It would be appreciated if you would lay this proposal before the House of Representatives. A similar proposal has been submitted to the President of the Senate. The Office of Management and Budget has advised that enactment of this proposed legislation is in accord with the President's program. Sincerely, JOHN VOLPE. A BILL To promote the safety of ports, harbors, waterfront areas and navigable waters of the United States 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 Ports and Waterways Safety Act of 1971. SEC. 2(a) To promote safe and efficient maritime transportation or to promote the safety and environmental quality of the ports, harbors, and navigable waters of the United States, the Secretary of the Department in which the Coast Guard is operating (hereinafter referred to as the Secretary) may prescribe standards, procedures, regulations, or other measures designed (1) to prevent damage to, or the destruction or loss of any vessel, structure or facility on or in such waters, or any structure or facility on land adjacent to such waters; and (2) to protect navigable waters, the resources therein and adjoining land areas. (b) In carrying out his responsibilities under this section, the Secretary may: (1) prescribe or approve marine traffic control procedures and methods, and establish, operate, maintain, require or approve marine traffic control services, systems and devices for commercial vessels, including but not limited to size and speed limitations, operating capabilities, and pilotage where pilotage is not required by state law; (2) direct, regulate, and control the anchorage, mooring or movement of any vessel, including the taking of full or partial possession and control, if necessary, to prevent damage to or by the vessel or to or by its cargo, stores, supplies, or fuel; (3) establish or approve procedures, measures, and standards for handling, loading, discharge, storage, stowage, and movement, including the emergency removal, control and disposition of: (i) any explosives or other dangerous articles or substances, the transportation of which is subject to regulation by the Secretary; and (ii) any dangerous articles for use as vessel stores, supplies or fuel; (4) prescribe minimum equipment requirements for structures and facilities to assure adequate protection from fire, explosion, natural disasters, and other serious accidents or casualties; (5) establish safety zones or otherwise control the use of or regulate access to vessels, structures, facilities, waters, waterfront and shoreline areas as may be necessary for their protection; and (6) establish procedures for inspection and approval to assure compliance with standards, procedures, regulations, or other measures prescribed pursuant to this Act. (b) For the purpose of this Act, the term "United States" means the 50 States, the District of Columbia, Puerto Rico, the territories and possessions of the United States, and the Trust Territory of the Pacific Islands. SEC. 3. (a) This Act does not apply to foreign vessels in transit through straits used for international navigation; nor is it to be applied in other territorial seas to hamper the right of innocent passage as recognized under international law. (b) Nothing contained in this Act is intended to supplant or modify any treaty or Federal statute or authority granted thereunder, nor is it intended to prevent a state or political subdivision thereof, in the exercise of its lawful authority, from prescribing higher equipment requirements or safety standards than those which may be prescribed for structures and facilities pursuant to section 2 of this Act. (c) In the exercise of his authority under this Act, the Secretary shall consult with other Federal agencies, as appropriate, in order to give due consideration to their statutory and other responsibilities, and to assure consistency of regulations applicable to the vessels. structures and facilities covered by this Act. The Secretary may also consider, utilize, or incorporate regulations or similar directory materials issued by port or other state and local authorities. SEC. 4. The Secretary is authorized to investigate any incident, accident, or willful or negligent act involving the loss or destruction of, or damage to, any facility or structure subject to section 2 of this Act, or which affects or may affect safety of, on or in the ports, harbors, or navigable waters of the United States. In any investigation under this Act, the Secretary may issue a subpoena to require the attendance of witnesses and the production of documents and other evidence. In case of refusal to obey a subpoena issued to any person, the Secretary may request the Attorney General to invoke the aid of any district court of the United States to compel compliance. Witnesses may be paid fees for travel and attendance at rates not exceeding those allowed in a district court of the United States. The Secretary may prescribe such regulations as necessary to carry out this section. SEC. 5. Whoever violates a regulation issued under this Act shall be liable to a civil penalty of not more than $1,000. The Secretary may assess and collect any civil penalty incurred under this Act and, in his discretion, remit, mitigate, or compromise any penalty. Upon failure to collect or compromise a penalty, the Secretary may request the Attorney General to commence an action for collection in any district court of the United States. Any vessel used or employed in a violation of any regulation under this Act shall be liable in rem and may be proceeded against in any district court of the United States having jurisdiction. SEC. 6. Whoever willfully violates a regulation issued under this Act shall be fined not less than $1,000 nor more than $10,000 or imprisoned for not more than 10 years, or both. Hon. EDWARD A. GARMATZ, U.S. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, Washington, D.C., July 20, 1971. Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: This responds to your requests for the views of this Department concerning H.R. 867, H.R. 6232, H.R. 8140, and H.R. 9581, bills relating to the safety and protection of ports and other waterways and adjacent land areas and facilities. H.R. 3635, also pending before your Committee, is identical to H.R. 867. Since these bills primarily affect the functions of the Department of Transportation through the Coast Guard, we defer generally to its views concerning them. The bills are generally similar in providing for the establishment of measures to promote the safety and protection of ports and other waterways and related areas or facilities. Upon enactment of legislation in accordance with the recommendations of the Department of Transportation, we would expect to coordinate our functions with those of that Department in furherance of our responsibilities in regard to the protection and enhancement of the natural environment and the Nation's other resources. The Office of Management and Budget has advised that there is no objection to the presentation of this report from the standpoint of the Administration's program. Sincerely yours, JAMES R. SMITH, Assistant Secretary of the Interior. OFFICE OF THE DEPUTY ATTORNEY GENERAL, Hon. EDWARD A. GARMATZ, Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice on H.R. 867, a bill "To promote the safety of ports, harbors, waterfront areas, and navigable waters of the United States." The Coast Guard currently conducts port security and safety programs under the authority of 50 U.S.C. 191 and Executive Order No. 10173, both of which are connected with declared national emergencies, sabotage, and subversive activities. This bill would provide expanded, permanent statutory authority. The bill would authorize the Secretary of the Department in which the Coast Guard is operating (1) to prescribe marine traffic control procedures; (2) to direct the anchorage and movement of any vessel, including taking possession, if necessary, to prevent damage; (3) to establish procedures for handling explosives or other dangerous articles or substances; (4) to prescribe safety equipment for "structures and facilities"; (5) to establish safety zones around vessels, structures, facilities, waters, waterfront and shoreline areas as may be necessary; and (6) to establish inspection procedures. The bill would recognize the right of innocent passage as recognized by international law and would not apply in straits used for international navigation. The bill would not prohibit any state or local authority from prescribing higher standards. The Secretary is directed to consult with other Federal agencies to assure consistency of regulations applicable to vessels, structures and facilities covered by the bill. Violations of regulations under the bill would be punishable by a civil penalty of not more than $1,000, to be assessed by the Secretary. The Secretary would be authorized to remit, mitigate or compromise any penalty. Wilful violations are subject to a fine of not less than $1,000 nor more than $10,000 or imprisonment for not more than ten years or both. The present punishment provided for a wilful violation of a regulation promulgated under 50 U.S.C. 191 is similar, except that present law does not provide for a minimum fine. It is not clear whether section 2(b) (3) (i) authorizes the Secretary to regulate all kinds of explosives and other dangerous articles, or only refers to those kinds the transportation of which is subject to regulation under another law, such as 46 U.S.C. 170 or 50 U.S.C. 191. If the latter is intended, section 2(b) (3) (i) should be rewritten to make this clear. It is recommended that the phrase "straits used for international navigation" in section 3(a) on page 3 at line 19 be changed to "international straits." The United States has taken the position that all foreign vessels enjoy the right of free passage through any strait connecting two parts of the high seas, or con necting a part of the high seas with the territorial sea of a country other than the one in which the strait is located, and that such a right is not limited only to those straits "used for international navigation." We recommend that the words "the appropriate" be inserted in lieu of the word "any" on line 9 of page 5 of the bill. The provisions of 28 U.S.C. 1395, which permit the bringing of a suit to collect a penalty in any district where the defendant may be found or where the penalty accrued, appear to be adequate. We note that “(b)” in line 14, page 3, should be changed to "(c)." Section 2(c) defining "United States," does not specify whether the term includes the Canal Zone. This needs clarification since "territory" has sometimes been defined as excluding the Canal Zone (e.g., 15 U.S.C. 1261(a)) and "possession of the United States" has on occasion included the Canal Zone (e.g., 49 U.S.C. 1301 (29)). Further, the Canal Zone has received special treatment in related legislation. See, for example, 46 U.S.C. 170-170b and 50 U.S.C. App. 191-195. Whether this legislation should be enacted involves questions as to which the Department of Justice defers to the Department of Transportation. The Office of Management and Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration's program. Sincerely, Hon. EDWARD A. GARMATZ, RICHARD G. KLEINDIENST, Deputy Attorney General. DEPARTMENT OF THE NAVY, Chairman, Committee on Merchant Marine and Fisheries, House of Represen tatives, Washington, D.C. DEAR MR. CHAIRMAN: Your request for comment on H.R. 867, a bill "To promote the safety of ports, harbors, waterfront areas, and navigable waters of the United States," has been assigned to this Department by the Secretary of Defense for the preparation of a report, expressing the views of the Department of Defense. The purpose of this bill is to promote safe and efficient maritime transportation and the safety and environmental quality of the ports and navigable waters of the United States. The bill would authorize the Secretary of the department in which the Coast Guard is operating to prescribe measures designed to protect the navigable waters of the United States, resources therein, and vessels or structures in or on such waters. The Secretary would also be authorized to investigate incidents involving damages to any facilities subject to this act or which may affect the safety of the ports or navigable waters of the United States. Finally, a penalty is provided against persons or vessels who violate a regulation issued under this act. Section 3(a) provides that the act is not applicable to foreign vessels in transit through straits used for international navigation nor is it applicable within the U.S. territorial sea if such application would represent an encroachment on the right of innocent passage as recognized under International Law. While this reservation is correct, it does not go far enough. Under International Law a warship or "public vessel" is entitled to sovereign immunity at all times while in territorial or internal waters. While such vessels in territorial or internal waters may be subjected to rules relating to general safety, there exists only a right to refuse permission to enter the territorial or internal waters of a state and no absolute right in the coastal state to enforce compliance with its regulations. The United States has a right to ask a "public vessel" to comply with its safety regulations; however, if the "public vessel" chooses not to comply then the United States must initially ask the vessel to leave the territorial or internal waters rather than taking immediate steps to force compliance. The immunity enjoyed by such a "public vessel" precludes its subjection to attachment as a part of a domestic judicial process. A certain degree of personal immunity also follows those who man "public vessels." The act as now drafted could be interpreted as authorizing exercise of powers which are broader than those recognized in International Law. Historically the United States Government has supported a position which gives full effect to the exemptions from control normally afforded warships or "public vessels" under International Law. Our continued adherence to these principles is highly desirable. Failure to appropriately caveat those articles which purport to create national rights not recognized under International Law when such a caveat appears with regard to innocent passage through straits and the territorial seas could be interpreted as a shift of position on the part of the United States. In order to avoid that possibility, it is recommended that Section 3 (a) of the bill be amended to read as follows: This Act does not apply to foreign vessels in transit through straits used for international navigation; it is not to be applied in other territorial seas of the United States so as to hamper the right of innocent passage as recognized under international law; nor is it to be applied so as to impinge upon the recognized sovereign immunity to which a vessel may be entitled under international law. Subject to the above recommendation, the Department of the Navy, on behalf of the Department of Defense, interposes no objective to the enactment of H.R. 867. However, we would prefer the enactment of H.R. 8140. This report has been coordinated within the Department of Defense in accordance with procedures prescribed by the Secretary of Defense. The Office of Management and Budget advises that, from the standpoint of the Administration's program, there is no objection to the presentation of this report on H.R.867 for the consideration of the Committee. For the Secretary of the Navy. Sincerely yours, Hon. EDWARD A. GARMATZ, LANDO W. ZECH, Jr., Captain, U.S. Navy, Deputy Chief. DEPARTMENT OF STATE. Washington, D.C., August 4, 1971. Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. CHAIRMAN: The Secretary has asked me to reply to your letter of July 2, 1971, requesting comment on H.R. 867, a bill "To promote the safety of ports, harbors, waterfront areas, and navigable waters of the United States." This legislation is consistent with the international efforts to promote safety of navigation and minimize marine pollution now underway in the Intergovern mental Maritime Consultative Organization which in large measure are the result of U.S. initiative. The Office of Management and Budget advises that from the standpoint of the Administration's program there is no objection to the submission of this report. Sincerely yours, DAVID M. ABSHIRE, Assistant Secretary for Congressional Relations. Hon. EDWARD A. GARMATZ, THE GENERAL COUNSEL OF THE TREASURY, Washington, D.C., July 28, 1971. Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. CHAIRMAN: Reference is made to your request for the views of this Department on H.R. 867, "To promote the safety of ports, harbors, waterfront areas, and navigable waters of the United States." The bill is designed to provide the Secretary of the Department in which the Coast Guard is operating continuing general authority to protect vessels, structures, harbors, ports and waterways in the United States from damage or loss or the threat thereof resulting from the operation of vessels and waterfront facilities. Since the proposed legislation relates to matters not primarily within the jurisdiction of this Department, the Treasury has no recommendations to make on the merits of the bill. This Department anticipates no administrative difficulties in carrying out any responsibilities it may have under the various provisions of the bill. The Department has been advised by the Office of Management and Budget that there is no objection from the standpoint of the Administration's program to the submission of this report to your Committee. Sincerely yours, SAMUEL R. PIERCE, Jr., General Counsel. [H.R. 6232, 92d Cong., first sess.] A BILL To authorize the control of marine traffic in the ports of the United States and certain other waterways 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 "Maritime Traffic Control and Marine Ecological Safety Act of 1971". SEC. 2. (a) To promote safe and efficient martime transportation and the environmental quality of the ports, harbors, navigable waters of the United States, the contiguous zone and adjacent international waters, the Secretary of the department in which the Coast Guard is operating (hereinafter referred to as the "Secretary”) shall prescribe standards, procedures, regulations, or other measures designed (1) to prevent damage to, or the destruction or loss of any vessel on or in such waters; and (2) to protect such waters and the resources therein from ecological harm resulting from injury, destruction, or loss of any such vessel. (b) In carrying out his responsibilities under this section, the Secretary shall: (1) prescribe marine traffic control procedures and methods, and establish, operate, and maintain marine traffic control services, systems, and devices for vessels, including but not limited to size and speed limitations, and operating capabilities; (2) direct, regulate, and control the anchorage, mooring, or movement of any vessel into, out of, or within ports, harbors, channels, contiguous waters, and adjacent international waters, wherever the Secretary determines such direction, regulation, or control is necessary by reason of substantial maritime activity, or hazardous geographic or climatic conditions; (3) establish safety zones or otherwise control the use of or regulate access to vessels to the extent necessary for the protection of the vessel and the ports, harbors, and other waters in which it is operating; and (4) establish procedures for inspection and approval to assure compliance with standards, procedures, regulations, or other measures prescribed pursuant to this Act. |