the disapproval to the extent
national security permits, within sixty days after submission of the
Board's action to the President. Any such Board action so disappoved
shall be null and void. Any such Board action not disapproved within
the foregoing time limits shall take effect as action of the Board, not
the President, and as such shall be subject to judicial review as
provided in section 1006 of this Act.". // 49 USC 1486. //
Sec. 35. (a) Paragraph (1) of subsection (a) of section 901 of the
Federal Aviation Act of 1958 (49 U.S.C. 1471 (a) (1) is amended by
inserting after the fourth sentence thereof the following new sentences:
" The amount of any such civil penalty for any violation of any
provision of title IV of this Act, // 49 USC 1371. // or any rule,
regulation, or order issued thereunder, or under section 1002 (i) of
this Act, // 49 USC 1482. // or any term, condition, or limtation of
any permit or certificate issued under title IV shall be assessed by the
Board only after notice and an opportunity for a hearing and after
written notice upon a finding of violation by the Board. Judicial
review of any order of the Board assessing such a penalty may be
obtained only pursuant to section 1006 of the Act.".
(b) Paragraph (2) of subsection (a) of such section 901 is amended to
read as follows:
"(2) Any civil penalty may be comromised by the Secretary of
Transportation in the case of violations of title III, V, VI, or XII of
this Act, // 49 USC 1341, 1401, 1421, 1441. // or any rule, regulation,
or order issued thereunder, or by the National Transportation Safety
Board in the case of violations of title VII of this Act, or any rule,
regulation, or order issued thereunder, or by the Postmaster General in
the case of regulations issued by him. The amount of such penalty when
finally determined or fixed by order of the Board, or the amount agreed
upon in compromise, may be deducted from any sums which the United
States owes to the person charged.".
Sec. 36. (a) The first sentence of subsection (b)(1) of section 903
of the Federal Aviation Act of 1958 (49 U.S.C. 1473 (b)(1) is amended by
inserting "or assessed" immediately after "imposed".
(b) The second sentence of subsection of subsection (b) (1) of such
section 903 is amended by inserting "with respect to proceedings
involving penalties other than those assessed by the Board," immediately
after "except that".
Sec. 37. (a) Subsection (d) of section 1002 of the Federal Aviation
Act of 1958 (49 U.S.C. 1482 (d) is amended--,
(1) in paragraph (1), by inserting "or (4)" immediately after
"paragraph (2)"; and
(2) by adding at the end thereof the following new paragraphs:
"(4) The Board shall not have authority to find any fare for
interstate or overseas air transportation of persons to be unjust or
unreasonable on the basis that such fare is too low or too high if--,
"(A) with respect to any proposed increase filed with the Board
on or after July 1,1979 (other than any proposed increase in any
fare filed by any air carrier if such proposed fae is for air
transportation
between any pair of points and such air carrier provides air
transportation to 70 per centum or more of the persons traveling
in air transportation between such points on aircraft operated by
air carriers with certificates issued under section 401 of this
Act,
// 49 USC 1371. //
such proposed fare would not be more than 5 per centum higher than
the standard industry fare level for the same or essentially
similar class of service, except that, while no increase of any
fare within the limits specified in this subparagraph may be
suspended, an increase in such fare, above the standard industry
fare level shall be found unlawful if that increase results in a
fare which is unduly preferential, unduly prejudicial, or unjustly
discriminatory; or
"(B) with respect to any proposed decrease filed after the date
of enactment of this paragraph, the proposed fare would not be
more than 50 per centum lower than the standard industry fare
level for the same or essentially similar class of service, except
that this provision shall not apply to any proposed decrease in
any fare if the Board determines that such proposed fare would be
predatory.
In determining whether any fare for air transportation of persons is
unjust or unreasonable on the basis that it is too high, the Board shall
take into consideration reasonably estimated or foreseeable future costs
and revenues for a reasonably limited future period during which the
fare at issue would be in effect.
"(5) In any Board proceeding under paragraph (1) of this subsection
with respect to interstate or overseas air transportation of persons,
the party opposing any fare or charge on the basis that it is too low
shall have the burden of proving that the fare or charge is too low.
"(6) (A) For purposes of paragraph (4) of this section, 'standard
industry fare level' means the fare level (as adjusted only in
accordance with subparagraph (B) of this paragraph) in effect on July 1,
1977, for each interstate or overseas pair of points, for each class of
service existing on that date, and in effect on the effective date of
the establishment of each additional class of service established after
July 1, 1977.
"(B) The Board shall, not less than semiannually, adjust each
standard industry fare level specified in subparagraph (A) by increasing
or decreasing such fare level, as the case may be, by the percentage
change from the last previous period in the actual operating cost per
available seat-mile for interstate and overseas transportation combined.
In determining the standard, the Board shall make no adjustment to costs
actually incurred.
"(C) Not later than July 1,1979, the Board shall issue rules
modifying the rules governing those classes of service in existence on
July 1, 1977, which classes provide lower fare levels during off-peak
periods, so as to expand the period of availability of such classes.
The Board shall allow any air carrier to establish additional classes of
service in accordance with the objectives of subsection (e) (5) of this
section or as may be otherwise consistent with the public interest.
"(7) The Board may by rule increase the percentage specified in
paragraph (4) (B) of this subsection.
"(8) Whenever a complaint is filed with the Board by a civic party
under this subsection alleging that any individual or joint fare or
charge demanded, charged, collected, or recieved for interstate or
overseas air transportation is or will be unjustly discriminatory,
unduly preferential, unduly prefudicial, or predatory, the Board shall
grant, deny, or dismiss such complaint within ninety days after such
complaint is filed".
(b) Subsection (e) of such section 1002, // 49 USC 1482. // is
amended to read as follows:
"(e) In exercising and performing its power and duties with respect
to determining rates, fares, and charges described in paragraph (1) of
subsection (d) of this section, the Board shall take into consideration,
among other factors--
"(1) the criteria set forth in section 102 of this Act;
// 49 USC 1302. //
"(2) the need for adequate and efficient transportation of
persons and property at the lowest cost consistent with the
furnishing of such services;
"(3) the effect of prices upon the movement of traffic;
"(4) the desirability of a variety of price and service options
such as peak and off-peak pricing or other pricing mechanisms to
improve economic efficiency and provide low-cost air service; and
"(5) the desirabilty of allowing an air carrier to determine
prices in response to particular competitive market conditions on
the basis of such air carrier's individual costs.".
(c) (1) Whenever the Board pursuant to its authority under
section
1002 of the Federal Aviation Act of 1958 (49 U.S.C. 1482) // 49 USC
1482a // prescribes a uniform method generally applicable to the
establishment of joint fares, and the divisions thereof, between air
carriers holding certificates issued under section 401 of such Act // 49
USC 1371. // it shall make such uniform method applicable to the
establishment of joint fares, and the divisions thereof, between such
air carriers and commuter air carriers. Any commuter air carrier which
has an agreement with any air carrier to provide service for persons and
property which includes transportation over its routes and
transportation by such air carrier in air transportation shall provide
at least ninety days notice to such air carrier and to the board prior
to modifying, suspending, or terminating such service, and if such
commuter air carrier fails to provide such notice, any uniform method
made applicable to the establishment of joint fares, and the divisions
thereof, between air carriers and commuter air carriers in accordance
with the preceding sentence shall not apply to such commuter air
carrier.
(2) For purposes of this subsection--
(A) the terms "air carrier" and Board" have the meanings given
such terms in the Federal Aviation Act of 1958;
// 49 USC 1301 //
and
(B) the term "commuter air carrier" means any air carrier
operating pursuant to section 416 (b) (3) of the Federal Aviation
Act of 1958 (49 U.S.C. 1386 (b) (3) who operates at least five
round trips per week between one pair of points, pursuant to
flight schedules.
(3) Paragraph (1) of this subsection shall apply to any uniform
method described in such paragraph which the Board prescribes on or
after December 27, 1974.
Sec. 38. (a) Title X of the Federal Aviation Act of 1958 (49 U.S.C.
1481 et seq.) is amended by adding at the end thereof the following new
section:
Sec. 1010. In the case of any application or other written document
submitted to the Board under section 408, 409, 412, or 416 of this Act
// 49 USC 1490. // on or after the one-hundred-eithtieth day after the
date of enactment of this section, // 49 USC 1378, 1379, 1382. // the
Board shall--
"(1) if the Board orders an evidentiary hearing, issue a final
order or decision with respect to such written document,not later
than the last day of the twelfth month which begins after the
submission of such document, except in the case of an application
submitted under section 408 of this Act, the Board shall issue its
final order or decision not later than the last day of the sixth
month after submission; or
"(2) if the Board does not order an evidentiary hearing, issue
a final order or decision with respect to such document, not later
than the last day of the sixth month which begins after the date
of the submission of such document.". (b) That portion of the
table of contents contained in the first section of such Act which
appears under the center heading
is amended by adding at the end thereof
"sec. 1010. Time requirements.".
Sec. 39. Section 1104 of the Federal Aviation Act of 1958 (49 U.S.
C. 1504) is amended to read as follows:
" Sec. 1104. // 49 USC 1504. //
Any person may make written objection to the public disclosure of
information contained in any application report, or document filed
pursuant to provisions of this Act or of any information obtained by the
Board, the Secretary of State, or the Secretary of Transportation
pursuant to the provisions of this Act stating the grounds for such
objection. Any information contained in such application, report, or
document, or any such other information obtained by the Board, the
Secretary of State, or the Secretary of Transportation, shall be
withheld from public disclosure by the Board, the Secretary of State, or
the Secretary of Transportation, as the case may be, if disclosure of
such information would prejudice the formulation and presentation of
positions of the United States in international negotiations and
adversely affect the competitive positions of any air carrier in foreign
air transportation. The Board, the Secretary of State, or the Secretary
of Transportation, as the case may be, shall be responsible for
classified information in accordance with appropriate law, except that
nothing in this section shall authorize the withholding of information
by the Board, the Secretary of State, or the Secretary of Transportation
from the duly authorized committees of Congress.".
Sec. 40. (a) The Federal Aviation Act of 1958 (49 U.S.C. 1301 et
seq.) is amended by adding at the end thereof the following new title:
TRANSFER OF
CERTAIN FUNCTIONS
" Sec. 1601. (a) (1) The following provisions of this Act // 49 USC
1551. //
(to the extent such provisions relate to interstate and overseas air
transportation of persons) and the authority of the Board with respect
to such provisions (to the same extent) shall cease to be in effect on
December 31, 1981:
"(A) Section 401 (d) (1), (2), and (3) of this Act (insofar as
such sections require a determination of consistency with the
public convenience and necessity and insofar as section 401 (d)
(3) prohibits persons holding certificates under section 401 (d)
(1) or (d) (2) from obtaining certificates to provide interstate
or overseas charter air transportation of persons).
"(B) Section 401 (d) (8) of this Act.
"(C) Section 401 (e) (1) of this Act (insofar as such section
permits the Board to specify terminal and intermediate points).
"(D) Section 401 (j) of this Act (except with respect to
essential air transportation).
"(E) Section 401 (n) (1) and (4) of this Act. "(F) Section 404
(a) of this Act (insofar as such section requires any air carrier
to provide air transportation authorized by its certificate).
"(G) Section 405 (b) of this Act // 49 USC 1375. // (insofar
as such section requires filing of any statement or schedule by
any air carrier).
"(2) The following provisions of this Act (to the extent such
provisions relate to interstate and overseas air transportation of
persons) and the authority of the Board with respect to such provisions
(to the same extent) shall cease to be in effect on January 1, 1983:
"(A) Section 403 of this Act.
// 49 USC 1373. //
"(B) Section 404 of this Act
// 49 USC 1374. //
(except insofar as such section requires air carriers to
provide safe and adequate service).
"(C) Section 407 (b) and (c) of this Act.
// 49 USC 1377. //
"(D) Section 1002 (d) (1) and (d) (2), (e), (g), (h), and (i)
of this Act.
"(3) The authority of the Board under sections 408 and 409 of this
Act // 49 USC 1378, 1379. // (relating to interstate and overseas air
transportation) and the authority of the Board under section 414 of this
Act // 49 USC 1384. // (relating to such sections 408 and 409) is
transferred to the Department of Justice on January 1, 1983.
"(4) Title II of this Act // 49 USC 1321. //
shall cease to be in effect on January 1, 1985.
"(b) (1) The following authority of the Board is transferred to the
following Federal departments and instrumentalities:
"(A) The authority of the Board under sections 406 (b) (3) and
(c) of this Act to provide compensation for air transportation to
small communities and under section 419 of this Act is transferred
to the Department of Transportation.
"(B) The authority of the Board under this Act with respect to
foreign air transportation is transferred to the Department of
Transportation which shall exercise such authority in consultation
with the Department of State.
"(C) The authority of the Board under sections 408 and 409 of
this Act (relating to foreign air transportation), the authority
of the Board under section 412 of this Act,
// 49 USC 1382. //
and the authority of the Board under section 414 of this Act
(relating to such sections 408, 409, and 412) is transferred to
the Department of Justice.
"(D) The authority of the Board under this Act with respect to
the determination of the rates for the carriage of mails in
interstate and overseas air transportation is transferred to the
Postal Service and such authority shall be exercised through
negotiations or comeitive bidding.
"(2) Any authority transferred under paragraph (1) of this subsection
shall take effect on January 1, 1985.
"(c) Not later than January 1, 1984, the Board shall prepare and
submit to the Congress a comprehensive review of the Board's
implementation of the provisions of this Act during the preceding
initial period of this Act's existence, and a comprehensive review of
each of the Board's programs under this Act. Each such review shall be
made available to the committee or committees of the Senate and House of
Representatives having jurisdiction with respect to the annual
authorization of funds for the Board and its programs for the fiscal
year beginning October 1, 1983.
"(d) The comprehensive review of the Board's implementation of this
Act, prepared for submission under subsection (c), shall include--,
"(1) a detailed comparison of the degree of competition within
the airline industry as of the year preceding enactment of this
section and the final year covered by the review;
"(2) a comparison of the degree of pricing competition in the
industry during those two one-year periods;
"(3) a comparison of the extent of unused authority held by the
industry during those two one-year periods, with details as to the
number of nonstop route segments which have been transferred
from one carrier to another under section 401 (d) (5) of his Act;
"(4) an assessment of the degree to which agreements approved
under section 412 of this Act have affirmatively or negatively
affected the degree of competition within the industry;
"(5) a comparison of the extent of air transportation service
provided to small communities during the two one-year periods
specified above, together with details as to the comparative
subsidy costs during these two periods;
"(6) an assessment of the degree, if any, to which the
administrative process has been expedited under this Act;
"(7) an assessment of the impact of the foregoing changes upon
the national air transportation system in terms of benefits or
detriments to the traveling and shipping public, the Postal
Service,
and the national defense, and the benefits and detriments to
air carriers, certificated and uncertificated; and
"(8) the Board's opinion as to whether the foregoing changes in
combination, have improved or harmed this Nation's domestic air
transportation system and the United States-flag foreign air
transportation system.
This assessment shall be accompanied by a detailed opinion from the
Board as to whether the public interest requires continuation of the
Board and its functions beyond January 1, 1985, and, if it is the
Board's conclusion that it should continue to exist, detailed
recommendations as to how the provisions of this Act should be revised
to insure continued improvements of the Nation's air transportation
system beyond January 1, 1985. The Board's assessment under this
subsection shall also be accompanied by a comparative analysis of
procedures under section 801 of this Act // 49 USC 1461. // before and
after the date of enactment of the Airline Deregulation Act of 1978,
together with the Board's opinion as to the benefits of each set of
procedures.
"(e) Each comprehensive review of the Board's programs under this
Act, prepared for submission under subsection (c) of this section, shall
include--,
"(1) an identification of the objectives intended for the
program, and the problem or need which the program was intended to
address;
"(2) an identification of any other programs having similar or
potentially conflicting or duplicative objectives;
"(3) an assessment of alternative methods of achieving the
purposes of the program;
"(4) a justification for the authorization of new budget
authority, and an explanation of the manner in which it conforms
to and integrates with other efforts;
"(5) an assessment of the degree to which the original
objectives of the program have been achieved, expressed in terms
of the performance, impact, or accomplishments of the program and
of the problem or need which it was intended to address, and
employing the procedures or methods of analysis appropriate to the
type or character of the program;
"(6) a statement of the performance and accomplishments of the
program in each of the previous four completed fiscal years and in
the year of submission, and of the budgetary costs incurred in the
operation of the program;
"(7) a statement of the number and types of beneficiaries or
persons or entities by the program;
"(8) an assessment of the effect of the program on the national
economy, including, but not limited to, the effects on
competition, economic stability, employment, unemployment,
productivity, energy consumption and conservation, and price
inflation, including costs to consumers and to businesses;
"(9) an assessment of the impact of the program on the Nation's
health and safety;
"(10) an assessment of the degree to which the overall
administration of the program, as expressed in the rules,
regulations, orders, standards, criteria, and decisions of the
officers executing the program, are believed to meet the
objectives of the Congress in enacting this Act;
"(11) a projection of the anticipated needs for accomplishing
the objectives of the program, including an estimate if applicable
of the date on which, and the conditions under which, the program
may fulfill such objectives;
"(12) an analysis of the services which could be provided and
performance which could be achieved if the program were contained
at a level less than, equal to, or greater than the existing
level; and
"(13) recommendations for necessary transitional requirements
in the event that funding for such program is discontinued,
including proposals for such executive or legislative action as
may be necessary to prevent such discontinuation from being unduly
disruptive.".
(b) That portion of the table of contents contained in the first
section of such Act is amended by inserting at the end thereof
" SEC. 1601. Termination of Civil Aeronautics Board and transfer of
certain functions.
"(a) Termination of authority.
"(b) Transfer of certain authority.
"(c) Report and assessment by Board.
"(d) Elements for Board consideration.
"(e) Elements for each comprehensive review.".
ACT
OF 1970
SEC. 41. (a) Section 29 of the Airport and Airway Development Act of
1970 // 49 USC 1729. // is amended--,
(1) by striking out " Notwithstanding" and inserting in lieu
thereof the following:
"(a) SERVICE BY INTRASTATE AIR CARRIER.-- Notwithstanding"; and
(2) by inserting at the end thereof the following new
subsection:
"(b) SUSPENDED OR DELETED SERVICE.-- Notwithstanding any other
provision of this title, any public airport which, on the date of
enactment of the Airline Deregulation Act of 1978, is regularly served
by an air carrier (other than a charter air carrier) certificated by the
Civil Aeronautics Board under section 401 of the Federal Aviation Act of
1958 // 49 USC 1371 // shall be deemed to be an air carrier airport
(other than a commuter service airport) for the purposes of this title.
This subsection shall cease to be in effect after September 30, 1980.".
(b) Paragraph (1) of section 11 of the Airport and Airway Development
Act of 1970 // 49 USC 1711. // is amended by striking out "(other than
a supplemental air carrier)" and inserting in lieu thereof "(other than
a charter air carrier)".
SEC. 42. (a) (1) The first sentence of the first section of the Act
entitled " An Act to provide for Government guarantee of private loans
of certain air carriers for purchase of modern aircraft and equipment,
to foster the development and use of modern transport aircraft by such
carriers, and for other purposes", approved September 7, 1957 (49 U.S.
C. 1324 note) (hereinafter in this section referred to as the " Act"),
is amended by inserting "and to promote the development of local,
feeder, and short-haul charter air transportation of cargo" after "and
short-haul air transportation".
(2) The second sentence of the first section of the Act is amended by
inserting", charter air carriers, commuter air carriers, and intrastate
air carriers" immediately after "air carriers".
(b) Section 2 of the Act // 49 USC 1324 // is amended to read as
follows:
" SEC. 2. As used in this Act--,
"(1) 'aircraft purchase loan' means any loan, or commitment in
connection therewith, made for the purchase of commercial
transport aircraft, including spare parts normally associated
therewith;
"(2) 'air carrier' means any air carrier holding a certificate
of public convenience and necessity issued by the Civil
Aeronautics Board under section 401 (d) (1) of the Federal
Aviation Act of 1958 (49 U.S.C. 1371 (d) (1));
"(3) 'charter air carrier' has the meaning given such term in
section 101 (14) of the Federal Aviation Act of 1958;
// 49 USC 1301 //
"(4) 'charter air transportation' has the meaning given such
term in section 101 (15) of the Federal Aviation Act of 1958;
"(5) 'commuter air carrier' means any air carrier operating
pursuant to section 416(b) (3) of the Federal Aviation Act of 1958
(49 U.S.C. 1386(b) (3) ) who operates at least five round trip
flights per week between one pair of points in accordance with
published flight schedules;
"(6) 'intrastate air carrier' means any citizen of the United
States who undertakes, whether directly or indirectly or by a
lease or any other arrangement, to engage primarily in intrastate
air transportation (as such term is defined in section 101 (26) of
the Federal Aviation Act of 1958);
// 49 USC 1301. // and
"(7) ' Secretary' means the Secretary of Transportation.".
(c) Section 3 of the Act // 49 USC 1324 // is amended to read as
follows:
" SEC. 3. The Secretary is authorized to guarantee any lender
against loss of principal or interest on any aircraft purchase loan made
by such lender to--,
"(1) any air carrier whose certificate (A) authorizes such air
carrier to provide local or feeder air service, (B) authorizes
scheduled passenger operations the major portion of which are
conducted within the State of Hawaii, (C) authorizes operations
(the major portion of which is conducted either within Alaska or
between Alaska and the forty-eight contiguous States), within the
State of Alaska (including service between Alaska and the
forty-eight contiguous States, and between Alaska and adjacent
Canadian territory), or (D) authorizes metropolitan helicopter
service,
"(2) any charter air carrier for the purchase of any all-cargo
nonconvertible aircraft,
"(3) any commuter air carrier, or
"(4) any intrastate air carrier.
Such guarantee shall be made in such form, on such terms and conditions,
and pursuant to such regulations, as the Secretary deems necessary and
which are not inconsistent with the provisions of this Act.".
(d) Section 4 of the Act // 49 USC 1324 // is amended to read as
follows:
" SEC. 4. (a) Subject to subsection (b) of this section, no guaranty
shall be made--,
"(1) extending to more than the unpaid interest and 90 percent
of the unpaid principal of any loan;
"(2) on any loan or combination of loans for more than 90
percent of the purchase price of the aircraft, including spare
parts, to be purchased therewith;
"(3) on any loan whose terms permit full repayment more than 15
years after the date thereof;
"(4) wherein the total face amount of such loan, and of any
other loans to the same air carrier, charter air carrier, commuter
air carrier, or intrastate air carrier or corporate predecessor of
such air carrier, charter air carrier, commuter air carrier, or
intrastate air carrier guaranteed and outstanding under the terms
of this Act exceeds $100,000,000;
"(5) unless the Secretary finds that, without such guaranty, in
the amount thereof, the air carrier, charter air carrier, commuter
air carrier, or intrastate air carrier would be unable to obtain
necessary funds for the purchase of needed aircraft on reasonable
terms;
"(6) unless the Secretary finds that the aircraft to be
purchased with the guaranteed loan is needed to improve the
service and efficiency of operation of the air carrier, charter
air carrier, commuter air carrier, or intrastate air carrier;
"(7) unless the Secretary finds that the prospective earning
power--,
pledged,
furnish (i) reasonable assurances of the applicant's
ability to
repay the loan within the time fixed therefor, and (ii)
reasonable
protection to the United States; and
air
carrier, together with the character and value of the
security
pledged, furnish (i) reasonable assurances of the
applicant's
ability and intention to repay the loan within the time
fixed
therefor, to continue its operations as a commuter air
carrier
or intrastate air carrier, and to the extent found
necessary by
the Secretary, to continue its operations as a
commuter air
carrier or intrastate air carrier between the same
route or
routes being operated by such applicant at the time of
the loan
guarantee, and (ii) reasonable protection to the United
States; and
"(8) on any loan or combination of loans for the purchase of
any new turbojet-powered aircraft which does not comply with the
noise standards prescribed for new subsonic aircraft in
regulations issued by the Secretary acting through the
Administrator of the Federal Aviation Administration (14 CFR part
36), as such regulations were in effect on January 1, 1977.
"(b) No guaranty shall be made by the Secretary under subsection (a)
of this section on any loan for the purchase of any all-cargo
nonconvertible aircraft by any charter air carrier in an amount which,
together with any other loans guaranteed and outstanding under this Act
to such charter air carrier, or corporate predecessor of such charter
air carrier, would result in the ratio of the total face amount of such
loans to $100,000,000 exceeding the ratio of the amount of charter air
transportation of such charter air carrier provided to medium, small,
and non-hub airports during the twelve-month period preceding the date
on which the application for such guaranty is made by such charter air
carrier to the total amount of charter air transportation of such
charter air carrier during such twelve-month period.".
(e) Section 8 of the Act // 49 USC 1324 // is amended to read as
follows:
" SEC. 8. The authority of the Secretary under section 3 of this Act
shall terminate five years after the date of enactment of this
section.".
SEC. 43. // 49 USC 1552. // (a). GENERAL RULE.--(1) The Secretary
of Labor shall, subject to such amounts as are provided in appropriation
Acts, make monthly assistance payments, or reimbursement payments, in
amounts computed according to the provisions of this section, to each
individual who the Secretary finds, upon application, to be an eligible
protected employee. An eligible protected employee shall be a protected
employee who on account of a qualifying dislocation (A) has been
deprived of employment, or (B) has been adversely affected with respect
to his compensation.
(2) No employee who is terminated for cause shall receive any
assistance under this section.
(b) MONTHLY ASSISTANCE COMPUTATION.--(1) An eligible protected
employee shall, subject to such amounts as are provided in appropriation
Acts, receive a monthly assistance payment, for each month in which he
is an eligible protected employee, in an amount computed by the
Secretary. The Secretary, after consultation with the Secretary of
Transportation, shall, by rule, promulgate guidelines to be used by him
in determining the amount of each monthly assistance payment to be made
to a member of each craft and class of protected employees, and what
percentage of salary such payment shall constitute for each applicable
class or craft of employees. In computing such amounts for any
individual protected employee, the Secretary shall deduct from such
amounts the full amount of any unemployment compensation received by the
protected employee.
(2) If an eligible protected employee is offered reasonably
comparable employment and such employee does not accept such employment,
then such employee's monthly assistance payment under this section shall
be reduced to an amount which such employee would have been entitled to
receive if such employee had accepted such employment. If the
acceptance of such comparable employment would require relocation, such
employee may elect not to relocate and, in lieu of all other benefits
provided herein, to receive the monthly assistance payments to which he
would be entitled if this paragraph were not in effect, except that the
total number of such payments shall be the lesser of three or the number
remaining pursuant to the maximum provided in subsection (e).
(c) ASSISTANCE FOR RELOCATION.-- If an eligible protected employee
relocates in order to obtain other employment, such employee shall,
subject to such amounts as are provided in appropriation Acts, receive
reasonable moving expenses (as determined by the Secretary) for himself
and his immediate family. In addition, such employee shall, subject to
such amounts as are provided in appropriation Acts, receive
reimbursement payments for any loss resulting from selling his principal
place of residence at a price below its fair market value (as determined
by the Secretary) or any loss incurred in cancelling such employee's
lease agreement or contract of purchase relating to his principal place
of residence.
(d) DUTY TO HIRE PROTECTED EMPLOYEES.--(1) Each person who is a
protected employee of an air carrier which is subject to regulation by
the Civil Aeronautics Board who is furloughed or otherwise terminated by
such an air carrier (other than for cause) prior to the last day of the
10-year period beginning on the date of enactment of this section shall
have first right of hire, regardless of age, in his occupational
specialty, by any other air carrier hiring additional employees which
held a certificate issued under section 401 of the Federal Aviation Act
of 1958 // 49 USC 1371. // prior to such date of enactment. Each such
air carrier hiring additional employees shall have a duty to hire such a
person before they hire any other person, except that such air carrier
may recall any of its own furloughed employees before hiring such a
person. Any employee who is furloughed or otherwise terminated (other
than for cause), and who is hired by another air carrier under the
provisions of this subsection, shall retain his rights of seniority and
right of recall with the air carrier that furloughed or terminated him.
(2) The Secretary shall establish, maintain, and periodically publish
a comprehensive list of jobs available with air carriers certificated
under section 401 of the Federal Aviation Act of 1958. Such list shall
include that information and detail, such as job descriptions and
required skills, the Secretary deems relevant and necessary. In
addition to publishing the list, the Secretary shall make every effort
to assist an eligible protected employee in finding other employment.
Any individual receiving monthly assistance payments, moving expenses,
or reimbursement payments under this section shall, as a condition to
receiving such expenses or payments, cooperate fully with the Secretary
in seeking other employment. In order to carry out his responsibilities
under this subsection, the Secretary may require each such air carrier
to file with the Secretary the reports, data, and other information
necessary to fulfill his duties under this subsection.
(3) In addition to making monthly assistance or reimbursement
payments under this section, the Secretary shall encourage negotiations
between air carriers and representatives of eligible protected employees
with respect to rehiring practices and seniority.
(e) PERIOD OF MONTHLY ASSISTANCE PAYMENTS.--(1) Monthly assistance
payments computed under subsection (b) for a protected employee who has
been deprived of employment shall be made each month until the recipient
obtains other employment, or until the end of the 72 months occurring
immediately after the month such payments were first made to such
recipient, whichever first occurs.
(2) Monthly assistance payments computed under subsection (b) for a
protected employee who has been adversely affected relating to his
compensation shall be paid for no longer than 72 months, so long as the
total number of monthly assistance payments made under this section for
any reason do not exceed 72.
(f) RULES AND REGULATIONS.--(1) The Secretary may issue, amend, and
repeal such rules and regulations as may be necessary for the
administration of this section.
(2) The rule containing the guidelines which is required to be
promulgated pursuant to subsection (b) of this section and any other
rules or regulations which the Secretary deems necessary to carry out
this section shall be promulgated within six months after the date of
enactment of this section.
(3) The Secretary shall not issue any rule or regulation as a final
rule or regulation under this section until 30 legislative days after it
has been submitted to the Committee on Commerce, Science, and
Transportation of the Senate and the Committee on Public Works and
Transportation of the House of Representatives. Any rule or regulation
issued by the Secretary under this section as a final rule or regulation
shall be submitted to the Congress and shall become effective 60
legislative days after the date of such submission, unless during that
60-day period either House adopts a resolution stating that that House
disapproves such rules or regulations, except that such rules or
regulations may become effective on the date, during such 60-day period,
that a resolution has been adopted by both Houses stating that the
Congress approves of them.
(4) For purposes of this subsection, the term "legislative day" means
a calendar day on which both Houses of Congress are in session.
(g) AIRLINE EMPLOYEES PROTECTIVE ACCOUNT.-- All payments under this
section shall be made by the Secretary from a separate account
maintained in the Treasury of the United States to be known as the
Airline Employees Protective Account. There are authorized to be
appropriated to such account annually, beginning with the fiscal year
ending September 30, 1979, such sums as are necessary to carry out the
purposes of this section, including amounts necessary for the
administrative expenses of the Secretary related to carrying out the
provisions of this section.
(h) DEFINITIONS.-- For the purposes of this section--,
(1) The term "protected employee" means a person who, on the
date of enactment of this section, has been employed for at least
4 years by an air carrier holding a certificate issued under
section 401 of the Federal Aviation Act of 1958. Such term shall
not include any members of the board of directors or officers of a
corporation.
(2) The term "qualifying dislocation" means a bankruptcy or
major contraction of an air carrier holding a certificate under
section 401 of the Federal Aviation Act of 1958,
// 49 USC 1371. //
occurring during the first 10 complete calendar years occurring
after the date of enactment of the Airline Deregulation Act of
1978, the major cause of which is the change in regulatory
structure provided by the Airline Deregulation Act of 1978, as
determined by the Civil Aeronautics Board.
(3) The term " Secretary" means the Secretary of Labor.
(4) The term "major contraction" means a reduction by at least
7 1/2 percent of the total number of full-time employees of an air
carrier within a 12-month period. Any particular reduction of
less than 7 1/2 percent may be found by the Board to be part of a
major contraction of an air carrier if the Board determines that
other reductions are likely to occur such that within a 12-month
period in which such particular reduction occurs the total
reduction will exceed 7 1/2 percent. In computing a 7 1/
2-percent reduction under this paragraph, the Board shall not
include employees who are deprived of employment because of a
strike or who are terminated for cause.
(i) TRANSFER OF AUTHORITY OF THE BOARD.-- The authority of the Board
under this section is transferred to the Department of Transportation on
January 1, 1985.
(j) TERMINATION.-- The provisions of this section shall terminate on
the last day the Secretary is required to make a payment under this
section.
SEC. 44. Within ten days after the date of enactment of this section
the President, pursuant to section 10 of the Railway Labor Act, // 45
USC 160 // shall create a board to investigate and report on the dispute
between Wier Air Alaska, Incorporated, and the Air Line Pilots
Association. Such board shall report its findings to the President
within thirty days from the date of its creation.
SEC. 45. // 49 USC 1341 // Notwithstanding any other provisions of
law, neither the Secretary of Transportation nor the Administrator of
the Federal Aviation Administration shall collect any fee, charge, or
price for any approval, test, authorization, certificate, permit,
registration, conveyance, or rating relating to any aspect of aviation
(1) which is in excess of the fee, charge, or price for such approval,
test, authorization, certificate, permit, registration, conveyance, or
rating which was in effect on January 1, 1973, or (2) which did not
exist on January 1, 1973, until all such fees, charges, and prices are
reviewed and approved by Congress.
SEC. 46. // 49 USC 1301 // Any reference in any law, rule,
regulation, or document of the United States to a supplemental air
carrier or supplemental air transportation shall be deemed to be a
reference to a charter air carrier or charter air transportation,
respectively.
SEC. 47. // 49 USC 1301 // All orders, determinations, rules,
regulations, permits, contracts, certificates, rates, and privileges
which have been issued, made, or granted, or allowed to become
effective, by the President, the Civil Aeronautics Board, or the
Postmaster General, or any court of competent jurisdiction, under any
provision of law repealed or amended by this Act, or in the exercise of
duties, powers, or functions, which are vested in the Board, and which
are in effect at the time this Act takes effect, shall continue in
effect according to their terms until modified, terminated, superseded,
set aside, or repealed by the Board, or by any court of competent
jurisdiction, or by operation of law.
Approved October 24, 1978.
LEGISLATIVE HISTORY:
(Comm. on Public Works and Transportation) and No. 95 - 1779
(Comm. of Conference).
SENATE REPORT No. 95 - 631 (Comm. on Commerce, Science, and
Transportation).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Apr. 19, considered and passed Senate.
Sept. 14, 21, H.R. 12611 considered and passed House; passage
vacated and
S. 2493, amended, passed in lieu.
Oct. 14, Senate agreed to conference report.
Oct. 15, House agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 14, No. 43:
Oct. 24, Presidential statement.
PUBLIC LAW 95-503, 92 STAT. 1704
to authorize payment of
transportation expenses for persons released from
custody pending their
appearance to face criminal charges before that court,
any division of that
court, or any court of the United States in another
Federal judicial district.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That chapter 315 of
title 18, United States Code, is amended by adding at the end thereof
the following new section:
" Section. 4285. // 18 USC 4285. // Persons released pending further
judicial proceedings
" Any judge or magistrate of the United States, when ordering a
person released under chapter 207 // 18 USC 3141. // on a condition of
his subsequent appearance before that court, any division of that court,
or any court of the United States in another judicial district in which
criminal proceedings are pending, may, when the interests of justice
would be served thereby and the United States judge or magistrate is
satisfied, after appropriate inquiry, that the defendant is financially
unable to provide the necessary transportation to appear before the
required court on his own, direct the United States marshal to arrange
for that person's means of noncustodial transportation or furnish the
fare for such transportation to the place where his appearance is
required, and in addition may direct the United States marshal to
furnish that person with an amount of money for subsistence expenses to
his destination, not to exced the amount authorized as a per diem
allowance for travel under section 5702(a) of title 5, United States
Code. When so ordered, such expenses shall be paid by the marshal out
of funds authorized by the Attorney General for such expenses.".
Sec.2. The section analysis of chapter 315 of title 18, United States
Code, is amended by adding at the end thereof the following new item:
"4285. Persons released pending further judicial proceedings.".
Sec. 3. The amendments made by this Act // 18 USC 4285. // shall
take effect on October 1, 1978.
Approved October 24, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 1653 (Comm. on the Judiciary).
SENATE REPORT No. 95 - 760 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Apr. 27, considered and passed Senate.
Oct. 10, considered and passed House.
PUBLIC LAW 95-502, 92 STAT. 1693
that income from the
conducting of certain bingo games by certain tax-exempt
organizations will
not be subject to tax, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
MISSISSIPPI RIVER SYSTEM COMPREHENSIVE MASTER
MANAGEMENT PLAN
Sec. 101. // 42 USC 1962b-3 //
(a) The Upper Mississippi River Basin Commission (referred to in this
section as the " Commission") shall prepare a comprehensive master plan
for the management of the Upper Mississippi River System in cooperation
with the appropriate Federal, State, and local officials. The
Commission shall publish a preliminary plan not later than January 1,
1981. The Commission shall hold public hearings on the preliminary plan
in each State which would be affected by the plan, shall review all
comments presented at such hearings or submitted in writing to the
Commission, and, after making any revisions in the plan it decides are
necessary, submit to Congress a final master plan not later than January
1, 1982. All decisions of the Commission related to the master plan
shall be made by a two-thirds majority vote of the Commission.
(b) The Commission shall provide for public participation in the
development, revision, and implementation of said plan and shall
encourage and assist such participation. The Commission shall, within
150 days after the date of enactment of this Act, publish guidelines in
the Federal Register for public participation in the development,
revision, and implementation of the plan. The final master plan shall
not be implemented without the express approval of the plan by an Act of
Congress enacted after the date of enactment of this Act. After such
approval, no change may be made in the master plan except as may be
provided by an Act of Congress enacted after the date of enactment of
the Act approving the master plan. No person shall engage in any
activity which violates any provision of the plan or which is
inconsistent (as determined under regulations promulgated by the
Commission) with the plan.
(c) The Commission, in developing the plan, shall identify the
various economic, recreational, and evironmental objectives of the Upper
Mississippi River System, recommend guidelines to achieve such
objectives, and propose methods to assure compliance with such
guidelines and coordination of future management decisions affecting the
Upper Mississippi River System, and include with the proposed master
plan any legislative proposals which may be necessary to carry out such
recommendations and achieve such objectives.
(d) For the purposes of developing the plan, the Commission shall
conduct such studies as it deems necessary to carry out its
responsibilities under this section, utilizing, to the fullest extent
possible, the resources and results of the Upper Mississippi River
resources management (GREAT) study conducted pursuant to section 117 of
the Water Resources Development Act of 1976 (Public Law 94 - 587) // 90
Stat. 2924. // and of other ongoing or past studies. The Commission
may request appropriate Federal, State, or local agencies to prepare
such studies. Any Federal agency to which such a request is submitted
may conduct any such study for the purpose of this section.
(e) Studies conducted pursuant to this section shall include, but not
be limited to, the following:
(1) The Secretary of the Interior and the Secretary of the
Army, working through the Commission, shall undertake a study to
determine the carrying capacity of the Upper Mississippi River
System, and the long- and short-term systematic ecological impacts
of (A) present and any projected expansion of navigation capacity
on the fish and wildife, water quality, wilderness, and public
recreational opportunities of said rivers, (B) present operation
and maintenance programs, (C) the means and measures that should
be adopted to prevent or minimize loss of or damage to fish and
wildlife, and (D) a specific analysis of the immediate and
systematic environmental effects of any second lock at Alton,
Illinois, and provide for the mitigation of any adverse impact on,
and the enhancement of, such resources.
(2) The Commission shall undertake studies to determine--,
national
transportation policy,
shippers
dependent upon rail service, and
said
River System.
The Commission is directed to immediately initiate a specific
evaluation of the economic need for a second lock at Alton,
Illinois, and the direct and indirect systematic effects and needs
for such a second lock at Alton, Illinois.
(3) The Commission shall undertake a program of studies,
including a demonstration program to evaluate the benefits and
costs of disposing of dredge spoil material in contained areas
located out of the floodplain. The program shall include, but
shall not be limited to, the evaluation of possible uses in the
marketplace for the dredge spoil studies and demonstration
programs to minimize the environmental effects of channel
operation and maintenance activities.
(4) The development by the Commission of a computerized
analytical inventory and system analysis for the Upper Mississippi
River System to facilitate evaluation of the comparative
environmental effects of alternative management proposals.
(f) Any Secretary responsible for conducting a study under subsection
(e) of this section, and other studies conducted under this section,
shall produce one or more draft reports containing study conclusions and
appropriate appendix materials and shall present the reports to the
Commission for approval and inclusion in the master plan process.
(g) To carry out the provisions of this section, there are authorized
to be approprated to the Commission through the United States Water
Resources Council, $12,000,000. The Commission is authorized to
transfer funds to such Federal, State, or local government agencies as
it deems necessary to carry out the studies and analysis authorized by
this section.
(h) For purposes of this section, the Upper Mississippi River System
consists of those river reaches containing commercial navigation
channels on the Mississippi River main stem north of Cairo, Illinois,
the Minnesota River, Minnesota; Black River, Wisconsin; Saint Croix
River, Minnesota and Wisconsin; Illinois River and Waterway, Illinois;
and Kaskaskia River, Illinois.
(i) No replacement, construction, or rehabilitation that expands the
navigation capacity of locks, dams, and channels shall be undertaken by
the Secretary of the Army to increase the navigation capacity of the
Upper Mississippi River System, until the master plan prepared pursuant
to this section has been approved by the Congress except as provided in
section 102 and except for necessary operating and maintenance
activities.
(j) The lock and dam authorized pursuant to section 102 shall be
designed and constructed to provide for possible future expansion. All
other construction activities initiated by the Secretary of the Army on
the Upper Mississippi River north of Cairo, Illinois, and on the
Illinois River north of Grafton, Illinois, shall be initiated only in
accordance with the guidelines set forth in the master plan.
Sec. 102. (a) The Secretary of the Army, acting through the Chief of
Engineers, is authorized to replace locks and dam 26, Mississippi River,
Alton, Illinois, and Missouri, by constructing a new dam and a single,
one-hundred-and-ten-foot by one-thousand-two-hundred-foot lock at a
location approximately two miles downstream from the existing dam,
substantially in accordance with the recommendations of the Chief of
Engineers in his report on such project dated July 31, 1976, at an
estimated cost of $421,000,000.
(b) The Secretary of the Army, acting through the Chief of Engineers,
is authorized to replace, at Federal expense as a part of project costs
authorized in subsection (a) terrestrial wildlife habitat inundated as a
result of the construction of the project on an acre-for-acre basis in
the respective States of Missouri and Illinois and to manage such lands
as are thus acquired by the Secretary for wildlife protection purposes.
The Secretary is further authorized to provide project-related
recreation development on or in the vicinity of Ellis Island, Missouri,
that requires no separable project lands and includes facilities such as
roads, parking lots, walks, picnic areas, a boat launching ramp, and a
beach, at an estimated cost of $4,000,000 to be cost shared with the
State of Missouri and administered in accordance with the provisions of
the Federal Water Project Recreation Act // 16 USC 460l-12 // and
under-taken independently of the navigation feature of the project.
(c) The project depth of the channel above Cairo, Illinois, on the
Mississippi River shall not exceed 9 feet, and neither the Secretary of
the Army nor any other Federal official shall study the feasibility of
deepening the navigation channels in the Minnesota River, Minnesota;
Black River, Wisconsin; Saint Croix River, Minnesota and Wisconsin;
the Mississippi River north of Cairo, Illinois; the Kaskaskia River,
Illinois; and the Illinois River and Waterway, Illinois, unless
specifically authorized by an Act of Congress enacted after the date of
enactment of this Act.
Sec. 201. Short title.
Sec. 202. Imposition of tax.
Sec. 203. Establishment of Inland Waterways Trust Fund.
Sec. 204. Trust Fund available for expenditures for navigation
construction and rehabilitation projects on inland waterways.
Sec. 205. Study with respect to inland waterway user taxes and
charges.
Sec. 206. Inland and intracoastal waterways of the United States.
SEC. 201. // 26 USC 4042 //
SHORT TITLE.
This title may be cited as the " Inland Waterways Revenue Act of
1978".
SEC. 202. IMPOSITION OF TAX.
(a) In General.--Chapter 31 of the Internal Revenue Code of 1954 //
26 USC 4041. //
(relating to special fuels) is amended by adding at the end thereof
the following new section:
" SEC. 4042. // 26 USC 4042. //
TAX ON FUEL USED IN COMMERCIAL TRANSPORTATION ON INLAND WATERWAYS.
"(a) In General.--There is hereby imposed a tax on any liquid used
during any calendar quarter by any person as a fuel in a vessel in
commercial waterway transportation.
"(b) Amount of Tax.--The tax imposed by subsection (a) shall be
determined from the following table:
" If the use occurs--, The tax is--,
" After September 30, 1980 and before October 1, 1981------4 cents a
gallon
" After September 30, 1981 and before October 1, 1983-------6 cents a
gallon
" After September 30, 1983 and before October 1, 1985------8 cents a
gallon
" After September 30, 1985---------------------------------10 cents a
gallon
"(c) EXEMPTIONS.--,
"(1) Deep-Draft Ocean Going Vessels.--The tax imposed by
subsection (a) shall not apply with respect to any vessel designed
primarily for use on high seas which has a draft of more than 12
feet.
"(2) Passenger Vessels.--The tax imposed by subsection (a)
shall not apply with respect to any vessel used primarily for the
transportation of persons.
"(3) USE BY STATE OR LOCAL GOVERNMENT IN TRANSPORTING PROPERTY
IN A STATE OR LOCAL BUSINESS.-- Subparagraph (B) of subsection (d)
(1) shall not apply with respect to use by a State or political
subdivision thereof.
"(4) Use IN MOVING LASH AND SEABEE OCEAN- GOING BARGES.--, The
tax imposed by subsection (a) shall not apply with respect to use
for movement by tug of exclusively LASH (Lighter-aboard-ship) and
SEABEE ocean-going barges released by their ocean-going carriers
solely to pick up or deliver international cargoes.
"(d) DEFINITIONS.-- For purposes of this section--,
"(1) Commercial Waterway Transportation.--The term 'commercial
waterway transportation' means any use of a vessel on any inland
or intracoastal waterway of the United States--,
compensation
or hire, or
owner,
lessee, or operator of the vessel (other than fish or
other
aquatic animal life caught on the voyage).
"(2) INLAND OR INTRACOASTAL WATERWAY OF THE UNITED STATES.--
The term 'inland or intracoastal waterway of the United States'
means any inland or intracoastal waterway of the United States
which is described in section 206 of the Inland Waterways Revenue
Act of 1978.
"(3) PERSON.-- The term 'person' includes the United States, a
State, a political subdivision of a State, or any agency or
instrumentality of any of the foregoing.
"(e) DATE FOR FILING RETURN.-- The date for filing the return of the
tax imposed by this section for any calendar quarter shall be the last
day of the first month following such quarter.".
(b) TECHNICAL AMENDMENT.-- Section 4293 of such Code // 26 USC 4293
//
(relating to exemption for United States and possessions) is amended
by striking out "chapters 31 and 32" and inserting in lieu thereof
"section 4041, chapter 32". // 26 USC 4041. //
(c) CLERICAL AMENDMENT.-- The table of sections for chapter 31 of
such Code is amended by adding at the end thereof the following new
item:
transportation on inland
waterways.".
(d) EFFECTIVE DATE.-- The amendments made by this section // 26 USC
4042 //
shall take effect on October 1, 1980.
Sec. 203.
// 33 USC 1801. //
ESTABLISHMENT OF INLAND WATERWAYS TRUST FUND.
(a) Creation Of Trust Fund.--There is established in Treasury of the
United States a trust fund to be known as the " Inland Waterways Trust
Fund" (hereinafter in this title referred to as the " Trust Fund"),
consisting of such amounts as may be appropriated or credited to the
Trust Fund as provided in this section.
(b) TRANSFER TO TRUST FUND OF AMOUNTS EQUIVALENT TO CERTAIN TAXES.--,
(1) In General.--There are hereby appropriated to the Trust
Fund amounts determined by the Secretary of Treasury (hereinafter
in this section referred to as the " Secretary") to be equivalent
to the amounts of the taxes received in the Treasury under section
4042 of the Internal Revenue Code of 1954 (relating to tax on fuel
used in commercial transportation on inland waterways).
(2) METHOD OF TRANFER.-- The amounts appropriated by paragraph
(1) shall be transferred at least quarterly from the general fund
of Treasury to the Trust Fund on the basis of estimates
made by the Secretary of the amounts referred to in paragraph
(1) received in the Treasury. Proper adjustments shall be made in
the amounts subsequently transferred to the extent prior estimates
were in excess of or less than the amounts required to be
transferred.
(c) MANAGEMENT OF TRUST FUND.--,
(1) REPORT.--' It shall be the duty of the Secretary to hold
the Trust Fund, and to report to the Congress each year ending on
or after September 30, 1981, on the financial condition and the
results of the operations of the Trust Fund during the preceding
fiscal year and on its expected condition and operations during
the fiscal year and the next 5 fiscal years after the fiscal year.
Such report shall be printed as a House document of the session of
the Congress to which the report is made.
(2) INVESTMENT.--
Secretary to
invest such portion of the Trust Fund as is not, in
his judgement,
required to meet current withdrawals. Such investments
may be made only in interest-bearing obligations of the
United States. For such purpose, such obligations
may be
acquired (i) on original issue at the issue price, or
(ii) by purchase
of outstanding obligations at the market price.
the
Trust Fund may be sold by the Secretary at the
market price.
The interest on, and the proceeds from the sale or
redemption
of, any obligations held in the Trust Fund shall be
credited
to and form a part of the Trust Fund.
Sec. 204.
// 33 USC 1802. //
TRUST FUND AVAILABLE FOR EXPENDITURES FOR NAVIGATION CONSTRUCTION AND
REHABILITATION PROJECTS ON INLAND WATERWAYS.
(a) IN GENERAL.-- Amounts in the Trust Fund shall be available, as
provided by appropriations Acts, for making construction and
rehabilitation expenditures for navigation on the inland and
intracoastal waterways of the United States described in section 206 of
this Act. No amount may be appropriated out of the Trust Fund unless the
law authorizing the expenditure for which the amount is appropriated
explicitly provides that the appropriation is to be made out of the
Trust Fund.
(b) EXPENDITURES MUST BE OTHERWISE AUTHORIZED BY LAW.-- Nothing in
this section shall be deemed to authorize any program, project, or other
activity not otherwise authorized by law.
Sec. 204.
// 33 USC 1803. //
STUDY WITH RESPECT TO INLAND WATERWAY USER TAXES AND CHARGES.
(a) STUDY DIRECTED.-- The Secretary of Transportation and the
Secretary of Commerce, in consultation with the Secretary of the
Treasury, the Secretary of Agriculture, the Secretary of Energy, the
Attorney General of the United States, the Secretary of the Army, the
Chairman of the Water Resources Council, and the Director of the Office
of Management and Budget, shall--
(1) make a full and complete study with respect to inland
waterway user taxes and charges, and
(2) make findings and policy recommendations with respect
thereto.
Such study shall include (but shall not be limited to) a consideration
of the matters listed in subsections (b), (c), (d), (e), and (f) of this
section.
(b) CONSIDERATIONS RELATING TO THE TAXING MECHANISM.--
(1) The extent to which the Federal Government should seek to
recover some or all of Federal expenditures for the benefit of
inland waterway transportation from the users of the facilities
for which such expenditures are made.
(2) The various forms of inland waterway user taxes and charges
which could be established.
(3) The various methods of collecting inland waterway user
taxes and charges, and the administrative costs of such taxes and
charges.
(4) The classes and categories of users and other persons on
whom inland waterway user taxes and charges should be imposed.
(5) The waterways of the United States (including the Great
Lakes, deep draft channels, and coastal ports) which should be
included in any system of user taxes and charges, together with
the ecconomic effects of such taxes and charges.
(6) The use of revenues derived from inland waterway user taxes
and charges, including consideration of changes in, or
alternatives to, the Trust Fund mechanism.
(c) CONSIDERATIONS RELATING TO ECONOMIC EFFECTS.-- The economic
effects of waterway user taxes and charges on--,
(1) CARRIERS AND USERS.-- On--,
(2) REGIONS, ETC.-- On--,
employment,
in regions of the country served by inland water
transportation
directly or in combination with other modes, and
to
other areas together with an evaluation of effects on
regional
economies and their development, including consistency
with
Federal policies as set forth in other legislation.
(3) SMALL BUSINESS AND INDUSTRIAL CONCENTRATION AND
COMPETITION.-- On--,
(4) COMPETITORS.-- On the freight rates charged by other modes
of transportation and the extent of short-term and long-term
diversion of traffic from the inland waterways to such other
modes. In considering such diversion of traffic, there shall also
be considered the effects of such diversion on--,
routing
to market,
transportation
of hazardous materials, and
(5) PRICES.-- On prices of commodities shipped by inland
waterways and by competing modes, including the costs of energy
materials and the effects on electric power rates.
(6) BALANCE OF PAYMENTS.-- On the balance of payments of the
United States based on our international trade.
(d) CONSIDERATIONS RELATING TO ECONOMIC FEASIBILITY OF WATERWAY
IMPROVEMENT PROJECTS; LEVEL OF BENEFITS FROM WATERWAY EXPENDITURES.--,
(1) The effects of inland waterway user taxes and charges on
the economic feasibility of inland waterway improvement projects.
(2) The comparative levels of benefits received from Federal
expenditures on inland waterways for--,
and
wildlife enhancement, hydroelectric power, flood control,
and irrigation uses.
(e) CONSIDERATIONS RELATING TO FEDERAL ASSISTANCE.--,
(1) The extent of past, present, and expected future Federal
assistance to the several modes of freight transportation. Such
consideration shall include an evaluation and comparison of the
public benefits resulting from such assistance to each of the
several transportation modes in terms of adequacy, efficiency, and
economy of service, safety, technological progress, and energy
conservation. The Federal assistance considered under this
paragraph shall include all forms of such assistance, such as tax
advantages, direct grants, rate adjustments for improvement
purposes, assumption of pension fund liabilities, loans,
guarantees, capital participation, revenues from land grants, and
provision of right-of-way operation, maintenance, and improvement.
(2) The competitive effects of past, present, and expected
future Federal expenditures on inland waterways on competitive
modes of transportation.
(3) The need for Federal assistance to agricultural,
industrial, and other interests affected by inland waterway user
taxes and charges.
(f) CONSIDERATIONS RELATING TO POLICY AND FUTURE DEVELOPMENT.--, The
effects of inland waterway user taxes and charges on--,
(1) The achievement of the objectives of the National
Transportation Policy as set forth in the preamble to the
Transportation Act of 1940.
// 49 USC prec. 1. //
(2) The expansion and improvement of the inland waterways
determined to be necessary by the Secretary of the Army under
section 158 of the Water Resources Development Act of 1976 (Public
Law 94 - 587)
// 33 USC 540 //
or estimated to be necessary under paragraph (3).
(3) The requirements of the Nation through the year 2000 for
transportation service, the portion thereof which should be
provided by inland waterway carriers, and an estimate of the
expansion and improvement of inland waterway capacity necessary to
meet such requirements.
(g) INLAND WATERWAY USER TAXES AND CHARGES DEFINED.-- For purposes of
this section, the term "inland waterway user taxes and charges" means
taxes imposed on the use of the inland and intracoastal waterways of the
United States and all alternatives to such taxes.
(h) REPORT.-- Not later than September 30, 1981, the Secretary of
Transportation shall transmit to Congress a final report of the study
required by this section, together with his findings and recommendations
(including necessary legislation) and the findings and recommendations
of the Secretary of Commerce, the Secretary of the Treasury, the
Secretary of Agriculture, the Secretary of Energy, the Attorney General
of the United States, the Secretary of the Army, the Chairman of the
Water Resources Council, and the Director of the Office of Management
and Budget.
(i) AUTHORIZATION OF APPROPRIATIONS.-- There are hereby authorized to
be appropriated from time to time to the Secretary of Transportation
such sums, not to exceed $8,000,000 in the aggregate, as may be
necessary to carry out the study required by this section.
SEC. 206. // 33 USC 1804. //
INLAND AND INTRACOASTAL WATERWAYS OF THE UNITED STATES.
For purposes of section 4042 of the Internal Revenue Code of 1954
(relating to tax on fuel used in commercial transportation on inland
waterways) and for purposes of section 204 of this Act, the following
inland and intracoastal waterways of the United States are described in
this section:
(1) Alabama-Coosa Rivers: From junction with the Tombigbee
River at river mile (hereinafter referred to as RM) 0 to junction
with Coosa River at RM 314.
(2) Allegheny River: From confluence with the Monongahela
River to form the Ohio River at RM 0 to the head of the existing
project at East Brady, Pennsylvania, RM 72.
(3) Apalachicola-Chattahoochee and Flint Rivers: Apalachicola
River from mouth at Apalachicola Bay (intersection with the Gulf
Intracoastal Waterway) RM 0 to junction with Chattachoochee and
Flint Rivers at RM 107.8. Chattachoochee River from junction with
Apalachicola and Flint Rivers at RM 0 to Columbus, Georgia, at RM
155 and Flint River, from junction with Apalachicola and
Chattahoochee Rivers at RM 0 to Bainbridge, Georgia, at RM 28.
(4) Arkansas River (Mc Clellan-Kerr Arkansas River Navigation
System): From junction with Mississippi River at RM 0 to port of
Catoosa, Oklahoma, at RM 448.2.
(5) Atchafalaya River: From RM 0 at its intersection with the
Gulf Intracoastal Waterway at Morgan City, Louisiana, upstream to
junction with Red River at RM 116.8.
(6) Atlantic Intracoastal Waterway: Two inland water routes
approximately paralleling the Atlantic coast between Norfolk,
Virginia, and Miami, Florida, for 1,192 miles via both the
Albermarle and Chesapeake Canal and Great Dismal Swamp Canal
routes.
(7) Black Warrior-Tombigbee-Mobile Rivers: Black Warrior River
System from RM 2.9, Mobile River (at Chickasaw Creek) to
confluence with Tombigbee River at RM 45. Tombigbee River (to
Demopolis at RM 215.4) to port of Birmingham, RM'S 374 - 411 and
upstream to head of navigation on Mulberry Fork (RM 429.6), Locust
Fork (RM 407.8), and Sipsey Fork (RM 430.4).
(8) Columbia River (Columbia-Snake Rivers Inland Waterways):
From The Dallas at RM 191.5 to Pasco, Washington (Mc Nary Pool),
at RM 330, Snake River from RM 0 at the mouth to RM 231.5 at
Johnson Bar Landing, Idaho. (9) Cumberland River: Junction with
Ohio River at RM 0 to head of navigation, upstream to Carthage,
Tennessee, at RM 313.5.
(10) Green and Barren Rivers: Green River from junction with
the Ohio River at RM 0 to head of navigation at RM 149.1.
(11) Gulf Intracoastal Waterway: From St. Mark's River,
Florida, to Brownsville, Texas, 1,134.5 miles.
(12) Illinois Waterway (Calumet-Sag Channel): From the
junction of the Illinois River with the Mississippi River RM 0 to
Chicago Harbor at Lake Michigan, approximately RM 350.
(13) Kanawha River: From junction with Ohio River at RM 0 to
RM 90.6 at Deepwater, West Virginia.
(14) Kaskaskia River: From junction with the Mississippi River
at RM 0 to RM 36.2 at Fayetteville, Illinois.
(15) Kentucky River: From junction with Ohio River at RM 0 to
confluence of Middle and North Forks at RM 258.6.
(16) Lower Mississippi River: From Baton Rouge, Louisiana, RM
233.9 to Cairo, Illinois, RM 953.8.
(17) Upper Mississippi River: From Cairo, Illinois, RM 953.8
to Minneapolis, Minnesota, RM 1,811.4.
(18) Missouri River: From junction with Mississippi River at
RM 0 to Sioux City, Iowa, at RM 734.8.
(19) Monongahela River: From junction with Allegheny River to
form the Ohio River at RM 0 to junction of the Tygart and West
Fork Rivers, Fairmont, West Virginia, at RM 128.7.
(20) Ohio River: From junction with the Mississippi River at
RM 0 to junction of the Allegheny and Monongahela Rivers at
Pittsburgh, Pennsylvania, at RM 981.
(21) Ouachita-Black Rivers: From the mouth of the Black River
at its junction with the Red River at RM 0 to RM 351 at Camden,
Arkansas.
(22) Pearl River: From junction of West Pearl River with the
Rigolets at RM 0 to Bogalusa, Louisiana, RM 58.
(23) Red River: From RM 0 to the mouth of Cypress Bayou at RM
236.
(24) Tennessee River: From junction with Ohio River at RM 0 to
confluence with Holstein and French Rivers at RM 652.
(25) White River: From RM 9.8 to RM 255 at Newport, Arkansas.
(26) Willamette River: From RM 21 upstream of Portland,
oregon, to Harrisburg, Oregon, at RM 194.
Sec. 301. // 26 USC 513. //
(a) Section 513 of the Internal Revenue Code of 1954 (defining
unrelated trade of business) is amended by adding at the end thereof the
following new subsection:
"(f) Certain Bingo Games.--,
In General.--The term 'unrelated trade or business' does not
include any trade or business which consists of conducting bingo
games.
"(2) Bingo game defined.--For purposes of paragraph (1), the
term 'bingo game' means any game of bingo--,
"(A) of a type in which usually--,
game,
or
local law."
(b) The amendment made by subsection (a) // 26 USC 513. //
shall apply to taxable years beginning after December 31, 1969.
Sec. 302. (a) Paragraph (3) of section 527(c) of the Internal
Revenue Code of 1954 // 26 USC 527 (defining exempt function income) is
amended by striking out "or" at the end of subparagraph (B), by adding
"or" at the end of subparagraph (C), and by inserting after subparagraph
(C) the following new subparagraph:
(b) (1) The amendment made by subsection (a) // 26 USC 527. //
shall apply to taxable years beginning after December 31, 1974,
except that notwithstanding any other provision of law to the contrary,
no amounts held at the date of enactment of this bill by an organization
described in section 527(e)(1) of the Internal Revenue Code of 1954 //
26 USC 527. // in escrow, in separate accounts for the payment of
Federal taxes, or in any other fund which are proceeds desribed in
section 527(c)(3)(D) of such Code may be used, directly or indirectly,
to make a contribution or expenditure (as defined in section 301(e) and
(f) of the Federal Election Campaign Act of 1971; 2 U.S.C. 431(f)) in
connection with any election held before January 1, 1979.
(2) Such amounts as described in (1) above shall not be considered as
security or collateral for any loan by any State or national bank or any
other person or organization.
Approved October 21, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 1608 (Comm. on Ways and Means).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Sept. 25, considered and passed House.
Oct. 10, considered and passed Senate, amended.
Oct. 13, House concurred in Senate amendment.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 14, No. 43:
Oct. 21, Presidential statement.
PUBLIC LAW 95-501, 92 STAT. 1685, AGRICULTURAL TRADE ACT OF 1978
increased sales abroad
of United States agricultural commodities.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may be
cited as the " Agricultural Trade Act of 1978". // 7 USC 1761 //
Sec. 101. Section 4 of the Food for Peace Act of 1966 // 7 USC
1707a. // is amended to read as follows:
" Sec. 4. (a) Commercial export sales of agricultural commodities
out of private stocks on credit terms of not to exceed three years may
be financed by the Commodity Credit Corporation under its export credit
sales program.
"(b)(1) Export sales of agricultural commodities out of Commodity
Credit Corporation and private stocks on credit terms in excess of three
years, but not more than ten years, may be financed by the Commodity
Credit Corporation.
"(2) No export sale may be financed under this subsection unless the
Secretary of Agriculture determines that the sale will--,
"(A) develop, expand, or maintain the importing nation as a
foreign market, on a long-term basis, for the commercial sale and
export of United States agricultural commodities without
displacing normal commercial sales; or
"(B) otherwise improve the capability of the importing nation
to purchase and use, on a long-term basis, United States
agricultural commodities.
"(3) Consistent with the provisions of paragraph (2) of this
subsection, intermediate credit financing under this subsection may be
made available for the following uses:
"(A) to establish reserve stocks consistent with international
commodity agreements or other stock building plans acceptable to
the United States;
"(B) the export sale of breeding animals (including, but not
limited to, cattle, swine, sheep, and poultry), including the cost
of freight from the United States to designated points of entry in
other nations;
"(C) where determined feasible, for the establishment of
facilities in the importing nation to improve handling, marketing,
processing, storage, or distribution of imported agricultural
commodities (through the use of local currency generated form the
import and sale of United States agricultural commodities to
finance all or part of such facilities); and
"(D) to meet credit competition for agricultural export sales.
"(4) Intermediate credit financing under this subsection may not be
used to encourage credit competition, or for the purpose of foreign aid
or debt rescheduling.
"(5) The terms of credit for export sales financed under this
subsection shall include the following terms:
"(A) Repayment shall be in dollars with interest at a rate
equal, as nearly as practicable, to the rate charged by the
Commodity Credit Corporation for financing under the Corporation's
short-term export credit sales program.
"(B) The Secretary may, if the Secretary deems such action
appropriate to protect the interests of the United States, require
an initial payment from the purchaser at the time of sale or
shipment of the agricultural commodity.
"(6) The Secretary shall, wherever feasible, obtain commitments from
purchasers that will prevent resale or transshipment to other nations of
agricultural commodities purchased with financing provided under this
subsection.
"(7)(A) Agreements to finance export sales of agricultural
commodities entered into under this subsection, except agreements to
finance export sales for the establishment of reserve stocks, shall be
subject to such other terms and conditions as the Secretary may deem
necessary or appropriate and shall be subject only to review by the
National Advisory Council on International Monetary and Financial
Policies.
"(B) Agreements to finance export sales of agricultural commodities
under this subsection for the establishment of reserve stocks shall be
subject to such other terms and conditions as the Secretary may deem
necessary and appropriate. No such agreement may become effective or be
carried out until the expiration of thirty days following the date on
which a detailed summary of such proposed agreement, together with a
determination by the President that such financing is not adverse to the
interests of United States producers of agricultural commodities, is
transmitted by the Secretary to the Committee on Agriculture, Nutrition,
and Forestry of the Senate and the Committee on Agriculture of the House
of Representatives, if transmitted while Congress is in session, or
sixty days following the date of transmittal if transmitted while
Congress is not in session.
"(8) The provisions of the cargo preference laws shall not apply to
export sales financed under this subsection.
"(9) The authority provided under this subsection shall be in
addition to, and not in place of, any authority granted to the Secretary
or the Commodity Credit Corporation under any other provision of law.
"(c) The term 'agricultural commodity' as used in this section
includes any agricultural commodity or product thereof.".
TO THE PEOPLE'S REPUBLIC OF CHINA
PAYMENT SALES
Sec. 201. // 7 USC 1707b. // (a) To develop new market opportunities
for the sale of United States agricultural commodities and to maintain
and expand existing foreign markets for such commodities, the Secretary
of Agriculture may provide Commodity Credit Corporation financing to
exporters of such commodities who wish to provide deferred payment terms
to buyers in other nations in order to meet sales competition from other
nations or to make additional export sales. Except as otherwise
provided in section 202 of this title, financing under this section
shall be available only with respect to sales to those nations that are
eligible for financing under the short-term export credit sales program
conducted by the Commodity Credit Corporation.
(b) Exporters who are willing to sell United States agricultural
commodities to foreign buyers on deferred payment terms of not to exceed
three years and who must provide such deferred payment terms in order to
meet sales competition from other nations, or to make additional export
sales, may apply to the Commodity Credit Corporation for financing such
sales. Financing under this section shall not be provided by the
Corporation until the applicant's export sales plan has been approved by
the Corporation and the applicant has established to the satisfaction of
the Corporation that exports have been made in accordance with the
approved plan.
(c) Repayment to the Commodity Credit Corporation shall be made in
dollars by the exporter in accordance with the terms and at interest
rates contained in the approved export sales plan. Interest rates on
such financing shall be no higher than those charged for financing under
the short-term export credit sales program conducted by the Corporation.
(d) The Secretary may, if the Secretary deems such action appropriate
to protect the interests of the United States, require a performance
guarantee from the exporter at the time of the sale.
(e) Financing agreements with exporters entered into under this
section shall be subject to such other terms and conditions as the
Secretary may deem necessary or appropriate and shall be subject only to
review by the National Advisory Council on International Monetary and
Financial Policies.
(f) The authority provided under this section shall be in addition
to, and not in place of, any authority granted to the Secretary or the
Commodity Credit Corporation under any other provision of law.
Sec. 202. // 7 USC 1707c. //
Notwithstanding any other provision of law, in order to expand and
develop markets for United States agricultural commodities, the
Commodity Credit Corporation may provide financing for commercial sales
of agricultural commodities out of private stocks on terms of not to
exceed three years to the People's Republic of China under (1) the
short-term export credit sales program conducted by the Corporation, and
(2) the deferred payment sales program for exporters established under
section 201 of this title.
Sec. 203. The term "agricultural commodity" as used in this title //
7 USC 1707d. // includes any agricultural commodity or product thereof.
Sec. 301. Title VI of the Act of August 28, 1954 (68 Stat. 908 -
910, as amended; 7 U.S.C. 1761 - 1768), is amended by--,
(1) amending the title designation to read as follows:
(2) inserting immediately before section 601 the subtitle designation
as follows:
Counselors and
Agricultural Attaches";
(3) in section 601,
// 7 USC 1761. //
striking out "agricultural products" wherever
that phrase appears therein and inserting in lieu thereof
"agricultural commodities", and striking out "said products" and
inserting in lieu thereof "such commodities";
(4) in sections 602(a), 602(e), 604, and 605,
// 7 USC 1762, 1764, 1765. //
striking "this title" wherever that phrase appears therein and
inserting in lieu thereof "this subtitle";
(5) amending section 602(b) to read as follows:
"(b) Officers or employees assigned or appointed to posts abroad
under this subtitle shall have the designation of Agricultural
Counselor, Agricultural Attache, or such other titles or designations
that shall be agreed to by the Secretary of State and the Secretary of
Agriculture, and shall be accorded the same rank and privileges as those
of other counselors or attaches in United States embassies. An
Agricultural Counselor shall be appointed in any nation--,
"(1) to which a substantial number of governments with which
the United States competes directly for agricultural markets in
such nation assign agricultural representatives with the
diplomatic status of counselor or its equivalent; or
"(2) in which--,
Not less than ten Agricultural Counselors shall be appointed within
three years after the date of enactment of the Agricultural Trade Act of
1978."; and
(6) adding at the end of section 604
// 7 USC 1764. //
a new subsection (c) as follows:
"(c) Upon the request of the Secretary of Agriculture, each Federal
agency may make its services, personnel, and facilities available to
officers and employees appointed and assigned to post abroad under this
subtitle in the performance of the functions of such officers and
employees. The Secretary of Agriculture may reimburse or advance funds
to any such agency for services, personnel, and facilities so made
available.".
Sec. 401. Title VI of the Act of August 28, 1954, as amended by
title III of this Act, is further amended by--,
(1) adding immediately after section 605 a new subtitle B as
follows:
Offices
" Sec. 605 A. (a) For the purpose of developing, maintaining, and
expanding international markets for United States agricultural
commodities, the Secretary of Agriculture, after consultation with the
Secretary of State, shall establish not less than six nor more than
twenty-five United States Agricultural Trade Offices in other nations.
"(b) each United States Agricultural Trade Office shall be directed
and administered by an Agricultural Trade Officer who by reason of
training, experience, and attainments is qualified to carry out the
purposes of this subtitle. Such Officer shall be appointed by the
Secretary of Agriculture.
"(c) each Agricultural Trade Officer may be appointed without regard
to the provisions of title 5 of the United States Code governing
appointments in the competitive service, and may be paid without regard
to the provisions of chapter 51 and subchapter III of chapter 53 of
title 5 relating to classification and General Schedule pay rates,
except that no Agricultural Trade Officer (1) may be paid basic pay at a
rate in excess of the maximum annual rate of basic pay payable for
GS--17 of the General Schedule under section 5332 of such title, or (2)
may be paid at a rate in excess of the highest rate paid to an
Agricultural Counselor or Attache, as the case may be, who is appointed
under subtitle A of this title to the nation in which such Officer is to
serve.
"(d) Each Agricultural Trade Officer shall, through the Agricultural
Counselor or Attache or other senior representative of the Secretary of
Agriculture in each nation in which the United States Agricultural Trade
Office adminstered by such Officer exercises its functions, keep the
Chief of the United States diplomatic mission fully and currently
informed with respect to all activities and operations of such Office.
"(e) Each Agricultural Trade Officer shall be responsible for the
exercise of the functions of the United States Agricultural Trade
Office, and shall have the authority to direct and supervise all
personnel and activities thereof.
"(f) To carry out the functions of United States Agricultural Trade
Offices, the Secretary of Agriculture may appoint such other personnel
as the Secretary determines to be necessary and may, with the
concurrence of the Secretary of State, assign such personnel abroad and
employ local nationals for necessary professional and clerical help.
"(g) No employee of any United States Agricultural Trade Office may
engage in any business, vocation, or other employment, have other
interests, that are inconsistent with official responsibilities.
"(h) Upon the request of the Secretary of Agriculture, the Secretary
of State shall request for Agricultural Trade Officers and personnel of
United States Agricultural Trade Offices diplomatic privileges and
immunities equivalent to those enjoyed by Foreign Service personnel of
comparable rank and salary.
" Sec.605 B. The functions of each United States Agricultural Trade
Office shall be to--,
"(1) increase the effectiveness of agricultural export
promotion efforts through consolidation of activities, providing
services and facilities for foreign buyers and United States trade
representatives, and coordination of market development activities
sponsored by the Department of Agriculture;
"(2) establish goals by nation or region and agricultural
commodity for developing, expanding, and maintaining markets for
United States agricultural commodities;
"(3) initiate programs to achieve the export marketing goals
approved by the Department of Agriculture;
"(4) maintain facilities for use by nonresident cooperators,
private trade groups, and other individuals engaged in the import
and export of United States agricultural commodities where the use
of such facilities would aid in the conduct of market development
activities, and cooperate, to the maximum extent practicable, with
such cooperators, groups, and individuals to expand the level of
United States agricultural exports;
"(5) develop and maintain a current listing of trade,
government, and other appropriate organizations for each
agricultural commodity area and make such listing available to
persons with a bona fide interest in exporting or importing United
States agricultural commodities;
"(6) originate and provide assistance for exhibits, sales
teams, and other functions for the promotion of United States
agricultural commodities;
"(7) provide practical assistance for the use of the programs
under the Agricultural Trade Development and Assistance Act of
1954,
// 7 USC 1691 //
the export credit sales program, the export incentives program,
and related programs of the United States Government where use of
such programs will serve as a market development tool for United
States agriculture;
"(8) supervise project agreements with United States
cooperators,
coordinate the activities of the United States Agricultural
Trade Office with those of the cooperators, and submit annual
recommendations to the Secretary of Agriculture on the efficacy of
cooperator programs;
"(9) publicize the services offered by the United States
Agricultural Trade Office through advertisements in trade journals
or by other appropriate means; and
"(10) perform such other functions as the Secretary of
Agriculture, in consultation with the Secretary of State,
determines to be necessary and proper for achieving the purposes
of this subtitle.
" Sec. 605 C. // 7 USC 1765c. //
Each United States Agricultural Trade Office shall carry out its
functions under section 605 B in the nation where the United States
Agricultural Trade Office is located and in such other nations as the
Secretary of Agriculture, in consultation with the Secretary of State,
may prescribe in order to carry out the purposes of this subtitle.
// 7 USC 1765d. //
" Sec. 605 D Upon the request of the Secretary of Agriculture, the
Secretary of State may use the authorities contained in the Foreign
Service Buildings Act, 1926, to acquire sites and buildings, including
living quarters, for the purpose of establishing United States
Agricultural Trade Offices.
" Sec. 605 E. United States Agricultural Trade Offices shall be
centrally located in the cities of assignment to facilitate foreign
trade meetings and foreign trade reliance on such offices for assistance
in marketing activities.
" Sec. 605 F. // 7 USC 1765f. //
Upon the request of the Secretary of Agriculture, each Federal agency
may make its services, personnel, and facilities available to a United
States Agricultural Trade Office in the performance of its functions.
The Secretary of Agriculture may reimburse or advance funds to any such
agency for services, personnel, and facilities so made available.
" Sec. 605 G. The provisions of section 604 (a) of this title shall
apply with respect to personnel appointed and assigned under this
subtitle.";
(2) redesignating section 606 as section 606 A and inserting
immediately after new section 605 G, as added by this section, the
subtitle designation and new section 606 as follows:
General Provisions,
and Authorization for Appropriations
" Sec. 606. // 7 USC 1765h. //
Any Agricultural Trade Officer and the senior representative of the
Secretary of Agriculture assigned to a nation under subtitle A of this
may, under regulations prescribed by the Secretary of Agriculture, be
entitled to receive a representation allowance in an amount determined
by considering (1) the extent to which such Agricultural Trade Officer
or senior representative can effectively use such funds to further the
purposes of this title, (2) travel and entertainment expenses customary
in the private trade for persons of comparable rank and salary, and (3)
customs and practices in the nation where such Agricultural Trade
Officer or senior representative is assigned.";
(3) redesignating sections 602(d),602(f), and 603 as sections
606 B,606 C,
// 7 USC 1762, 1763, 1766a, 1766b, 1766c. //
respectively, and inserting the redesignated sections immediately
after section 606 A, as redesignated by paragraph (2) of this
section;
(4) insection 606 C, as redesignated by paragraph (3) of this
section, striking out "subsection" wherever that word appears
therein and inserting in lieu thereof "section";
(5) redesignating section 602(e) as 602(d);
// 7 USC 1762. //
and
(6) adding at the end thereof a new section 609 as follows:
" Sec.609. The term 'agricultural commodity' as used in this title //
7 USC 1769. // includes any agricultural commodity or product
thereof.".
Sec.501. // 7 USC 2211a. //
(a) There is hereby established in the Department of Agriculture the
position of Under Secretary of Agriculture for International Affairs and
Commodity Programs to be appointed by the President, by and with the
advice and consent of the Senate. The Under Secretary of Agriculture
for International Affairs and Commodity Programs is authorized to
exercise such functions and perform such duties related to foreign
agriculture and agricultural stabilization and conservation, and shall
perform such other duties, as may be required by law or precribed by the
Secretary of Agriculture.
(b) Section 5314 of title 5 of the United States Code is amended by
adding at the end thereof a new paragraph (69) as follows:
"(69) Under Secretary of Agriculture for International Affairs
and Commodity Programs.".
(c) The designation of " Assistant Secretary of Agriculture for
International Affairs and Commodity Programs" shall not be used after
the date of enactment of this Act.
Sec. 601. (a) The Secretary of Agriculture shall implement the
provisions of this Act as expeditiously as possible consistent with the
efficient and effective administration of the programs established under
this Act and their integration with related foreign agricultural
programs.
(b) The Secretary may issue such regulations as may be necessary to
carry out the provisions of this Act.
SEC.602. The Secretary of Agriculture shall submit to Congress each
year a report providing a comprehensive statement of the activities and
accomplishments of the Department of Agriculture, including specifically
those of the United States Agricultural Trade Offices, in developing,
maintaining, and expanding foreign markets for United States
agricultural commodities.
SEC.603. The Secretary of Agriculture shall appoint an interagency
task force within the Department of Agriculture for the purpose of
analyzing the effectiveness of the export sales reporting provisions of
section 812 of the Agricultural Act of 1970. // 7 USC 612c-3. // The
Secretary shall submit, not later than January 3,1979, a report of the
findings of the task force, including legislative recommendations for
improving such reporting provisions, to the Committee on Agriculture,
Nutrition, and Forestry of the Senate and the Committee on Agriculture
of the House of Representatives.
SEC. 604. Within six months after the date of enactment of this Act,
// 19 USC 2431 // the Secretary of Agriculture shall submit to Congress
a report detailing the effect on United States agriculture of title IV
of the Trade Act of 1974, // 19 USC 2431 // including a recommendation
as to whether the provisions of such title should be repealed or
amended.
Approved October 21, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORTS: No. 95 - 1338, pt. I (Comm. on Agriculture) and No.
95 - 1338, pt II (Comm. on International Relations) both parts
accompanying H.R. 10584; and 95 - 1755 (Comm. of Conference).
SENATE REPORTS: No. 95 - 1142 (Comm. on Agriculture, Nutrition, and
Forestry) and No. 95 - 1315 (Comm. of Conference).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Sept. 8, considered and passed Senate.
Sept. 25, H.R. 10584 considered and passed House; passage
vacated and S. 3447, amended, passed in lieu.
Oct. 11, Senate agreed to conference report.
Oct. 15, House agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, VOL. 14, No. 43:
Oct. 21, Presidential statement.
PUBLIC LAW 95-500, 92 STAT. 1683
pillow block, flange, take-up,
cartridge, and hanger units in the Tariff Schedules
of the United States, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That (a) subpart J of
part 4 of schedule 6 of the Tariff Schedules of the United States (19
U.S.C. 1202) is amended--,
(1) by striking out "pulleys, pillow blocks, and shaft
couplings;" in the superior heading to items 680.45 through 680.54
and inserting in lieu thereof "pulleys and shaft couplings;
pillow blocks; flange, take-up cartridge, and hanger units;"
(2) by redesignating items 680.52 and 680.54 as items 680.55
and 680.56, respectively; and
(3) by striking out item 680.50 and inserting in lieu thereof
the following new items:
" 680.50 Pulleys and shaft couplings, and parts thereof...9.5% ad val.
45% ad val.
Pillow blocks and parts thereof:
680.51 Ball or roller bearing type...................9.5% ad val. 45%
ad val. 680.52 Other types...................................9.5% ad
val. 45% ad val.
Flange, take-up, cartridge, and hanger units, and parts
thereof:
680.53 Ball or roller bearing type...................9.5% ad val. 45%
ad val. 680.54 Other types...................................9.5% ad
val. 45% ad val."
(b) The amendments made by subsection (a) // 19 USC 1202 //
shall apply with respect to articles entered, or withdrawn from
warehouse, for consumption on or after the date of the enactment of this
Act.
Sec.2. (a) Subpart B of part 1 of the Appendix to the Tariff
Schedules of the United States (19 U.S.C. 1202) // 19 USC 1202 // is
amended by inserting in numerical sequence the following new items:
"912.06 Yankee Dryer Cylinders (provided for in
item 668.06, part 4 D, schedule 6)................ Free No
On or change before
12/31/81".
(b) The amendment made by subsection (a) // 19 USC 1202 //
shall apply with respect to articles entered, or withdrawn from
warehouse, for consumption on or after the date of the enactment of this
Act.
Sec. 3. (a) Subpart A of part 6 of Schedule 7 of the Tariff
Schedules of the United States (19 U.S.C. 1202) is amended by inserting
immediately after item 740.10 the following new item: "740.20
Necklaces, valued not over 30 cents per dozen,
composed wholly of plastic
shapes mounted on fiber string............................ Free
Free".
(b) The amendment made by subsection (a) // 19 USC 1202 //
shall apply with respect to articles entered, or withdrawn from
warehouse, for consumption on or after the date of enactment of this
Act.
Approved October 21, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 1356 (Comm. on Ways and Means).
SENATE REPORT No. 95 - 1241 (Comm. on Finance).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Sept. 18, considered and passed House.
Sept. 30, considered and passed Senate, amended.
Oct. 10, House concurred in Senate amendments.
Public Law 95-499, 92 Stat. 1679.
the Pueblo of Zia certain
public domain lands.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That all right, title,
and interest of the United States in the following lands situated within
Sandoval County in the State of New Mexico are hereby declared to be
held by the United States in trust for the benefit and use of the Pueblo
of Zia:
Section 3:
Lots 2, 3, 4,
Southwest quarter northeast quarter,
West half southeast quarter,
Southwest quarter,
Southeast quarter southeast quarter,
South half northwest quarter,
Section 10: Lot 4,
Section 11: South half south half,
Section 13:
Southeast quarter,
West half,
Section 14: All,
Section 15:
Lots 1, 2, 3, 4,
Southwest quarter,
West half southeast quarter,
Section 22: All,
Section 23:
West half northeast quarter,
Northeast quarter northeast quarter.
Southeast quarter,
West half,
Section 24: North half north half,
Section 26: North half northwest quarter,
Section 27: All,
Section 34:
Southwest quarter,
Northwest quarter,
Northeast quarter,
Containing 4,848.13 acres, more or less.
Sec. 2. The Secretary of the Interior shall publish in the Federal
Register the boundaries and descriptions of the lands declared to be
held in trust by this Act.
Sec. 3. All of the right, title, and interest of the United States
in all minerals, including gas and oil, underlying the lands hereby
declared to be held in trust for the Pueblo of Zia, are hereby declared
to be held by the United States in trust for the benefit and use of the
Pueblo of Zia.
Sec. 4. (a) Nothing in this Act shall deprive any person of any
valid existing right of use, possession, contract right, interest, or
title which that person may have in any of the trust lands within the
purview of this Act, or of any existing right of access to public domain
lands over and across such trust lands, as determined by the Secretary
of the Interior. All existing mineral leases involving lands declared
to be held in trust by this Act, including oil and gas leases, which may
have been issued or approved pursuant to Federal law, prior to enactment
of this Act, shall remain in force and effect in accordance with the
provisions thereof. Notwithstanding any other provision of law, all
applications for mineral leases involving such lands, including oil and
gas leases, pending on the date of enactment of this Act shall be
rejected and the advance rental payments returned to the applicants.
(b) Subject to the provisions of subsection (a) of this section, the
property declared to be held in trust by this Act for the benefit and
use of the Pueblo of Zia shall hereafter be administered in accordance
with the laws and regulations applicable to other property held in trust
by the United States for the Indian tribe of such pueblo.
Sec. 5. All gross receipts (including, but not limited to, bonuses,
rents, and royalties) hereafter derived by the United States from any
contract, permit, or lease which relates to the property declared to be
in trust by this Act received subsequent to the enactment of this Act
shall be administered in accordance with the laws and regulations
applicable to receipts from property held in trust by the United States
for Indian tribes.
Sec. 6. All property declared to be held in trust for the benefit
and use of the Pueblo of Zia pursuant to this Act, and all the receipts
therefrom referred to in section 5 of this Act, shall be exempt from
Federal, State, and local taxation so long as such property is held in
trust by the United States. Any distribution of such receipts to tribal
members shall neither be considered as income or resource of such
members for purposes of any such taxation nor as income or resources or
otherwise utilized as the basis for denying or reducing the financial
assistance or other benefits to which such member or his household would
otherwise be entitled to under the Social Security Act or any other
Federal or federally assisted program.
Sec. 7. (a) The Secretary may execute any title documents necessary
to effect conveyances authorized by this Act.
(b) Title to all lands acquired under the provisions of this Act
shall be taken in the name of the United States in trust for the Pueblo
of Zia.
Sec. 8. The transfer and conveyance of title shall be subject ot the
following roadway right-of-way to be for the use and benefits of
adjacent private landowners, the Bureau of Land Management, its
permittees, lessees, successors, and assigns:
(1) Acess road through Zia Allotment: A road right-of-way 50
feet wide over that portion in southeast quarter section 13, north
half section 24, southeast quarter section 23, north half section
2l, and north half section 27, all in township in north, range 1
east, New Mexico principal meridian.
Beginning at intersection of State Road 44, thence
southwesterly 1,600 feet to a point of curve, thence westerly
2,100 feet to a point of curve, thence southerly 1,100 feet to a
point of curve, thence southwesterly 2,400 feet to a point of
curve, thence southerly 2,640 feet of a point of curve, thence
southerly 8,500 feet to a point of curve near the west section
line of section 27, road being 3.5 miles long (approx.).
Distances to a curve are scaled distances (approx.) from U.S.G.S.
Quandrangle Sheet, Sky Village N.E. Quadrangle, and San Ysidro
Quadrangle.
The description was compiled from U.S.G.S. Quadrangle maps
dated November 1960, and this is only a paper survey.
(2) Gypsum Mine Access Road: a road right-of-way 50 feet wide,
over that portion in southeast quarter of section 13, northeast
quarter section 24, west half section 13, and northeast quarter
section 14, all in township 15 north, range 1 east, New Mexico
principal meridian.
Beginning at the intersection of Gypsum mine access road and
access road through lands known as Zia Allotment being 500 feet
southwesterly from State Road 44, thence northwesterly 6,500 feet
near the east line of section 14. Distances to the termination of
road are scaled distances (approx.) from U.S.G.S. Quadrangle
Sheet, San Ysidro Quadrangle.
This description was compiled from U.S.G.S. Quadrangle map
dated November 1960, and this is only a paper survey.
Sec. 9. (a) Notwithstanding any other provision of this Act, during
the 3 years following enactment of this Act, the Secretary may, ater
giving the tribe 30 days written notice and after consulting with the
tribe, enter on the lands described in the first section of this Act to
identify, investigate, examine, and remove any paleontological resources
from such lands: Provided, That no explorations, surveys, or
excavations shall be authorized within 200-yard radius of the following
shrines or religious sites:
(1) Tiam (Eagle Peak, Eagle Rock, Eagle Point);
(2) Hu-nah-'kah-Warish (Cherry Spring);
(3) Pah-Pah (Grandma);
(4) Ku-Mah-Yah-Wish (Mudhead);
(5) Punaya;
(6) Grash-Yeh-Tey-Sham (White Points).
Such resources so removed are the property of the United States and
shall be administered under laws applicable to federally owned
resources. Paleontological resources on such lands that are not removed
from the lands pursuant to this section shall be managed in a manner
that will permit the greatest possible public benefits, use, and study
of the resources, consistent with tribal law and practices.
(b) Any lands excavated pursuant to this section shall be reclaimed
and restored to their original condition by the Secretary, as nearly as
he determines may be practicable.
Approved October 21, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 1220, accompanying H.R. 10240 (Comm. on
Interior and Insular Affairs).
SENATE REPORT No. 95 - 1131 (Select Comm. on Indian Affairs).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Sept. 6, considered and passed Senate.
Oct. 3, H.R. 10240 considered and passed House; passage
vacated, and S. 2358, amended, passed in lieu.
Oct.7, Senate concurred in House amendments.
PUBLIC LAW 95-498, 92 STAT. 1672
the Pueblo of Santa Ana
certain public domain lands.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That all right, title,
and interest of the United States in the following lands situated within
Sandoval County in the State of New Mexico are hereby declared to be
held by the United States in trust for the benefit and use of the Pueblo
of Santa Ana:
Section 1:
Lots 1, 8, 9, 10,
South half north half,
South half,
Section 3:
Lots 9, 10, 11, 12,
South half north half,
South half,
Section 4:
Lots 9, 10, 11, 12,
South half north half,
South half,
Section 5: All of that portion lying east of the west boundary of
the right-of-way of New Mexico Highway 44,
Section 9:
East half west half,
East half,
Section 10: All,
Section 11: All,
Section 12: All,
Section 13: All,
Section 14: All,
Section 15: North half northwest quarter, southeast quarter
northwest quarter, noreast quarter southwest quarter northwest quarter,
north half northwest quarter southwest quarter northwest quarter,
southeast quarter northwest quarter southwest quarter northwest quarter,
north half northwest quarter southeast quarter southwest quarter
northwest quarter, northeast quarter southeast quarter southwest quarter
northwest quarter, northeast quarter, north half northeast quarter
northwest quarter northeast quarter southwest quarter, north half
northeast quarter northeast quarter southwest quarter, north half
southwest quarter northeast quarter northeast quarter southwest quarter,
southeast quarter northeast quarter northeast quarter southwest quarter,
northeast quarter southeast quarter, north half northwest quarter
southeast quarter, southeast quarter northwest quarter southeast quarter
northeast quarter southwest quarter northwest quarter southeast quarter,
north half northwest quarter southwest quarter northwest quarter
southeast quarter, north half southeast quarter southwest quarter
northwest quarter southeast quarter, northeast quarter northeast quarter
southwest quarter southeast quarter, northeast quarter southeast quarter
southeast quarter, north half northwest quarter southeast quarter
southeast quarter, southeast quarter northwest quarter southeast quarter
southeast quarter, north half southwest quarter northwest quarter
southeast quarter southeast quarter, north half northeast quarter
southwest quarter southeast quarter southeast quarter, north half
southeast quarter southeast quarter southeast quarter, north half
southeast quarter southeast quarter southeast quarter southeast quarter;
excluding existing rights-of-way,
Section 23: Northeast quarter northwest quarter northwest quarter,
northeast quarter northwest quarter northwest quarter northwest quarter,
north half northwest quarter northwest quarter northwest quarter
northwest quarter, north half northeast quarter southeast quarter
northwest quarter northwest quarter, north half northeast quarter
northwest quarter, southeast quarter northeast quarter northwest
quarter, north half southwest quarter northeast quarter northwest
quarter, southeast quarter southwest quarter northeast quarter northwest
quarter, northeast quarter northeast quarter southeast quarter northwest
quarter, north half northwest quarter northeast quarter southeast
quarter northwest quarter, north half northeast quarter, southeast
quarter northeast quarter, north half southwest quarter northeast
quarter, north half southeast quarter southwest quarter northeast
quarter, southeast quarter southeast quarter southwest quarter northeast
quarter, north half southwest quarter southeast quarter southwest
quarter northeast quarter, north half northeast quarter southwest
quarter southwest quarter northeast quarter, northeast quarter northeast
quarter southeast quarter, northeast quarter northwest quarter,
northeast quarter southeast quarter, north half northwest quarter
northwest quarter norhteast quarter southeast quarter, north half
southeast quarter northwest quarter northeast quarter southeast quarter,
north half northeast quarter southeast quarter northeast quarter
southeast quarter; excluding Rec. PP CL
10/10/62 and existing rights-of-way,
Section 24: North half, southeast quarter, northeast quarter
southwest quarter, north half northwest quarter southwest quarter,
southeast quarter northwest quarter southwest quarter, north half
southwest quarter norhtwest quarter southwest quarter, southeast quarter
southwest quarter northwest quarter southwest quarter, north half
southwest quarter southwest quarter northwest quarter southwest quarter,
north half northeast quarter southeast quarter southwest quarter,
southwest quarter, north half southeast quarter southwest quarter,
southeast quarter southeast quarter southwest quarter, northeast quarter
southwest quarter southeast quarter southwest quarter; excluding
existing rights-of-way,
Section 25: North half northeast quarter northeast quarter northeast
quarter northwest quarter, northeast quarter northeast quarter,
northeast quarter northwest quarter northeast quarter, north half
northwest quarter northwest quarter northeast quarter, northeast quarter
northwest quarter northwest quarter northeast quarter, north half
southwest quarter northwest quarter northwest quarter northeast quarter,
north half northeast quarter southwest quarter northwest quarter
northeast quarter, north half southeast quarter northwest quarter
northeast quarter, souteast quarter northwest quarter northeast quarter,
Section 3:
Lots 4, 5, 6,
West half northeast quarter,
Northwest quarter,
Section 4: All; including bed of Jemez River,
Section 5:
Lots 1, 2, 3, 4, 5,
Northwest quarter northwest quarter,
South half northwest quarter,
South half,
and bed of Jemez River,
Section 6:
Lots 1, 2, 3, 4,
East half west half,
East half,
and bed of Jemez River,
Section 7: All,
Section 8:
Lots 3, 4, 5,
North half,
Southwest quarter,
Northwest quarter southeast quarter,
Section 9:
Lots 5, 6, 7, 8 and bed of Jemez River lying north of the
North boundary of the Angostura Grant,
Section 17:
Lots 10, 11, 12, 13,
Northwest quarter,
Section 18:
Lots 2, 3,
East half northwest quarter,
Northeast quarter,
Section 6: Bed of the Jemez River,
Section 17: All,
Section 18: East half east half,
Section 19: East half east half,
Section 20: All,
Section 21: West half,
Section 27: Southwest quarter southwest quarter,
Section 28:
Northwest quarter,
South half,
Section 29: All,
Section 30: East half east half,
Section 31:
East half northeast quarter,
Southwest quarter northeast quarter,
Northwest quarter northwest quarter,
South half northwest quarter,
South half,
and bed of Jemez River,
Section 33: All,
Section 34:
South half northeast quarter,
Northwest quarter,
South half,
Section 35:
Lot 9,
West half southwest quarter,
containing 16,249.98 acres more or less.
(b) (1) The lands described in paragraph (2) of this subsection
consisting of approximately 2240.14 acres shall continue to be subject
to Public Land Order 873, entitled " An Order Withdrawing Public Lands
for Use of the Department of the Army in Connection with the Jemez
Canyon Dam and Reservoir Project", issued by the Secretary of the
Interior on November 14, 1952, until such lands, or any portion thereof,
are determined by the Secretary of the Army to be no longer needed for
the purpose for which the lands were reserved under such order. The
Secretary of the Army shall publish notice of any such determination in
the Federal Register.
(2) The lands described in subsection (a) of this section which are
subject to Public Land Order 873 are the following lands:
Section 1:
Lots 1, 8, 9, 10,
South half northeast quarter,
Southeast quarter northwest quarter,
Northeast quarter southwest quarter,
Section 5:
Lots 1, 2, 3, 4,
Northwest quarter northwest quarter,
South half northwest quarter,
Southwest quarter,
West half southeast quarter,
Lot 5, that part lying north of the east-west quarter section
line,
Section 6:
Lots 1, 2, 3,
Northeast quarter,
East half northwest quarter,
Northeast quarter southwest quarter,
North half southeast quarter,
Southeast quarter southeast quarter,
Section 8:
Lots 3, 4, 5,
West half northeast quarter,
Northwest quarter,
North half southwest quarter,
Northwest quarter southeast quarter,
Section 17:
Lots 10 and 11,
Lot 12, that part lying east of the north-south quarter section
line,
Section 31:
Southwest quarter northeast quarter,
Northwest quarter northwest quarter,
South half northwest quarter,
South half.
Sec. 2 The Secretary of the Interior shall publish in the Federal
Register the boundaries and descriptions of the lands declared to be
held in trust by this Act.
Sec. 3 All of the right, title, and interest of the United States in
all minerals, including gas and oil, underlying the lands hereby
declared to be held in trust for the Pueblo of Santa Ana, are hereby
declared to be held by the United States in trust for the benefit and
use of the Pueblo of Santa Ana.
Sec. 4. (a) Nothing in this Act shall deprive any person of any
valid existing right of use, possession, contract right, interest, or
title which that person may have in any of the trust lands within the
purview of this Act, or of any existing right of access to public domain
lands over and across such trust lands, as determined by the Secretary
of the Interior. All existing mineral leases involving lands declared
to be held in trust by this Act, including oil and gas leases, which may
have been issued or approved pursuant to Federal law, prior to enactment
of this Act, shall remain in force and effect in accordance with the
provisions thereof. Notwithstanding any other provisions of law, all
applications for mineral leases involving such lands, including oil and
gas leases, pending on the date of enactment of this Act shall be
rejected and the advance rental payments returned to the applicants.
(b) Those persons holding grazing permits from the United States
Bureau of Land Management in the grazing unit known as the Bernalillo
Community Allotment (Number 551), Sandoval County, New Mexico, as of the
date of enactment of this Act are hereby granted the right to continue
those grazing rights, subject to all otherwise applicable terms,
conditions, rules, and regulations of the Bureau of Land Management
governing such grazing rights,for a period of not to exceed ten years.
Such grazing rights shall be administered by the Bureau of Land
Management in accordance with applicable rules and regulation governing
such rights on the Federal public domain, and may be canceled by the
Bureau of Land Management in accordance with its regulations for failure
to meet the terms and conditions of the existing permits, or failure to
abide by applicable rules and regulations. Grazing fees shall be payable
by the permittees to the Bureau of Land Management at prevailing rates,
which fees shall be remitted by said Bureau to the Pueblo of Santa Ana
within 30 days of receipt. Such grazing rights shall be
nontransferable, except that they may be relinquished at any time to the
Pueblo of Santa Ana. In the event of cancellation or relinquishment of
said grazing rights as provided above, such rights shall not be renewed,
nor shall any new permits be issued: Provided, however, That no grazing
fees shall be payable by the said existing permittees for the first five
years following enactment of this Act.
(c) Subject to subsection (a) and (b) of this section, any property
held in trust under this Act for the Pueblo of Santa Ana shall be
administered in accordance with the laws and regulations applicable to
other property held in trust by the United States for the Indian tribe
of such pueblo.
Sec. 5. (a) Any and all gross receipts derived from, or which relate
to, the property declared to be held in trust by this Act which were
received by the United States subsequent to the acquisition by the
United States of such property and prior to the date of the enactment of
this Act (including State school lands referred to in section 7), from
whatever source and for whatever purpose, shall, as of the date of
enactment of this Act, be deposited to the credit of the Pueblo of Santa
Ana and may be expended by such tribe for such beneficial programs as
the tribal governing body may determine.
(b) All gross receipts (including, but not limited to, bonuses,
rents, and royalties) hereafter derived by the United States from any
contract, permit, or lease referred to in section 4(a) of this Act,
shall be administered in accordance with the laws and regulations
appicable to receipts from property held in trust by the United States
for Indian tribes.
Sec. 6. All property declared to be held in trust for the benefit
and use of the Pueblo of Santa Ana pursuant to this Act, and all the
receipts therefrom referred to in section 5 of this Act, shall be exempt
from Federal, State, and local taxation so long as such property is held
in trust by the United States. Any distribution of such receipts to
tribal members shall neither be considered as income or resources of
such members for purposes of any such taxation nor as income or
resources or otherwise utilized as the basis for denying or reducing the
financial assistance or other benefits to which such member or his
household would otherwise be entitled to under the Social Security Act
// 42 USC 1305 // or any other Federal or federally assisted program.
Sec. 7.(a) For the purpose of improving the land tenure pattern and
consolidating Santa Ana Pueblo lands, the Secretary of the Interior is
authorized and directed to acquire, by purchase or exchange, under such
regulations as he may prescribe, all State school lands in township 13
north, range 3 east, sections 2 and 16; township 14 north, range 3
east, section 36; and township 14 north, range 4 east, section 32,
State of New Mexico, containing 2004.05 acres, more or less; and
interests therein, including improvements, mineral rights, and water
rights. In exercising his authority to acquire such lands by exchange,
the Secretary is authorized to utilize unappropriated public lands in
the State of New Mexico. The properties so exchange shall be of
approximately equal value, and the Secretary may accept cash from or pay
cash to the State of New Mexico in such an exchange in order to equalize
the values of the properties exchanged.
(b) The Secretary may execute any title documents necessary to effect
the exchanges authorized by this section.
(c) Title to all lands acquired under the provisions of this section
shall be taken in the name of the United States in trust for Santa Ana
Pueblo.
Sec. 8. (a) Notwithstanding any other provision of this Act, during
the 3 years following enactment of this Act, the Secretary may, after
giving the tribe 30 days written notice and after consulting with the
tribe, enter on the lands described in the first section of this Act to
identify, investigate, examine, and remove any paleontological resources
from such lands: Provided, That no explorations, surveys, or
excavations shall be authorized within a 200-yard radius of the
following shrines or religious sites:
(1) Santiyaku ' Ke Kura (Santiago's Corral);
(2) Santiyaku Ka'me (Santiago's Home);
(3) Santiyaku ' Kaisru (Santiago's Field);
(4) ' Tsitse Sruwii (Water Snake Head);
(5) Tuyuuna (Snake Head Shrine-Canjilon Hill);
(6) Shayeka Kauwatsesruma (Hunter Shrine);
(7) ' Kuyau ' Kapesru (Old Lady Sits Shrine);
(8) Huchaniitse (White House Shrine);
(9) Dyadyu Tsinautani (Bobcat Point);
(10) ' Kasreri ' Kumiyeisruma (Clown Point);
(11) Chapiyu ' Ka 'kuyanisru (Chaiyu's Trail);
(12) Shawiti 'tsuyu (Parrot Point);
(13) Hane' Kai (Sacred Clown Society Shrine);
(14) Yusrkuma (Corn Cob Shrine);
Such resources so removed are the proerty of the United States and shall
be adminstered under laws applicable to federally owned resources.
Paleontological resources on such lands that are not removed from the
lands pursuant to this section shall be managed in manner that will
permit the greatest possible public benefit, use, and study of the
resources, consistent with tribal law and practices.
(b) Any lands excavated pursuant to this section shall be reclaimed
and restored to their original condition by the Secretary, as nearly as
he determines may be practicable.
Approved October 21, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95-1219, accompanying H.R. 3924 (Comm. on Interior
and Insular Affairs).
SENATE REPORT No. 95-1132 (Select Comm. on Indian Affairs).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Sept. 6, considered and passed Senate. Oct. 3, 4, H. R. 3924
considered and passed House; passage vacated, and S. 2588,
amended, passed in lieu.
Oct. 7, Senate concurred in House amendment.
PUBLIC LAW 95-497, 92 STAT. 1665
Internal Revenue Code
of 1954 to specified transactions by certain public
employee retirement systems
created by the State of New York or any of its
political subdivisions.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. QUALIFIED STATUS OF PARTICIPATING PENSION PLANS.
(a) General Rule. --A participating pension plan shall not be
considered to fail to satisfy the requirements of section 401 (a) of the
Internal Revenue Code of 1954, // 26 USC 41 // and shall not be
considered to have engaged in a prohibited transaction described in
section 503 (b) of such Code, // 26 USC 503 // merely because--
(1) during the period beginning on July 1, 1978, and ending on
June 30, 1982, the plan acquies city indebtedness which meets the
applicable requirements of section 2, or
(2) the plan continues to hold any city indebtedness acquired--
// 90 Stat. 238. //
(b) AQUISITON OF INDEBTEDNESS PURSUANT TO AGREEMENT.-- The
acquisition of city indebtedness by a participating pension plan under
an agreement for the acquisition of city indebtedness meets the
applicable requirements of section 2 if--
(1) the agreement is not disapproved by the Secrtary under
subsection (c), and
(2) the plan certifies to the Secretary (and furnishes to the
Secretary and to the approriate committees of the Congress such
supporing information and documentation as the Secretary shall
require) that the acquisition--
(determined
without regard to the provisions of subsections (b),
(c), and (f) of section 2).
(c) SIXTY- DAY PERIOD FOR DISAPPROVAL.--
(1) In General.--Before entering into an agreement described in
subsection (b), and before acquiring any city indebtedness not
covered by such an agreement, the participating pension plan shall
notify the Secretary of the proposed agreement or acquisition. If
the Secretary determines (not later than 60 days after the date of
such submission or such shorter period as the Secretary may
establish) that such agreement or acquisition does not meet any
requirement of section 2, the Secretary shall disapprove such
agreement or acquisition (as the case may be). For purposes of
this subsection an amendment, or any provision, of such an
agreement shall be treated as a new agreement.
(2) NOTIFICATION.-- The Secretary shall, not later than the
10th day after the close of the period applicable under paragraph
(1), notify the appropriate committees of the Congress of the
determinations he has made with respect to the submission and the
reasons on which such determinations were based.
SEC. 2. REQUIREMENTS.
(a) Limitations on Amount of Debt To Be Acquired.--
(1) Percentage Limitations.-- An acquisition of city
indebtedness by a participating pension plan does not meet the
requirements of this section if--
the case of a city plan, the plan acquires any city
indebtedness
after June 30, 1979, and before the city plans meet
the percentage
limitation on holdings on city indebtedness applicable
under this subparagraph for the 12-month period ending
on
the most recently preceding June 30. The percentage
limitation
on holdings of city indebtedness under this subparagraph
is not met if the value of city indebtedness held by
all city
plans exceeds a percentage of the aggregate assets of
all city
plans equal to--
indebtedness
which, when added to other city indebtedness held by
such
plan, would cause such holdings to exceed 50 percent of
the
assets of such plan at the time of the acquisition.
of
a State plan, the plan acquires any city indebtedness
which,
when added to other city indebtedness held by such plan,
would cause such holdings to exceed 10 percent of the
assets
of such plan at the time of the acquisition.
percentage)
of 4 fractions, the numerator of which are the
value of city indebtedness held by all city plans as of
the close of each calendar quarter within the 12-month
period for which the determination is being made and
the denominators of which are the value of the assets of
all city plans as of the close of each such calendar
quarter.
If the percentage limitation under subparagraph (A) is
not met for a 12-month period on the basis of the 4
fractions
for the 4 calendar quarters within that 12-month
period, the plan shall make a redetermination for that
12-month period as of the close of the first calendar
quarter, if necessary, the second calendar quarter and,
if
necessary, the third calendar quarter following the
12-month period using the 4 fractions for the 12-month
period and the fractions or fractions for the additional
quarter or quarters. If the value of city
indebtedness or
plan assets is not available for any quarter at the time
the determination of the fraction for that quarter is
being made, the plan shall use a value derived from
interpolations
from the most recently available semi-annual
valuations.
whether or not an acquisition of city inebtedness meets
the requirements of subparagraph (B) or (C), the plan
shall make determinations based on the most current
data available as to the holdings of city indebtedness
and
on the basis of the most recently available semiannual
valuation of assets of the plan.
(2) Method of valuation.- For purposes of this subsection--
face
value, and
with
the methods of valuing assets for purposes of
section 412 of
the Internal Revenue Code of 1954.
// 26 USC 412 //
(b) Standards.--
(1) Overall standard.- The overal standard used by the
Secretary under this Act in determining whether or not to
disapprove an agreement for the acquisition of city indebtedness
under section 1 (c) shall be the extent to which the acquisition
of city indebtedness under the agreement will, in the case of a
city plan--
trust.
(2) Factors to be taken into account.--In determining whether
or not to disapprove such an agreement the Secretary shall take
into account (among other factors) the terms of the obligations
which are to be acquired under the agreement.
(3) Fiscal participation by private sources or public credit
markets.--The Secretary shall disapprove any such agreement unless
he has received assurances to his satisfaction that there will be
significant participation in the acquisition of city indebtedness
by the State, an agency of the State, or private sources, or
through public credit markets.
(c) Requirements With Respect to Fiscal Condition of the City.--
(1) Substantial progress toward a balanced budget by 1982.-- An
acqisition of city indebtedness by a participating pension plan
during any fiscal year beginning after June 30, 1979, does not
meet the requirements of this section unless the Secretary has
determined for such fiscal year thaat the city is making
subtantial progress toward operating under expense budgets which
do not show a deficit it.
(2) Principles to be applied under paragraph (1).--The
Secretary shall make the determination required under paragraph
(1) on the basis of--
Act of
1978 (as such Act is in effect on the date of
enactment of this
Act) are being met, and
prepared
in accordance with generally accepted accounting
principles (including principles applicable to municipal
governments which provide for a clear division between
operating outlays and revenues on the one hand and
capital
expenditures and revenues on the other hand) and in
accordance
with generally accepted auditing standards.
(d) Plans Having Negative Cash Flow.--
(1) In general.--An acquisition of any city indebtedness by a
city plan does not meet the requirements of this section if the
plan would have a negative cash flow for the fiscal year of
acquisition.
(2) Special rules.--For purposes of paragraph (1)--
agreement
which must be submitted to the Secretary under section
1 (c) (including any amendment of, or waiver under, such
an agreement),
during
the plan year on the cash flow shall be taken into
account.
(e) Reports.-
(1) Annual report by plans on receipts, disbursements,
holdings, and cash flow.-
indebtedness
by any participating city pension plan does not meet
the requirements of this section unless, for each
preceding
plan year beginning after June 30, 1978, and ending
more
than 8 months and 15 days before the date of the
acquisition
the plan has submitted an annual report which meets the
requirements of paragraph (2) to the Secretary and to
the
appropriate committees of the Congress.
indebtedness
by any participating city pension plan for any plan
year does not meet the requirements of this section
unless the
plan has submitted to the Secretary and to the
appropriate
committees of the Congress a statement showing the
projected
cash flow for the plan year.
(2) Annual report by independent public accountant-An annual
report does not meet the requirements of this paragraph unless it-
subparagraphs
(A) and (B) of subsection (a) (1),
Act
of 1974, as in effect on the date of enactment of this
Act
// 29 USC 1023 //
(without regard to the last 4 sentences of subparagraph
(A)
of that paragraph).
(3) Rules for determining cash flow.- For purposes of paragraph
(1)(B), the cash flow-
or
redemption of assets), other than-
(f) City Must Comply With Requirements of Section 103 (7) of New York
City Loan Guarantee Act of 1978.- An acquisition of city indebtedness by
a city pension plan for any year does not meet the requirements of this
section unless, at the time of the acquisition, the Secretary has
determined that the requirements of paragraph (7) of section 103 of the
New York City Loan Guarantee Act of 1978, as in effect on the date of
enactment of this Act, have been met.
SEC.3. NOTIFICATION OF PLANS AND CITY OF ACQUISITIONS WHICH FAIL TO
MEET REQUIREMENTS OF THE ACT; REGULATIONS.
(a) Notification of Plans and City.--
(1) Notice of failure to meet requirements.- Whenever the
Secretary determines that an acquisition of city indebtedness has
not met one of the requirements of section 2,he shall notify the
participating plan or plans involved.
(2) Notice of possible prospective failure.- The Secretary
shall notify each participating pension plan and the city whenever
he finds, based on information available to the Secretary, that a
future acquisition of city indebtedness will fail to meet the
requirements of section 2 because of the requirement of subsection
(a) (1) (A) or (c) of that section, and he shall notify the
participating pension plan concerned and the city whenever it
appears that a future acquisition of city indebtedness by that
plan will fail to meet the requirements of section 2 for any other
reason.
(b) Regulations.- The Secretary of the Treasury or his delegate is
authorized to prescribe such regulations as may be necessary to carry
out the provisions of this Act.
SEC. 4. DEFINITIONS AND SPECIAL RULES.
For purposes of this Act-
(1) Participating pension plan.-- The term "participating
pension plan" means any city plan or State plan.
(2) City plan.- The term "city plan" means any of the
following:
article 2,
(3) State plan.- The term " State plan" means any of the
following:
retirement
system, and
(4) Appropriate committees of the congress.- The term
"appropriate committees of the Congress" means the Committee on
Ways and Means of the House of Representatives and the Finance
Committee of the Senate.
(5) References to plan include references to trust.- A
reference to a plan includes a reference to any trust forming a
part thereof.
(6) City indebtedness.- The term "city indebtedness" means any
city obligation or any State financing agency obligation.
(7) City obligation.- The term "city obligation" means any
indebtedness for money borrowed by the city.
(8) State financing agency obligation.- The term " State
financing agency obligation" means any indebtedness for money
borrowed by the State financing agency.
(9) State financing agency.- The term " State financing agency"
means any agency or instrumentality of the State of New York duly
authorized by such State to act on behalf of or in the interest of
the city, and no other subdivision of the State, with respect to
the city's financial affairs.
(10) City.- The term "city" means the city of New York.
(11) Fiscal year.- The term "fiscal year" means a 1-year period
beginning on July 1 or, where the Secretary determines it to be
appropriate, the plan year of a participating pension plan.
(12) Secretary.- The term " Secretary" means the Secretary of
the Treasury. Except as provided in section 3, no function, power,
or duty of the Secretary under section 1, section 2, or this
section may be delegated.
(13) Acquisition.- The term "acquisition" includes-
obligation
or in the rights of the holder of an obligation.
SEC. 5. RELATIONSHIP OF THIS ACT TO PUBLIC LAW 94 - 236.
Effective on the date of the enactment of this Act,
// 26 USC 401. //
the waiver of the requirements of sections 401 (a) and 503 (b) of the
Internal Revenue Code of 1954, // 26 USC 503. // contained in
subsection (a) of the first section of Public Law 94 - 236 // 90 Stat.
238. // shall not apply to acquisitions of city indebtedness on or
after such date.
Approved October 21, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 1605 (Comm. on Ways and Means).
CONGRESSIONAL RECORD, Vol.124 (1978):
Oct. 3, considered and passed House.
Oct.7, considered and passed Senate.
PUBLIC LAW 95-496, 92 STAT. 1660
Oklahoma, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That section 9 of the
Act of June 28, 1906 (34 Stat. 539, 545), as amended, is further amended
to read as follows: " There shall be a quadrennial election of the
officers of the Osage Tribe as follows: A principal chief, an assistant
principal chief, and eight members of the Osage Tribal Council shall be
elected to succeed the officers elected in the year 1974 at a general
election to be held in the town of Pawhuska, Oklahoma, on the first
Monday in June 1978 and on the first Monday in June of each fourth year
thereafter, in a manner to be prescribed by the Secretary of the
Interior, and said officers shall be elected for a period of four years
commencing on the first day of July following the election. In case of
a vacancy in the office of principal chief or other officer by death,
resignation, or otherwise, the vacancy shall be filled in a manner to be
prescribed by the Osage Tribal Council. In the event of a common
disaster and a quorum of five of the Osage Tribal Council does not
survive, the Secretary shall appoint a principal chief and/or the number
of councilmen necessary to complete a total of eight, to serve until the
next quadrennial election. The Secretary is hereby authorized to remove
from the council any member or members for good cause, to be by him
determined, after the party involved has had due notice and opportunity
to appear and defend himself. The tribal government so constituted
shall continue in full force and effect until January 1, 1984, and
thereafter until otherwise provided by Act of Congress.".
SEC. 2. (a) The first paragraph of section 3 of the Act of June 24,
1938 (52 Stat. 1034, 1035), as amended, extending the mineral estate
reserved to the Osage Tribe by the Act of June 26, 1906 (34 Stat. 539),
is further amended by striking the phrase "until the eighth day of April
1983, and thereafter until otherwise provided by Act of Congress" and
substituting, in lieu thereof, the phrase "in perpetuity".
(b) The second paragraph of section 3 of the Act of June 24, 1938 (52
Stat. 1034, 1035), as amended, is amended by striking the phrase "unless
otherwise provided by Act of Congress" and inserting, in lieu thereof,
the phrase "and thereafter until otherwise provided by Congress".
(c) The fourth paragraph of section 3 of the Act of June 24, 1938 (52
Stat. 1034, 1036) is amended by striking the phrase " January 1, 1984"
and inserting, in lieu thereof, the phrase " January 1, 1984 and
thereafter until otherwise provided by Congress".
SEC. 3. (a) The Act of February 5, 1948 (62 Stat. 18) // 25 USC 331
// is hereby repealed.
(b) Any Osage Indian having received a certificate of competency
under paragraph 7 of section 2 of the Act of June 28, 1906 (34 Stat.
539, 542); section 3 of the Act of March 2, 1929 (45 Stat. 1478, 1480);
or the Act of February 5, 1948 (62 Stat. 18), // 25 USC 331 // may make
application to the Secretary of the Interior to revoke such certificate
and the Secretary shall revoke such certificate: Provided, That
revocation of any certificate shall not affect the legality of any
transactions heretofore made by reason of the issuance of any such
certificate. Restrictions against alienation of lands heretofore
removed are not reimposed.
(c) Sections 3 and 4 of the Act of February 27, 1925 (43 Stat. 1008
1010-11); and section 4 of the Act of March 2, 1929 (45 Stat. 1478,
1480); and sections 1 and 3 of the Act of June 24, 1938 (52 Stat.
1034) are hereby amended by striking, wherever they occur, the phrases
"of one-half or more Indian blood", "of more than one-half Indian
blood", "of one-half or more Osage Indian blood", and "or who is
one-half or more Osage Indian blood".
SEC. 4. In order to conserve natural resources and provide for the
greatest ultimate recovery of oil and gas underlying the Osage mineral
estate, the Secretary of the Interior is authorized to establish rules
and regulations under which oil and gas leases producing from a common
source of supply may be unitized.
SEC. 5. (a) Section 8 of the Act of April 18, 1912 (37 Stat. 86,
88), is hereby amended to read as follows: " Any person of Osage Indian
blood, eighteen years of age or older, may dispose of his Osage
headright or mineral interest and the remainder of his estate (real,
person, and mixed, including trust funds) from which restrictions
against alienation have not been removed by will executed in accordance
with the laws of the State of Oklahoma: Provided, That the will of any
Osage Indian shall not be admitted to probate or have any validity
unless approved after the death of the testator by the Secretary of the
Interior. The Secretary shall conduct a hearing as to the validity of
such will at the Osage Indian Agency in Pawhuska, Oklahoma. Notice of
such hearing shall be given by publication at least ten days before the
hearing in a newspaper of general circulation in Osage County, Oklahoma,
and by mailing notice of such hearing to the last known address of all
known heirs, legatees, and devisees. The cost of publication shall be
borne by the estate. The rules of evidence of the State of Oklahoma
shall govern the admissibility of evidence at such hearing. All evidence
relative to the validity of the will of an Osage Indian shall be
submitted to the Secretary within one hundred and twenty days after the
date of the petition for approval of such will is filed with the
Secretary, unless for good cause shown the Secretary extends the time:
Provided, That such time shall not be extended beyond six months from
the date of the first hearing. For purposes of determining the validity
of any will, the Secretary is hereby granted the same subpena power as
is vested in the courts. All costs of obtaining witnesses and evidence
before the Secretary shall be borne by the party producing such
witnesses or evidence, subject to such costs being taxed to the estate
in the event that the District Court of the State of Oklahoma having
jurisdiction should determine such costs beneficial to the whole estate.
Notwithstanding any appeal from the decision of the Secretary, approval
of such will by the Secretary shall entitle it to be admitted to probate
without further evidence as to its validity or, upon disapproval
thereof, the heirs may immediately petition for letters of
administration in the district court. No appeal from the order of the
Secretary approving or disapproving any will shall stay the issuance of
letters testamentary or of administration: Provided, That such letters
shall not confer power to sell any restricted assets by virtue of any
provision in such will, pay or satisfy legacies, or distribute property
of the decedent to the heirs or beneficiaries until the final
determination of the appeal, but all other action taken by the district
court pending said appeal shall be valid and binding. No court except a
Federal court shall have jurisdiction to hear a contest of a probate of
a will that has been approved by the Secretary. Such appeals shall be
on the record made before the Secretary and his decisions shall be
binding and shall not be reversed unless the same is against the clear
weight of the evidence or erroneous in law.".
(b) Section 3 of the Act of April 18, 1912 (37 Stat. 86), is hereby
amended to read as follows: " That the property of deceased and of
orphan minor, insane, or other incompetent Osage Indians, such
incompetency being determined by the laws of the State of Oklahoma which
are hereby extended for such purpose to all Osage Indians, shall, in
probate matters, be subject to the District Court of Oklahoma having
jurisdiction. A copy of all papers filed in the district court shall be
served on the Superintendent of the Osage Agency at the time of filing,
and said Superintendent is authorized, whenever the protection of the
interest of the Osage Indian requires, to appear in the district court.
The Superintendent of the Osage Agency or the Secretary of the Interior,
whenever he deems the same necessary, may investigate the conduct of
executors, administrators, guardians, or other persons having charge of
the estate of any minor, incompetent, or deceased Osage Indian.
Whenever he shall be of the opinion that the estate is in any manner
being dissipated, wasted, or permitted to deteriorate in value by reason
of the negligence, carelessness, or incompetency of the executor,
administrator, guardian, or other person in charge of the estate, the
Superintendent of the Osage Agency or the Secretary is authorized, and
it shall be his duty, to report said matter to the district court, take
the necessary steps to have such case fully investigated, and prosecute
any remedy, either civil or criminal, as the exigencies of the case may
require. The costs and expenses of any civil proceedings shall be a
charge upon the estate of the Osage Indian or upon the executor,
administrator, guardian, or other person in charge of the estate of the
Osage Indian and his surety, as the district court shall determine.
Every bond of the executor, administrator, guardian, or other person in
charge of the estate of any Osage Indian shall be subject to the
provisions of this section and shall contain therein a reference hereto:
Provided, That no guardian shall be appointed for a minor whose parents
are living unless the estate of said minor is being wasted or misused by
such parents: Provided further, That no land shall be sold or alienated
under the provisions of this section without approval of the
Secretary.".
(7) Section 7 of the Act of February 27, 1925 (43 Stat. 1008, 1011),
// 25 USC 331 // as amended, is hereby further amended to read as
follows: " Hereafter none but heirs of Indian blood and children
legally adopted by a court of competent jurisdiction and parents, Indian
or non-Indian, shall inherit from Osage Indians any right, title, or
interest to any restricted land, moneys, or Osage headright or mineral
interest.".
(d) Notwithstanding the provisions of subsections (a), (b), and (c)
of this section, // 25 USC 331 // disposition of any Osage headright or
mineral interest shall be subject to the provisions of section 7 of this
Act.
SEC. 6. (a) With the approval of the Secretary of the Interior, any
person of Osage Indian blood, eighteen years of age or older, may
establish an inter vivos trust covering his headright or mineral
interest except as provided in section 8 hereof; surplus funds;
invested surplus funds: segregated trust funds; and allotted or
inherited land, naming the Secretary of the Interior as trustee. An
Osage Indian having a certificate of competency may designate a banking
or trust institution as trustee. Said trust shall be revocable and
shall make provision for the payment of funeral expenses, expenses of
last illness, debts, and an allowance to members of the family dependent
on the settlor.
(b) Property placed in trust as provided by this section shall be
subject to the same restrictions against alienation that presently apply
to lands and property of members of the Osage Tribe, and the execution
of such instrument shall not in any way affect the tax-exempt status of
said property.
SEC. 7. After passage of this Act, // 25 USC 331 // a person not of
Osage Indian blood, except a child legally adopted by an Osage Indian in
any court of competent jurisdiction and the lineal descendants of such
adopted child, subject to the stipulation that such adopted child or his
lineal descendants cannot alienate his Osage headright or mineral
interest and the devolution thereof is limited to intestacy, will, or
inter vivos trust the same as if he were of Osage Indian blood, is
prohibited from receiving more than a life estate in an Osage headright
interest owned by an Osage Indian, such adopted child or his lineal
descendants, whether such interest is received by will, inter vivos
trust, or Oklahoma law of intestate succession. Upon the death of such
recipient, the Osage headright or mineral interest shall vest in the
remaindermen thereof who are of Osage Indian blood, adopted children,
and/or lineal descendents of such adopted children designated by the
will or inter vivos trust of the deceased Osage Indian, his adopted
child, or the lineal descendants of such adopted child. If such
instrument does not designate remaindermen thereof who are of Osage
Indian blood, adopted children and/or lineal descendants of such adopted
children, or if the deceased died intestate, the Osage headright or
mineral interest shall vest in his heirs pursuant to the Oklahoma law of
intestate succession, subject to the above limitations. On the death of
the non-Osage beneficiary or heir, except in the case of adopted
children or lineal descendants of such adopted children, such Osage
headright or mineral interest shall vest in the Osage Tribe and the
Tribe shall pay the estate of the non-Osage beneficiary or heir the
market value of such Osage headright or mineral interest. Payments
under this section shall be made from Osage tribal mineral funds
authorized to be expended by section 8(b) hereof.
SEC. 8. (a) Any individual right to share in the Osage mineral
estate (commonly referred to as "headright") owned by a person not of
Indian blood may not, without the approval of the Secretary of the
Interior, be sold, assigned, or transferred. Sale of any such interest
shall be subject to the right of the Osage Tribe to purchase it within
forty-five days at the highest legitimate price offered the owner
thereof.
(b) Prior to the time and tribal mineral income is segregated for
distribution to individual headright owners, the Secretary of the
Interior, at the request of the Osage Tribal Council, may direct the use
of any such income for the purchase of Osage headright interests offered
for sale to the Osage Tribe pursuant to this section or vested in the
Osage Tribe pursuant to section 7 of this Act.
SEC. 9. Under such regulations as the Secretary of the Interior may
prescribe, the heirs and legatees of any deceased owner of an Osage
headright or mineral interest, real estate on which restrictions against
alienation have not been removed, and funds on deposit at the Osage
Agency may be determined by the Secretary if such aggregate interests do
not exceed $10,000: Provided, That no court of competent jurisdiction
has undertaken the probate of the deceased's estate and a request for
such administrative determination has been made to the Secretary by one
or more of the heirs or legatees.
Approved October 21, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95 - 1459, accompanying H.R. 11894 (Comm. on
Interior and Insular Affairs).
SENATE REPORT No. 95 - 1157 (Select Comm. on Indian Affairs).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Sept. 8, considered and passed Senate.
Oct. 3, H.R. 11894 considered and passed House; passage
vacated, and S. 1081, amended, passed in lieu.
Oct. 7, Senate concurred in House amendments.
PUBLIC LAW 95-495, 92 STAT. 1649
Wilderness, to establish the
Boundary Waters Canoe Area Minin Protection
Area, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. The Congress finds that it is necessary and desirable to
provide for the protection, enhancement, and preservation of the natural
values of the lakes, waterways, and associated forested areas known
(before the date of enactment of this Act) as the Boundary Waters Canoe
Area, and for the orderly management of public use and enjoyment of that
area as wilderness, and of certain contiguous lands and waters, while at
the same time protecting the special qualities of the area as a natural
forest-lakeland wilderness ecosystem of major esthetic, cultural,
scientific, recreational and educational value to the Nation.
SEC. 2. It is the purpose of this Act to proivde for such measures
respecting the areas designated by this Act as the Boundary Waters Canoe
Area Wilderness and Boundary Waters Canoe Area Mining Protection Area as
will-
(1) provide for the protection and management of the fish and
wildlife of the wilderness so as to enhance public enjoyment and
appreciation of the unique biotic resources of the region,
(2) protect and enhance the natural values and environmental
quality of the lakes, streams, shorelines and associated forest
areas of the wilderness,
(3) maintain high water quality in such areas,
(4) minimize to the maximum extent possible, the environmental
impacts associated with mineral development affecting such areas,
(5) prevent further road and commercial development and
restore natural conditions to existing temporary roads in the
wilderness, and
(6) provide for the orderly and equitable transition from
motorized recreational uses to nonmotorized recreational uses on
those l