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New vessels must have improved ability to withstand flooding damage, without the vessels becoming a total loss. Existing tank vessels will be required by 1980 to be refitted with slop tanks, residue tanks, oil discharge monitoring systems, and oily water separating equipment.
Fed. Reg., Vol. 41, No. 240, Dec. 13, 1976, pp. 54177-54180. See also Dept. of Transportation, U.S. Coast Guard News Release No. 85-76, Dec. 13, 1976.
Admiral R. A. Ratti, Chief Counsel of the U.S. Coast Guard, Department of Transportation, in a legal opinion dated January 26, 1976, stated that (1) hot pursuit may be initiated for pollution incidents detected in the contiguous zone of the United States, and (2) in such cases section 211(m) of the Federal Water Pollution Control Act of 1952 (FWPCA) (33 U.S.C. 1151 et. seq.) provides authority to board foreign vessels and to detain them for purposes of inspection but there is no authority to seize a vessel for violation of the Act. In addition, he said, the master of a vessel may be arrested for failure to report the discharge of oil into the waters of the contiguous zone. The following are excerpts from Admiral Ratti's opinion:
Article 23 of the 1958 Geneva Convention on the High Seas[TIAS 5200; 13 UST 2312] provides, "The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State." This article further provides that the pursuit of a vessel within the contiguous zone may only be undertaken if there has been a violation of rights for the protection of which a contiguous zone as defined in article 24 of the Convention on the Territorial Sea and the Contiguous Zone [TIAS 5639; 15 UST 1606] was established . . .
It is apparent from the legislative history of the FWPCA that Congress, in defining "contiguous zone" for the purpose of section 311 of the FWPCA as "the entire zone established or to be established by the United States under article 24 of the Convention on the Territorial Sea and the Contiguous Zone," [section 311 (a) (9)] intended to define both the purpose and the geographic limits of the zone. By defining “contiguous zone" as an article 24 zone, Congress intended to provide for the exercise of all rights within this zone permitted by the Conventions. That being so, the authority for hot pursuit of foreign vessels for violation of the FWPCA within the contiguous zone is expressly provided by article 23 of the 1958 Geneva Convention on the High Seas.
The contiguous zone referred to in the FWPCA is to be distinguished from the pollution zones established by the 1954 Convention for the Prevention of Pollution of the Sea by Oil [TIAS 4900; 12 UST 2989]. The former zone has been declared subject to the enforcement of certain domestic laws of the United States, as permitted by the Convention on the Territorial Sea and the Contiguous Zone. The latter zones are areas, established by international agreement, in which certain discharges of oil by vessels subject to the convention are prohibited. The contiguous zone referred to in the FWPCA is in no way inconsistent with the 1954 Treaty.
The rules for hot pursuit for FWPCA violations are the same as those followed for law enforcement cases in general, and in particular those that have been formalized for fisheries cases. In section 311(m) of the FWPCA, Congress has provided authority for boarding and inspection of foreign vessels upon the waters of the contiguous zone. Implicit in the authority to board and investigate is the authority to detain a vessel for the purpose of investigating for violations. However, there is no authority to seize foreign vessels in the contiguous zone for violation of the FWPCA. Seizure of a vessel under authority of 14 U.S.C. 89 is authorized only if "it should appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty."
Section 311 (b) (6) provides that the owner or operator of the vessel shall be liable for the civil penalty. There is no provision for liability on the part of the vessel, the only action authorized with regard to the vessel is to request withholding of its clearance until a bond or other surety is filed. The Attorney General has stated in a previous opinion that denial of clearance does not constitute seizure. Therefore, since the vessel is not made liable for the civil penalty, no seizure is authorized by 14 U.S.C. 89.
Section 311(m) also authorizes arrest, with or without a warrant, of any person who violates the provisions of section 311 or any regulations issued thereunder in the presence or view of the arresting officer, and the execution of "any warrant or other process issued by an officer or court of competent jurisdiction." These provisions provide authority for the arrest of a master of a foreign vessel as the "person in charge of a vessel," for violation of section 311 (b) (5), which requires that the person in charge of a vessel, as soon as he has knowledge of any discharge of oil from such vessel in violation of section 311 (b) (3), notify the appropriate agency of the United States Government (designated as the Coast Guard in 33 CFR 153.100) of such discharge. However, it is not the occurrence of a discharge in violation of section 311 (b)(3), but only the failure to report that discharge, which subjects the master of a vessel to arrest.
A problem raised by the justification of the enforcement of pollution laws in the contiguous zone, as presented by the legislative reports, is the reconciliation of the language of article 24 (1)(b) of the Convention on the Territorial Sea and Contiguous Zone with the provisions of the FWPCA. On its face, article 24 does not
appear to permit enforcement against violations occurring in the contiguous zone, but merely to permit the prevention of violations within the territory or territorial sea. However, [by] applying a reading of article 24 in conjunction with article 23 of the Convention on the High Seas and an analysis of the history of the adoption of those articles, it [has been] the opinion of the Coast Guard that the following basic principles of hot pursuit for a coastal State were established:
(a) That hot pursuit may be undertaken only if there is good reason to believe that the vessel has violated the laws and regulations of the coastal State.
(b) That hot pursuit may be undertaken for a violation within internal waters or the territorial sea of any law or regulation enacted pursuant to the sovereign authority of the coastal State. (c) That hot pursuit may be undertaken for a violation occurring within the contiguous zone only when such violation concerns the rights for the protection of which the zone was established, namely, these laws and regulations appertaining to customs, fiscal, immigration, or sanitary matters.
Dept. of Transportation, Coast Guard Law Bulletin No. 414, June 1976, pp. 31-35.
U.N. Conference on Law of the Sea
Secretary of State Kissinger announced on April 8, 1976, a U.S. proposal to be made to the Law of the Sea Conference, on marine scientific research, including U.S. agreement to coastal state control of scientific research in the economic zone. The proposal was one of several put forth by Secretary Kissinger in an address to the Foreign Policy Association, the U.S. Council of the International Chamber of Commerce, and the U.N. Association at New York. The Secretary's statement relative to the marine scientific research proposal follows:
The health, the safety, and the progress of the world's people may vitally depend upon the extent of marine scientific research; it must be fostered and not impeded. To further marine scientific research the United States is prepared to agree to a reasonable balance between coastal state and international interests in marine scientific research in the economic zone. We will agree to coastal state control of scientific research which is directly related to the exploration and exploitation of the resources of the economic zone. But we shall also insist that other marine scientific research not be hampered.
We recognize that this distinction is bound to raise difficult questions in practice. This is why we believe that its determination cannot be left either to the coastal state or to the state seeking to do scientific research; it must ultimately be decided by an impartial body.
For our part, the United States is prepared to guarantee that coastal states will receive advance notice of scientific research in
the economic zone, will have the right to participate in that research, and will receive data and results of such research as well as assistance in interpreting the significance of those results.
This proposal would help resolve the differences between those who desire complete coastal state control over all marine scientific research and those who seek to maintain complete freedom for such research in the proposed economic zone.
For the full text of Secretary Kissinger's address, see Dept. of State Bulletin, Vol. LXXIV, No. 1922, Apr. 26, 1976, pp. 537-538.
The revised single negotiating text (RSNT) under consideration at the fifth session of the Third U.N. Conference on the Law of the Sea, August-September 1976, requires consent of the coastal state for all scientific research in the economic zone, but provides that the coastal state may withhold its consent only for certain specified scientific research activities. The U.S. Delegation Report for the session summarized the U.S. position and the negotiations on the subject as follows:
The U.S. position is that there should not be an overall consent requirement, but consent should be required only for specified marine scientific research activities; other scientific research activities should be conducted upon compliance with specified criteria designed to protect coastal state interests. These criteria include advance notification to the coastal state, their participating in the research project, and sharing of data and samples. In addition, the United States has also sought to ensure that practical protections for researching and coastal states are improved. These protections include an effective tacit consent procedure and application of binding dispute settlement procedures to all disputes concerning scientific research.
.. Most developing coastal countries supported a consent regime of some type for scientific research. Only one or two countries continued to argue for a total, unqualified discretionary consent regime. Most urged, as a compromise, an overall consent requirement with a specific list of criteria for denying consent. In particular, there was a general willingness to remove from the criteria research projects which interfere with economic activities, provided that a clear treaty obligation on researching states not to interfere was included.
On the question of tacit consent, there were only a few reservations with most delegations indicating that this was not an issue of principle.
Secretary Kissinger met with a number of delegates to discuss scientific research in an effort to find an acceptable compromise. He underscored the importance of the issue to the United States and the strong opposition to ratification of the treaty by the American scientific community which could result if the present text is not changed.
U.S. Delegation Report, 3d U.N. Conference on the Law of the Sea, 5th Sess., Aug. 2-Sept. 17, 1976, pp. 14-15, Dept. of State File D/LOS. For the RSNT produced at the 4th Sess., Mar. 15-May 7, 1976, see U.N. Doc. A/CONF.62/WP.8/Rev. 1/Part III, May 6, 1976, pp. 24-31.
Sea Grant Program
Section 3 of the Sea Grant Program Improvement Act of 1976 (P.L. 94-461; 90 Stat. 1969; 33 U.S.C. 1124a), approved October 8, 1976, provides for international cooperation assistance in research and development of ocean and coastal resources, and authorizes for the purpose up to $3 million for the fiscal year ending September 30, 1977, to remain available until expended. Subsections (a) and (b) of section 3 are set out below:
(a) In General.-The Secretary of Commerce (hereafter in this section referred to as the "Secretary") may enter into contracts and make grants under this section to
(1) enhance the research and development capability of developing foreign nations with respect to ocean and coastal resources, as such term is defined in section 203 of the national Sea Grant Program Act; and
(2) promote the international exchange of information and data with respect to the assessment, development, utilization, and conservation of such resources. (b) Eligibility and Procedure. Any sea grant college and sea grant regional consortium (as defined in section 203 of the National Sea Grant Program Act) and any institution of higher education, laboratory, or institute (if such institution, laboratory, or institute is located within any State (as defined in such section 203) may apply for and receive financial assistance under this section. Each grant or contract under this section shall be made pursuant to such requirements as the Secretary shall, after consultation with the Secretary of State, by regulation prescribe. Application shall be made in such form, and with such content and other submissions, as may be so required. Before approving any application for a grant or contract under this section, the Secretary shall consult with the Secretary of State. Any grant made, or contract entered into, under this section shall be subject to the limitations and provisions set forth in section 205 (d) (2) and (4) of the National Sea Grant Program Act and to such other terms, conditions, and requirements as the Secretary deems necessary or appropriate.
U.S.-Canada Boundary Waters
Richard D. Vine, Deputy Assistant Secretary of State for Canadian Affairs, wrote to the Secretary of the U.S. Section of the International Joint Commission, United States and Canada, on July 14, 1976, in response to a letter from the Commission regarding "the constructive possibilities in the use of prior notification and consultation with