73 ts 
“The Application of 
=’ Federal Lawsin... 
American Samoa 
Guam 
The Northern Mariana Islands 
The U.S. Virgin Islands 
(ANOLUME 3 — U.S. Code Titles 40-50 
Hy 
Department of the Interior 
Office of the Solicitor 
Washington, D.C. 
lL. 
wp 44 yoane 
October 1993 
ry 
3 
Kel FC -DPAV#S 
The Application of 
Federal Laws in... 
American Samoa 
Guam 
The Northern Mariana Islands 
The U.S. Virgin Islands 
VOLUME 3 — U.S. Code Titles 40-50 
Department of the Interior 
Bruce Babbitt, Secretary 
Office of the Solicitor 
Ruth G. Van Cleve 
\ 
Washington, D.C. 
\ 
October 1993 
(**) 
Title 40 
~ PUBLIC BUILDINGS, PROPERTY, 
AND WORKS 
Contains nothing of substantial interest to the territories or 
the Trust Territory. 
Contain matters of particular interest to the territories and 
the Trust Territory, 
but no legislative recommendations. 
Contain recommendations for changes in the law. 
Cuntain recommendations for changes in the law, 
but the need 
for them is not urgent. 
Memorandum 
Number 
Subject 
40-1 
40-2 
40-3 
40-4 
40-5 
- 
(a) Public Buildings, Grounds, 
Parks, 
and Wharves in District 
of Columbia 
- 
(b) Capitol Building and Grounds 
Public Buildings and Works Generally 
(**) 
(a) Declaration of Taking Act 
(**) (b) Miller Act 
** 
(c) Davis-Bacon Act 
- 
(a) The Public Property 
* 
(b) The Contract Work Hours and 
Safety Standards Act 
- 
(c) Acquisition of Sites For and 
Construction of Public Buildings 
- 
(da) Emergency Public Works and 
Construction Projects 
- 
{e) Non-Federal Public Works 
(**) Management and Disposal of 
Government Property (Part of the 
Federal Property and Administrative 
Services Act of 1949) 
- 
(a) Construction, Alteration, 
and 
Acquisition of Public Buildings 
- 
(b) Safety Standards 
for Motor 
Vehicles 
- 
(cc) Government Losses in Shipment 
- 
(d) General Services Administration 
- 
(e) Alaska Communications Disposal 
991 
1 AD 
we 
40 U.S.C. 
sections 
13a-136 
161-223 
253-2984 
258a-258e 
270a-270£ 
276a-276a-5 
301-319c 
327-333 
345b-357 
421-435 
460-462 
471-544 
601-616 
701-703 
721-729 
751-761 
771-792 
Alaska Federal-Civilian Energy 
Efficiency Swap 
National Visitor Center Facil- 
ities, Union Station Redevelop- 
ment 
Capitol and White House Pennsyl- 
vania Avenue Development 
Appalachian Regional Development 
Act 
Title 40 
Contents 
795-7954 
801-851 
871-885 
App. 
1-405 
Memorandum No. 
40-1 
November 1984 
Subject: 
(a) Public 
Buildings, 
Grounds, 
Parks, 
and 
Wharves 
in 
District of Columbia 
Title 40, Chapter 1 (40 U.S.C. 
13a-136) 
(b) Capitol Building and Grounds 
Title 40, Chapter 2 (40 U.S.C. 
161-223) 
Comment: 
The statutes codified 
in Chapters 
1 and 
2 of Title 
40 
contain no matters of special consequence to the territories 
or the Trust Territory, 
and require no modification. 
Discussion: 
(a) The large number of statutes 
codified under 
the 
heading 
Public 
Buildings, 
Grounds, 
Parks, 
and 
Wharves 
in 
District of Columbia (40 U.S.C. 13a-136), constituting Chapter 
1 of Title 
40, are true to their title, 
and their impact 
is 
thus 
largely 
confined 
to 
the 
District 
of Columbia. 
They 
concern matters that are sometimes surprising: 
-- 
how many 
know, 
for example, 
that 
it 
is not only 
unlawful 
to "discharge any firework" or to "set fire to any 
combustible" in the Supreme Court Building or its grounds, but 
also to "make any harangue or oration" there (40 U.S.C. 133)-- 
surely an unreasonable inhibition upon members of the Supreme 
Court Bar; 
sometimes momentous: 
-- when dealing with parking spaces for Members of the 
Congress 
(40 U.S.C. 
60a); 
sometimes mysterious: 
-- did the Congress really need to legislate in 1853 
against 
ailanthus 
trees 
(10 
Stat. 
207, 
40 
U.S.C. 
102), 
providing that "no more" of them "shall be purchased for or 
planted in the public grounds"--even if they do smell?; 
993 
Memorandum No. 
40-1 
and sometimes should go without saying: 
-- 
the 
Chief 
of 
Engineers 
is 
required 
to 
obey 
regulations 
"prescribed 
by the 
President" 
(40 U.S.C. 
48). 
He’d better. 
But with the possible exception of the ailanthus bar, 
which 
could 
affect 
the 
landscaping 
on 
limited 
areas 
in 
the 
territories--doubtless for the better--the chapter is without 
consequence 
for 
the purpose 
of this 
study. 
One 
provision 
alone is expressly applicable to the territories: 
given the 
definitions 
at 40 U.S.C. 
13n(d) 
that expressly include "any 
territory or possession", 
the Marshall 
of the Supreme Court 
may 
protect 
members, 
guests, 
and 
employees 
of 
the 
Court 
throughout 
the 
States 
and 
territories, 
and 
may 
invoke 
territorial 
law to do so. 
That is clearly as it should be. 
In sum, the laws here collected are of no real consequence for 
purposes of this study. 
(b) The Chapter entitled Capitol Building and Grounds 
(40 U.S.C. 
161-223) 
contains statutes on the subject of the 
Architect of the Capitol, 
his functions, 
salary, 
and staff; 
Capitol 
Hill 
buildings, 
including 
the 
office 
buildings, 
garages, 
and 
the 
page 
school; 
the 
Capitol 
Police, 
their 
numbers 
and 
duties; 
and 
other 
laws 
pertaining 
to 
the 
structures 
and 
their 
oversight 
on 
the 
Hill. 
With 
two 
exceptions, 
they 
have 
no 
special 
application 
to 
the 
territories. 
Of 
the 
exceptions, 
the 
1864 
law 
creating 
the 
National 
Statutory Hall 
(40 U.S.C. 
187) permits only the States to be 
invited 
to 
provide 
statutes--no 
more 
than 
two 
 each--of 
deceased citizens of special renown or distinguished service. 
This deprivation would seem 
to be one 
that the territories 
have 
little 
alternative 
but 
to accept. 
Secondly, 
Capitol 
Police are authorized 
to provide protection "in any area of 
the United States" for Members or officers of the Congress and 
their families, 
by detailing officers to any such area. 
The 
994 
Memorandum No. 
40-1 
“United States" includes the "territories and possessions" 40 
U.S.C. 
212a-2(f£)*, which appears wholly appropriate. 
Conclusion: 
The statutes considered herein require no modification 
to accommodate the territories and the Trust Territory. 
Federal agency comments: 
None are regarded as needed. 
995 
6 
Memorandum No. 40-2 
December 1984 
Subject: 
Public Buildings and Works Generally 
Title 40, Chapter 3 (40 U.S.C. 
253-298d), 
including the 
(a) Declaration of Taking Act (40 U.S.C. 
258a-258e) 
(b) Miller Act 
(40 U.S.C. 
270a-270f) 
(c) Davis-Bacon Act 
(40 U.S.C. 
276a-276a-5) 
Purpose: 
The 
statutes 
here 
collected 
concern 
principally 
the 
acquisition 
of 
land 
by 
the 
United 
States, 
the 
need 
for 
performance 
and 
payment 
bonds 
from contractors 
on 
Federal 
construction 
projects, 
and 
the 
level 
of 
wages 
paid 
to 
employees on Federal construction projects. 
Territorial application: 
The principal 
statutes 
here considered 
apply unevenly 
in the territories and probably not at all to 
the Trust Territory. 
(a) The 
Declaration 
of 
Taking 
Act 
and 
a 
related 
condemnation statute (40 U.S.C. 257) apply to Guam, the Virgin 
Islands, 
and the Northern Marianas, 
and probably to Samoa as 
well, 
but 
the absence 
of a Federal District 
Court 
in Samoa 
raises a difficulty there. 
The law pertaining to the nature 
of 
Federal 
jurisdiction 
(40 
U.S.C. 
255) 
is 
appropriately 
inapplicable to the territories. 
(b) The 
Miller 
Act 
also 
applies 
in 
Guam, 
the 
Virgin 
Islands, and the Northern Marianas, and to Samoa as well, but 
is probably unenforceable in Samoa by those it is designed to 
protect. 
(c) The Davis-Bacon Act applies as such to the Northern 
Marianas, but not in any other off-shore area. 
It applies to 
all them when particular Federally-assisted construction 
is 
undertaken. 
Recommendation: 
The jurisdictional 
and enforcement difficulties 
pertaining to Samoa ought to be corrected by amendments to the 
laws 
identified more particularly below, 
in the event that 
Federal 
construction 
contracts 
are 
undertaken 
in 
that 
territory. 
The illogical application of the Davis-Bacon Act 
996 
N79 
Memorandum No. 
40-2 
ought 
to 
be 
the 
subject 
of 
leyislation, 
in 
order 
to 
rationalize the treatment accorded the territories under it. 
Discussion: 
Most of the laws contained 
in Chapter 
3 of Title 40 
are discussed below, 
in the order in which they appear in the 
Chapter. 
Those not included 
in the discussion that follows 
are of no particular consequence for purposes of this study, 
relating 
in 
large 
part 
to 
particular 
authority 
in 
the 
Administrator of General Services, without mention being made 
(or 
importance 
apparently 
attached) 
to 
geographical 
application. 
(a) Federal 
land 
acquisition 
including 
the 
Declarati 
of Taking 
Act: 
Section 255 of Title 40, which requires a title opinion from 
the Attorney General 
(or his delegate) before property may be 
acquired by the United States, and which defines the nature of 
Federal jurisdiction over the acquired property, derives from 
a statute of ancient 
(1841) origin, but is much alive, having 
been amended as recently as 1970. 
It refers throughout to the 
"States", 
unadorned, 
and 
that 
usage 
is 
almost 
certainly 
restrictive, 
for 
the Attorney General 
of 
the United 
States 
held 
in 
1906 
that 
for purposes 
of the predecessor 
statute, 
"State" meant precisely that and no more 
(26 Op. Atty Gen. 
12). 
(The Attorney General 
then observed, 
rather quaintly, 
that 
the 
term 
"State" 
as 
used 
in the predecessor 
statute 
waypot ties as 
it often does, 
a State of the Union" 
(at p. 
14)). 
This limited construction is not hurtful to the territories. 
(The exclusion of the Trust Territory 
is wholly appropriate, 
inasmuch as the United States has never held title to land in 
the Trust Territory, 
and could be expected to avoid doing so 
in the remaining life of the trusteeship.) 
The first purpose 
of 
the 
statute, 
i.e., 
of 
requiring 
an 
opinion 
as 
to 
the 
sufficiency of title to the land to be acquired, 
is for the 
protection of the United States--and confers no benefit upon 
the government 
of 
the 
jurisdiction 
in 
which 
the 
land 
is 
located. 
The second purpose, pertaining to the nature of the 
jurisdiction obtained by the United States over the property 
997 
ap 
a 
Memorandum No. 40-2 
acquired, 
could not logically be applied 
to the territories 
(nor 
the Trust Territory), 
given their 
status. 
Under 
the 
statute (40 U.S.C. 
255), the United States acquires exclusive 
or concurrent jurisdiction over the property only if the State 
consents 
and 
the 
United 
States 
accepts 
that 
jurisdiction; 
otherwise the United States acquires proprietary jurisdiction 
only, 
i.e., 
the 
jurisdiction 
of 
any 
other 
land 
owner. 
Inasmuch as the territories, unlike the States, 
are creatures 
of 
the 
Federal 
Government, 
they 
could 
not 
independently 
consent; and if the United States were to need to have either 
exclusive or concurrent jurisdiction over land owned by it in 
one of the territories, 
it could constitutionally acquire 
it 
(because 
of 
the 
United 
States 
plenary 
power 
in 
the 
territories) by unilateral action. 
It appears, 
however, 
that 
at this 
time the United States does not exercise more than 
proprietary jurisdiction over any land to which it holds title 
in 
any 
of 
the 
territories. 
Federal 
land 
holdings 
are 
extensive 
in 
Guam; 
negligible 
in 
the 
Virgin 
Islands; 
and 
nonexistent 
in Samoa, 
the Northern Marianas, 
and 
the Trust 
Territory. 
The 
1888 
law 
appearing 
at 
40 
U.S.C. 
257 
contains 
basic 
authority for the acquisition of property by the United States 
by condemnation. 
(In order to exercise the power of eminent 
domain, 
however, 
the 
United 
States 
must 
find 
authority 
elsewhere as well--generally in an authorizing statute for the 
project 
proposed.) 
The 
section 
is 
without 
geographical 
limitation, 
and itself provides 
no guidance 
as 
to where 
it 
applies; 
but because 
Federal 
District 
Courts 
are 
elsewhere 
given 
jurisdiction 
in condemnation 
proceedings 
(28 
U.S.C. 
1358), those in the territories 
(of Guam, 
the Virgin Islands, 
and 
the Northern Marianas) 
would have 
that jurisdiction--in 
the 
absence 
of 
unusual 
provisions. 
There 
is 
an 
unusual 
provision in the Northern Marianas Covenant, but it is not one 
that would deprive 
the United States District Court 
for the 
Northern 
Marianas 
of 
jurisdiction 
in 
condemnation 
cases 
involving 
the 
United 
States. 
Section 
806 
of 
the Covenant 
requires: 
-- 
that 
in 
light 
of 
the 
scarcity 
of 
land 
in 
the 
Northern Marianas, the United States will seek to acquire 
there only the minimum amount of land necessary 
for its 
purpose, 
and the minimum interest 
in real property 
that 
998 
9 
Memorandum No. 40-2 
will meet its needs, 
and will look first to public lands 
rather than private, for its acquisition (section 806(a); 
-- that upon notice 
to the Commonwealth Government, 
the United States may acquire property interests 
in the 
Northern Marianas by voluntary negotiation, 
but only 
if 
the 
acquisition 
is otherwise 
authorized 
by 
the 
United 
States Congress (section 806(b); 
-- but 
if 
the 
United 
States 
cannot 
acquire 
the 
property it needs by voluntary means, 
it may exercise the 
power 
of 
eminent 
domain 
in the 
same 
manner 
as 
in 
the 
States (section 806(c)). 
As for Samoa, where there is no United States District Court, 
there is no statutory guidance as to how the United States is 
to 
proceed 
to 
exercise 
the 
power 
of 
eminent 
domain, 
but 
inasmuch as the United States unquestionably has the power of 
eminent domain 
in Samoa 
as elsewhere 
in the United States, 
because it is a normal incident of sovereignty, 
it would seem 
that 
the 
High 
Court 
of 
American 
Samoa 
could 
not 
resist 
accepting jurisdiction if the United States were to bring its 
condemnation proceedings there. 
The Declaration of Taking Act (40 U.S.C. 
258a-258e), 
enacted 
in 
1931, 
contains 
no 
explicit 
language 
of 
territorial 
application, 
and there appear to be no decided cases 
on the 
point, 
but one internal reference indicates that the statute 
is 
applicable 
to 
the 
territories 
(but 
not 
to 
the 
Trust 
Territory). 
The purpose of the Act is to permit the United 
States 
to obtain 
immediate possession 
of property 
that 
it 
needs 
for public 
purposes, 
without 
awaiting 
the result 
of 
litigation 
to determine 
the compensation due the landowner. 
Under 
it, 
the United States may 
file 
"in any court 
of the 
United 
States" 
a 
declaration 
describing 
the 
property 
it 
requires and the nature of the interest in the property that 
it proposes to acquire, along with the United States’ estimate 
of the “just compensation" 
due the owner 
(40 U.S.C. 
258a). 
When 
the 
declaration 
is 
filed, 
along 
with 
the 
amount 
of 
compensation estimated 
by the United 
States 
to be due 
the 
owner, 
the United States acquires title 
(or whatever lesser 
999 
10 
Memorandum No. 40-2 
interest 
it seeks) 
to the property 
in question. 
The owner 
obtains the amount estimated as just compensation. 
Thereafter 
the level of compensation is determined by the court, 
and if 
a further amount is due, the United States is required to pay 
that amount, 
with 
6% interest. 
(If the United 
States 
has 
overestimated the compensation due, 
a refund is required.) 
The 
single, 
pertinent 
internal 
reference 
is 
contained 
at 
40 U.S.C. 
258d, which provides that the right conferred upon 
the 
United 
States 
by 
the 
Act 
is 
in 
addition 
to 
others 
conferred 
by Federal 
law, 
or by the 
laws 
of “any State 
or 
Territory". 
The rule of Puerto Rico v. 
Shell Co., 
(302 U.S. 
253 
(1937)), 
by 
which 
“Territory” 
may 
be 
converted 
to 
"territory" 
if 
that 
seems 
a 
legitimate 
reading 
of 
the 
Congress’ 
purpose, 
is appropriately applied here. 
And that 
reference, 
together with the reference 
to “any court of the 
United 
States", 
would 
make 
the Declaration 
of Taking 
Act 
applicable 
to Guam, 
the 
Virgin 
Islands, 
and 
the 
Northern 
Marianas. 
(Those references would not carry 
the Act to the 
Trust Territory, but that is a proper result, given the United 
States policy of not acquiring title to land there.) 
As 
for 
Samoa, 
were 
the 
United 
States 
to seek 
to 
use 
the 
statute there--an unlikely prospect at least currently, for it 
is hard to perceive a Federal interest that would require it, 
and additionally, 
the United States has sought to respect the 
Samoans’ 
unusual concern 
for their land interests--it seems 
almost certain that it could do so. 
There would be no "court 
of the United States" with jurisdiction in the matter, but it 
seems probable that the High Court of American Samoa could and 
would 
accept 
jurisdiction. 
The 
internal 
reference 
to 
"territory" 
indicates 
almost 
certain 
application 
of 
the 
statute to Samoa. 
(Puerto Rico v. 
Shell was 
followed 
in a 
similar anti-trust case concerning Samoa in U.S. 
v. Standard 
Oil 
of California, 
404 U.S. 
558 (1972).) 
Additionally, 
the 
exercise of Federal power under the Declaration of Taking Act 
represents 
an exercise by the United States of its power of 
eminent 
domain 
as 
a 
sovereign, 
and 
because 
there 
is 
no 
question 
that 
United 
States 
sovereignty 
extends 
to 
Samoa, 
there 
is probably also no question as to the application of 
the Declaration of Taking Act there. 
1000 
fy 
Memorandum No. 40-2 
(b) The Miller Act (40 U.S.C. 270a-270f) requires that 
each contract "for the construction, alteration, 
or repair of 
any public building or public work of the United States", 
if 
it exceeds $25,000, must be the subject of two bonds from the 
contractor: 
-- 
a performance bond for the protection of 
the 
United 
States, 
to 
guarantee 
that 
the 
contractor will perform under the contract, 
and 
-- 
a payment bond, 
for the benefit of those 
employed by the contractor 
and those supplying 
material 
for purposes of the contract, 
in order 
that 
they may be protected 
in the event of the 
contractor's 
failure 
to pay, 
inasmuch 
as 
liens 
by workers or materialmen cannot 
be taken upon 
the public property of the United States. 
(40 
U.S.C. 
270a) 
One who has not been paid for services or material within 90 
days of the time of performance 
or delivery may bring suit, 
but the suit must be "brought in the name of the United States 
for the use of the person suing, 
in the United States District 
Court 
for 
any 
district 
in 
which 
the 
contract 
was 
to 
be 
performed and executed and not elsewhere 
..." 
(40 U.S.C. 
270b(b)). 
The requirement for the bonds may be waived by the 
contracting 
officer 
"for 
so 
much 
of 
the 
work 
under 
such 
contract as is to be performed in a foreign country 
. 
. 
." (40 
U.S.C. 
270a(b)); 
the Secretaries of the military departments 
may 
waive 
them 
for 
cost-type 
contracts 
and 
for 
military 
equipment 
(40 
U.S.C. 
270e); 
and 
the 
Secretary 
of 
Transportation may do so in connection with the construction 
or repair of vessels 
(40 U.S.C. 
270f). 
The 
statute 
provides 
no 
certain 
guidance 
as 
to 
its 
geographical 
application, 
but 
the 
use 
of Federal 
District 
Courts 
for enforcement 
of payment bonds, 
and 
the potential 
waiver 
of 
bonding 
requirements 
for 
work 
performed 
"in 
a 
foreign country", 
lead to the conclusion that the Miller Act 
is 
applicable 
to 
Federal 
construction 
contracts 
in 
the 
territories--but 
not 
in 
the 
Trust 
Territory 
(which 
is 
1001 
12 
Memorandum No. 40-2 
“foreign"). 
The lack of a Federal District Court in Samoa, or 
of 
one 
having 
jurisdiction 
in 
the 
territory, 
creates 
a 
barrier, perhaps insurmountable, 
to its use by unpaid workers 
or suppliers there. 
(Samoa is, once again, caught in a kind 
of never-never 
land: 
It has no district court, 
so 
is not 
fully comprehended by the Act; but it is not "foreign", being 
within 
the 
sovereignty 
of 
the 
United 
States, 
so 
a waiver 
cannot extend to it.) 
Given the relative absence of Federal 
buildings 
or 
Federal 
public 
works 
in Samoa 
(as opposed 
to 
public 
buildings 
and 
works 
of 
the 
Government 
of 
American 
Samoa, 
even though often funded by means of Federal grants), 
the 
barrier 
is 
not 
likely 
to present 
a practical 
problem 
there. 
Should it do so, the problem could easily be corrected 
by a grant of jurisdiction 
(under 
40 U.S.C. 
270b(b) 
to the 
High Court of American Samoa. 
(c) The Davis-Bacon Act (40 U.S.C. 
276a-276a-5) 
is a 
statute 
of continuing 
controversy, 
notwithstanding 
its 
age 
(which is considerable, having been enacted in 1931); 
and a 
statute of peculiar, 
and in fact irrational, 
application 
to 
the territories--beceuse 
it does not apply as_such in Guam 
Samoa, or the Virgin Islands (nor in the Trust Territory), but 
it does apply in the Northern Marianas. 
The Davis-Bacon Act 
does, 
however, 
apply 
to all 
of 
these 
areas, 
including 
the 
Trust 
Territory, 
when 
certain 
kinds 
of 
construction 
with 
Federal financial assistance is undertaken in them, because a 
considerable 
number 
of 
Federal 
grant 
statutes 
require 
compliance with Davis-Bacon wage standards. 
The application 
of the Act to the territories 
is considered below (i) first, 
in connection with Federal construction projects generally, 
and 
(ii) second, 
in 
connection 
with 
Federally-assisted 
projects. 
{i) As to Federal projects, 
the Davis-Bacon Act 
requires that every contract in excess of $2,000 to which the 
United States is a party, involving the construction or repair 
of public buildings or public works of the United States, must 
contain 
a provision 
requiring 
the payment 
to laborers 
and 
mechanics employed on the contract of wages that are 
determined by the Secretary of Labor to 
be 
prevailing 
for 
the 
corresponding 
1002 
3 
Memorandum No. 
40-2 
classes 
of 
laborers 
and 
mechanics 
employed on [similar] projects ... 
in 
the city, 
town, village, 
or other civil 
subdivision 
. 
. 
. 
in which the work is 
to be performed 
. 
. 
. 
(40 U.S.C. 
276a). 
The purpose of the law 
is to provide 
a floor 
for wages 
on 
Federal 
contracts, 
so 
that 
construction 
workers 
will 
be 
protected from substandard earnings, and so that the hiring of 
local laborers will be promoted. 
It should be noted that this 
law does not preclude the hiring of alien laborers, 
but does 
have 
the effect 
of requiring 
that 
they, 
too, 
be paid 
the 
prevailing wage. 
The objection that has been heard over the 
years and from various parts of the United States, however, is 
that the "prevailing" wage level determined 
for Davis—Bacon 
Act purposes has tended to be the highest local wage--thereby, 
it 
is alleged, 
skewing 
the local 
labor market 
and 
forcing 
wages on private contracts upward. 
The Act is, however, unarguably clear as to where it applies: 
to contracts for public buildings or public works "within the 
geographical 
limits 
of 
the 
States 
of 
the 
Union, 
or 
the 
District of Columbia" 
(40 U.S.C. 
276a(a)). 
Guam, 
American 
Samoa, and the Virgin Islands are obviously excluded; 
and the 
Northern 
Marianas 
would 
of 
course 
be excluded 
under 
that 
language 
as 
well, 
but 
for 
section 
502(b) 
of 
the Northern 
Marianas Covenant. 
That section provides in pertinent part: 
The laws of the United States regarding 
+ 
+. 
the 
conditions 
of 
employment, 
including 
the 
wages 
and 
hours 
of 
employees, will apply to the activities 
of the United States Government and its 
contractors 
in 
the 
Northern 
Mariana 
Islands, 
Although 
the extensive 
legislative 
history of the Covenant 
makes no express reference to the Davis-Bacon Act, 
the words 
of section 502(b) describe the Act with precision, for the Act 
is concerned with "the wages 
... 
of employees" 
of United 
States 
Government 
"contractors 
in 
the 
Northern 
Marianas 
1003 
Memorandum No. 
40-2 
Islands". 
The Staff of the Northern Marianas Commission on 
Federal 
Laws 
has 
reached 
the 
conclusion, 
at 
least 
preliminarily, 
that the Act applies to that area, 
and as to 
that result has stated: 
The drafters of the Covenant 
sought to 
ensure that the Federal Government (and 
its contractors) 
did not pay less than 
the 
"prevailing 
wage 
rates," 
in 
the 
Marianas. 
Throughout the United States 
there 
is some 
criticism 
that 
this 
has 
come 
to mean 
the 
highest 
rate. 
With 
construction 
costs 
already 
inflated 
in 
the Northern Mariana Islands 
this 
is a 
legitimate 
concern. 
However, 
the 
benefits 
of 
increased 
income 
to 
the 
Northern Mariana Islands 
in higher wage 
rates 
is also clear and 
is the 
policy 
expressed in the Covenant. 
(June 1984 
Draft 
Report, 
p. 
1057; 
quoted portion 
not yet acted upon by the Commission.) 
The treatment of offshore areas under the Davis-Bacon Act 
over several decades is of interest: 
-- 
In 1940 the Act was extended to the then incorporated 
territories 
of Alaska 
and 
Hawaii 
(54 
Stat. 
399); 
but 
the 
express references to those areas were eliminated in 1960 (74 
Stat. 
418), 
by which time each had achieved Statehood. 
-- The Labor Department reported informally to the Staff 
of the 1950-51 Commission on the Application of Federal Laws 
to 
Guam 
that 
that 
Department 
was 
then 
(1951) 
sponsoring 
legislation to extend the Davis-Bacon Act to Puerto Rico, and 
it recommended the same result in the case of Guam. 
But the 
legislation was not enacted, 
and Puerto Rico remains outside 
the scope of the Davis-Bacon Act. 
1004 
Memorandum No. 
40-2 
-- The Staff of the 1950-51 
Guam Commission recommended 
the extension of the Act to Guam, but the Commission itself 
rejected the proposal, 
stating that 
Although 
the 
Commission 
is 
of 
the 
opinion 
that 
the 
application 
of 
the 
Davis-Bacon Act is ultimately desirable, 
it 
concluded 
that 
under 
present 
circumstances 
its 
extension 
to 
Guam 
would result essentially in higher costs 
to 
the 
Federal 
Government 
without 
conferring a corresponding benefit upon 
Guamanian 
workers. 
(H. 
Doc. 
212, 
82d 
Cong., 
p. 32.) 
-- The 1956 Report of the Commission on the Application of 
Federal Laws to the Virgin Islands listed the Davis-Bacon Act 
as among those "Statutes Now Inapplicable, Which Should Remain 
Inapplicable", but offered no further comment (Comm. Print No. 
7, House Interior Committee, 
84th Cong., 
p. 27.). 
-- So 
far 
_as 
can 
be 
established, 
there 
has 
been 
no 
legislative effort at any time to extend the Act to any of the 
territories not now comprehended by it (i.e., Guam, the Virgin 
Islands, 
and American Samoa), 
nor any interest expressed 
in 
any 
quarter 
toward 
doing 
so. 
(There 
have, 
however, 
been 
expressions of approval from business groups 
in Guam as to 
Guam’s continued exclusion.) 
There is no apparent, logical explanation--other than historic 
accident--for the uneven application of the Davis-Bacon Act as 
such to the offshore areas, and particularly for the different 
results in Guam and the nearby Northern Marianas. 
A logical 
treatment 
argues 
for 
the 
inclusion 
of 
the 
areas 
not 
now 
comprehended 
by it, 
or 
for 
the exclusion 
of 
the Northern 
Marianas--something 
that 
could 
be 
achieved 
by 
Federal 
legislation under section 105 of the Covenant, 
without doing 
violence 
to the Covenant’s 
bilateral 
quality. 
The choice 
between 
these alternatives 
is clearly 
a policy 
one, 
to be 
decided on the basis of whether worker protection under the 
Act or the potential inflationary impact of the Act is to be 
1005 
~ oo 
Memorandum No. 
40-2 
given 
precedence. 
Current 
indications 
are 
that 
the 
territories not now covered would prefer continued exclusion, 
and that there would be resistance 
from territorial 
private 
sectors 
to an effort to extend the Davis-Bacon Act to those 
territories. 
Additionally, 
the Davis-Bacon Act is not easily 
amended, because points of view concerning its virtues and its 
disadvantages 
are 
strongly 
held. 
Any 
effort, 
thus, 
to 
rationalize its application to the off-shore areas, regardless 
of 
how 
the 
law 
is 
proposed 
to 
be 
changed, 
is 
likely 
to 
encounter strong opposition from some quarters. 
(ii) While 
it 
is 
correct 
to 
conclude, 
as 
the 
foregoing discussion does, 
that the Davis-Bacon Act as such 
does 
not 
apply 
to 
the Virgin 
Islands, 
Guam, 
and Samoa, 
in 
effect it does apply in a limited way to each of them--and to 
the Northern Marianas and the Trust Territory 
as well--when 
there 
are 
undertaken 
in 
those 
territories 
construction 
projects 
(most 
often 
by 
the 
territorial 
government) 
that 
receive Federal financial assistance under particular Federal 
grant statutes. 
Federal grant legislation over about the last 
20 years has often required that construction projects that 
receive Federal financial aid be subject to Davis-Bacon wage 
standards. 
(Some 
such 
are 
discussed 
in 
this 
study 
in 
Memorandum 
16-6(c), 
pertaining 
to the Commercial 
Fisheries 
Research 
and 
Development 
Act 
of 
1964; 
Memorandum 
49-5 
concerning Urban Mass Transportation; 
and many 
in Title 
42, 
the Public Health and Welfare.) 
The Federal grant laws that 
contain the Davis-Bacon provisions are listed at 29 CFR 5.1 
(1984 ed.), and they number close to 60. 
The Labor Department 
advises informally that Davis-Bacon wage rates have, 
in fact, 
been issued for all of the areas here in question: 
the Virgin 
Islands, 
Guam, 
Samoa, 
the Northern Marianas, 
and all of the 
Trust Territory. 
This treatment has been the subject of at least one complaint 
from the territories. 
In a 1982 report from the Bureau of 
Planning of the Government of Guam, entitled "Federal Laws and 
Regulations Which Constrain Guam’s Development", 
it is said: 
The 
Davis-Bacon 
Act 
was 
never 
made 
directly 
applicable 
to 
Guam. 
It 
was 
extended 
in 
1967 
to 
other 
federally— 
1006 
17 
Memorandum No. 
40-2 
assisted 
programs, 
such 
as_ 
grants, 
loans, and guarantee programs which Guam 
participated 
in. 
In this 
fashion, 
the 
Act became applicable to Guam. 
As has been demonstrated above, the statements are inaccurate, 
because the Act as such has not been "extended" 
to Guam, 
and 
is not “applicable" there. 
There was no action in 1967 or at 
any other time that had that effect. 
But 
it does apply, 
ad 
hoc, 
in the territories 
as well 
as elsewhere 
in the United 
States, 
to particular Federally-assisted projects. 
It would 
doubtless 
be extremely 
difficult 
politically 
to achieve 
an 
exemption for the territories from these ad hoc applications, 
inasmuch 
as 
they 
represent 
a 
Congressional 
policy 
of 
uniformity as to all areas of Federal responsibility. 
Conclusion: 
The 
uncertainties 
discussed 
above 
concerning 
the 
application to and enforcement in Samoa of the Declaration of 
Taking Act, the Miller Act, and the basic condemnation law (40 
U.S.C. 
257) 
should 
be 
resolved, 
no 
later 
than 
whenever 
substantial Federal construction contracts 
are performed in 
that area. 
There 
is more timeliness--but greater practical 
difficulty--in 
achieving 
legislation 
to 
rationalize 
the 
general application to the territories of the Davis-Bacon Act, 
so 
as 
to accord 
to all 
of 
the 
territories, 
including 
the 
Northern Marianas, 
the same treatment. 
Federal agency comments: 
Comments were requested from the Depart- 
ments of Labor, Justice, and Defense, and the General Services 
Administration. 
All comments received have been reflected 
above. 
1007 
18 
Memorandum No. 40-3 
January 1985 
Subject: 
(a) The Public Property 
Title 40, Chapter 4 (40 U.S.C. 
301-319c) 
(b) The Contract Work Hours and Safety Standards Act 
Title 40, Chapter 5 (40 U.S.C. 
327-333) 
(c) Acquisition of Sites For and Construction of Public 
Buildings 
Title 40, Chapter 6, (40 U.S.C. 
345b-357) 
(d) Emergency Public Works and Construction Projects 
Title 40, Chapter 8 (40 U.S.C. 
421-435) 
(e) Non-Federal Public Works 
Title 40, Chapter 9 (40 U.S.C. 460-462) 
Comment: 
The statutes of probable importance 
to the territories 
and the Trust Territory that are discussed herein for the most 
part apply to them, but the absence of Federal courts in Samoa 
and the Trust Territory could pose enforcement problems 
in 
those areas. 
The matter does not appear, 
however, 
to be of 
current importance. 
Discussion: 
(a) The 
assorted 
statutes 
codified 
in 
Chapter 
4, 
entitled The Public Property (40 U.S.C. 301-319c), are Jargely 
without geographical limitation, 
and for the most part vest 
authority 
in 
the 
Administrator 
of 
General 
Services 
in 
connection with property acquired by the United States through 
unusual 
means: 
property 
conveyed 
to the United 
States 
in 
payment of debts (40 U.S.C. 301); lands acquired by devise (40 
U.S.C. 
304); 
lands acquired by judicial process 
(40 U.S.C. 
304a); property voluntarily abandoned to the United States, or 
forfeited to it (40 U.S.C. 
304g, 304h, 
310). 
Other sections 
permit 
the 
Administrator 
of 
General 
Services 
to 
appoint 
special policemen for the protection of Federal property 
(40 
U.S.C. 
318-3184). 
The authority conveyed by these sections 
would 
extend 
to 
the 
described 
Federal 
property 
in 
the 
territories 
as 
well, 
for 
there 
are 
no 
geographically 
exclusionary provisions. 
Two particular statutes that appear here, however, could be of 
interest to the territories, and in each case the territories 
1008 
19 
Memorandum No. 
40-3 
are comprehended. 
First, 
sections 
308 and 309 of Title 
40, 
which derive 
from an 1864 statute, 
provide that 
if property 
owned by the United States, or in which the United States has 
an interest, is attached "in any judicial proceeding under the 
laws 
of any 
State, 
district, 
or 
territory", 
the Attorney 
General of the United States may cause the attachment 
to be 
discharged 
(40 U.S.C. 
308); but the right of the claimant, 
if 
held to be valid, 
is not extinguished, 
and a monetary award 
can be obtained from the United States 
(40 U.S.C. 
309). 
The 
purpose of the law is to balance the need of the sovereign to 
hold its property free of attachment, without prejudicing the 
rights of a legitimate claimant. 
A reference to "the United 
States Attorney 
for 
the district 
in which 
the property 
is 
located" could create 
a difficulty 
in Samoa, 
where there is 
none, but in the unlikely event that action under these laws 
were to be attempted in Samoa, it seems probable that it would 
be effective--because the reference to "territory" suggests a 
clear legislative purpose to have the statute apply in such an 
area. 
Secondly, 
a 1962 statute permits the States and territories to 
obtain easements over real property of the United States, 
at 
the discretion of the head of the agency having control of the 
property 
(40 U.S.C. 
319-319c). 
The privilege 
is granted to 
States 
and 
to "the possessions 
of the United 
States" 
(40 
U.S.C. 319c(a))--a term that comprehends the Virgin Islands, 
Guam, Samoa, and the Northern Marianas. 
Not all Federal lands 
are comprehended. 
The 
most 
important 
exclusions 
from 
the 
territories’ standpoint are national park lands and lands held 
for fish and wildlife conservation purposes (40 U.S.C. 319(d). 
(b) The Contract Work Hours and Safety Standards Act, 
constituting Chapter 5 of Title 40 (40 U.S.C. 
327-333), 
most 
of which was enacted in 1962, 
is in part a successor to the 
Eight Hour Laws that date from the 19th century; a new section 
was added to it in 1969 
(40 U.S.C. 
333) that imposes worker- 
safety requirements as well. 
The eight-hour provisions apply 
to Federal construction contracts in all of the territories, 
and very probably in the Trust Territory as well. 
They also 
apply 
to 
construction 
contracts 
to 
which 
any 
of 
the 
territorial governments is a party, and almost certainly also 
to 
construction 
contracts 
to 
which 
the 
Trust 
Territory 
Government and its entities (the Governments of the Marshalls, 
1009 
+ 
90 
Memorandum No. 
40-3 
Palau, 
and the Federated States of Micronesia) 
are parties./ 
The newer worker-safety section applies to those areas having 
United States District Courts (i.e., the Virgin Islands, Guam, 
and 
the 
Northern 
Marianas), 
but 
not 
those 
that 
do 
not-- 
American Samca and the Trust Territory. 
Turning first to the Eight Hour requirements, the Act provides 
that wages paid to “every laborer and mechanic" employed by a 
contractor or subcontractor on specified contracts are to be 
computed 
on 
the 
basis 
of 
an 
eight 
hour 
workday 
and 
a 
forty-hour week, 
and work in excess of those hours 
is to be 
compensated 
at no less 
than one and 
a half times 
the hourly 
rate (40 U.S.C. 328(a)). 
The contracts covered by the law are 
defined as 
any contract which may require or involve the 
employment 
of laborers 
or mechanics 
upon 
a 
public 
work 
of 
the 
United 
States, 
of 
any 
territory, or of the District of Columbia, 
and 
to any 
other 
contract 
which 
may 
require 
or 
involve 
the 
employment 
of 
laborers 
or 
mechanics if such contract is one (1) to which 
the 
United 
States 
or 
any 
agency 
or 
instrumentality thereof, any territory, or the 
District of Columbia is a party, 
or 
(2) which 
is made for or on behalf of the United States, 
any 
agency 
or 
instrumentality 
thereof, 
any 
territory, 
or the District of Columbia 
. 
(40 U.S.C. 329(a)).2 
Y as later observed, 
regulations 
of the Secretary 
of Labor 
effectively 
exempt 
the Governments 
of 
the Federated 
States 
and 
Palau, 
as 
well 
as 
the Government 
of 
the 
Marshalls, 
except 
for 
contracts 
in Kwajalein and Enewetak. 
2? the 
quoted 
section 
continues 
on, 
to 
cover 
as 
well 
any 
contract 
(continued...) 
1010 
Memorandum No. 
40-3 
It 
is 
certain 
from 
the 
foregoing 
words 
that 
Federal 
construction 
contracts 
performed 
in the territories 
of 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the Northern 
Marianas 
are 
covered 
by the Eight Hour provisions. 
It is equally clear 
that construction contracts of those four governments are also 
covered--a somewhat unusual exercise of the Congress’ 
power 
over 
and 
in 
the 
territories, 
but 
one 
that 
is 
unarguably 
permissible as a matter of law. 
(The Northern Marianas Covenant contains, 
at section 502(b), 
a provision consistent with the foregoing construction. 
That 
section provides in pertinent part: 
The laws of the United States regarding 
.. 
. 
the conditions 
of employment, 
including 
the 
wages 
and hours 
of employees, 
will 
apply 
to 
the activities of the United States Government 
and 
its contractors 
in the Northern 
Mariana 
Islands. 
Section 
502(b) 
does not itself have the effect of extending 
the Eight Hour requirements to contracts of the Government of 
the 
Northern Marianas, 
but that result follows either from 
2/(.. continued) 
(3) which is a contract for work financed in 
whole or in part by loans or grants from, 
or 
loans 
insured 
or 
guaranteed 
by, 
the 
United 
States 
or 
any 
agency 
or 
instrumentality 
thereof under any statute of the United States 
providing wage standards for such work 
. 
. 
Because any territorial government contracts would be comprehended 
by (1) or (2), it is probably unnecessary to focus on (3), although 
some of the territories have received Federal aid under statutes of 
the sort described. 
There is a listing of them in the legislative 
history of the Contract Work Hours Act (1962 U.S. 
Code Cong. 
and 
Admin. 
News 
2121, 
2123), 
and 
of particular 
relevance 
would 
be 
various housing and highway laws. 
1011 
>2 
Memorandum No. 
40-3 
viewing the Northern Marianas as a "territory" under 40 U.S.C. 
329(a), 
quoted above--which 
it will not wholly become until 
trusteeship termination--or by operation of section 502(a) (3) 
of 
the 
Covenant, 
which 
extends 
to 
the 
Northern 
Marianas 
Federal laws applicable to the Trust Territory. 
As explained 
below, 
the 
Eight 
Hour 
provisions 
now 
apply 
to 
the 
Trust 
Territory. )2/ 
The application 
of 
the Eight Hour 
provisions 
to the Trust 
Territory, 
while not compelled by the statutory language, 
is 
compelled 
by 
the 
Supreme 
Court's 
construction 
of 
the 
predecessor Eight Hour Law in Foley Bros. 
v. Filardo (336 U.S. 
281 
(1949)). 
The Court concluded that the law did not apply 
to United States Government construction projects in Iraq and 
Iran, but in so concluding, stated that the Congress’ purpose 
was not to extend coverage 
beyond places over which the United States has 
sovereignty 
or 
some 
measure 
of 
legislative 
control. 
(At p. 285) 
3/ Note added in 1993: 
‘This paragraph within parentheses was 
written before termination of the Trusteeship Agreement, 
and none 
of the Federal commentators then took issue with it. 
In light of 
the 
termination 
of 
the 
trusteeship 
agreement, 
however, 
section 
502(a)(3) is no longer of use because sy its terms it ceases to be 
effective "upon termination of the Trusteeship Agreement." 
As to 
the other point, that upon termination the Northern Marianas would 
then become 
a "territory," 
that point has lately become at least 
arguable. 
It was in most quarters regarded as indisputable during 
the 
early 
years 
of 
the 
Commonwealth, 
as 
evidenced 
by repeated 
restatem nts of that conclusion in the 1985 report of the Northern 
Marianas Commission on Federal Laws. 
It remains the strongly held 
view o£ the Executive Branch of the U.S. Government. 
But recent 
litigation 
has raised 
some 
doubt. 
It may, 
therefore, 
be 
that 
construction contracts by the Government of the Northern Marianas, 
unless they are funded or otherwise supported from Federal sources 
and thus within the terms of 40 U.S.C. 329(a)(3), 
are not covered 
by ‘the 
Eight 
hour 
Law. 
As 
a 
practical 
matter, 
however, 
the 
Government of the Northern Marianas relies so heavily upon Federal 
financial assistance that its construction contracts funded wholly 
from local funds are insignificant at this time. 
1012 
2g 
Memorandum No. 
40-3 
And further, 
that 
the 
statute 
was 
intended 
to 
apply 
only 
to 
those 
places 
where 
the 
labor 
conditions 
of 
both 
citizen 
and 
alien 
employees 
are 
a 
probable concern of Congress. 
(At p. 286) 
The Trust Territory 
is an area over which the United States 
has 
full 
powers 
~ 
legislation 
(under 
Article 
3 
of 
the 
Trusteeship Agreement), and it has legislated with respect to 
labor conditions there 
(see Memorandum No. 
29-5 on the Fair 
Labor Standards Act). 
The conclusion necessarily follows that 
the Eight 
Hour 
provisions 
of 
the 
Contract 
Work 
Hours 
and 
Safety 
Standards 
Act 
(40 U.S.C. 
327-332) 
apply 
to Federal 
construction contracts in the Trust Territory. 
Given the purpose imputed to the Congress in Foley Bros. v. 
Filardo, the Trust Territory must be regarded as a "territory" 
for 
purposes 
of 
the 
language 
quoted 
above 
from 
40 U.S.C. 
329(a)*. 
At this time the Government of the Trust Territory 
engages 
in 
no 
construction 
on 
its 
own--so 
the 
point 
is 
academic. 
But the three governments that have emerged within 
the Trust Territory--the 
Governments 
of the Marshalls, 
the 
Federated 
States 
of 
Micronesia, 
and 
Palau--do 
enter 
construction 
contracts 
and will 
surely 
continue 
to do 
so. 
Subsequent 
to trusteeship 
termination, 
when 
under 
Compact 
section 
171 most Federal laws will cease to apply there, 
the 
issue will no longer exist. 
Prior to that moment, 
it is hard 
to escape 
the conclusion 
that 
the 
Eight 
Hour 
requirements 
apply to construction contracts of these three governments. 
tt 
is 
interesting 
to note 
that 
the 
legislative 
history 
states with clarity that Puerto Rico 
is not 
to be regarded as 
a 
"territory" for purposes of the Act, but should instead, in view of 
its commonwealth status, be equated with the States (1962 U.S. Code 
Cong. 
and Admin. 
News 2127). 
Neither the Trust Territory nor the 
Commonwealth 
of 
the 
Northern 
Marianas 
is 
mentioned 
in 
the 
legislative history. 
1013 
Pd 
Memorandum No. 40-3 
In fact, however, most parts of the Trust Territory have been 
made 
exempt 
by 
action 
of 
the 
Secretary 
of 
Labor. 
The 
Secretary 
is 
authorized 
to 
allow 
exemptions 
“to 
prevent 
injustice or undue hardship or to avoid serious impairment of 
the conduct 
of Government business" 
(40 U.S.C. 
331). 
The 
effect of the Secretary's exemptions, under 41 CFR 1-12.302(d) 
(1984 ed.), is that within the Trust Territory, only Kwajalein 
and Enewetak are comprehended by the requirements. 
Hence, 
it 
is 
only 
the 
Government 
of 
the 
Marshall 
Islands 
that 
is 
potentially affected. 
The section of the Contract Work Hours and Safety Standards 
Act that was added 
in 1969, 
and that relates 
to health and 
safety 
standards 
for 
laborers 
and 
mechanics 
on 
certain 
contracts 
(40 U.S.C. 
333), 
appears 
to have 
a different 
and 
narrower application. 
The Secretary of Labor 
is required to 
promulgate standards 
so that no worker on certain contracts 
will be subjected to "working conditions which are unsanitary, 
hazardous, 
or 
dangerous 
to 
his 
health 
or 
safety". 
The 
requirement applies to “each contract" that is 
-- entered into under legislation subject 
to 
Reorganization Plan Numbered 14 of 1950, and 
- 
"for 
construction, 
alteration, 
and/or 
repair 
. 
. 
." (40 U.S.C. 333(a)). 
Apart from these provisions, 
and apart from the enforcement 
jurisdiction given the Federal District Courts and the United 
States Courts of Appeals (40 U.S.C. 333(c), 
(4)), the section 
contains no aids as to its application. 
Nor does the readily 
available legislative history (1969 U.S. Code Cong. and Admin. 
News 1071). 
Among the pieces of legislation cited in Reorganization Plan 
No. 
14 of 1950 are the Eight Hour Laws that preceded the 1962 
revision, 
discussed 
in the preceding paragraphs. 
From that 
fact it might be argued that the safety standards section is 
intended to be coextensive 
in application with the contract 
work hour sections. 
On the other 
hand, 
the Reorganization 
1014 
5 
Memorandum No. 
40-3 
Plan itself 
(appearing at 5 U.S.C. 
App.) applies by its own 
terms 
only 
to 
"Federal 
agencies", 
and 
the 
Secretary's 
regulations are to "be observed by these agencies". 
Because 
Federal 
legislative 
control 
over 
territorial 
government 
contracts, 
of 
the 
sort 
reflected 
in 
the 
Eight 
Hour 
requirements, 
is unusual, 
a statutory construction resulting 
in that kind 
of control 
ought 
to be resisted 
where 
it 
is 
reasonable 
to 
do_ 
so. 
In 
.this 
instance, 
given 
the 
Reorganization Plan language, 
it seems reasonable to conclude 
that 
the 
territorial 
governments 
(and 
governments 
of 
and 
within 
the Trust Territory) 
are 
not subject 
to the worker- 
safety 
requirements 
of 
40 
U.S.C. 
333 
in 
their 
contracts. 
Federal agencies would be subject to those requirements, 
for 
work performed 
in some 
of the territories--but 
not all 
of 
them. 
The absence of Federal judicial machinery in Samoa and 
the Trust 
Territory 
argues 
for 
their 
exclusion. 
Equally, 
because 
there 
are 
Federal 
District 
Courts 
in 
the 
Virgin 
Islands, Guam, and the Northern Marianas, Federal construction 
contracts 
there would be subject 
to the health 
and 
safety 
standards of the Secretary of Labor. 
(Note, 
however, 
that employees generally 
in the territories 
and the Trust Territory are not unprotected by Federal safety 
legislation. 
The Occupational Safety and Health Act of 1970 
is pee applicable to all such areas. 
See Memorandum No. 
29-7. 
{c) Of 
the 
few 
sections 
remaining 
in 
the 
chapter 
headed Acquisition of Sites For and Construction 
of Public 
Buildings 
(40 U.S.C. 
345b-357), 
two 
that 
appear 
to be of 
little moment do not apply to the offshore areas, but one that 
could be of consequence does apply to the territories. 
As to the first two, 
-- 
a 1935 law authorizes the Administrator 
of 
General 
Services 
to 
dispose 
of 
Federal 
buildings and their sites when they "have been 
supplanted by new structures", by selling them 
to "States, counties, municipalities, or other 
1015 
Memorandum No. 
40-3 
duly 
constituted 
political 
subdivisions 
of 
States" 
(40 U.S.C. 
345b); and 
-- 
a later amendment authorizes 
the heads 
of Federal agencies to convey, with or without 
consideration, 
to 
"a 
State 
or 
political 
subdivision of a State", Federally-owned land 
needed for "an authorized widening of a public 
highway, street, 
or alley" (40 U.S.C. 
345c). 
The territories would not qualify as purchasers or recipients 
under either, 
but there are no Federal structures 
in any of 
the 
territories 
now 
that 
have 
been 
"supplanted", 
and 
no 
Federal 
property 
likely 
to 
be 
of 
value 
for 
road-widening 
purposes. 
If there were, 
in either case the Federal Property 
Act (Memorandum No. 40-4) could doubtless come to the rescue. 
Appearing 
in 
this 
chapter 
also 
is 
the 
Public 
Buildings 
Purchase Contract Act of 1954 (40 U.S.C. 356-357), under which 
the 
Administrator of General Services may provide space for 
Federal 
activities 
by 
lease-purchase 
contracts, 
with 
the 
United 
States 
acquiring 
title 
to 
the 
property 
after 
a 
specified lease period. 
The procedure 
is available 
in the 
territories 
(and it need not be in the Trust Territory, where 
the 
United 
States 
has 
eschewed 
acquiring 
title 
to 
real 
property), because the statute applies to Federal activities 
in the States 
and "the Territories 
and possessions 
of the 
United 
States 
(including 
Guam)" 
(40 U.S.C. 
356(a))- 
(The 
particular reference to Guam is somewhat curious, but probably 
resulted from contemporaneous consciousness-raising, 
because 
the Purchase Contract Act of 1954 was 
enacted rather 
soon 
after the Guam Organic Act of 1950.) 
(d) The few sections remaining under Emergency Public 
Works and Construction Projects 
(40 U.S.C. 
421-435) 
do not 
apply to the territories 
(or the Trust Territory), 
but they 
may be obsolete, and in any event they are probably irrelevant 
to all of the off-shore areas. 
Most of the sections derive 
from the Act of June 29, 
1936 
(49 Stat. 
2025), 
and concern 
low-cost 
housing 
and 
 slum-clearance 
projects 
of 
the 
Depression-era Public: Works Administration. 
It is unlikely 
1016 
27 
Memorandum No. 40-3 
that 
any 
such 
projects 
were 
ever 
constructed 
in 
the 
territories. 
The sections 
concern 
State jurisdiction over 
land acquired by the United States for such projects, payments 
in lieu of taxes to the States with respect to such projects, 
and rent levels for tenants. 
(e) The chapter concerning 
n-F. 
ral Public 
Work: 
(40 U.S.C. 460-462) contained the authority, before repeal in 
1981, 
for 
grants 
by 
the 
Secretary 
of 
Housing 
and 
Urban 
Development 
for 
comprehensive 
planning 
assistance; 
and 
it 
continues 
to contain 
the authority 
for advances 
of Federal 
funds 
for planning of public works--so 
as 
to hold them 
in 
reserve so that they "can rapidly be commenced, particularly 
when 
the national 
or 
local 
economic 
situation 
makes 
such 
action desirable" 
(40 U.S.C. 
462(a)). 
Both programs, 
from 
their initial authorization in 1954, were applicable to "any 
territory or possession", and each was made available to the 
Trust Territory by a 1974 amendment 
(40 U.S.C. 
460). 
Before 
the 
authority 
for 
grants 
for 
comprehensive 
planning 
was 
repealed 
in 
1981, 
all 
of 
the 
territories 
and 
the 
Trust 
Territory received financial assistance under it. 
All remain 
eligible for "advances" for public works planning, but because 
these advances must be repaid--and with interest if the public 
work is not undertaken--and because the fiscal situation of 
the territories is precarious enough to cause them to avoid 
borrowing for other than the most essential purposes, it seems 
probable that this Federal aid will not be sought by any of 
them. 
Conclusion: 
The 
statutes 
considered 
herein 
appear 
to pose 
no 
Practical 
problems 
for 
the 
territories 
and 
the 
Trust 
Territory. 
For the most part, those of probable importance to 
the territories apply to them. 
The lack of courts in Samoa 
and 
the 
Trust 
Territory 
with 
Federal 
jurisdiction 
could 
present enforcement difficulties 
there, 
but approval of the 
Compact in the case of the Trust Territory will end the matter 
there; and there is no immediate need to accommodate Samoa. 
Federal 
_ 
agency comments: 
Comments were requested from the Depart- 
ments of Labor, HUD, and Justice, and the General 
Services 
Administration. 
All comments 
received 
have been reflected 
above. 
1017 
28 
Memorandum No. 40-4 
April 1985 
Subject: 
Management and Disposal of Government Property 
(Constituting 
a part 
of 
the 
Federal 
Property 
and 
Administrative Services Act of 1949; for other parts 
of that Act, see Memoranda Nos. 40-5(d) 
and 41-2(b)) 
Title 40, Chapter 10 (40 U.S.C. 
secs. 
471-544) 
Purpose: 
The portions of the Federal Property and Administrative 
Services Act of 1949, as amended, that are the subject of this 
memorandum are those portions that concern the utilization of 
Federal property by Federal agencies, 
and, when the property 
is no longer needed, 
its disposal. 
Territorial application: 
The Federal Property Act does not apply 
to the territorial 
governments 
or 
to the Government 
of the 
Trust Territory as the acquirers or users of Federal property, 
but it does apply to them as the from-time-to-time recipients 
of 
Federal 
property. 
As 
such, 
the 
territories 
receive 
treatment under the disposal provisions of the Property Act 
that 
is 
no 
less 
favorable 
than 
the treatment 
accorded 
the 
States. 
The 
Trust 
Territory 
receives 
different 
but 
advantageous treatment. 
Recommendation: 
The 
treatment 
accorded 
to 
the 
Virgin 
Islands, 
Guam, 
the Northern Marianas, 
and Samoa under the sections of 
the Federal Property Act considered here appears to be fair, 
and no change in the law as to them is required (excepting a 
nonurgent point as to court jurisdiction in Samoa, discussed 
below). 
While the Trust Territory is treated less favorably 
than the States and territories under the disposal provisions 
of the Property Act, 
(1) the differences 
are marginal, 
and 
(2) the probable early effectiveness of the Compact of Free 
Association, 
in any event, will soon cause the Property Act to 
cease to apply as a matter of domestic law within the Trust 
Territory, 
so 
changes 
in 
it now 
for 
the Trust 
Territory’s 
purposes 
would 
be 
untimely. 
Thus, 
because 
the 
treatment 
accorded the Trust Territory represents a problem that is both 
minor and fleeting, 
there is no need to modify the law now to 
accommodate the Trust Territory. 
Discussion: 
In general the provisions of the Federal Property Act 
that are codified in Chapter 10 of Title 40 apply to executive 
1018 
?9 
Memorandum No. 
40-4 
agencies 
or 
to 
Federal 
agencies 
of 
the 
United 
States 
Government, 
but not to the territorial governments. 
The term 
"executive agency" means an agency within the Executive Branch 
of the United States Government; 
the term "Federal agency" 
includes executive agencies, 
but it includes agencies of the 
legislative and judicial branches as well (40 U.S.C. 472(b)). 
The governments of the territories and the Trust Territory are 
not either executive or Federal agencies for purposes of the 
Property 
Act, 
and 
have 
not 
been 
regarded 
as 
such 
since 
enactment of the Property Act in 1949. 
(Their status for this 
purpose is considered, with some history discussed, 
in a 1967 
Interior Solicitor’s Opinion, 
74 I.D. 
365.) 
The governments of the territories and the Trust Territory are 
thus unaffected by the provisions of Chapter 10 to the extent 
that 
those 
provisions 
relate, 
as 
they 
largely 
do, 
to 
the 
management 
and utilization 
of property by Federal 
agencies, 
and to the requirements and procedures 
for disposal 
of such 
Property 
when 
it 
is 
no 
longer 
needed 
by 
the 
Federal 
Government. 
These 
are 
the 
provisions 
pertaining 
to 
the 
transfer of property to another Federal agency, 
usually with 
reimbursement, when the agency holding the property no longer 
needs 
it 
("excess" 
property) 
(40 
U.S.C. 
483); 
and 
the 
provisions 
pertaining 
to the disposal 
of property 
when 
no 
agency 
of 
the 
Government 
needs 
it 
("surplus" 
property) 
(40 U.S.C. 
484), 
Generally, 
surplus 
property 
is 
to 
be 
disposed of following a public advertisement for bids, but in 
stipulated circumstances the disposal may be negotiated. 
One 
such circumstance is where "the disposal will be to States, 
Territories, 
possessions 
. 
. 
. 
and the estimated fair market 
value of the property and other satisfactory terms of disposal 
are obtained by negotiation" 
(40 U.S.C. 484(e)(3) 
(H)). 
Note 
that the Trust Territory 
is not covered by this language. 
The disposal 
of surplus Federal property 
to public bodies, 
including the territorial governments, 
is a subiect of special 
interest 
and importance 
to them, 
and provisions 
permitting 
such donations or transfers either without reimbursement or at 
less than fair market value are codified 
at 40 U.S.C. 
484. 
Among the kinds of property that may be donated or transferred 
are: 
1019 
Memorandum No. 
40-4 
-- 
surplus personal property under the control of the 
Department 
of 
Defense, 
which 
the 
Secretary 
of 
Defense 
determines 
is 
usable 
for 
educational 
activities that are of special interest to the armed 
services 
(40 U.S.C. 484(5)(2)); 
-- 
other surplus personal property for public purposes, 
“such 
as 
conservation, 
economic 
development, 
education, 
parks and recreation, 
public health, 
and 
public safety" 
(40 U.S.C. 484(3)(3)(A)); 
-- 
surplus 
real 
property, 
by 
sale 
or 
lease, 
if 
the 
property is determined by the Secretary of Education 
or the Secretary of Health and Human Services to be 
needed, respectively, 
for educational purposes or in 
the 
protection 
of 
public 
health 
(40 
U.S.C. 
484(k)(1}5; and 
-- 
surplus real property, by sale or lease, determined 
by the Secretary of the Interior 
to be needed as a 
public 
park 
or 
recreational 
area 
(40 
U.S.C. 
484(k)(2))- 
Property in these categories may be donated to or transferred 
to 
all 
of 
the 
territorial 
governments--Samoa, 
Guam, 
the 
Northern 
Marianas, 
and 
the Virgin 
Islands--but 
not 
to the 
Trust Territory. 
The several definitions supplied in the Act 
lead 
to 
this 
result, 
although 
the 
definitions 
themselves 
vary: 
The personal 
property donations 
are governed by the 
definition of "State" appearing at 40 U.S.C. 484(5)(5), where 
"State" is defined to include the "Virgin Islands, Guam, and 
American 
Samoa," 
with 
the 
Northern 
Marianas 
also 
being 
comprehended 
by 
operation 
of 
section 
502(a)(2) 
of 
the 
Covenant. 
Real property transfers 
for education 
ar 1 public 
health purposes are governed by the definition of "States" now 
appearing at 40 U.S.C. 484(k)(1)(D), where the term is defined 
to include "the territories and possessions." 
Real property 
transfers for parks and public recreation are governed by the 
definition of "States" appearing at 40 U.S.C. 
484(k)(2)(D), 
where 
the 
term 
is defined 
to include 
"the territories 
and 
possessions." 
(The lack of uniformity in the definitions 
is 
1020 
31 
Memorandum No. 
40-4 
unremarkable. 
The Federal Property Act is several decades old 
and 
has 
been 
frequently 
amended, 
so 
that 
internal 
inconsistences have developed over time. 
The only important 
point for immediate purposes 
is that all of the definitions 
are sufficient 
to protect the interests 
of the territories 
considered herein.) 
The 
exclusion 
of 
the 
Trust 
Territory 
from 
the 
benefits 
contained in the sections here considered may or may not have 
been purposeful, 
but 
it 
is 
now harmless 
and probably 
has 
always been so. 
Authority pertaining to real property would 
be 
irrelevant 
in 
any 
event, 
given 
the 
United 
States’ 
consistent policy of acquiring no real property in the Trust 
Territory. 
Personal property for the Trust Territory could 
have 
been obtained, 
and has been obtained 
over 
the years, 
under 
the 
special 
authority 
conferred 
by 
the 
Interior 
Department Appropriations Act enacted in 1952: 
After 
June 30, 
1952, 
transfers 
to 
the 
Department 
of 
the 
Interior 
pursuant 
to the 
Federal Property and Administrative 
Services 
Act 
. 
. 
. of equipment, material and supplies, 
excess to the needs of Federal agencies may be 
made 
at the request 
of the Secretary 
of the 
Interior without reimbursement or transfer of 
funds when required by the Interior Department 
for operations conducted in the administration 
of the Territories and the Trust Territory of 
the Pacific Islands. 
(48 U.S.C. 
1685). 
That authority has not, 
so 
far as 
can be established, 
been 
used to obtain excess personal property 
for the territorial 
governments--although the authority remains available for that 
purpose. 
(If it were 
so used, 
title 
to the property would 
remain in the United States, acting through the Department of 
the Interior, with the property made available by Interior to 
the territorial government on a use permit basis.) 
But it has 
been used to obtain property for the Trust Territory, because 
the Interior Department 
has been directly 
involved 
in and 
charged 
with 
"administration" 
of 
that 
area. 
The 
High 
Commissioner has been made responsible for the property, which 
remains property of the United States, 
subject to return to 
1021 
a2 
Memorandum No. 40-4 
it--as in the case of ships from the Maritime Administration. 
Other personal property made available to the Trust Territory 
under this authority when it was or is expendable, 
is unlikely 
to be seen again. 
In short, excess or surplus Federal property can be obtained 
by the territorial governments for particular public purposes 
on the same terms as it can be obtained by the States. 
And, 
although the procedure differs, 
excess personal property can 
also be obtained, without reimbursement, when there is a need 
for it in the Trust Territory. 
The 
disposal_of 
foreign 
excess 
property 
is 
no 
longer 
of 
particular 
interest 
to the territories, 
but 
until 
1975 
it 
offered 
unusual 
treatment 
for 
Guam, 
Samoa, 
and 
the 
Trust 
Territory. 
From its enactment in 1949 until 1975, the Federal 
Property 
Act defined "foreign excess property" 
as property 
located 
outside 
the 
States, 
Puerto 
Rico, 
and 
the 
Virgin 
Islands. 
That meant that excess property of a Federal agency, 
real 
or 
personal, 
located 
in 
Samoa, 
Guam, 
or 
the 
Trust 
Territory (including the Northern Marianas) could be disposed 
of without having first 
to be found surplus 
to the needs of 
Federal 
agencies 
generally 
(as 
would 
be 
true 
of 
excess 
property located in the States, 
Puerto Rico, 
and the Virgin 
Islands), 
and under statutory 
terms that are generally less 
restrictive than those that apply to the disposal of domestic 
surplus 
property. 
The 
provisions 
of 
the 
Property 
Act 
pertaining 
to 
the 
disposal 
of 
foreign 
excess 
property 
(40 U.S.C. 
511-514) 
afford wide 
latitude 
to the 
executive 
agency 
holding 
the property, 
both 
as 
to the procedure 
for 
disposal and the extent of reimbursement to the United States. 
Public advertisement 
for bids 
is not required. 
It had been 
believed 
that 
the 
Pacific 
areas 
profited 
from 
being 
categorized as "foreign excess property" areas, 
and, 
in fact, 
transfers were made to the Governments of the areas on terms 
generous to them. 
In 1975, 
the definition was amended 
so that "foreign excess 
property" has since meant property outside the States, Puerto 
Rico, 
and the Virgin Islands--and also outside of "American 
Samoa, Guam, 
the Trust Territory of the Pacific Islands" (and 
the Northern Marianas, by operation of section 502(a)(2), 
and 
1022 
33 
Memorandum No. 
40-4 
for a time, 
section 502(a)(3), 
of the Covenant). 
That 1975 
definition, 
appearing at 40 U.S.C. 
472(£), contains the only 
reference in the Property Act to the Trust Territory. 
It is 
interesting 
to note that the legislative history represents 
that 1975 amendment as one prompted by a need to accord to the 
territories of Guam and Samoa and to the Trust Territory the 
same ability to obtain surplus property under favorable terms 
(outlined above 
in connection with 
the disposal 
of surplus 
property to public bodies) as the States, Puerto Rico, and the 
Virgin Islands possessed. 
(1974 U.S. 
Code Cong. 
and Admin. 
News 
7047-7050.) 
(The legislative history 
is in error 
in 
suggesting 
that 
the Trust Territory could benefit 
from the 
change, 
inasmuch 
as the Trust Territory could 
not then and 
cannot now benefit from the provisions outlined above at 40 
U.S.C. 
484 
because, 
being 
neither 
a 
territory 
nor 
a 
possession, 
it could not be a donee or transferee under those 
provisions. ) 
It 
is 
difficult 
to 
imagine 
that 
the 
three 
Pacific areas achieved any benefits 
as 
a result of the 1975 
amendment that they did not have before it; and in fact they 
probably experienced a reduction. 
Additional 
provisions 
entitled 
Urban 
Land 
Utilization 
(40 
U.S.C. 531-535), were added as a new title to the Property Act 
in 
1968, 
by the 
Intergovernmental 
Cooperation 
Act 
of 
1968 
(largely 
repealed 
in 
1982). 
The 
Urban 
Land 
Utilization 
Provisions 
remain, 
and 
they require generally 
that 
in the 
disposal of urban lands, the General Services Administrator is 
to give 
notice 
to and 
cooperate 
with 
local 
agencies 
with 
respect 
to zoning or land use regulation; 
and 
in acquiring 
real property or changing its use, 
the Administrator is also 
to notify and cooperate with 
the pertinent 
local 
zoning or 
land 
use 
agency. 
Although 
the 
use 
of 
the 
term 
"State" 
suggests that the territories are excluded (40 U.S.C. 535(a)), 
the term was defined 
for purposes 
of 
the Intergovernmental 
Cooperation 
Act 
(prior 
to the general 
repeal 
in 
1982) 
to 
include 
“any territory 
or possession 
of the United 
States" 
(sec. 
102, 
82 
Stat. 
1099), 
so 
Samoa, 
Guam, 
the 
Northern 
Marianas, 
and 
the 
Virgin 
Islands 
should 
be 
construed 
as 
comprehended by its terms. 
That was 
the clear legislative 
intent. 
An assortment 
of miscellaneous, 
and largely unimportant 
(to 
the territories) provisions elsewhere in the Federal Property 
1923 
34 
Memorandum No. 40-4 
Act are for the most part sufficient to meet whatever needs 
the territories might have with respect to them. 
For example, 
-- 
At 40 U.S.C. 489, where civil penalties are imposed 
for 
improprieties 
in 
connection 
with 
the 
procurement, 
transfer, 
or 
disposal 
of 
Federal 
property, 
jurisdiction 
is granted 
to the district 
courts 
of 
the United 
States 
and 
to 
"the 
several 
district courts of the Tesritories and possessions" 
language that comprehends the district courts in the 
Virgin Islands, Guam, and the Northern Marianas, but 
it would include no court in Samoa; and 
-- 
The lengthy detailing of duties of the Administrator 
of General Services with respect to public buildings 
(40 U.S.C. 
490) 
provides 
for the installation and 
repair 
of 
sidewalks 
around 
Federal 
buildings 
and 
property, 
and 
permits 
this 
to 
be accomplished 
by 
reimbursement 
to 
the 
State 
or 
"possession 
of the 
United States" (40 U.S.C. 490 (i)(1)) which does the 
work. 
The 
provision 
at 
40 
U.S.C. 
489 
ought 
to 
be corrected 
to 
include Samoa, when it is legislatively convenient to do so. 
Otherwise these miscellaneous provisions present no problem to 
the territories. 
Conclusion: 
The utilization and disposal provisions of the Federal 
Property and Administrative Services Act of 1949, considered 
herein, require no change to meet the needs of the territories 
or 
the 
Trust 
Territory. 
Although 
the 
Trust 
Territory 
is 
treated differently under the law than are the territories, it 
would be untimely now to modify that treatment. 
When it is 
convenient 
to do so, 
it would be well 
to amend 
the section 
pertaining 
to 
court 
jurisdiction, 
40 U.S.C. 
489, 
to 
accommodate Samoa, 
but there is no pressing need to do so. 
Federal agency comments: 
Comments were requested from the General 
Services Administration and the Department of Justice. 
All 
comments received have been reflected above. 
1024 
a3 
(g) 
(h) 
qi) 
Memorandum No. 40-5 
April 1985 
Construction, Alteration, 
and Acquisition of Public 
Buildings 
Title 40, Chapter 12 (40 U.S.C. 601-616) 
Safety Standards for Motor Vehicles 
Title 40, Chapter 14 (40 U.S.C. 
701-703) 
Government Losses in Shipment 
Title 40, Chapter 15 (40 U.S.C. 
721-729) 
General Services Administration 
Title 40, Chapter 16 (40 U.S.C. 
751-761) 
Alaska Communications Disposal 
Title 40, Chapter 17 (40 U.S.C. 
771-792) 
Alaska Federal-Civilian Energy Efficiency Swap 
Title 40, Chapter 17A (40 U.S.C. 
795-795d) 
National 
Visitor 
Center 
Facilities, 
Union 
Station 
Redevelopment 
Title 40, Chapter 18 (40 U.S.C. 801-851) 
Capitol 
and 
White 
House 
Pennsylvania 
Avenue 
Development 
Title 40, Chapter 19 (40 U.S.C. 
871-885) 
Appalachian Regional Development Act of 1965 
Title 40 Appendix (40 U.S.C. App. 1-405) 
Comment: 
The provisions of Title 40 considered herein are largely 
of no relevance to the territories or the Trust Territory, and 
those of some application to them pose no problens. 
Discussion: 
601-616) 
(a) The 
laws 
pertaining 
to 
the 
Construction, 
£ 
ic 
Bi 
in 
(40 U.S.C. 
grant authority to the Administrator of the General 
Services Administration for these purposes, and they apply to 
the Virgin Islands, Guam, Samoa, and the Northern Marianas as 
fully 
as 
to 
the 
States. 
Note, 
for 
example, 
that 
the 
Administrator is admonished to "provide for the construction 
and acquisition of public buildings equitably throughout the 
United States" (40 U.S.C. 
611(d)), and that the term "United 
1025 
36 
Memorandum No. 40-5 
States" includes "the possessions of the United States" 
(40 
U.S.C. 
612(7)). 
Two 
provisions 
are 
contained 
in 
this 
Chapter 
that 
are 
geographically limiting, but neither creates a problem for the 
territories. 
First, 
in connection with the Administrator's 
use 
of 
lease-purchase 
agreements, 
the 
"interest 
in 
real 
property acquired 
. 
. 
. 
shall be subject 
to State and local 
taxes" 
until 
title passes 
to the United States 
(40 U.S.C. 
602a(d))--a phrase that would probably exclude taxes imposed 
by territorial 
law. 
But 
the lease-purchase 
authority 
has 
expired 
(40 
U.S.C. 
602a(g)), 
and because 
that 
acquisition 
technique 
was 
not 
used 
in the territories, 
the problem 
no 
longer exists. 
Second, 
a "unit of general local government", 
with 
which 
the 
Administrator 
is 
occasionally 
required 
to 
consult, 
is defined 
to mean "the political subdivision of a 
State” 
(40 U.S.C. 
612a(3)), 
but the territories do not have 
political 
subdivisions 
in 
the 
States’ 
sense, 
so 
their 
exclusion here is untroublesome. 
(b) The sections pertaining 
to Safety Standards 
for 
Motor vehicles 
(40 U.S.C. 701-703) require the Administrator 
of 
General 
Services 
to establish 
standards 
for 
passenger 
safety devices 
for motor vehicles 
purchased 
for use 
by the 
Federal Government. 
(Certain vehicles to be used by the armed 
forces 
are 
excluded.) 
The 
sections 
have 
no 
special 
application 
to 
the 
territories, 
but 
they 
would 
apply 
to 
vehicles purchased by the Federal Government 
for use 
in the 
territories, 
and in the Trust Territory as well. 
(c) The chapter entitled Government Losses in Shipment 
(40 U.S.C. 
721-729) concerns 
the shipment of “valuables” by 
Federal agencies, 
and the means 
of replacing such valuables 
when they are lost, destroyed, 
or damaged. 
The provisions in 
question have no particular relevance 
to the territories or 
the Trust Territory. 
(d) Sections 
of 
the 
Federal 
Property 
and 
Administrative 
Services 
Act 
appear 
here 
under 
the 
title 
General 
Services 
Administration 
(40 
U.S.C. 
751-761), 
and 
pertain to the internal administration of the agency of that 
1026 
a7 
Memorandum No. 
40-5 
name. 
The 
chapter 
also 
contains 
provisions 
creating 
the 
General Supply Fund, the Federal teleconmunications fund, the 
automatic data processing fund, and the Consumer Information 
Center Fund, 
but none contain language 
that would create 
a 
problem to the areas that are the subjects of this study. 
(e) The sections pertaining to Alaska Communications 
Disposal 
(40 U.S.C. 
771-792) 
authorize 
the transfer by the 
Secretary of Defense of long-line communication facilities in 
or to Alaska, 
and have no relevance to this study. 
(£) Similarly, the 1980 Alaska Federal-Civilian Energy 
Efficiency Swap Act (40 U.S.C. 795-795d), authorizing Federal 
agencies 
to 
sell 
surplus 
energy 
generated 
in 
Alaska 
to 
“non-Federal" persons, 
is not relevant to this study. 
(g) This Chapter, concerning National Visitor Center 
Facilities 
and Union Station Redevelopment 
(40 U.S.C. 
801- 
851), contains the 1968 law that contemplated the much-plagued 
conversion of Union Station to a Visitor Center, and the 1981 
law 
providing 
for 
the 
station’s 
redevelopment. 
The 
territories are, mercifully, 
unaffected. 
(h) Capitol 
and 
White 
House 
Pennsylvania 
Avenue 
Development 
(40 
U.S.C. 
871-885) 
is 
of 
only 
remote 
and 
long-distance interest to the areas that are the subjects of 
this study. 
(i) The Appalachian Regional Development Act of 1965 
(40 U.S.C. App. 1-405) has in large part terminated, but is in 
any event irrelevant for the purposes of this study. 
Conclusion: 
The chapters of Title 
40 considered herein pose no 
problems for the territories or the Trust Territory. 
Federal agency comments: 
None have been sought because none are 
deemed necessary. 
1027 
23 
Title 41 - PUBLIC CONTRACTS 
- Contains nothing of substantial interest to the territories or 
the Trust Territory. 
* Contains matters of particul: 
the Trust Territory, but no legisla 
** Contains recommendations for change in the law. 
Memorandum 
Number _ 
Subject 
41-1 
General Provisions Pertaining 
to Public Contracts 
** 
41-2 
(a) 
{b) 
(c) 
(a) 
(e) 
(£) 
(a) 
(b) 
(c) 
(a) 
(e) 
(£) 
The Buy American Act 
Section 3709 of the Revised 
Statutes 
Anti-Deficiency Acts 
The Public Contracts Act 
(Walsh-Healey Act) 
Blind-made Products 
Anti-Kickback Act 
Termination of War Contracts 
Procurement Procedures 
Judicial Review of Adminis- 
trative Decisions 
Service Contract Labor 
Standards 
Office of Federal Procurement 
Policy 
Contract Disputes 
1028 
a9 
ar interest to the territories and 
tive recommendations. 
10a-10d 
5 
11, 
12 
35-45 
46-48c 
51-54 
101-125 
251-260 
321-322 
351-358 
401-419 
401-613 
Memorandum No. 41-1 
June 1985 
Subject: 
General Provisions Pertaining to Public Contracts 
Title 41, Chapter 1 (41 U.S.C. 5-54) 
Purpose: 
To regulate procedures for entering public contracts by 
agencies 
of 
the 
United 
States 
Government, 
and 
in 
some 
instances by the governments of the territories, and to impose 
particular requirements on the content of such contracts. 
x: 
ication: 
Most of the provisions of Chapter 
1 of 
Title 41 apply only to contracts entered into by agencies of 
the United States Government, 
but they often apply to such 
U.S. 
contracts when they are performed in the territories. 
One statute here codified, the Buy American Act, applies also 
to purchases 
by the territorial governments 
of the Virgin 
Islands 
and American 
Samoa, 
but not 
to the Governments 
of 
Guam, 
the Northern Marianas, 
or the Trust Territory. 
ion: 
Most of the laws here codified 
are of marginal 
significance to the territories and require no modification to 
meet 
their 
needs. 
The 
Buy 
American 
Act 
differs: 
Its 
application 
to purchases by territorial governments 
in the 
Virgin 
Islands 
and 
American 
Samoa 
has 
almost 
certainly 
increased costs to those governments from time to time; and in 
addition, its uneven application among the territories (given 
the exclusion of purchases by the Governments of Guam and the 
Northern Marianas) is logically unsupportable. 
The history of 
the Buy American Act, however, suggests that it is virtually 
unamendable as a practical matter, and thus its modification 
either to exclude those territorial governments now covered, 
or 
to 
include 
those 
not 
now 
covered, 
is likely 
to prove 
impossible to achieve. 
Discussion: 
Of the statutes codified 
in Chapter 
1 of Title 
41, 
(a) the Buy American Act (41 U.S.C. 
10a-10d) 
is of greatest 
significance to the territories, 
and it is considered first 
below. 
There 
then follows 
a discussion 
of 
(b) the public 
advertising 
requirements 
of 
section 
3709 
of 
the 
Revised 
Statutes 
(41 
U.S.C. 
5); 
(c) the 
anti-deficiency 
acts 
(41 U.S.C. 11 and 12); (4) the Public Contracts Act, sometimes 
called 
the 
Walsh-Healey 
act 
(41 
U.S.C. 
35-45); 
(e) the 
1029 
40 
Memorandum No. 
41-1 
purchase 
of 
blind-made 
products 
(41 
U.S.C. 
46-48c); 
and 
(£) the Anti-Kickback Act (41 U.S.C. 
51-54). 
(a) The Buy American Act (41 U.S.C. 10a-10d) 
The 
Buy American 
Act 
was 
enacted 
early 
in 
the Depression 
(March 
1933) 
to 
protect 
American 
industry 
and 
American 
workers. 
In general, 
it requires that articles, 
materials, 
and supplies acquired for public use in the United States must 
be of U.S. 
origin, 
and contracts 
for public buildings 
and 
public works in the United States must use only United States 
articles, 
materials, 
and supplies--with limited exceptions. 
The Act has not been amended since its enactment, 
except 
to 
exclude the Philippines upon its independence, and Alaska and 
Hawaii, upon their achieving Statehood. 
More particularly, 
the Act first requires that 
only 
such 
unmanufactured 
articles, 
materials, 
and 
supplies 
as 
have 
been 
mined or produced in the United States, 
and 
only 
such 
manufactured 
articles, 
materials, 
and 
supplies 
as 
have 
been 
manufactured in the United States. 
. 
- 
from 
articles, 
materials, 
or 
supplies 
mined, 
produced, 
or manufactured 
.. 
.- 
in the United States, 
shall be acquired 
for public use. 
(41 U.S.C. 
10a) 
This requirement 
does 
not apply 
if the head of 
the agency 
finds it inconsistent with the public interest or finds the 
price 
unreasonable, 
or 
if 
domestic 
components 
are 
not 
reasonably available. 
The Act, secondly, 
requires that every 
contract 
for 
the 
construction, 
alteration, 
or 
repair 
of 
any 
public 
1030 
41 
Memorandum No. 
41-1 
building 
or public work 
in the United 
States growing out of an appropriation 
+ 
+ 
+ Shall contain a provision that in 
the 
performance 
of 
the 
work 
the 
contractor 
. 
. 
. 
shall 
use 
only 
such 
unmanufactured articles, materials, 
and 
supplies as have been mined or produced 
in 
the 
United 
States, 
and 
only 
such 
manufactured 
articles, 
materials, 
and 
supplies 
as 
have 
been manufactured 
in 
the United States substantially all from 
articles, 
materials, 
or supplies mined, 
produced, 
or manufactured in the United 
States 
. 
. 
. 
(41 U.S.C. 
10b) 
The 
above 
exception 
applies 
to this 
second 
requirement 
as 
well, 
and in addition, 
the head of the agency may determine 
that 
the 
domestic 
requirement 
is 
"impracticable" 
as 
to 
a 
particular component, or its price unreasonable, 
in which case 
that determination is to be noted in the specifications and a 
public record made on the matter 
(41 U.S.C. 
10b(a)). 
Finally, 
the definitions provide that 
the "United States", means "when used in 
a geographical sense", the United States 
"and 
any 
place 
subject 
to 
the 
jurisdiction thereof"; 
and 
“public 
use", 
“public 
building", 
and 
“public 
work" 
means 
“use 
by, 
public 
building 
of, 
and 
public 
work 
of, 
the 
United States, the District of Columbia, 
Puerto 
Rico, 
American 
Samoa 
.. 
. 
and 
the Virgin Islands", 
(41 U.S.C. 
10c) 
To implement tne Buy American Act, Executive Order No. 
10582 
of December 17, 1954, and extensive regulations pertaining to 
both military and civilian agencies have been issued (32 CFR 
6-000, 
et seq., 
(1984 
ed.); 
41 CFR 1-6.100, 
et seq., 
(1984 
ed.); 
48 CFR 225.000, 
et _seq., 
(49 Fed. 
Reg. 
38550, 
Oct. 
te 
1984)). 
By their terms, 
they apply to Federal agencies, 
and 
1031 
A2 
Memorandum No. 41-1 
not to the territorial governments as purchasers. 
In general 
effect, current regulations provide that the domestic bid is 
unreasonably high if its exceeds 
the foreign bid, 
when the 
foreign bid is adjusted by the addition of a 6% differential, 
or by a 12% differential 
if the domestic bidder either 
is a 
small business or will produce the materials 
in an area of 
substantial 
unemployment. 
Neither 
the Virgin 
Islands 
nor 
Samoa has any local law or regulation 
to implement the Buy 
American Act, but it is understood that each applies the 6% 
and 12% differentials. 
From the foregoing statutory language, 
it is clear that the 
Buy 
American 
Act 
has 
three 
different 
effects 
on 
the 
territories: 
(1) Because 
of 
the 
definition 
of 
public 
use, 
public building, 
and public work, 
the Act applies to some of 
them when 
they enter their own contracts 
for supplies 
and 
construction. 
(2) Because 
of the definition 
of United 
States 
when used in a geographical sense, the Act has an effect upon 
the territories and the Trust Territory as sources of domestic 
components, for purposes of satisfying the requirements of the 
Buy American Act. 
(3) Again because 
of 
the definition 
of United 
States 
when 
used 
in a geographical 
sense, 
the 
Act 
has 
an 
effect upon the territories and the Trust Territory as sites 
for use of Federally-acquired supplies and public buildings or 
works. 
These effects require separate examination. 
(1) The definition quoted above of "public use", 
“public 
building", 
and 
"public 
work" 
(41 
u.S.c. 
10c(b)) 
specifies the governments to whose contracts for supplies and 
construction the Buy American Act applies. 
Those governments 
include the Government of American Samoa and the Government of 
1032 
43 
Memorandum No. 
41-1 
the 
Virgin 
Islands, 
but 
the 
Government 
of 
Guam 
is 
not 
included. 
Applying the rule of 
ni 
xClusi 
alterius, 
the Solicitor of the Interior Department held 
in 
1967 
(74 
I.D. 
365) 
that 
the statute 
meant 
what 
it said: 
contracts of the Government of Guam were not intended by the 
Congress 
to 
be 
comprehended 
by 
the 
Buy 
American 
Act 
requirements. 
The Solicitor rightly 
implied 
(but did 
not 
state) that this was a Congressional oversight--for Samoa had 
been acquired at about the same turn-of-the century time, and 
in 
1933 
it 
occupied 
the 
same 
status 
(as 
an 
unorganized, 
unincorporated 
territory), 
as 
Guam. 
But 
the 
statutory 
language is clear, and Guam is not mentioned. 
(Moreover, 
the 
legislative history of the Buy American Act is silent as to 
the rationale 
for naming particular 
areas.) 
As 
a result, 
public 
contracts 
for 
supplies 
and 
construction 
of 
the 
Governments 
of 
the 
Virgin 
Island 
and 
American 
Samoa 
are 
covered by the Act; those of Guam are not. 
And by extension, 
because the Act in this particular is not applicable to Guam 
or 
to the Trust Territory, 
section 
502(a) 
of 
the Northern 
Marianas 
Covenant 
has 
the 
effect 
of 
causing 
it 
to 
be 
inapplicable to the Government of the Northern Marianas. 
The 
Act also does not apply to the Trust Territory or to any of 
its component governments, when they act as purchasers. ! 
The result is financially beneficial to Guam and the Northern 
Marianas, 
(and the Trust Territory), 
and detrimental 
to the 
Virgin Islands 
and American Samoa--who 
are 
foreclosed 
from 
accepting lower foreign bids 
(or domestic bids with foreign 
Vit should, however, be noted that in marking up the Compact 
of Free Association 
on June 
5, 
1985, 
the House 
Subcommittee 
on 
Public Lands added language 
that has the effect 
of imposing Buy 
American 
(or Buy Micronesian) 
requirements upon purchases by the 
Freely Associated States. 
Purchases 
of services 
or supplies and 
contracts 
for public buildings, 
if an expenditure 
of $50,000 
or 
more is involved, 
would be so constrained if the funds to be used 
for payments of the contract are derived from Federal grants under 
the Compact. 
Whether such a provision will remain in the Compact 
through the remainder of the legislative process is unknown at this 
writing. 
(Note added in 1993: 
The provision did not survive. 
A 
shadow of it appears in section 106(b) of the Compact Act, but that 
section has not been implemented.) 
1033 
wo 
Memorandum No. 
41-1 
components) unless they are enough lower to remain lowest when 
appropriately adjusted. 
(2) When the Buy American Act refers to articles, 
materials, 
and supplies that have been “mined or produced in 
the United States" or "manufactured in the United States", 
it 
includes 
articles, 
materials, 
and supplies 
that 
have 
been 
produced or manufactured in all of the areas subject to this 
study--the Virgin Islands, Guam, Samoa, the Northern Marianas, 
and the Trust Territory (so long as it remains as such). 
All 
of these are areas "subject to the jurisdiction” of the United 
States, 
as 
that phrase 
is used 
in the Act’s definition 
of 
“united States", when used in a geographical sense (41 U.S.C. 
10c(a)) .2/ 
This 
effect 
is 
clearly 
of 
benefit 
to 
the 
2 on this point, 
the Armed Services Procurement Regulations, 
and now the Federal Acquisition Regulations, appear to be in error. 
Each defines "United States" for purposes of the Buy American Act 
as including the States, the District of Columbia, Puerto Rico, and 
"possessions", but not "leased bases or trust territories" (32 CFR 
6-001.5(e) 
(1984 ed.); 
48 CFR 225.001, 
49 Fed. Reg. 38551, 
Oct. 
1, 
1984). 
(But note thet the Federal Procurement Regulations differed, 
and 
did not contain this error. 
At 41 CFR 1-6.101(c) 
(1984 ed.), 
the 
"United States" 
is defined 
in a manner consistent 
with the Buy 
American Act, 
to mean the States, 
the District of Columbia, 
Puerto 
Rico, 
American 
Samoa, 
the 
Virgin 
Islands 
“and 
any 
other 
place 
subject to its jurisdiction".) 
The exclusion of “leased bases" 
is probably a wise precaution in 
light of Vermilya-Brown v. Connell (335 U.S. 
377 (1948)), but the 
exclusion of "trust territories" 
is probably an error. 
Only one 
trust 
territory 
remains, 
and 
it 
is 
the 
Trust 
Territory 
of 
the 
Pacific Islands, 
over which the United States has "full powers of 
. 
. 
. jurisdiction" under Article 3 of the Trusteeship Agreement. 
That phrase has been consistently construed in Federal statutes to 
comprehend the Trust Territory. 
But the matter may be academic, 
for the Trust Territory produces almost no articles, materials, 
or 
supplies of likely value to governmental purchasers. 
Moreover, the 
(continued...) 
1034 
Memorandum No. 
41-1 
territories and the Trust Territory. 
(3) The Act applies only to the acquisition 
of 
articles, 
materials, 
and 
supplies 
for 
use 
in 
the 
United 
States, and not to "articles, materials, and supplies for use 
outside the United States" 
(41 U.S. 10a); and it applies only 
to public buildings and public works "in the United States" 
(41 U.S.C. 
10b). 
The term is here used in the geographical 
sense, 
so that Federal contracts for goods to be used in the 
territories 
and the Trust Territory, 
or for construction 
in 
the territories and the Trust Territory, 
are subject to Buy 
American constraints. 
This effect cannot be harmful to the 
territories, 
and could 
be of benefit 
to them, 
in the event 
that 
a territorial bidder who offers 
a domestic product 
is 
competing with one offering a foreign product. 
In sum, the Buy American Act applies to the territories--and, 
for now, 
to the Trust Territory--in 
the 
same 
manner 
as 
it 
applies 
to 
the 
States, 
except 
that 
it 
also 
applies 
to 
Purchases 
by 
the 
Governments 
of 
the 
Virgin 
Islands 
and 
American Samoa. 
That 
is to the disadvantage 
of those 
two 
Governments. 
Because of a clear reluctance on Congress’ part 
to modify 
the Act, 
this disadvantage 
is likely 
to remain. 
Otherwise, because the Act represents a major national policy, 
and because 
the territories 
are 
treated 
no less well 
than 
other areas of the United States, they would appear to have no 
— 
2/(.. continued) 
applicability of the Buy American Act to the Trust Territory will 
cease when the Compact of Free Association becomes effective, under 
section 171 thereof--unless the Compact is modified in the manner 
described in the immediately Preceding footnote. 
If it is, then 
the cited Federal Acquisition Regulation ought to be modified to 
remove 
an 
inconsistency 
that 
is 
also 
unfair: 
the 
Micronesian 
States would be required to Buy American or Buy Micronesian, 
but 
Federal 
agencies 
could 
not 
regard 
products 
of 
the 
Micronesian 
entities 
as "domestic" 
for Buy American Act purposes 
in Federal 
contracts. 
In 
these 
circumstances, 
the 
regulation 
should 
be 
modified to include within the definition of "United States" the 
new governments, 
as appropriate--probably the Federated States of 
Micronesia and the Republic of the Marshalls. 
1035 
46 
Memorandum No. 
41-1 
yalss basis for objecting to the treatment accorded them by 
it. 
(b) Section 3709 of the Revised Statutes (41 U.S.C. 5) 
Section 3709 of the Revised Statutes, derived from an act of 
1861 but amended as recently 
as 1974, constitutes 
the basic 
Federal requirement for public advertising in the purchase of 
supplies or services by "the Government" 
(41 U.S.C. 
5). 
The 
“Government", 
however, 
while 
it includes 
the 
District 
of 
Columbia 
and departments 
and agencies 
of the United States 
(5 U.S.C. 
5a), 
does 
not 
include 
territorial 
governments, 
because they are not Federal agencies (Harris v. Municipality 
of St. Thomas and St. John, 111 F. Supp. 
63 (1953); Porter v. 
UL.S., 
496 F.2d 583(1974)). 
As 
a consequence, 
Section 
3709 
does not apply to contracts of any of the territories that are 
the subjects of this study. 
(c) Anti-Deficiency Acts (41 U.S.C. 
11, 
12) 
Among the Federai anti-deficiency acts are those codified at 
41 U.S.C. 
11 and 12, which bar any "contract or purchase on 
behalf 
of 
the 
United 
States" 
unless 
there 
exists 
“an 
appropriation 
adequate 
to 
its 
fulfillment", 
or 
any public 
building contract that binds "the Government to pay a larger 
sum of money than the amount in the Treasury appropriated for 
the specific purpose". 
In this case 
as well, 
"the United 
States" and "the Government" do not include the governments of 
the 
territories 
or 
the 
Trust 
Territory--even 
when 
their 
Y Related to the Buy American Act, but entirely separate from 
it, 
is a recently 
enacted 
(August 
1984) 
Federal 
law, 
sometimes 
referred 
to 
as 
the 
American 
Preference 
Act, 
which 
grants 
a 
preference 
of 
20% 
to 
United 
States 
contractors 
over 
foreign 
contractors 
in connection with military 
construction 
in "United 
States territories and possessions in the Pacific and on Kwajalein 
Island" (Public Law 98-396, 
98 Stat. 
1369, 
1398). 
The preference 
applies when the contract is estimated to exceed $5 million. 
The 
provision was enacted largely at the urging of representatives from 
Guam. 
1036 
Az 
Memorandum No. 41-1 
contracts for supplies or for construction are to be financed 
from Federal grant funds. 
The Comptroller General has long 
recognized 
that Federal 
grants become 
the property 
of 
the 
territorial government to which they are transferred, with the 
funds 
losing 
their 
Federal 
identity 
and 
being 
no 
longer 
subject to the restrictions applicable to appropriated funds 
(B-131569, June 11, 1957). 
That being so, the Comptroller has 
expressly 
concluded 
that 
the anti-deficiency 
laws 
here 
in 
question do not apply to American Samoa, when its contracts 
are 
supported 
by 
Federal 
grants 
(B-173589, 
September 30, 
1971). 
They would, even more certainly, 
thus not apply when 
local funds are involved, and these results would follow with 
respect to all of the territories and the Trust Territory. 
(d) 
Publi: 
Contract 
A 
(Walsh-Healey 
Act) 
(41 U.S.C. 
35-45) 
Any supply contract entered into by an “agency or instrumen- 
tality of the United States", or by the District of Columbia, 
must 
contain 
certain 
provisions 
concerning 
minimum 
wages, 
maximum hours, child labor, and reasonable working conditions 
(41 U.S.C. 
35). 
Because the governments of the territories 
and 
the 
Trust 
Territory 
are 
not 
Federal 
agencies 
and 
instrumentalities (see authorities cited above at (b)), these 
requirements 
from the Public Contracts Act do not apply to 
them. 
The 
requirements 
would 
apply, 
however, 
to Federal 
contracts that are performed in the territories, but probably 
not to those performed 
in the Trust Territory. 
The Public 
Contracts 
Act 
itself 
contains 
no 
provision 
as 
to 
its 
geographical application, but in its enforcement sections the 
Secretary of Labor is authorized 
to make inquiries 
"in any 
part 
of 
the 
United 
States" 
(41 
U.S.C. 
38), 
and 
certain 
enforcement jurisdiction is granted to Federal District Courts 
in “any Territory 
or possession" 
(41 U.S.C. 
39). 
It would 
logically 
follow 
that 
the requirements 
apply 
to contracts 
performed 
in 
the territories 
subject 
to this 
study. 
That 
result 
is certain 
in the case of the Northern Marianas, 
in 
light of section 502(b) of the Covenant, which provides that 
the 
laws of the United States regarding 
. 
. 
. 
the 
conditions of employment, 
including the wages 
1037 
A3 
Memorandum No. 
41-1 
and 
hours 
of 
employees, 
will 
apply 
to 
the 
activities of the United States Government and 
its 
contractors 
in 
the 
Northern 
Mariana 
Islands. 
Under the discretionary authority granted to the Secretary of 
Labor by the Act 
(41 
U.S.C. 
40), 
the Secretary 
has 
issued 
regulations 
that 
have 
the effect 
of stating 
that 
the only 
areas to which the Act applies, when contracts are performed 
there, are the States, the District of Columbia, Puerto Rico, 
and the Virgin Islands (41 CFR 50-201.603(b) 
(1984 ed.)) 
This 
exemption 
would 
serve 
to exclude 
Guam 
and 
Samoa 
from 
the 
effect of the Public Contracts Act as to Federal contracts 
performed 
in 
those 
territories, 
but 
it would probably 
not 
serve 
to 
overcome 
the 
express 
language 
of 
the 
Covenant. 
Accordingly, 
Federal 
contracts 
performed 
in 
the 
Northern 
Marianas are almost certainly subject to the requirements of 
this Act, 
notwithstanding 
the regulation cited. 
Moreover, 
although 
the 
exemption 
for 
Guam 
and 
American 
Samoa 
has 
continued validity, 
it is probably based on the thinking at 
the time the pertinent regulation was drafted many years ago-- 
when Puerto Rico and the Virgin Islands tended to be the only 
offshore 
areas 
in 
the 
minds 
of 
Federal 
drafters--so 
a 
reexamination of the regulation in the future might lead, and 
arguably should lead, 
to the elimination of their exemption. 
(e) Blind-made Products (41 U.S.C. 
46-48c) 
In purchasing "commodities produced and offered for sale" by 
nonprofit 
agencies 
for 
the 
blind 
or 
for 
other 
severely 
handicapped persons, 
Federal agencies are required to accord 
"priority" 
to commodities 
so produced 
and offered 
for sale 
(41 U.S.C. 
47(d)(2)(A)). 
The requirement does not apply to 
purchases by the governments of the territories or the Trust 
Territory, 
but it should be noted that nonprofit agencies for 
the 
purposes 
here 
involved 
may 
include 
agencies 
organized 
under the laws of the "Virgin Islands, Guam, American Samoa, 
and the Trust Territory 
of the Pacific 
Islands" 
(41 
U.S.C. 
48b(8)). 
The 
Northern 
Marianas 
is 
included 
as 
well, 
by 
operation of section 502(a)(2) of the Covenant. 
1038 
Ag 
Memorandum No. 
41-1 
(£) Anti-Kickback Act (41 U.S.C. 
51-54) 
The 
Anti-Kickback 
Act 
bars 
kickbacks 
(i.e., 
fees, 
gifts, 
gratuities) 
by a subcontractor 
to a prime contractor 
(and 
others 
similarly 
situated) 
in 
connection 
with 
negotiated 
contracts of Federal departments and agencies 
(41 U.S.C. 
51). 
The Act does not apply to contracts of the governments of the 
territories and the Trust Territory, but given the purpose of 
the statute, kickbacks in those areas--when related to Federal 
negotiated contracts--would be comprehended. 
Other sections of Chapter 1 of Title 41, not examined above, 
are 
of 
no 
consequence 
to 
the 
territories 
and 
the 
Trust 
Territory, being confined to Federal agencies generally or to 
particular agencies only. 
Conclusion: 
The statutes considered herein apply for the most part 
to 
Federal 
Government, 
and 
not 
territorial 
government, 
contracts. 
They create no problems for the territories or the 
Trust Territory that require legislative modification. 
The 
exception is the Buy American Act, which restricts contracts 
of the governments of the Virgin Islands and American Samoa, 
to their potential disadvantage. 
The Act should be modified 
to 
treat 
all 
of 
the 
insular 
areas 
in 
the 
same 
manner, 
preferably by excluding their contracts from the application 
of the Buy American Act. 
Federal agency comments: 
Comments were requested from the Depart- 
ments 
of Defense, 
Labor, 
Justice, 
and 
the General 
Services 
Administration. 
All comments received have been reflected 
above. 
1039 
Memorandum No. 41-2 
June 1985 
Subject: 
(a) Termination of War Contracts 
Title 41, Chapter 2 (41 U.S.C. 
101-125) 
(b) Procurement Procedures 
Title 41, Chapter 4 (41 U.S.C. 
251-260) 
(ec) Judicial Review of Administrative Decisions 
Title 41, Chapter 5 (41 U.S.C. 
321-322) 
(a) Service Contract Labor Standards 
Title 41, Chapter 6 (41 U.S.C. 
351-358) 
(e) Office of Federal Procurement Policy 
Title 41 Chapter 7 (41 U.S.C. 
401-419) 
(£) Contract Disputes 
Title 41, Chapter 9 (41 U.S.C. 
601-613) 
Comm 
: 
The 
laws 
considered herein 
apply 
to contracts 
of the 
Federal Government, and not to contracts of the governments of 
the territories 
or the Trust Territory. 
Some, 
however, 
as 
discussed below, apply to Federal contracts made in or to be 
performed in the territories or the Trust Territory. 
Discussion: 
(a) The statute appearing in Chapter 2, Termination of 
mn! 
(41 U.S.C. 101-125), 
is the Contract Settlement 
ir 
Act of 1944, whose purpose was to provide for the speedy and 
final settlement 
of claims arising 
from the termination 
of 
contracts 
associated with World War 
II. 
The law has been 
largely superseded 
in the years since, 
but it is not wholly 
obsolete, having been amended as recently as 1982. 
The Act is 
without geographical limitation, 
so it could be applicable to 
contracts made or performed in the territories or the Trust 
Territory--although exemptions may be provided for contracts 
made or performed outside the continental United States and 
Alaska (41 U.S.C. 125). 
It is probable that by this time none 
remains of significance to the offshore areas here involved. 
(b) Chapter 4 of Title 41, on Procurement Procedures 
(41 U.S.C. 
251-260), 
contains the procurement provisions of 
the Federal Property and Administrative Services Act of 1949, 
as often amended since--notably in 1984 by the Competition in 
1040 
Si 
Memorandum No. 
41-2 
Contracting Act and the Small Business and Federal Procurement 
Competition Enhancement Act. 
These laws specify the manner in 
which property and services are to be procured by "executive 
agencies", meaning departments and agencies of the executive 
branch 
of 
the 
Federal 
Government 
(40 
U.S.C. 
472(a), 
but 
excluding military agencies and the National Aeronautics and 
Space Administration 
(41 U.S.C. 252(a)). 
Public advertising 
and sealed bids are generally required, unless exceptions that 
are described at length are met. 
The Federal procurement laws do not apply to the territorial 
governments, 
nor to the Government 
of the Trust Territory, 
when they act as contractors. 
The Solicitor of the Interior 
Department so held in 1967 in the case of Guam (74 I.D. 
365, 
371); and the Comptroller General reached the same conclusion 
with respect to American Samoa (B-169707, 
August 31, 1970). 
The same result necessarily follows in the case of the Virgin 
Islands, 
the Northern Marianas, 
and the Trust Territory. 
It is probable, however, that the Federal procurement laws do 
apply to Federal departments and agencies when they contract 
for 
goods 
and 
services 
in 
the 
territories 
or 
the 
Trust 
Territory or for use in those areas. 
The geographic reach of 
the Federal procurement laws is not explicitly stated in the 
Federal Property Act or its pertinent amendments, and the term 
"United States" is used in a geographical sense only once in 
the procurement 
sections 
of 
the 
Act 
as 
it stands 
today ./ 
That reference appears at 41 U.S.C. 252(c)(1)--a contract "to 
be performed outside the United States". 
Inasmuch as the term 
"United States" 
is not defined in the Federal Property Act 
Yas originally enacted, section 302 of the Federal Property 
Act (63 State. 
377, 393) made reference to "outside the limits of 
the United States and its possessions" 
(formerly codified at 41 
U.S.C. 252(c)(6)), and to "the continental United States" (formerly 
codified at 41 U.S.C. 
252(e)). 
Both references were dropped when 
the subsections in which they appeared were superseded by the new 
language now appearing at 41 U.S.C. 252(c)(1), discussed above in 
the text. 
This fact tends to support the conclusion that "the 
United States" when used in a geographical sense now includes the 
continental United States and the possessions, 
as well as the Trust 
Territory. 
1041 
Ki Ww 
Memorandum No. 41-2 
(see 40 U.S.C. 472), it seems appropriate to look to the Act’s 
definition of "foreign excess property" for guidance, and that 
term is defined to mean property outside of the States, 
the 
Virgin Islands, 
Guam, 
Samoa, 
the Northern Marianas, 
and the 
Trust Territory (40 U.S.C. 472(£); see Memorandum No. 40-4)). 
Because these territories and the Trust Territory are defined 
as other 
than "foreign" 
areas, 
it is reasonable 
to suppose 
they are domestic areas, and thus part of the "united States". 
Hence, 
it seems proper to conclude that Federal agencies that 
are bound by the Federal procurement laws here codified are 
also 
bound 
by 
them 
when 
they 
enter 
contracts 
in 
the 
territories and--for now--the Trust Territory. 
(c) These 
sections, 
concerning 
Judicial Review of 
Administrative Decisions (41 U.S.C. 321-322), popularly known 
as 
the 
Wunderlich 
Act, 
concern 
contracts 
"by 
the 
United 
States", 
and do not apply 
to contracts entered 
into by the 
governments of the territories or the Trust Territory. 
They 
permit the judicial review of administrative decisions--those 
commonly rendered by agency boards of contract appeals--when 
they are alleged to be fraudulent, 
capricious, 
arbitrary, 
so 
grossly erroneous as to imply bad faith, 
or not supported by 
substantial evidence 
(41 U.S.C. 
321). 
Additionally, Federal 
Government 
contracts 
cannot 
provide 
that 
administrative 
decisions 
on questions 
of 
law 
are 
final 
(41 
U.S.C. 
322). 
Although 
these 
sections 
do not apply 
to contracts 
of 
the 
governments of the territories or the Trust Territory, they do 
apply--because there are no geographically limiting provisions 
--to Federal contracts 
made 
in or 
to be performed 
in those 
areas. 
(d) The 
Service 
Contract 
Labor 
Standards 
Act 
(41 
U.S.C. 
351-358) 
provides 
that 
contracts 
of 
the 
Federal 
Government and of the District of Columbia for the provision 
of services must contain certain provisions for the payment of 
minimum wages and fringe benefits, 
if the contract provides 
for the furnishing 
of "services 
in the United 
States" 
(41 
U.S.C. 
351(a)). 
The 
term “United 
States" 
when 
used 
in 
a 
geographical sense 
°s defined to include the Virgin Islands, 
American 
Samoa, 
Guam, 
Enewetak 
and 
Kwajalein 
(41 
U.S.C. 
357(d)). 
Although not expressly named in this 1965 statute, 
the Northern Marianas are comprehended as well, as a result of 
section 502(a)(2) of the Covenant (which makes applicable to 
1042 
43 
Memorandum No. 
41-2 
the Northern Marianas those laws applicable to Guam which are 
also generally applicable to the States), 
and section 502(b) 
(which makes 
applicable 
to 
"the activities 
of 
the United 
States Government and its contractors in the Northern Mariana 
Islands" those laws of the United States regarding "the wages 
and hours of employees"). 
Hence, this Act applies to Federal 
Government 
contracts 
for services 
performed 
in all 
of 
the 
territories 
subject 
to 
this 
study, 
but 
within 
the 
Trust 
Territory, only to such contracts to be performed in Enewetak 
and 
Kwajalein. 
(The 
definition 
of 
"United 
States" 
that 
appears in the Service Contract Labor Standards Act has been 
drafted with particular care, stating to which offshore areas 
the Act does apply, and further stating that it does not apply 
to "any other territory under the jurisdiction of the United 
States 
or 
any 
United 
States 
base 
or 
possession 
within 
a 
foreign country". 
That language fortifies the conclusion that 
contracts for services in the Trust Territory in general are 
excluded from coverage.) 
Because 
the 
Act applies 
to contracts 
of 
the United 
States 
Government and the District of Columbia, 
it does not apply to 
contracts entered into by the governments of the territories 
or the Trust Territory. 
(e) 
The 
Office 
of Federal 
Procurement 
Policy 
(41 
U.S.C. 401-419) was created in 1974 as a part of the Office of 
Management and Budget, and is charged with promoting economy, 
efficiency, 
and effectiveness in the procurement of property 
and 
services 
"by 
the 
executive 
agencies" 
of 
the 
Federal 
Government 
(41 U.S.C. 
402, 
403(1)). 
The laws pertaining to 
that 
Office, 
thus, 
concern 
housekeeping 
within 
the 
United 
States Government, 
and do not 
apply 
to contracting by the 
governments of the territories or the Trust Territory. 
(£) Chapter 9 concerning Contract Disputes (41 U.S.C. 
601-613) also pertains only to contracts to which agencies of 
the United States Government are a party, and not to contracts 
of the territorial governments or the Government of the Trust 
Territory (41 U.S.C. 6u1(2)). 
These laws concern decisions by 
contracting 
officers 
and 
appeals 
from 
those 
decisions 
to 
agency boards of contract appeals and the courts. 
1043 
Ad 
Memorandum No. 41-2 
: 
The laws considered herein are not applicable to con- 
tracts entered into by the governments of the territories or 
the Trust Territory, and require no modification to meet their 
needs. 
: 
Comments were requested from the Depart- 
ments 
of 
Justice 
and 
Labor 
and 
the 
General 
Services 
Administration. 
All comments received have been reflected 
above. 
Title 42 
- PUBLIC HEALTH AND WELFARE 
- 
Contains nothing of substantial interest to the territories. 
* 
Contains matters of particular interest 
to the territories, 
but no legislative recommendations. 
** 
Contains recommendations for changes in the law. 
(**) Contains recommendations for changes in the law, but the need 
for them is not urgent. 
Memorandum 
42 U.S.C. 
Number _ 
Subject 
sections 
42-1 
- 
(a) Public Health Service 
26-27 
- 
(b) Sanitation and Quarantine 
88-112 
- 
(c) Children’s Bureau 
191-194 
42-2 
** 
Public Health Service 
201-300cc-15 
42-3 
* 
Social Security 
301-1397e 
42-4 
* 
(a) Low-Income Housing 
1404a-1440 
(**) 
(b) Slum Clearance, Urban Renewal, 
1441-14900 
and Farm Housing 
- 
(c) Housing of Persons Engaged in 
1501-1594f 
National Defense 
42-5 
* 
(a) Compensation for Disability or 
1651-1654 
Death to Persons Employed at 
Military, 
Air, and Naval Bases 
Outside United States 
(the 
Defense Base Act) 
* 
(b) Compensation for Injury, 
Death, 
1701-1717 
or Detention of Employees of 
Contractors with United States 
Outside United States 
42-6 
* 
(a) School Lunch Programs 
1751-1769e 
* 
(b) Child Nutrition 
1771-1789 
42-7 
- 
(a) Reciprocal Fire Protection 
1856-1856d 
Agreements 
(**) (b) National Science Foundation 
1861-1887 
1045 
RG 
(ec) 
(d) 
(e) 
Contracts for Scientific and 
Technological Research 
Youth Medals 
Water Resources Planning 
Elective Franchise 
Civil Rights Commission 
Civil Rights 
(a) 
(b) 
(c) 
(ad) 
(e) 
(£) 
(g) 
(h) 
(i) 
(i) 
Privacy Protection 
Indian Hospitals and Health 
Facilities 
Development and Control of 
Atomic Energy 
Disposal of Atomic Energy 
Communities 
Federal Flood Insurance 
National Space Program 
National Space Grant College 
and Fellowship Program 
Loan Services of Captioned 
Films and Educational Media 
for Handicapped 
Public Works Acceleration 
Program 
Third Party Liability for 
Hospital and Medical Care 
Economic Opportunity Program 
Work-Study Programs 
Native American Programs 
Legal Services Corporation 
Programs for Older Americans 
Community Facilities and 
Advance Land Acquisition 
Public Works and Economic 
Development 
Soil Information Assistance for 
Community Planning and Resource 
Development 
Title 42 
Contents 
1900-1900b 
1921-1926 
1962-1962d-20 
1971-1974e 
1975-1975£ 
1981-2000h--o 
2000aa- 
2000aa-12 
2001-2005£ 
2011-2296 
2301-2394 
2414(e) 
2451-2484 
2486-24861 
2495 
2641-2643 
2651-2653 
2751-2756a 
2991-2992d 
2996-29961 
3001-3058d 
3101-3108 
3121-3245 
3271-3274 
42-12 
42-13 
Demonstration Cities and 
Metropolitan Development 
Program 
Narcotic Addict Rehabilitation 
Department of Health and Human 
Services 
Department of Housing and Urban 
Development 
Fair Housing 
Juvenile System Improvement 
National Housing Partnerships 
National Flood Insurance 
Design and Construction of 
Public Buildings to Accommodate 
Physically Handicapped 
Advisory Committee on 
Intergovernmental Relations 
National Environmental Policy 
Environmental Quality Improve- 
ment 
Environmental Pollution Study 
National Urban Policy and New 
Community Development 
Comprehensive Alcohol Abuse 
and Alcoholism Prevention, 
Treatment, 
and Rehabilitation 
Program 
Uniform Relocation Assistance 
and Real Property Acquisition 
Policies for Federal and 
Federally Assisted Programs 
Intergovernmental Personnel 
Program 
Lead Based Paint Poisoning 
Prevention 
Noise Control 
Domestic Volunteer Service 
Child Abuse Prevention and 
Treatment and Adoption Reform 
Disaster Relief 
Community Development 
1047 
aes) 
Title 42 
Contents 
3331-3339 and 
3371-3374 
3401-3441 
3501-3514 
3531-3545 
3601-3631 
3711-3797 
3931-3941 
4001-4128 
4151-4157 
4271-4279 
4321-4370b 
4371-4375 
4391-4395 
4501-4503 
4541-4594 
4601-4655 
4701-4772 
4821-4846 
4901-4918 
4951-5085 
5101-51174 
5121-5201 
5301-5320 
Manufactured Home Construction 
and Safety Standards 
Solar Energy 
Juvenile Justice and Delin- 
quency Prevention 
Development of Energy Sources 
Nonnuclear Energy Research and 
Development 
Programs for Persons with 
Developmental Disabilities 
Age Discrimination in Federally 
Assisted Programs 
Energy Conservation 
National Petroleum Reserve in 
Alaska 
Science and Technology Policy, 
Organization and Priorities 
Public Works Employment 
Energy Conservation and Resource 
Renewal 
Solid Waste Disposal 
Energy Extension Service 
Department of Energy 
Air Pollution Prevention and 
Control 
Earthquake Hazards Reduction 
Uranium Mill Tailings Radiation 
Control 
Congregate Housing Services 
Neighborhood and City 
Reinvestment, Self-Help and 
Revitalization 
National Energy Conservation 
Policy 
Powerplant and Industrial Fuel 
Use 
Emergency Energy Conservation 
Low-Income Energy Assistance 
United States Synthetic Fuels 
Corporation 
Biomass Energy and Alcohol Fuels 
Acid Precipitation Program and 
Carbon Dioxide Study 
1048 
Title 42 
Contents 
5401-5426 
5501-5594 
5601-5778 
5801-5891 
5901-5920 
6000-6083 
6101-6107 
6201-6422 
6501-6508 
6601-6685 
6701-6736 
6801-6892 
6901-6992k 
7001-7011 
7101-7375 
7401 et seq. 
7701-7706 
7901-7942 
8001-8010 
8101-8146 
8201-8287c 
8301-8484 
8501-8541 
8621-8629 
8719 
8801-8871 
8901-8912 
42-15 
= 
({m) Ocean Thermal Energy Conversion 
Research and Development 
Ocean Thermal Energy Conversion 
Wind Energy Systems 
Magnetic Fusion Energy 
Engineering 
Mental Health Systems 
Comprehensive Environmental 
Response, Compensation, 
and 
Liability 
Nuclear Safety Research, 
Development, 
and Demonstration 
Community Services Programs 
Community Services Block Grant 
Program 
Consumer-Patient Radiation 
Health and Safety 
Nuclear Waste Policy 
Water Resources Research 
Family Violence Prevention 
and Services 
Emergency Federal Law 
Enforcement Assistance 
Victim Compensation and 
Assistance 
State Justice Institute 
Protection and Advocacy for 
Mentally 111 Individuals 
Child Development Associate 
Scholarship Assistance Program 
Emergency Planning and Community 
Right-to-Know 
Encouraging Good Faith 
Professional Review Activities 
Alzheimer’s Disease and Related 
Dementias Services Research 
Homeless Assistance 
Enterprise Zone Development 
International Child Abduction 
Remedies 
Native Hawaiian Health Care 
Drug Abuse Education and 
Prevention 
1049 
Title 42 
Contents 
9001-9009 
9101-9168 
9201-9213 
9301-9312 
9401-9522 
9601-9675 
9701-9708 
9801-9887 
9901-9912 
10001-10008 
10101-10226 
10301-10309 
10401-10413 
10501-10513 
10601-10605 
10701-10713 
10801-10851 
10901-10905 
11001-11050 
11101-11152 
11201-11294 
11301-11472 
11501-11505 
11601-11610 
11701-11710 
11801-11851 
* 
* 
(w) Public Housing Drug Elimination 
(x) Renewable Energy and Energy 
Efficiency Technology 
Competitiveness 
Title 
42 
Contents 
11901-11925 
12001-12007 
Memorandum No. 
42-1 
March 1989 
Subject: 
(a) Public Health Service 
Title 42, Chapter 
1 (42 U.S.C. 
26-27) 
(b) Sanitation and Quarantine 
Title 42,Chapter 2 (42 U.S.C. 88-112) 
{c) Children’s Bureau 
Title 42, Chapter 6 (42 U.S.C. 
191-194) 
Comments: 
Two of the three chapters herein 
(Chapters 
1 and 
2 of 
Title 42) are largely obsolete and require no attention from 
the territories’ 
standpoint. 
The third 
(Chapter 
6 on 
the 
Children’s 
Bureau) 
is 
sufficient 
to 
comprehend 
the 
territories. 
Discussion: 
(a) The only sections remaining of Chapter 1 of Title 
42, 
which 
is 
(along with Chapter 
6A) 
titled 
Public 
Health 
Service 
(42 U.S.C. 
26-27), 
are those permitting the service 
secretaries to assist the "States" in isolating civilians to 
protect service personnel 
from venereal 
diseases. 
The term 
"State" 
is defined 
to "include" 
the District 
of Columbia, 
which 
does 
not necessarily 
result 
in 
the exclusion 
of 
the 
territories; but the Guam Commission was informed in 1951 that 
the provisions were probably obsolete then (Resource Material 
Used in the Preparation of the Report of the Guam Commission 
on 
Application 
of 
Federal 
Laws, 
House 
Interior 
Committee 
Print, 
1952, 
p. 212), 
so it seems unnecessary to give further 
consideration to the matter at this time. 
(b) The 
few 
remaining 
sections 
of 
Chapter 
2, 
Sanitation and Quarantine (42 U.S.C. 88-112) are probably also 
of no current importance. 
A predecessor of the Department of 
Health 
and 
Human 
Services, 
the 
Federal 
Security 
Agency, 
advised 
the Guam Commission 
in 1951 
that it had recommended 
that most of the sections be repealed 
(42 U.S.C. 
88-91) 
and 
that other 
sections 
(42 
U.S.C. 
98, 
112) 
could 
be ignored, 
apparently 
as obsolete. 
(Resource Material, 
House Interior 
Committee Print, 
1952, 
p. 212). 
‘the sections pertain to the 
quarantine of vessels and the disposition of their cargoes, 
to 
deference due "State" health laws, 
and to related matters. 
Most derive from the Revised Statutes, 
and their use of such 
terms 
as 
"States" 
and “ports of the United States" 
suggest 
1051 
>: z wa 
Memorandum No. 42-1 
that application to offshore areas was not contemplated. 
In 
any event, 
the Guam Commission concluded that these laws did 
not (in 1951) apply to Guam and need not (Report, 
H. Doc. No. 
212, 
82d 
Cong., 
p. 
32). 
The 
Virgin 
Islands 
Commission 
concluded that they were 
"of doubtful applicability" 
to the 
Virgin Islands, 
and recommended that they be made “expressly 
applicable" 
(Report, 
House 
Interior Committee 
Print No. 
7, 
84th Cong., 
p. 13)--but regrettably its rationale is lost in 
history. 
No 
legislative 
proposal 
followed. 
The 
Guam 
Commission’s conclusion seems sounder. 
(c) The Children's 
Bureau 
(42 
U.S.C. 
191-194), 
is 
authorized 
by 
this 
1912 
law 
to 
investigate 
"all 
matters 
pertaining to the welfare of children and child life among all 
classes 
of 
our 
people 
... 
in 
the 
several 
States 
and 
Territories" 
(42 
U.S.C. 
192). 
The 
Children’s 
Bureau 
is 
currently located within the Administration for Children and 
Families of the Department of Health and Human Services. 
In 
1951, 
when it was 
a part of the Federal Security Agency, 
the 
Children's Bureau advised the Guam Commission on Federal Laws 
that it believed it had authority to perform its functions in 
unincorporated territories, on the rationale of Puerto Rico v-. 
Shell Co. 
(302 U.S. 
253 
(1937)). 
On that basis, 
the Guam 
Commission concluded that the law was applicable to Guam and 
should remain so (Report, House Doc. 
212, 82d Cong., 
D- 22). 
The Virgin Islands Commission, 
for undisclosed reasons, 
found 
the law of “doubtful applicability" to the Virgin Islands and 
recommended 
that 
it be made 
"expressly 
applicable" 
(House 
Interior 
Comm. 
Print 
No. 
7, 
84th 
Cong., 
p. 
13). 
No 
legislative action followed. 
The Guam Commission’s reasoning 
seems sufficient. 
Conclusion: 
The 
three 
chapters 
of 
Title 
42 
considered 
herein 
require no modification to meet the needs of the territories. 
Federal agency comments: 
Comments were requested from the Depart- 
ments of Health and Human Services and Justice. 
All comments 
received are reflected above. 
1052 
83 
Memorandum No. 
42-2 
April 1989 
Subject: 
Public Health Service 
Title 42, Chapter 6A (42 U.S.C. 
201-300cc-15) 
Purpose: 
To create the Public Health Service within the Department 
of Health and Human Services, 
to create other health agencies 
such 
as 
the National 
Institutes, 
to provide 
a variety 
of 
Federal programs of financial assistance in matters of public 
health, 
and to provide certain Federal regulatory authority. 
Territorial 
Li 
ion: 
The 
Public 
Health 
Service 
Act, 
which 
constitutes 
Chapter 
6A of Title 
42, 
is 
for 
the 
most 
part 
applicable 
to 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern Marianas--and on the same terms as it applies to the 
States. 
The few exceptions are discussed below. 
Recommendation: 
Because 
the 
Public 
Health 
Service 
Act 
is 
the 
product of legislative additions 
and subtractions over many 
decades, 
it is not--so far as the territories are concerned-- 
always internally consistent. 
But its imperfections are few 
and 
largely 
de 
minimis. 
Of 
the 
possible 
shortcomings 
identified 
below, 
only 
one 
of 
significance 
emerges: 
the 
absence 
of 
restrictions 
concerning 
electronic 
product 
radiation 
control 
on 
imports 
into 
the 
territories. 
That 
problem could be corrected by the addition of a definition of 
the "United States" to include the territories, 
a definition 
that would have other value in the law as well. 
Discussion: 
The analysis 
of the Public 
Health Service Act that 
follows is divided into the following parts: 
(A) Territorial application of the Act in general. 
(B) Provisions bearing on territorial application. 
(C) Application of the Act to the Northern Marianas 
under the Covenant. 
(D) Exceptions from the definition of "State". 
(E) Distinctive treatment of the territories. 
1053 
Ry 
Memorandum No. 
42-2 
(F) Possible shortcomings. 
The few suggestions that are offered for modification of the 
Act are confined to part (F). 
(A) Territorial 
application 
of the Act 
in general. 
The 
Public 
Health 
Service 
Act commences 
with 
a broad 
and 
explicit definition of the term "State", 
and that term very 
largely determines the application of particular programs of 
the Public Health Service that follow. 
That is, most programs 
and most authority of the Public Health Service 
run 
to the 
"States", 
and accordingly the definition provided means that 
such programs and authority run to the non-State areas 
that 
are defined as States, 
as well. 
The term is defined at 42 
U.S.C. 201(£) to include the Virgin Islands, Guam, Samoa, 
and 
the Northern Marianas--all explicitly named--so that they are 
(with the limited exceptions discussed below) treated in the 
same manner 
as the States 
for purposes of the Public Health 
Service Act. 
The definition at 42 U.S.C. 201(£), however, lists 
nine sections 
of Chapter in which these territories 
are not 
"States", 
and these exclusions are examined below, 
at 
(D). 
With two possible exceptions, 
these nine exclusions pose 
no 
problem 
to 
the 
territories. 
Owing, 
however, 
to 
internal 
definitions of the term "State" that turn up from time to time 
within Chapter 
6A, certain other provisions 
and programs 
of 
the Act also do not apply to the territories. 
These also are 
discussed 
below, 
at 
(E). 
Again, 
none 
appears 
to pose 
a 
difficulty in the territories. 
(B) Provisions 
bearing 
on 
territorial 
application. 
Other 
language 
relevant 
to 
the 
matter 
of 
territorial 
application 
is 
used 
in 
the 
Public 
Health 
Service 
Act 
on 
various occasions. 
Given the clear definition 
of "State", 
just 
discussed, 
this 
other 
language 
creates 
no 
legal 
difficulty, 
but it will here be mentioned in the interest of 
completeness. 
(It is probably a consequence of the growth of 
the 
Public 
Health 
Service 
Act 
over 
many 
decades, 
from 
a 
relatively 
modest 
beginning. 
Internal 
consistency 
is 
difficult to maintain in those circumstances.) 
1054 
83 
Memorandum No. 
42-2 
The Act defines the term "possession" as including 
“among other possessions, Puerto Rico and the Virgin Islands" 
(42 U.S.C. 
201(g)). 
That definition, 
and the appearance of 
the term "possession" in the Act, 
is probably unnecessary at 
this time, 
inasmuch as the term is always used (our research 
suggests) in conjunction with "State" (e.g., 42 U.S.C. 248(a), 
262(a), 
(c), 
and 
(d), 
and 
263a(a)(2)). 
Since 
the 
four 
territories here involved are all "States" for purposes of the 
Act, the term "possession" adds nothing. 
Similarly, within the Chapter there appear special 
definitions 
of the 
term "State" 
for purposes 
of particular 
parts 
of 
the Act. 
Since 
these definitions 
(except 
in 
the 
instances 
discussed 
in Part 
(E) below) 
define 
the 
term 
to 
include, expressly, 
the Virgin Islands, Guam, 
Samoa, 
and the 
Northern Marianas 
(see 42 U.S.C. 
2910(a), 
which defines the 
term "State" for purposes of the Subchapter on Construction 
and Modernization of Hospitals and Other Medical Facilities’ 
(42 U.S.C. 
291 et seq.); and 42 U.S.C. 298b(1), which defines 
the term for purposes of the Subchapter on Nurse Education (42 
U.S.C. 
296k 
et 
seq.)), 
they 
do 
no 
more 
for 
the 
four 
territories than the general definition at 42 U.S.C. 
201(f£). 
They are thus duplicative 
as 
to those areas, 
but of course 
redundancy 
in 
the 
law 
is 
neither 
unusual 
nor 
seriously 
objectionable. 
It might be noted in passing that one reference to 
a "Territorial" institution remains in the Act (at 42 U.S.C. 
259(a), 
which refers 
to inmates convicted of Federal crimes 
who are drug addicts, 
and "confined in State or Territorial 
prisons 
..."), 
but 
the reference 
is untroublesome--again 
because it is used in conjunction with the term "State". 
The 
term "Territory" is not now defined, and need not be, but the 
reference reminds the reader of the venerable quality of the 
Public Health Service Act. 
Y The definition 
at 
42 U.S.C. 
291c(a) 
refers 
to the Trust 
Territory 
and not expressly 
to the Northern Marianas, 
but under 
numerous 
theories 
arising 
from 
section 
502(a) 
of 
the 
Northern 
Marianas 
Covenant, 
and particularly 
paragraph 
(1) 
thereof, 
the 
Northern Marianas is indisputably 
a "State" under the section. 
1055 
Ps) ioe) 
Memorandum No. 42-2 
None of the foregoing creates a problem. 
Slightly 
problematic, 
however, 
are the occasional references 
to the 
"united States" in a geographical sense, 
a term that is also 
undefined. 
The "United States" is referred to in 42 U.S.C. 
242(a), 
in 
connection 
with 
the 
medical 
and 
scientific 
requirements 
"of the United States" 
for narcotic 
and other 
drugs; 
in various sections that follow pertaining to research 
and investigations 
(42 U.S.C. 
242k(b), 
2421, 
242p); 
in 
42 
U.S.C. 
262(h), 
in 
connection 
with 
the 
exportation 
of 
biological products; and in 42 U.S.C. 
265, pertaining to the 
exclusion of persons and property from a foreign country where 
a communicable disease exists. 
The term also appears at 42 
U.S.C. 263h(a) in connection with electronic product radiation 
control, 
but 
it 
is 
there 
used 
in 
a word-of-art, 
and 
not 
geographical, sense--as discussed in part (F) below. 
It seems 
probable that if the question were to arise, 
the term "United 
States" 
when used in a geographical sense would be construed 
to include the Virgin Islands, 
Guam, Samoa, and the Northern 
Marianas--inasmuch as they are generally "States" for purposes 
of the Public Health Service Act. 
But the Act could profit, 
as 
could 
the 
territories, 
from 
a 
new 
definition 
to 
that 
effect. 
(C) Application of the Act to the Northern Marianas 
under the Covenant. 
Reference 
should here be made 
to the 
treatment 
of the Public Health Service Act 
in the Northern 
Marianas Covenant. 
Section 502 of the Covenant provides for 
the extension to the Northern Marianas of a great number of 
Federal laws--with most Federal laws applying to the Northern 
Marianas under section 502(a)(2) 
if such law was in effect on 
January 9, 1978 (the effective date of section 502) and if it 
then applied 
to Guam and also to the several States. 
Laws 
extended 
to 
the Northern 
Marianas 
by operation 
of section 
502(a) (2) apply there "as they are applicable to the several 
States". 
The Public Health Service Act, however, 
is treated 
separately under section 502(a)(1), 
which provides that that 
Act applies 
to the Northern Marianas 
“as it applies to the 
Virgin 
Islands". 
The 
section-by-section 
analysis 
of 
the 
Covenant supplied by the Marianas Political Status Commission 
1056 
R7 
| 
| 
| 
Memorandum No. 42-2 
(reprinted in the 1975 Congressional Hearings on the Covenant) 
offers the following explanation of this curious provision: 
It appears likely that the Public Health 
Service Act applies in full in Guam, and 
therefore might have been covered as a 
law 
providing 
a 
federal 
service 
and 
financial assistance program under this 
subsection. 
However, 
there has 
in the 
past been some confusion about this and 
in view of the importance of many of the 
laws’ 
provisions, 
including 
those 
relating 
to 
health 
maintenance 
organizations, 
it appeared 
the 
safest 
course to provide that the Public Health 
Service Act would apply as it applies in 
the Virgin Islands, where it is clearly 
applicable in its entirety. 
The legislative history of the provision discloses 
nothing 
further 
as 
to 
its 
rationale, 
nor 
do 
individuals 
associated with the negotiation of the Covenant now remember 
what "confusion" as to Guam gave rise to the reference to the 
Virgin Islands. 
It seems possible that it was based on a law 
enacted in 1956 in the Guam Omnibus Act, Public Law 896 of the 
84th Congress (which implemented many of the recommendations 
of the Guam Federal 
Laws Commission of 1950-51). 
The Guam 
Omnibus 
Act provided 
in its section 
18 
(70 
Stat. 
910) 
for 
special 
treatment 
of 
Guam 
in 
connection 
with 
grants 
to 
"States" 
for particular 
disease 
programs. 
As 
a kind 
of 
precursor 
of grant consolidation, 
Guam was permitted 
(with 
Samoa being added in 1962), 
to direct all of its grant funds 
to such disease programs as it chose, 
from among the several 
authorized. 
In any 
event, 
that provision 
was 
repealed 
in 
1966. 
Or 
possibly 
nervousness 
arose 
among 
Covenant 
negotiators simply because the term "possession", defined at 
42. U.S.C. 201(g), does not mention "Guam". 
There is no doubt 
now that Guam is as fully covered by the Public Health Service 
Act 
as 
is the Virgin 
Islands. 
And 
the Health Maintenance 
Organizations provisions (42 U.S.C. 300e et 
seq.), which were 
apparently 
of 
special 
concern 
to 
the 
Northern 
Marianas 
negotiators, apply as fully there and to the other territories 
as they apply to the States. 
1057 
83 
Memorandum No. 42-2 
(D) Exceptions 
from the definition 
of "State". 
As 
noted at the outset above, 
the definition of the term "State" 
for purposes of the Public Health Service Act contains, 
as now 
written, 
nine 
exceptions. 
Specifically, 
42 U.S.C. 
201(f) 
provides that 
Except 
as 
provided 
in 
sections 
246(g)(4)(B), 
247¢(c)(1), 
254d(h) (3), 
263(5), 
264(d), 
292a(9), 
300a(c), 
300£(13), and 300n(1) of this title, the 
term 
"State" 
includes, 
in addition 
to 
the 
several 
States, 
.. 
. 
Guam, 
.. 
the Northern Mariana Islands, 
the Virgin 
Islands, America Samoa 
. 
. 
Each of these references requires separate examination: 
42 U.S.C. 
246(q)(4)(B) was repealed in 1980. 
42 U.S.C. 
247c(c)(1) permits project grants to "States" 
for 
sexually 
transmitted 
diseases 
surveillance 
activities, 
including 
the 
reporting, 
screening, 
and 
follow-up of diagnostic tests 
for, 
and diagnosed cases 
of, sexually transmitted diseases. 
The 
readily 
available 
legislative 
history 
of 
this 
provision 
does 
not 
disclose 
the 
reason 
for 
the 
territories’ 
exclusion. 
It 
seems 
possible 
that 
the 
reference to section 247c(c)(1) in 42 U.S.C. 
201(£), and 
the 
territories’ 
consequent 
exclusion, 
related 
to 
an 
earlier section of the Public Health Service Act bearing 
the same section number and codification. 
In any event, 
the exclusion does not appear seriously damaging to the 
territories. 
They 
are otherwise 
eligible 
for program 
assistance 
under 
the 
other 
provisions 
of 
the 
Act 
pertaining to sexually transmitted diseases. 
Memorandum No. 
42-2 
42 U.S.C. 254d(h) (3), which was amended in 1987 to become 
42 U.S.C. 254d(i)(4), defines "State" to include the four 
territories by name, 
for purposes of the National Health 
Service Corps (42 U.S.C. 254d et seq.). 
(The same result 
would 
be 
achieved 
if 
42 
U.S.C. 
254d(i)(4) 
were 
eliminated, 
and 
if 
the 
reference 
to 
it 
in 
42 
U.S.C. 
201(£) were also eliminated. ) 
42 
U.S.C. 
263(5) 
does not exist,and 
the 
reference 
was 
probably 
intended 
to 
be 
to 
42 
U.S.C. 
263c(5). 
That 
section 
defines 
the 
term 
"State" 
to include 
the 
four 
territories by name, for purposes of a regulatory program 
concerning 
electronic 
product 
radiation 
control 
(42 
U.S.C. 
263b et seq.) 
That regulatory program is largely 
applicable 
to 
the 
territories, 
and 
it 
may 
have 
been 
intended to be fully applicable to them--in light of the 
clear definition of "State". 
It does not, however, apply 
in all particulars to the territories, and that matter is 
discussed below in part 
(F) as a possible shortcoming. 
42 U.S.C. 
264(d) 
represents 
a genuine exclusion 
of the 
territories 
from 
the 
definition 
of 
"State" 
under 
42 
U.S.C. 
201(£). 
The Public Health Service Act contains 
Provisions 
concerning 
quarantine 
and 
inspection 
in 
connection with communicable 
diseases 
(42 U.S.C. 
264- 
272), and these provisions of the Act--except for 264(d) 
--apply to the territories. 
As to 42 U.S.C. 
264(d), 
that 
section 
permits 
the 
Surgeon 
General 
to 
prescribe 
regulations 
for 
the 
apprehension 
and 
examination 
of 
individuals infected with a communicable disease who move 
“from a State to another State", 
with the term "State" 
meaning only 
the States 
and 
the District 
of Columbia. 
Obviously the territories are excluded, 
but why they are 
excluded is not clear. 
The readily available legislative 
history of the 1976 amendment that added the District of 
Columbia 
is silent as to why the authority was not then 
extended further 
(1976 U. S. Code Cong. 
and Admin. 
News 
1234). 
From 
the 
Guam 
Commission 
report 
of 
1951, 
it 
appears 
that 
offshore 
areas 
have 
historically 
been 
excluded, 
for at that time the authority under 42 U.S.C. 
264(d) extended to Alaska but not to Hawaii, Puerto Rico, 
er 
other 
offshore 
areas. 
(Resource 
Material, 
House 
Interior Committee Print, 
1952, 
p. 202). 
(Hawaii has, of 
1059 
% 
(au 
Memorandum No. 42-2 
course, 
been comprehended since Statehood in 1959.) 
It 
seems 
reasonable 
to presume 
that 
these 
exclusions 
of 
off-shore 
areas 
have 
posed 
no problem 
to either 
the 
United States Government or the territories. 
The Guam 
Commission recommended 
no change. 
The Virgin Islands 
Commission 
recommended 
that 
the 
Virgin 
Islands 
be 
included 
in 
the 
section 
(Virgin 
Islands 
Commission 
Report, 
House 
Interior 
Committee 
Print 
No. 
7, 
1956, 
p. 10), but no implementation action was taken. 
In the 
circumstances, 
it does not seem necessary to provide for 
the territories’ 
inclusion in 42 U.S.C. 
264(d). 
42 U.S.C, 292a(9) has become 
42 U.S.C. 
292a(11), 
where 
the term "State" is defined to include the territories by 
name 
for 
purposes 
of 
the 
part 
of 
the 
Public 
Health 
Service Act that concerns Health Research and Teaching 
Facilities. 
42 U.S.C. 
300a(c) 
also defines 
"State" 
to include 
the 
four 
territories 
by 
name, 
this 
for 
purposes 
of 
the 
program for family planning services. 
42 U.S.C. 
300f(13) also defines "State" to include the 
four 
territories 
by 
name, 
this 
for 
purposes 
of 
the 
program concerning safety of public water systems. 
The 
laws concerning this program are further discussed below. 
42 U.S.C. 
300n(1), relating to planning by State health 
agencies, 
was repealed in 1986. 
In sum, 
the exceptions stated in 42 U.S.C. 
201(f£) 
to 
the 
treatment 
of 
the 
territories 
as 
"States" 
are 
without effect upon them, 
possibly excluding 
42 U.S.C. 
247c(c)(1) 
(surveillance 
on 
sexually 
transmitted 
diseases) 
and 
42 
U.S.C. 
264(d) 
(apprehension 
of 
individuals with communicable diseases). 
But neither is 
known 
to 
create 
a 
genuine 
problem 
for 
any 
of 
the 
territories, 
so modification appears to be unnecessary. 
1060 
"1 
Memorandum No. 42-2 
(E) Distinctive 
treatment of the territories. 
The 
analysis of the Public Health Service Act (Chapter 6a of Title 
42) 
reveals--rather 
surprisingly--that 
the territories 
are 
substantially covered by the Act, and are the equals of the 
States, with only the exceptions discussed below in this part 
of this memorandum. 
(Other exceptions discussed above have 
been 
dismissed 
as 
of 
no 
realistic 
importance.) 
The 
Act 
contains 
a 
vast 
number 
of programs 
of Federal 
financial 
assistance--upwards 
of 
90 
are 
listed 
in 
the 
most 
recent 
Catalog 
of Federal 
Domestic 
Assistance--and 
with 
only 
one 
exception (a program for the homeless), the territories are by 
law 
eligible 
to 
participate 
in 
them 
all. 
Because 
the 
Federal programs under this law are so numerous, 
and because 
the territories are so fully covered by them, no effort will 
be made 
here 
to describe 
the 
program 
for which 
they 
are 
eligible. 
Rather, there will here be discussed those programs 
under the Act where they are not treated as "States". 
Federal 
financial 
assistance 
is 
provided 
for 
community mental health services for the homeless, under a law 
enacted in 1987 (42 U.S.C. 290cc-21 et 
seq.). 
The territories 
are not eligible, because "State" means only the States, 
the 
District of Columbia, and Puerto Rico (42 U.S.C. 290cc-36(3)). 
Although 
the 
territories 
all 
have 
the problem 
of homeless 
people, 
it seems correct to conclude that their problems are, 
quantitatively, 
relatively 
minor, 
compared 
with 
those 
of 
heavily populated 
urban 
areas 
of the States. 
The Federal 
program 
is directed 
to "urbanized areas" 
(42 U.S.C. 
290cc- 
28(b)), 
which is a concept hard to apply in the territories. 
And 
the 
commitments 
for 
rather 
elaborate 
mental 
health 
services 
that 
are 
required 
of recipient 
States 
(42 U.S.C. 
2/ a user of the Catalog of Federal Domestic Assistance might 
conclude otherwise, because the Applicant Eligibility Index in the 
early pages of the Catalog lists the "U.S. Territories" as eligible 
for rather 
few. 
An examination 
of the pertinent statutes 
shows 
these indications of ineligibility to be in error. 
Perhaps those 
compiling 
the list deferred 
to programs 
in which 
the territories 
actually participated. 
In any event, the Interior Department's own 
most 
recent 
(1979) 
study, 
based 
on 
information 
from 
Federal 
agencies who then focussed on territorial eligibility, supports the 
conclusion of this memorandum that the territories are covered by 
virtually all programs under the Public Health Service Act. 
1061 
95 
Memorandum No. 
42-2 
290cc-24) 
are almost certainly beyond the capacities of the 
territories to provide. 
Accordingly, 
it seems appropriate for 
the territories to be excluded from this program. 
A further Federal program--but it is regulatory in 
nature, 
and not a program of financial assistance--relates to 
requirements 
for 
group 
health 
plans 
for 
State 
and 
local 
government employees 
(42 U.S.C. 
3 Jbb-1, 
et seq.}. 
The law, 
enacted 
in 1986, 
imposes requiremcnts 
on group health plans 
for such employees, 
relating essentially to loss of coverage 
by beneficiaries 
in certain circumstances, 
but 
it does 
not 
apply to group health plans for employees maintained by "the 
government 
of the District 
of Columbia 
or 
any 
territory 
or 
possession of the United States" 
(42 U.S.C. 300bb-1(b)). 
The 
territories 
probably 
welcome 
this 
absence 
of 
Federal 
oversight; 
and 
because 
the 
Congress 
so 
recently 
made 
a 
conscious decision 
to exclude them, 
no recommendation 
for a 
change is offered here. 
Distinctive 
treatment 
of 
the 
territories 
also 
appears 
in connection 
with 
the allocation 
formulae 
for two 
financial assistance programs under the Public Health Service 
Act. 
The 
first 
of these 
relates 
to "public 
water 
system 
supervision programs" under 42 U.S.C. 
300j-2(a)(1), 
which is 
part of the Federal 
program 
for 
the safety 
of public water 
systems, 
administered by the Environmental Protection Agency 
(42 U.S.C. 
300f 
et 
seq.). 
The 
territories 
are 
explicitly 
covered by the provisions of the Act pertaining to the safety 
of public water systems 
(42 U.S.C. 
300£(13), 
which 
is one of 
the sections discussed above that is mentioned as an exception 
from 
42 
U.S.C. 
201({f)), 
so 
they 
are 
generally 
eligible 
as 
"States" under the law, and specifically for grants for public 
water system supervision programs. 
The allocation formula for 
such supervision programs, 
set out at 42 U.S.C. 300j-2(a)(4), 
directs 
the 
Administrator 
of 
the 
Environmental 
Protection 
Agency to allocate the sums appropriated among the States on 
the basis of "population, geographical area, number of public 
water systems, 
and other relevant factors". 
No "State" may 
receive less than 1 percent, 
but the Administrator may reduce 
that percentage “in accordance with the criteria specified"; 
and the 1 percent floor "shall not apply to grants allotted to 
Guam, 
American 
Samoa, 
or 
the 
Virgin 
Islands". 
Such 
a 
provision does not seem unfair. 
Each of the territories has 
1062 
74 
Memorandum No. 
42-2 
obviously a much smaller population and geographical area then 
any 
State, 
so 
their 
exclusion 
from 
the minimum 
initially 
allotted to each State is not inappropriate. 
(It will be observed that the Northern Marianas, 
although 
explicitly 
defined 
as 
a 
"State" 
generally 
for 
Purposes of the laws pertaining to the safety of public water 
systems 
(42 
U.S.C. 
300£(13)), 
is 
mot 
mentioned 
in 
the 
allotment proviso 
just quoted 
from 
42 U.S.C. 
3003-2(a)(4). 
But the Northern Marianas would be covered in the same manner 
as the Virgin Islands, 
by operation of section 502(a)(1) 
of 
the Covenant.) 
The 
second 
formula 
that 
provides 
distinctive 
treatment 
for 
the 
territories 
appears 
at 
42 
U.S.C. 
300x- 
Ja(a)(1)(B), where it relates to block grants for alcohol and 
drug abuse and mental health services. 
A State’s allocation 
is based on its population and its relative per capita income, 
and that relative per capita income is found by dividing the 
per 
capita 
income 
of 
the 
United 
States 
by the 
per 
capita 
income of the State. 
In the Virgin Islands, Guam, Samoa, 
and 
the 
Northern 
Marianas, 
however, 
"the 
quotient 
shall 
be 
considered to be one". 
That formula almost certainly results 
in a lesser allocation 
to at least some of the territories—— 
those with low per capita incomes--than they would receive in 
the absence of an arbitrary quotient. 
Yet 
the drafters may 
have feared that per capita income figures in some territories 
are unreliable, which may be true; and they may have believed 
that 
there 
ought 
to 
be 
uniformity 
among 
the 
territories. 
While 
the 
figure 
may 
thus 
be unfair 
to some, 
it would 
be 
difficult to improve upon it. 
(F) Possible shortcomings. 
(1) Definition of “United States". 
As mentioned 
in part 
(B) 
above, 
the 
term 
"United 
States" 
is used 
in 
a 
geographical sense occasionally 
in the Public Health Service 
Act, but it is not defined. 
While no problem is known to have 
arisen 
from the absence 
of such 
a definition, 
it would 
be 
orderly to provide one, 
and future questions might thereby be 
avoided. 
Such a definition would, additionally, overcome the 
1063 
Pt i 
= 
Memorandum No. 
42-2 
problem 
identified 
at 
(4) 
below 
concerning 
imports 
of 
electronic products. 
(2) References 
to "citizens". 
Only two references 
in Chapter 6A to "citizens of the United States" 
have been 
found. 
The term, which can sometimes pose real problems of 
exclusion for noncitizen nationals of the J.S. in Samoa, 
does 
aot appear to do so here. 
Commissioned officers of the Public 
Health Service must be citizens (42 U.S.C. 204), but a Samoan 
otherwise 
qualified 
for 
such 
an 
appointment 
could 
almost 
certainly achieve quick naturalization, based on his residence 
in Samoa (see Memorandum No. 8-1). 
Under 42 U.S.C. 
260(d), 
a 
person with 
a drug abuse problem, 
hospitalized 
in a Public 
Health Service facility, 
does not forfeit "his rights 
as 
a 
citizen of the United States". 
A national would not have such 
rights to forfeit, 
but would doubtless, 
in any event, 
retain 
such Constitutional protections as are his. 
(3) "Court 
of 
the 
United 
States" 
and 
related 
references. 
As 
has 
often 
been 
observed 
in 
this 
study, 
American 
Samoa 
has 
no 
Federal 
district 
court; 
no 
Federal 
district court has jurisdiction generally over matters arising 
in Samoa; 
and Samoa 
is not within 
the circuit 
of any U.S. 
Court of Appeals. 
Its own High Court is not, given the usual 
definition, 
a "court 
of 
the United 
States". 
In numerous 
instances, 
Federal courts have jurisdiction under the Public 
Health Service Act in relation to various of the programs and 
activities provided 
by it and without 
additional 
language, 
persons 
in Samoa are, 
or probably would ke, without 
a forum. 
The problem arises from at least the following sections: 
42 
U.S.C. 
259(e), 
relating 
to 
treatment 
of drug 
abusers; 
42 
U.S.C. 
263a(g)(1), 
263f(d), 
and 263k, relating to electronic 
product radiation control; 
42 U.S.C. 
300g-3(b), 
300h-2(b) 
300w-7(c), 
and others relating to the safety of public water 
systems; and 42 U.S.C. 300aa-31, relating to vaccine injuries. 
The problem can be met easily, perhaps by language giving to 
the United States District Court of Hawaii jurisdiction over 
matters arising in Samoa, 
for purposes of the Act generally. 
But 
it may be that given Samoa’s stage of development, 
the 
matter 
is more academic 
than real 
and does not now require 
attention. 
It is, 
in any event, 
nonurgent. 
Memorandum No. 42-2 
(4) Electronic 
Product Radiation Control. In 1968 
the Congress acted to protect the public health and welfare 
“from the dangers of electronic product radiation" 
(42 U.S.C. 
263b). 
In so doing, 
it defined the term "State" to include 
the Virgin Islands, 
Guam, 
and Samoa, 
and in 1976 
it amended 
the definition 
to include 
the Northern Marianas 
(42 U.S.C. 
263c(5)). 
The program created by the law is one involving 
research and research grants, 
the promulgation of performance 
standards, 
and 
the 
enforcement 
of 
such 
standards 
for 
electronic products in commerce 
(including commerce with the 
territories). 
Given 
their 
inclusion 
as 
"States", 
the 
territories 
are 
comprehended 
by 
the 
law--except 
for 
that 
portion that deals with "importation into the United States” 
{42 U.S.C. 263h(a)). 
That phrase in Federal law usually means 
a shipment 
from 
a 
foreign 
source 
into 
the 
United 
States 
customs territory, 
and it has been so defined by regulations 
pursuant 
to 
the 
Radiation 
Control 
Act 
(19 
CFR 
12.91(a)). 
Because 
the 
territories 
are 
outside 
the 
U.S. 
customs 
territory, 
they 
are 
therefore 
not 
covered 
by 
the 
import 
provisions of the Act. 
The Customs Service, 
which enforces 
these 
import restrictions 
(21 
CFR 
1005.1 et seq.) does not 
function in the territories, 
except in the Virgin Islands. 
Yet it is electronic products from foreign sources 
that constitute 
the principal source of supply 
for at least 
the 
Pacific 
territories, 
and 
their 
exclusion 
from 
the 
protection 
afforded 
under 
the Radiation 
Control 
Act 
seems 
unjustified. 
The 
problem 
could 
be 
corrected 
in 
various 
ways--one being the general definition of "United States" to 
include the territories, 
as suggested above. 
The problem of 
administration 
and enforcement 
in territories 
without 
U.S. 
Customs 
Service 
personnel 
could 
be 
met 
by 
the 
authority 
already in the law, which permits the Secretary of Health and 
Human Service to accept "State" (defined to mean a territory) 
assistance 
in 
enforcement 
"on 
a 
reimbursable 
basis 
or 
otherwise” 
(42 U.S.C. 263m). 
Conclusion: 
Although the Public Health Service Act contains some 
imperfections 
with 
respect 
to 
its 
application 
to 
the 
territories--all identified above--most are either minor or of 
academic significance only. 
In two particulars, 
however, 
it 
would 
be well 
if the 
Act were 
amended 
to accommodate 
the 
territories: 
(1) by adding a definition of the term "United 
1065 
yoo 
Memorandum No. 
42-2 
States", 
and 
(2) by extending 
the 
restrictions 
upon 
the 
importation 
of certain 
electronic 
products 
to importations 
into the territories. 
Federal 
agency 
comments: 
Comments 
were 
requested 
from 
the 
Department 
of 
Health 
and 
Human 
Service, 
the 
Environmental 
Protection 
Agency, 
and 
the 
Department 
of 
Justice. 
All 
comments are reflected above. 
1066 
77 
Memorandum No. 
42-3 
October 1989 
Revised May 1991 
Subject: 
Social Security 
Title 42, Chapter 7 (42 U.S.c. 
301-1397e) 
Purpose: 
To 
provide 
for 
the 
Social 
Security 
System, 
for 
the 
programs of Medicare and Medicaid, and for various programs of 
public assistance including adult assistance, aid to families 
with dependent children, 
and Supplementary Security Income. 
Territorial application: 
The many titles of the Social Security 
Act apply differently to the Virgin Islands, Guam, Samoa, and 
the Northern Marianas, with some applying to all but with many 
applying to a lesser number. 
A chart on the next pages shows 
the application 
to each 
area 
of each 
title 
of 
the 
Social 
Security Act, 
and the presence for purposes of that title of 
a ceiling, or cap, on Federal expenditures in the territories 
under that title. 
There follows 
a narrative discussion of 
each 
title 
of 
the 
Act, 
explaining 
the 
basis 
for 
the 
conclusions represented on the chart and describing provisions 
in that title of particular 
interest 
to some or all of the 
territories. 
Recommendations: 
The 
major 
policy 
questions 
presented 
by 
the 
Social Security Act--the use of territorial caps, the presence 
of formulae 
for the distribution of Federal 
funds that 
are 
less favorable to the territories than to the States. and the 
exclusion 
of 
most 
of 
the 
territories 
from 
the 
Title 
XVI 
Supplemental Security Income program---are not the subject of 
recommendations 
here. 
Any 
offered, 
either 
way, 
would 
be 
without material significance to the ultimate decisionmakers, 
who 
are 
likely 
to continue 
to reach 
conclusions 
on 
these 
questions 
based 
on 
matters 
of 
national 
policy 
more 
far- 
reaching 
than 
issues 
pertinent 
to the 
Social 
Security 
Act 
alone. 
Other 
recommendations 
on 
lesser 
matters 
are 
offered, 
however, 
and 
appear 
in 
the 
narrative 
that 
relates 
to 
the 
pertinent title. 
Such recommendations 
are for the most part 
technical or perfecting. 
1067 
Applies to 
vir. 
i 
ri 
Act 
Program 
Is. 
Guam 
Samoa 
Title I. 
Grants to States 
for Old-Age Assistance (an | 
“adult assistance program")*/ 
Yes 
Title II. 
Federal Old-Age, 
Survivors, 
and Disability 
Insurance Ben 
its (the 
"Social Securaty System") 
Yes 
Title III. 
Grants to States 
for Unemployment Compensa- 
tion Administration 
Yes 
Title Iv. 
Grants to States 
for Aid and Services to Needy 
Families with Children and 
for Child-welfare Services 
Part A. 
Aid to Families 
with Dependent Children 
(AFDC) 
Yes 
Part B. 
Child-Welfare 
Services 
Yes 
Part C. 
Work Incentive 
Program for Recipients 
of Aid Under State Plan 
Approved Under Part A 
(repealed) 
Yes 
Part D. 
Child Support and 
Establishment of 
Paternity 
Memorandum No. 
Yes 
No 
No 
Yes 
No 
No 
Memorandum No. 42-3 
Applies to 
vir. 
No. 
Terr. 
ial 
rity 
Act 
Progr: 
Is. 
Guam 
Samoa 
Mar. 
Cap? 
Part E. 
Federal Payments 
for Foster Care and 
Adoption Assistance 
Yes 
Yes 
Yes 
Yes 
Yes 
Part F. 
Job Opportuni- 
ties and Basic Skills 
Training Program 
Yes 
Yes 
Yes 
Yes 
No 
Title V. 
Maternal and Child 
Health Services Block Grant 
Yes 
Yes 
Yes 
Yes 
No 
Title VII. 
Administration 
(Grants for training public 
welfare personnel) 
Yes 
Yes 
No 
Yes 
No 
Title IX. 
Employment Security 
Administrative Financing 
(Grants for training unem- 
Ployment compensation 
administration personnel) 
Yes 
No 
No 
No 
No 
Title X. 
Grants to, States 
for Aid to Blind’ 
Yes 
Yes 
No 
No 
Yes 
Title XI. 
General Provisions 
and Professional Standards 
Review 
Part A. 
General Provisions 
(Grants for research and 
demonstration projects) 
Yes 
Yes 
No 
Yes 
No 
1069 
Memorandum No. 
42-3 
Applies to 
vir. 
No. 
Terr. 
Social Security Act Program 
Is. 
Guam 
Samoa 
Mar. 
Cap? 
Part B. 
Peer Review of 
Utilization and Quality 
of Health Care Services 
Yes 
Yes 
Yes 
Yes 
N/A 
Title XII. 
Advances to State 
Unemployment Funds 
Yes 
No 
No 
No 
N/A 
Title XIV. 
Grants to States 
for Aid to Permanently and 
Totally Disabled*/ 
Yes 
Yes 
No 
No 
Yes 
Title XVI. 
Assistance to Aged, 
Blind, 
and Disabled (in 
pre-1974 form) 
Yes 
Yes 
No 
No 
Yes 
Title xvI. 
(Currently) 
Supplemental Security Income 
for Aged, Blind, 
and 
Disabled 
(SSI) 
No 
No 
No 
Yes 
No 
Title XVII. 
Grants for 
Planning Comprehensive Action 
to Combat Mental Retardation 
Yes 
Yes 
Yes 
Yes 
No 
Title XVIII. 
Health Insurance 
for Aged and Disabled 
(Medicare) 
Yes 
Yes 
Yes 
Yes 
No 
‘ under 
existing 
law, 
the 
Virgin 
Islands 
and 
Guam 
are 
permitted to choose whether they will receive grants under Titles 
I, 
X, 
and 
XIV, 
or 
instead 
under Title 
XVI 
(Assistance 
to Aged, 
Blind, 
and Disabled, 
in its pre-1974 form). 
1070 
a] 
Memorandum No. 
42-3 
Applies to 
Vir. 
No. 
Terr. 
Social Security Act Program 
Is. 
Guam 
Samoa 
Mar. 
Cap? 
Title XIX. 
Grants to States 
for Medical Assistance 
Programs (Medicaid) 
Yes 
Yes 
Yes 
Yes 
Yes 
Title XX. 
Block Grants to 
States for Social Services 
Yes 
Yes 
Yes 
Yes 
Yes 
1071 
Memorandum No. 42-3 
Discussion: 
Title I. 
Grants to States for Old-Age Assistance (42 U.S.C. 
301-306). 
Title I of the Social Security Act authorizes grants 
to the States to enable them to provide "financial assistance 
to aged needy individuals" 
(42 U.S.C. 301), and it now applies 
to the Virgin Islands and Guam only (along with Puerto Rico). 
It does not apply to Samoa or the Northern Marianas (but as to 
the latter, 
the possibility 
of an argument 
exists and this 
matter is discussed further below.) 
Federal grants are made 
to the Virgin Islands 
and Guam on the basis of territorial 
plans, approved by the Secretary of Health and Human Services, 
and 
on 
the 
basis 
of 
a 
formula 
set 
forth 
at 
42 
U.S.C. 
303(a)(2). 
These programs of old-age assistance in the Virgin 
Islands and Guam (and Puerto Rico) 
are subject 
to a cap 
(42 
U.S.C. 
1308(a)), 
but 
the 
statutory 
cap applies 
to several 
Social Security Act programs collectively--Titles 
I, X, XIV, 
and the "old" XvI, and parts A and E of Title Iv. 
So there is 
no cap on the Title I program of old-age assistance standing 
alone. 
Old-age assistance under Title 
I, along with aid to 
the blind under Title Xx and aid to the permanently and totally 
disabled 
under Title 
XIV, 
are commonly 
referred 
to 
as 
the 
“adult assistance programs". 
Before the effectiveness of the 
Supplemental Security Income (SSI) provisions of Title xVI, cn 
January 
1, 1974, 
these adult assistance programs applied 
co 
the States, 
the District of Columbia, Puerto Rico, the Virgin 
Islands, 
and Guam. 
The SSI program was made applicable only 
to the States 
and 
the District 
of Columbia, 
and 
upon 
its 
effectiveness 
the 
Title 
I old-age 
assistance 
program 
was 
repealed as to the States and the District (see note preceding 
42 U.S.C. 301). But the SSI program was not made applicable to 
Guam or the Virgin Islands 
(or Puerto Rico), 
and Title 
I has 
been continued for those three areas as a partial substitute. 
When Title 
I applied 
to the States 
as well 
as 
the 
territories, 
the 
formula 
for 
determining 
grants 
for 
the 
territories 
was 
less 
favorable 
than 
that 
for 
the 
States 
1072 
RQ 
a 
Memorandum No. 42-3 
(compare 303(a)(1) and (2) of Title 42 U.S.C., 
1976 ed.). 
The 
formula 
for 
the Virgin 
Islands 
and Guam 
has 
now been much 
simplified 
(42 U.S.C., 
1982 ed., 
Supp. 
IV, 
303(a)), 
and of 
course there no longer exists a State formula to compare with 
it, 
As to the Northern Marianas, 
its Covenant 
in section 
502(a)(1) provides expressly for the application to it of the 
SSI program. 
The 
SSI program 
has been 
implemented 
in the 
Northern Marianas, 
and consistent with the treatment of the 
States 
and 
the 
District, 
Title 
I 
and 
the 
other 
adult 
assistance 
programs 
have 
not 
been 
applied 
there. 
This 
is 
appropriate, 
since SSI was visualized as a substitute for and 
successor to the "old" adult assistance programs. 
Yet section 
502(a)(1) of the Covenant also provides for the application to 
the Northern 
Marianas 
of 
"those 
laws 
which 
provide 
... 
financial assistance programs 
. 
. 
. 
as they apply to Guam". 
Those words literally define 
the Title 
I old-age assistance 
Program, 
which unarguably applies to Guam. 
It would be sound 
to 
obtain 
legislation 
expressly 
excluding 
the 
Northern 
Marianas from Title 
I (as well as from Titles X and XIV, 
and 
perhaps 
the 
"old" 
Title 
XVI) 
of 
the 
Social 
Security 
Act, 
before an argument arises as to the Commonwealth’s entitlement 
to Title I assistance.! 
As noted, Title I does not apply to Samoa. 
It may be 
surmised 
that 
as 
a policy matter 
it has been 
thought 
to be 
unnecessary, 
in light of Samoan customs 
and practices which 
result in reverence 
for and care for the aged. 
Yin unpublished 
research 
prepared 
for 
(but not acted upon 
by) 
the 
Northern 
Marianas 
Commission 
on 
Federal 
laws, 
the 
Commission staff noted 
that 
an argument 
"could be made" 
to this 
effect, 
but stated that because SSI is intended to supersede Title 
I, among others, 
"for most of the United States 
this theoretical 
applicability 
is academic". 
Perhaps. 
But academic arguments can 
give 
rise 
to 
difficult 
and 
contentious 
issues, 
so 
legislative 
clarification could have vaiue. 
1073 
Memorandum No. 
42-3 
Title 
II. 
Federal 
Old-Age, 
Survivors, 
and 
Disability 
Insurance Benefits 
(42 U.S.C. 
401-433). 
Title 
II of the Social Security 
Act creates what 
is 
commonly 
termed 
the 
"Social 
Security 
System"--the 
social 
insurance program under which U.S. employees, 
employers, 
and 
the self-employed contribute during their working years to a 
trust fund, and from which employees and their dependents draw 
benefits at the time of retirement, disability, 
or death. 
Persons covered by the system in all four of the areas 
subject 
to this study--the Virgin Islands, 
Guam, 
Samoa, 
and 
the 
Northern 
Marianas--are 
beneficiaries 
of 
the 
Title, 
as 
fully as are covered persons 
in the States 
(with exceptions 
discussed below that appear to be inconsequential). 
This is 
the consequence of several definitions appearing at 42 U.S.C. 
410: 
-- "employment" 
means, 
subject 
to 
extensive 
elaboration 
and exclusions, 
“service 
performed 
... 
by an 
employee 
. 
. 
. 
within the United States"; 
-- 
the 
"United 
States" 
means 
the 
States, 
the 
District, 
Puerto Rico, 
the Virgin Islands, 
Guam, 
and Samoa; 
and 
-- The 
term 
"State" 
includes 
all 
of 
the 
foregoing;. 
The Northern Marianas, 
while not included explicitly 
in 
the 
foregoing 
definitions 
(although 
specified 
in 
other 
parts 
of 
the 
Act, 
as 
discussed 
below), 
are 
nevertheless 
included 
in the Social 
Security 
System 
in light 
of section 
606(b) of the Covenant, whi-u (as amended by section 9 of P.L. 
98-213 
(1983), 
provides 
in pertinent part that the 
. 
laws 
cf 
the United 
States 
..- 
- 
which provide hene 
from 
the United 
1074 
Memorandum No. 
42-3 
States 
Social 
Security 
System 
will 
on 
January 
1 
of 
the 
first 
calendar 
year 
following 
the 
termination 
of 
the 
Trusteeship 
Agreement 
or 
upon 
such 
earlier date as may be agreed to by the 
Government 
of 
the 
Northern 
Mariana 
Islands and the Government of the United 
States become applicable to the Northern 
Mariana Islands as they apply to Guam. 
The 
Trusteeship 
Agreement 
ceased 
to 
be 
in 
effect 
in 
the 
Northern Marianas as of November 
3, 1986, 
under Presidential 
Proclamation 5564 of that date. 
The pertinent Federal 
tax law, 
known 
as 
the Federal 
Insurance Contributions 
Act 
(26 U.S.C. 
3101-3127), 
provides 
for parallel coverage 
(see Memorandum No. 
26-3(a)). 
The 
territories 
are 
occasionally 
the 
subject 
of 
special 
provisions 
in 
Title 
II, 
but 
as 
noted 
above, 
the 
results appear to be inconsequential, and there is no apparent 
reason 
for modifying them. 
The provisions that make mention 
of the territories are these: 
(1) A provision 
of 
the 
Act 
permits 
a 
"State" 
agency 
to 
use 
Social 
Security 
numbers 
for 
identification 
purposes for certain programs, 
such as drivers’ 
licenses, 
and 
for 
that 
purpose 
the 
term 
"State" 
is defined 
not only 
to 
include 
the Virgin Islands, 
Guam, 
and the Northern Marianas 
(with the last expressly named), but also the Trust Territory 
(42 
U.S.C. 
405(c)(2)(C)(iv)). 
Similarly, 
authorized 
blood 
donation 
facilities may use Social Security numbers 
for the 
purpose of identifying blood donors, 
and the term "State" 
is 
again 
defined 
to 
include 
the 
Virgin 
Islands,Guam, 
and 
the 
Northern 
Marianas, 
plus 
the 
Trust 
Territory 
(42 
U.S.C. 
405(c)(2)(D)(iii)(II)). 
The addition of "American Samoa" 
to 
these 
two sections would be appropriate, 
although 
no actual 
need has been made known to require 
it. 
1075 
A 
29 
Memorandum No. 
42-3 
(2) The Act permits voluntary agreements between 
States and the Secretary of Health and Human Services for the 
coverage 
of employees of State and local governments. 
For 
this purpose the term "State" excludes Guam and Samoa (and the 
District 
of Columbia) 
(42 U.S.C. 
418(b)(1)). 
The Northern 
Marianas 
would 
also 
be 
excluded, 
given 
the 
provision 
of 
section 606(b) of the Covenant, quoted above, 
which provides 
that the Social Security System applies there as 
it applies 
"to Guam". 
(The exclusion of Guam dates from before 1960, so 
it was in effect on all of the dates that the Covenant became 
effective under Covenant section 1003.) 
It has been reported 
that 
employees 
of 
the Government 
of Guam prefer 
their 
own 
retirement system, which is said to be more generous than the 
Social Security System. 
(3) The 
definition 
of 
"employment" 
contains 
provisions that correspond to the exclusion just discussed at 
42 U.S.C. 
418. 
Particular provisions including employees of 
Guam and Samoa appear at 42 U.S.C. 410(a)(7)(C), 
and for Guam 
additionally 
at 
42 U.S.C. 
410(a)(7)(E). 
The 
references 
to 
Guam in these two provisions would, given section 606(b) 
of 
the Covenant, 
include the Northern Marianas as well. 
(4) Also 
excluded 
from 
"employment" 
is service 
performed 
in Guam by a resident of the Philippines while 
in 
Guam 
as 
a 
temporary 
worker 
under 
the 
Immigration 
and 
Nationality 
Act, 
8 U.S.C. 
1101(a)(15)(H) 
(ii) 
(42 
U.S.C. 
410(a)(18)). 
This exemption 
has been extended 
to Korea 
as 
well, 
by treaty, 
as explained 
in Memorandum No. 
26-3(a); 
and 
the problem of its application 
to the Northern Marianas 
is 
also discussed there. 
Finally, 
mention 
should 
be 
made 
of 
the 
"Prouty 
Amendment" 
that 
is 
contained 
in Title 
II, 
because 
it 
is 
expressly 
mentioned 
in 
section 
502(a)(1) 
of 
the 
Northern 
Marianas Covenant (where it is referred to as “section 228 of 
Title II" of the Social Security Act, which is codified at 42 
U.SC. 
228) as well as in the proposed Guam Commonwealth Act. 
The section in question provides transitional social security 
benefits 
to 
individuals 
who were 
72 
years 
of 
age 
or 
more 
before 1968, 
if their Social Security or certain other pension 
payments were very low. 
To be a beneficiary today means that 
1076 
Memorandum No. 42-3 
the recipient would have to be at least 91 years old, 
so the 
program 
is without long-term effect. 
In any event, 
it does 
not apply 
in the Virgin Islands, 
Guam, 
or Samoa 
(42 U.S.C. 
428(e)), but it does apply in the Northern Marianas in light 
of the reference to it in section 502(a)(1) 
of the Covenant. 
Title 
III. 
Grants 
to States 
for Unemployment 
Compensation 
Administration 
(42 U.S.C. 
501-504). 
Title 
III 
of 
the 
Social 
Security 
Act 
provides 
for 
payments to the "States" to assist them in the administration 
of their own unemployment compensation laws, 
if such laws meet 
specified Federal standards and are administered 
in a manner 
that complies with specified statutory requirements (42 U.S.C. 
503). 
The Secretary of Labor administers 
the program. 
The 
Virgin Islands, alone among the areas that are subject to this 
study, is covered by Title III (42 U.S.C. 1301(a)(1))--and the 
coverage of the Virgin Islands, which began in 1976, 
is a re- 
sult of the Virgin Islands’ seeking extension of the law (See 
Memorandum No. 
29-2 concerning the United States Employment 
Service). 
No other territory has sought to be included. 
The 
payment program under Title III of the Social Security Act is 
supported by the Federal Unemployment Tax Act, which imposes 
a tax on employers based 
on wages paid, 
and that Act appro- 
priately applies to the Virgin Islands also, but not to Guam, 
Samoa, or the Northern Marianas (see Memorandum No. 26-3(c)). 
There 
are 
no 
provisions 
of 
Title 
III 
of 
peculiar 
application 
to 
the 
Virgin 
Islands, 
and 
accordingly, 
that 
territory receives under it the same treatment as the States. 
Title 
Iv. 
Grants 
to states 
for Aid 
and 
Services 
to Needy 
Families 
with 
Children 
and 
for Child-Welfare 
Services 
(42 
U.S.C. 
601-687). 
Part 
A - Aid 
to 
Families 
with 
Dependent 
Children 
(AFDC) 
(42 U.S.C. 
601-617). 
The AFDC program involves payments 
to "States" 
that 
have 
plans 
for 
that purpose, 
approved 
by the Secretary 
of 
1077 
23 
Memorandum No. 
42-3 
Health 
and Human 
Services. 
The 
plans must 
meet 
extensive 
statutory 
tests 
(42 U.S.C. 
602), 
and 
the objective 
of 
the 
program is "to furnish financial assistance and rehabilitation 
. 
. 
. 
to 
needy 
dependent 
children 
and 
their 
parents 
or 
relatives 
with 
whom 
they 
are 
living 
to help maintain 
and 
strengthen family life and to help such parents or relatives 
to attain or retain capability 
for the maximum self-support 
and personal independence 
. 
. 
- "(42 U.S.C. 
601). 
The 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern 
Marianas are all eligible to participate in the program--Samoa 
having 
been 
added 
in 
1988. 
The 
first 
three 
are 
expressly 
defined as "States" for purposes of Title IV-A by the general 
definition 
appearing 
in 
42 U.S.C. 
1301(a)(1), 
and 
they 
are 
often referred to expressly either 
in Part A or elsewhere 
in 
the Act for the purposes of Part A. 
The Northern Marianas 
is 
not 
expressly 
referred 
to, 
but 
by 
operation 
of 
section 
502(a)(1) 
of the Covenant, 
it too is eligible for Title IV-A 
assistance. 
Section 
502(a)(1) 
of 
the 
Covenant 
makes 
applicable 
to 
the 
Northern 
Marianas 
Federal 
laws 
enacted 
before 
January 9, 
1978 
(as the AFDC 
law was) 
that 
"provide 
federal services 
and financial 
assistance 
programs 
. 
. 
- 
as 
they apply to Guam". 
With 
the very major exception 
of 
the extent 
of the 
dollar assistance provided, 
the AFDC program applies 
to the 
four areas on the same terms as it applies to the States. 
The 
amount of Federal assistance 
to them, however, 
is different, 
and usually less generous, 
than that provided the States: 
-- 
First, 
caps are imposed on the amount of AFDC 
assistance 
to the Virgin 
Islands 
(42 U.S.. 
1308(a)(2)), 
to 
Guam (42 U.S.C. 1308(a)(3)), and to Samoa (42 U.S.C. 
1308{(d)). 
No cap of peculiar 
application 
to the Northern Marianas 
is 
specified, 
but given the language of section 502(a)(1) of the 
Covenant 
(that 
such programs 
as 
AFDC apply 
to 
the Northern 
Marianas 
"as 
they apply 
to Guam"), 
the Guam cap would also 
apply to the Northern Marianas. 
It should be noted that the 
Guam level would be, 
in terms of the territorial populations, 
inequitably 
high 
for 
the 
Northern 
Marianas, 
given 
its 
population 
which 
is less 
than 
1/5 that 
of Guam. 
The caps 
imposed 
(at 42 U.S.C. 
1308) 
apply 
to several Social Security 
1078 
Rg 
Memorandum No. 
42-3 
Act programs collectively, and not just to Title IV-A standing 
alone. 
-- Second, 
the formula for computing payments due 
is more generous 
for the States than for the Virgin Islands, 
Guam, 
Samoa, 
and 
(by operation 
of section 
502(a)(1) 
of the 
Covenant) 
the Northern Marianas. 
Compare paragraphs 
(1) and 
(2) of 42 U.S.C. 
603(a). 
Under the AFDC statute, 
Puerto Rico receives the same 
treatment as the Virgin Islands and Guam. 
That is, its grants 
too 
are 
subject 
to 
a cap 
(42 
U.S.C. 
1308(a)(1)), 
and 
the 
matching 
rate applicable 
to it 
(75%) 
is also less generous 
than 
the rate 
applicable 
to some 
of 
the 
States 
(42 U.S.C. 
603(a), 
but see also 42 U.S.C. 
1318, 
the alternative Federal 
payment). 
But this disparate treatment has been held not to 
be 
in 
violation 
of 
the 
equal 
protection 
guarantee 
of 
the 
Constitution, on the ground that the Congress may treat Puerto 
Rico 
differently 
under 
the 
Territories 
Clause 
of 
the 
Constitution 
"so long as there 
is a rational basis 
for its 
actions" 
(Harris v.Rosario, 
446 U.S. 
651 
(1980)). 
The same 
rationale would justify the disparate treatment of the Virgin 
Islands, 
Guam, 
Samoa, 
and the Northern Marianas, 
as compared 
with the States. 
Part B - Child-Welfare Services 
(42 U.S.C. 
620-628). 
Part 
B authorizes payments 
to the "States" 
for the 
improvement of their child welfare services, under State plans 
approved by the Secretary of Health and Human Services. 
All 
four of the territories are covered by the program, 
the Virgin 
Islands, Guam, and Samoa because 
42 U.S.C. 
1301(a)(1) defines 
them as "States" 
for this purpose, 
and the Northern Marianas 
by operation of section 502(a)(1) of the Covenant. 
(As in the 
case of Part A, here too there is involved 
a Federal program 
of "financial assistance".) 
Under this program the four areas 
are treated more generously than the States, 
potentially, 
in 
light of the provision that bases allotments 
in part upon an 
“allotment percentage". 
The allotment percentage takes into 
account the per capita income of the State, and the figure for 
a 
State 
may 
range 
from 
30% 
to 
70%. 
But 
the 
allotment 
1079 
30 
Memorandum No. 
42-3 
percentage 
for 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern Marianas 
(which is accorded Guam’s treatment under 
section 502(a){1) of the Covenant)--most, 
and perhaps all of 
which have 
per capita 
incomes 
below 
any 
of the States--is 
stipulated in the law at 70% (42 U.S.C. 621(b)). 
Some of the 
territories, 
however, 
may 
receive 
a lesser 
sum. 
A later 
provision (42 U.S.C. 1308(e)) states that notwithstanding the 
provisions of the section just referred to--42 U.S.C. 621--the 
Secretary 
of Health 
and Human Services 
may allot 
to "Guam, 
American 
Samoa, 
and 
the 
Trust 
Territory 
of 
the 
Pacific 
Islands" “such smaller amounts 
as he may deem appropriate". 
Because of the reference to Guam, the Northern Marianas would 
be covered by this lesser-allotment authority. 
But because 
the Virgin Islands are unmentioned, 
their allotment could not 
be reduced. 
Appropriations 
for 
this 
program 
are 
allotted 
among 
states on 
a formula based on population and (inversely) 
on 
State per capita income, 
with the Virgin Islands, 
Guam, 
and 
Samoa specifically entitled 
to the most generous "allotment 
percentage" available (42 U.S.C. 621(b)). 
In addition, 
in an 
apparent 
effort 
to simplify 
administration 
in 
these 
small 
areas, 
a 1980 law permits the Virgin Islands, 
Guam, 
and the 
Northern Marianas 
(all by name) 
to avoid the requirement for 
"a 
single 
organizational 
unit" 
for 
administration 
(sec. 
103(c), 
Pub. 
L. 96-272, 
note following 42 U.S.C. 
622). 
With 
the 1988 extension of Title 
IV to Samoa, 
it would seem that 
this permission should be expanded to include it, as well. 
Part C - Work Incentive Program for Recipients of Aid 
Under State Plan Approved Under Part A (42 U.S.C. 630- 
645). 
This program has been repealed effective 
October 
1, 
1990. 
(It has been replaced by Part F.) 
All four areas here 
involved 
were 
eligible 
to 
participate 
in 
it, 
given 
the 
provisions 
of 42 U.S.C. 
1301(a)(1) 
and section 502(a)(1) 
of 
the Northern Marianas Covenant. 
1080 
95 
Memorandum No. 42-3 
Part D - Child Support and Establishment of Paternity 
(42 U.S.C. 
651-669). 
Part D establishes a Federal program, 
and encourages 
the States to establish programs, 
for 
“enforcing the support obligations owed 
by absent parents to their children and 
the spouse 
(or former spouse) with whom 
such 
children 
are 
living, 
locating 
absent parents, 
establishing paternity, 
obtaining child and spousal support, and 
assuring 
that 
assistance 
in obtaining 
support 
will 
be 
available 
under 
this 
part to all children..." 
(42 U.S.C. 
651). 
The Federal program requires State plans on these subjects (42 
U.S.C. 
654, 
667), 
which, 
when approved by the Secretary of 
Health and Human Services, are the basis for Federal payments 
to the States 
(42 U.S.C. 
655). 
The Virgin Islands, 
Guam, 
and Samoa are eligible to 
participate 
as 
"States", 
given 
the 
language 
of 
42 U.S.C. 
1301(a)(1); 
and 
because 
the 
program 
dates 
from 
1975, 
the 
Northern 
Marianas 
are 
also 
eligible 
to 
participate, 
by 
operation of section 502(a)(1) of the Covenant. 
There are no provisions of peculiar application to any 
of these four areas, 
and no cap, so any that does participate 
does so on 
the same 
basis 
as 
a State. 
A provision giving 
Federal district 
courts jurisdiction in particular (and very 
limited) 
instances 
(42 
U.S.C. 
660) 
creates 
a 
theoretical 
problem in the case of American Samoa, where no U.S. District 
Court has jurisdiction, 
but given the limited nature of the 
jurisdiction conferred (42 U.S.C. 652(a)(8)), the matter does 
not appear to require correction. 
1081 
a2 
Memorandum No. 
42-3 
One other provision is worthy of mention, 
because it 
is unusual--but 
it does not seem inappropriate. 
At 42 U.S.C. 
659(a), 
wages 
and 
salaries 
payable 
to 
individuals 
by 
"the 
United 
States" 
are 
subject 
to 
"legal 
process" 
(i.e., 
garnishment and the like) for enforcement of child support and 
alimony obligations. 
At 42 U.S.C. 
622(a), 
the term "United 
States" 
is defined 
to include 
all branches 
of 
the Federal 
government, 
various agencies whose status as Federal agencies 
is sometimes uncertain (such as government corporations), and 
"the governments 
of the territories 
and possessions 
of the 
United States". 
There can be no dispute that the Congress has 
authority 
to 
legislate 
for 
the 
governments 
of 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern 
Marianas 
in 
this 
manner, 
but 
it has so rarely done so that the point 
is worth 
making. 
Some, particularly in the Government of the Northern 
Marianas, 
might 
find 
this 
result 
objectionable 
on 
policy 
grounds, 
but 
because 
the 
Northern 
Marianas 
is 
included 
in 
Title 
IV of the Social 
Security Act by operation 
of section 
502(a)(1) 
of the Covenant, 
and because when 
that 
is 
so 
the 
financial assistance program in question applies 
to it as 
it 
applies 
"to 
Guam", 
there 
seems 
no 
room 
to 
question 
the 
conclusion 
that 
the 
Northern 
Marianas 
joins 
the 
Virgin 
Islands, Guam, 
and Samoa in being subject to the legal process 
described 
in 42 U.S.C. 
659(a). 
Part E - Federal Payments for Foster Care and Adoption 
Assistance 
(42 U.S.C. 
670-679a). 
Federal 
payments 
are 
provided 
under 
Part 
E 
to 
the 
"States" that adopt plans, approved by the Secretary of Health 
and Human Services, 
if such plans meet specified standards (42 
U.S.C. 
671) 
pertaining 
to 
maintenance 
payments 
for 
those 
providing foster care and to assistance 
to parents who adopt 
a child with special needs. 
Under the definition provided at 
42 U.S.C. 
1301(a)(1), 
the Virgin Islands, 
Guam, 
and Samoa are 
"States" 
for purposes 
of Part 
E. 
The Northern Marianas 
is 
eligible to participate as well, because Part E constitutes 
a 
Federal financial assistance program and section 502(a)(1) of 
the Covenant operates to make it applicable there .2/ 
2 part 
E was 
not 
enacted 
until 
1980, 
and 
it might 
thus 
be 
(continued...) 
1082 
Memorandum No. 
42-3 
Part 
E payments 
to the territories 
are subject 
to a 
cap. 
The cap for the Virgin Islands and Guam applies to Part 
E plus various 
other programs 
under 
the Social 
Security Act 
(42 U.S.C. 
1308(a)(2) 
and (3)); 
the cap for Samoa applies to 
Payments under Parts A and E of Title 
IV together 
(42 U.S.C. 
1308(d)). 
The law provides no specified cap for the Northern 
Marianas, 
so 
in 
the 
case 
of Part 
E, 
as 
well 
as 
Part 
A as 
discussed above, 
the Northern Marianas would be subject to the 
Guam cap--in light of the language of section 502(a)(1) of the 
Covenant, which states that programs of the Part E sort apply 
to the Northern Marianas 
"as 
they apply 
to Guam’. 
As was 
noted 
in 
the above discussion 
on 
Part 
A, 
the 
result 
is 
an 
inequitably 
high 
ceiling 
for 
the 
Northern 
Marianas, 
as 
compared with the caps for other territories. 
Part F - Job Opportunities and Basic Skills Training 
Program 
(42 U.S.C. 
681-687). 
Part F was added to the Social Security Act in October 
1988, 
to become effective on October 
1, 1990 
(or earlier, 
at 
the option of a State, 
as explained 
in the note following 42 
U.S. 
C. 681). 
Its purpose 
is "to assure that needy families 
with children obtain 
the education, 
training, 
and employment 
that will help them avoid long-term welfare dependence" 
(42 
U.S.C. 
681(a)). 
To achieve this purpose, 
Part F describes at 
great length the content of the "State plan" that is required 
of 
each 
State 
for 
the establishment 
and operation 
of 
a 
job 
Opportunities 
and 
basic 
skills 
training 
program 
(42 U.S.C. 
2/(.. continued) 
argued that it does not apply under section 502(a) because 
it was 
not "in existence on the effective date" of section 502(a), 
which 
effective date was January 
9, 1978. 
But Part E was enacted 
as an 
addition to the Social Security Act, which was enacted 
in 1935, and 
section 502(a) refers to "laws of the United States in existence on 
the effective date of this Section (January 
9, 1978] and subsequent 
amendments to such laws". 
The correct view would seem to be that 
Part 
E constitutes 
an 
amendment 
to 
a 
1935 
law, 
and 
thus 
that 
section 
502(a)(1), 
which 
refers 
to 
"laws 
which 
provide 
federal 
: 
financial assistance", 
serves 
to extend 
it to the Northern 
Marianas. 
1083 
a2 
Memorandum No. 42-3 
682). 
Such a "State plan" approved by the Secretary of Health 
and 
Human 
Services 
is 
made 
a 
condition 
of 
the 
State’s 
participation 
in Part A of Title 
Iv, 
the program 
of Aid to 
Families with Dependent Children. 
Part 
F 
contains 
no _ provisions 
peculiar 
to 
the 
territories. 
The 
Part 
applies 
to 
them 
all, 
given 
the 
definition 
at 
42 U.S.C. 
1301(a)(1) 
that 
covers 
the Virgin 
Islands, 
Guan, 
and 
Samoa, 
and 
section 
502(a)({1) 
of 
the 
Covenant, which serves to extend the 
program to the Northern 
Marianas. 
The provisions for Federal financial assistance in 
carrying out Part F, which are contained in Part A (42 U.S.C. 
603(k), 
see note following that section) 
equally contain 
no 
special provisions for the territories, 
and no financial cap 
as to them in particular. 
It seems possible that the "State plan" required by 
Part F may be unduly sophisticated in terms of the situation 
in at least some of the territories. 
Yet the AFDC program is 
of importance 
in most 
of them, 
so that compliance with the 
Part F requirements would be necessary in those areas. 
It may 
develop over time that amendments to Part F may be required to 
meet territorial needs. 
It may also develop that 
the grant 
consolidation authority 
for the insular areas, 
at 48 U.S.C. 
1469a, 
may be of use 
in resolving 
any difficulties 
that 
do 
arise. 
Title 
v. Maternal and Child Health Services Block Grant (42 
U.S.C. 
701-709). 
The grants to "States" for maternal and child health 
services are available to the Virgin Islands, Guam, Samoa, and 
the Northern 
Marianas, 
and 
on 
the 
same 
terms 
as 
they 
are 
available 
to the States. 
The definition 
of "State" 
at 42 
U.S.C. 
1301(a)(1) 
names each of the four 
(as well as Puerto 
Rico and the Trust Territory) 
for purposes of Title v--so it 
is not necessary to rely upon section 502(a) of the Northern 
Marianas Covenant to conclude that this title of the Social 
Security Act applies there. 
To qualify 
for the grant, 
the 
jurisdiction must file a “description of intended activities 
and statement of assurances" 
(42 U.S.C. 705), and the Federal 
1084 
a5 
Memorandum No. 
42-3 
payments are to be used for such purposes as reducing infant 
mortality, 
providing rehabilitation 
services 
for blind 
and 
disabled 
children 
under 
16, 
and 
providing 
services 
for 
children with special health care needs 
(42 U.S.C. 
701). 
Title V contains no provisions of special application 
to the territories. 
They are treated for all purposes under 
the Title in the same manner as the States, 
and they are thus 
eligible for special project grants (42 U.S.C. 702(a) and (c)) 
where 
there 
is customarily competition, 
and the territories 
generally do not fare well 
in competing with the States 
for 
project grants--and for formula grants (42 U.S.C. 
702(b)), to 
which 
most 
of 
the 
funds 
appropriated 
under 
the Title 
are 
devoted. 
The same 
formula applies 
to the territories 
as 
to 
the States. 
There 
is 
no 
special 
territorial 
cap, 
but 
the 
program 
in general 
is among those termed "closed-ended", 
in 
that 
a specified sum 
is authorized 
to be appropriated 
($561 
million for fiscal year 1989 and thereafter, 
under 42 U.S.C. 
701(a)), 
and from within 
this amount 
sums 
are allocated 
to 
participating 
States 
and 
territories 
on 
the 
basis 
of 
the 
statutory formula. 
Title VI (formerly 42 U.S.C. 801-805), 
which had provided for 
grants 
for services 
to the 
aged, 
blind, 
and disabled, 
was 
repealed in 1975. 
Title VII. 
Administration 
(42 U.S.C. 902-911). 
The sections of Title VII, with one exception, relate 
to housekeeping by the Secretary of Health and Human Services, 
and they contain no provisions of special application to, 
or 
interest to, 
the territories. 
At 
42 U.S.C. 
906, 
however, 
there 
appears 
a Federal 
financial assistance program to "States", enacted in 1956 and 
most 
recently 
amended 
in 
1962, 
by which 
the 
Secretary 
is 
authorized to make payments for the training of public welfare 
personnel. 
Because the term "State" 
is defined at 42 U.S.C. 
1301(a)(1) 
to include explicitly the virgin Islands and Guam 
for purposes of Title VII, 
and because section 
502(a}{1}) 
of 
1085 
Qa 
Memorandum No. 
42-3 
the 
Covenant 
then 
operates 
to 
extend 
the 
program 
to 
the 
Northern Marianas as well, 
those three areas are eligible for 
assistance under the program. 
There is no special territorial 
cap. 
The 
exclusion 
of 
Samoa 
is probably 
not 
a point 
of 
concern, 
for the program appears as a practical matter to have 
expired, 
the authorization for appropriations having not been 
modified 
since 
1962. 
The 
program 
does 
not 
appear 
to 
be 
mentioned 
in 
the 
latest 
Catalog 
of 
Federal 
Domestic 
Assistance. 
Title 
VIII 
(formerly 
42 
U.S.C. 
1001-1011) 
pertained 
to 
employment 
taxes, 
provisions 
for 
which 
now 
appear 
in 
the 
Internal Revenue Code at 26 U.S.C. 
3101-3127 
(see Memorandum 
No. 26-3(a)). 
Title 
IX. 
Employment Security Administration 
Financing 
(42 
U.S.C. 
1101-1109). 
Title 
IX 
contains 
accounting 
procedures 
and 
other 
administrative provisions concerning unemployment 
taxes 
and 
compensation. 
Because only the Virgin Islands among the areas 
that are the subjects of this study is covered by the Federal 
unemployment compensation 
program 
(see the discussion under 
Title 
III 
above), 
the Title 
has application 
to the Virgin 
Islands alone. 
A Federal financial assistance program appears 
at 42 U.S.C. 
1107, which authorizes the Secretary of Labor to 
provide funds to the "States" for the training of personnel in 
unemployment compensation administration. 
The Virgin Islands, 
alone among the territories, 
is a "State" for the purposes of 
this training assistance (42 U.S.C. 1301(a)(1)), 
a result that 
appears 
to be appropriate 
given 
the apparent 
preference 
of 
Guam, 
Samoa, 
and the Northern Marianas 
to remain outside of 
the Federal unemployment compensation program (see Memorandum 
No. 
29-2). 
1086 
Q7 
Memorandum No. 
42-3 
Title x. 
Grants to States for Aid to Blind 
(42 U.S.c. 
1201- 
1206). 
Title X provides Federal grants to enable the "States" 
to "furnish financial assistance... 
to needy individuals 
who are blind" 
(42 U.S.C. 
1201). 
It is one 
of the "adult 
assistance programs", and is similar to the old-age assistance 
program described above under Title I: 
It too ceased to apply 
to 
the 
States 
on 
January 
1, 
1974, 
when 
the 
Supplemental 
Security Income program became effective in the States; it has 
been perpetuatec with respect 
to the Virgin Islands and Guam 
(and 
also 
Puerto 
Rico), 
but 
is 
subject 
to 
the 
special 
territorial cap that appears at 42 U.S.C. 
1308(a)(2) 
(for the 
virgin Islands) and 1308(a)(3) 
(for Guam); and it provides for 
payments to these territories by the Secretary of Health and 
Human 
Services, 
if 
there 
exists 
a 
plan, 
approved 
by 
the 
Secretary, 
that 
meets 
certain 
statutory 
requirements 
(42 
U.S.C. 
1202). 
This program does not apply to American Samoa. 
It may 
have been concluded 
(as was 
surmised 
above 
in the 
case 
of 
Title 
I grants) 
that the Samoan cultural system provides the 
appropriate level of assistance, without Federal help. 
But it 
may 
also 
be 
that 
Samoa’s 
possible 
need 
has 
not 
been 
scrutinized. 
In 
any 
event, 
the 
issue 
deserves 
focussed 
attention. 
As to the Northern Marianas, because the Supplemental 
Security Income program applies there under section 502(a)(1) 
of the Covenant, 
it would be inappropriate for Title X also to 
apply, 
since 
SSI 
was 
intended 
to 
supplant 
this 
adult 
assistance program, among others. 
But because, as in the case 
of Title I, it could reasonably be argued that this program is 
one of Federal "financial assistance", applicable to Guam, 
it 
too applies to the Northern Marianas under other language of 
section 502(a)(1). 
To avoid that argument, 
it would be well 
to 
provide 
expressly 
that 
Title 
X does 
not 
apply 
to 
the 
Northern Marianas. 
The same suggestion is made with respect 
to Title I above. 
1087 
Memorandum No. 
42-3 
Title 
XI. 
meral 
Provision 
ind__ 
Professional 
Stan 
Part A 
_- General Provisions (42 U.S.C. 1301-1320b-11). 
The general provisions of greatest importance to this 
study 
and contained 
in Part A are 
those often 
referred 
to 
above: 
42 U.S.C. 1301(a)(1), which defines "State", and in so 
doing provides 
to which area particular titles of the Social 
Security 
Act apply 
(byt also, 
as 
stated 
from 
time 
to time 
above, 
reference 
to the Northern Marianas 
Covenant 
is also 
required to answer this question); 
and 42 U.S.C. 
1308, where 
the special territorial caps on certain expenditures under the 
Act appear. 
Many other provisions 
of Part 
A are 
of 
no 
special 
concern 
to 
the 
territories, 
relating 
as 
they 
do 
to 
housekeeping details within the Department of Health and Human 
Services, 
e.g., 
the disclosure 
of information, 
payments 
to 
legal representatives, 
reports, 
and the like. 
But other provisions found in this Part are relevant 
to the territories, and at least in some instances they appear 
to .e@ inapplicable to American Samoa. 
Consideration ought to 
be given to extending Part A generally 
to Samoa. 
Part A of 
Title XI is explicitly applicable 
to the Virgin Islands and 
Guam 
(42 
U.SC. 
1301(a)(1)), 
and 
by operation 
of 
section 
502(a)(1) 
of 
the 
Covenant, 
is 
applicable 
to 
the 
Northern 
Marianas as well. 
Additionally, Part B of Title XI, discussed 
below, 
is explicitly applicable to both Samoa and the Northern 
Marianas 
(42 U.S.C. 
130i1(a)(1)), 
as well 
as 
to 
the Virgin 
Islands and Guam. 
But Samoa is not subject 
to any provision 
that has 
the effect 
of extending 
Part 
A to that territory. 
This may 
be a result 
of 
a conscious decision 
that 
such 
an 
extension 
is unnecessary, 
or it may be an oversight--but the 
latter is unlikely, partly because the Social Security Act has 
clearly been the product of careful attention by legislative 
draftsman, and partly because at least one provision includes 
all other areas by name but excludes Samoa 
(the blood donor 
locator provision, which so defines "State", 
42 U.S.C. 
1320b- 
11(h)(3)). 
Samoa 
seems 
suitably 
comprehended 
by 
those 
1088 
Memorandum No. 
42-3 
sections in Part A that provide procedures pertinent to Titles 
of the Act that apply to Samoa (e.g., 42 U.S.C. 
1315, 1320b-1, 
1320b-2, 
1320b-6); 
and 
the 
reference 
to U.S. 
"citizen 
or 
national" 
at 42 U.S.C. 
1320b-7(d)(2) 
makes quite clear that 
Samoa and Samoans 
are covered there. 
If Samoa 
is expressly 
mentioned, 
as 
it 
is 
in 
42 
U.S.C. 
1318 
(pertaining 
to 
alternative Federal payments for certain public assistance) 
then there is obviously no question as to its inclusion. 
There are left, however, 
a number of sections in Part 
A that pertain to "States" and that contain nothing that can 
serve 
to extend them to Samoa. 
Among these 
is one section 
providing 
Federal 
grants 
for 
research 
and 
demonstration 
projects 
(42 
U.S.C. 
1310), 
medical 
care 
guides 
(42 
U.S.C. 
1312), 
and 
Federal 
assistance 
to 
citizens 
returning 
from 
foreign countries 
to "the United States" 
(42 U.S.C. 
1313). 
There could be value in extending these sections, 
and others 
in Part A of uncertain application, 
to Samoa. 
If that were 
done, then attention must also be given to the status of most 
Samoans 
as 
nationals 
but 
not 
citizens 
of 
the 
U.S. 
(for 
Purposes, 
for example, 
of 42 U.S.C. 
1313), and to the absence 
in Samoa of a Federal court having jurisdiction there (e.g. 42 
U.S.C. 
1316(a)(3), 
1320a-4(b), 
1320a-7ale)). 
Part 
B - 
Peer Review of Utilization 
and Quality 
of 
Health Care Services 
(42 U.S.C. 
1320c-1320c-13) 
These sections 
require 
the Secretary 
of Health 
and 
Human 
Services, 
in connection 
with 
Title 
XVIII 
of the Act 
(Medicare), 
and 
with 
some 
implications 
for 
Title 
XIX 
(Medicaid) 
as well, 
to enter into contracts with "utilization 
and 
quality 
control 
peer 
review" 
organizations 
for 
their 
review and appraisal of professional activities 
under these 
programs. 
Such 
organizations 
are 
to 
be 
"composed 
of 
a 
substantial number" of local, licensed doctors of medicine and 
osteopathy 
(42 U.S.C. 
1320c-1). 
‘The Virgin 
Islands, 
Guam, 
Samoa, 
and the Northern Marianas are all expressly covered by 
Part B (42 U.S.C. 
1301(a)(1)). 
There are no provisions 
of 
peculiar application 
to them, 
other than that 
at 
42 U.S.C. 
1320c-12 which provides that "individuals licensed to practice 
medicine" 
in 
Samoa 
and 
the 
Northern 
Marianas 
constitute 
“physicians 
and 
doctors 
of 
medicine". 
Because 
medical 
1089 
Memorandum No. 
42-3 
professionals 
in 
those 
areas, 
commonly 
termed 
"medical 
practitioners", 
are sometimes 
graduates not of U.S. 
medical 
schools but instead of such institutions as the medical school 
created 
by the British 
in Fiji, 
such special 
provision 
is 
desirable. 
Title 
XII. 
Advances 
to State Unemployment Funds 
(42 U.S.C. 
1321-1324) 
These 
sections 
provide 
for 
advances 
from 
and 
repayments to the Federal Unemployment Trust Fund to and from 
the 
"States", 
with only 
the Virgin Islands qualifying 
as 
a 
"State" 
for 
this purpose 
(42 U.S.C. 
1301(a)(1)). 
This 
is 
appropriate, 
since only the Virgin Islands among the insular 
areas 
is 
covered 
by 
the 
Fedsral 
unemployment 
compensation 
program 
(see the discussion under Title 
III above). 
Title 
XIII 
(formerly 
42 
U.S.C. 
1331-1336), 
which 
had 
pertained 
to reconversion unemployment 
benefits 
for seamen, 
was repealed in 1984. 
Title 
XIV. 
Grants 
to 
States 
for 
Aid 
to 
Permanently 
and 
Totally Disabled 
(42 U.S.C. 
1351-1355). 
Title 
XIV 
provides 
Federal 
grants 
to 
enable 
the 
"States" to furnish financial assistance "to needy individuals 
eighteen years of age or older who are permanently and totally 
disabled" 
(42 U.S.C. 
1351). 
It too is an “adult assistance 
program", similar to those described above under Title I (old- 
age assistance) 
and Title x (aid to the blind). 
And what 
is 
said as to those titles applies equally here: 
Title XIV too 
ceased 
to apply 
to the States 
on January 
1, 
1974, 
when 
the 
Supplemental Security Income program became effective 
in the 
States; 
it 
has 
been 
continued 
with 
respect 
to 
the 
Virgin 
Islands and Guam (and also Puerto Rico), but is subject to the 
special territorial cap that appears at 42 U.S.C. 
1308(a)(2) 
(for 
the Virgin 
Islands) 
and 
1308(a)(3) 
(for Guam); 
and 
it 
provides for payments to these territories by the Secretary of 
Health and Human Services, 
if there exists a plan, approved by 
1090 
Memorandum No. 
42-3 
the Secretary, 
that meets certain statutory requirements 
(42 
U.S.C. 
1352). 
The program does not apply to American Samoa, 
a result 
that warrants scrutiny because there are doubtless potential 
beneficiaries there. 
As to the Northern Marianas, because the Supplemental 
Security Income program applies there under section 5u2(a)(1) 
of the Covenant, 
it would be inappropriate for Title XIV also 
to 
apply, 
since 
SSI 
was 
intended 
to 
supplant 
the 
adult 
assistance programs. 
But because, 
as in the case of Titles 
I 
and X, it could reasonably be argued that this program is one 
of Federal "financial assistance", applicable to Guam, 
it too 
applies 
to 
the 
Northern 
Marianas 
under 
other 
language 
of 
section 502(a)(1). 
To avoid this argument, 
it would be well 
to provide expressly that Title XIv, along with Titles 
I and 
X, does not apply to the Northern Marianas. 
Title XV (formerly 
42 U.S.c. 
1361-1364), 
which had pertained 
to 
unemployment 
compensation 
for 
Federal 
employees, 
was 
repealed in 1966. 
Title 
XVI_ 
formerly provided for Payments 
to the States and 
certain insular areas 
to assist them in furnishing financial 
assistance 
to needy individuals who are aged 65 or more, 
or 
are blind, 
or are 
18 or over and are permanently and totally 
disabled. 
The 
title 
was, 
consistent 
with 
the treatment 
of 
otner adult assistance 
programs, 
repealed 
as 
to 
the States 
effective January 1, 1974. 
But it was preserved 
in the case 
of the Virgin Islands 
and Guam 
(and also Puerto Rico) 
(see 
note following 42 U.S.C. 1382 and subsequent sections), and it 
remains 
in effect 
in those areas today. 
This program is an 
alternative 
to assistance 
under 
Titles 
I, 
X, 
and 
XIv. 
A 
careful distinction 
is made 
in 42 U.S.C. 
1301(a)(1) 
between 
this 
former Title 
XVI 
and 
the 
new Title 
XVI, 
pertaining 
to 
Supplemental 
Security 
Income, 
and 
the 
territorial 
caps 
appearing in 42 U.S.C. 
1308 apply to the former Title XVI, as 
well as to Titles 
I, X, and XIV. 
As in the case of the other 
adult assistance programs, 
here too Payments are made on the 
basis of "State" plans approved by the Secretary of Health and 
1091 
192 
Ss 
es 
ssi 
re 
Memorandum No. 
42-3 
Human Services; American Samoa is excluded from coverage; and 
the Northern Marianas ought also to be excluded, 
given their 
inclusion 
in the "new" Title XvI--the Supplemental Security 
Income program--but 
this 
is not explicit 
and might well 
be 
made so. 
Current 
Title 
XVI 
ri 
Income 
for 
A 
Blind, 
and Disabled (42 ee .- c 1381-1383c). 
The "new" Title xvi, enacted in 1972 and effective on 
January 
1, 
1974, 
provides 
for 
direct 
Federal 
payments 
of 
Supplemental Security Income 
(SSI) 
to eligible beneficiaries 
who 
are 
65 
years 
of 
age 
or 
more, 
or 
are 
blind, 
or 
are 
disabled. 
It 
applies 
to 
the 
States 
and 
the 
District 
cf 
Columbia, 
but 
to none 
of 
the 
insular 
areas 
other 
than 
the 
Northern Marianas. 
The inclusion 
of 
the Northern Marianas 
stems from section 502(a)(1) of the Covenant, which explicitly 
so provides. 
(Although the official legislative history does 
not so state, 
it is understood that this was the result of the 
insistence 
during 
Covenant 
negotiations 
of 
the 
late 
Congressman Philip Burton.) 
The SSI program was intended to supplant the former 
adult assistance programs--Titles 
I, X, XIV, and the pre-1974 
Title XVI--so that such Titles ceased to apply to the States 
and the District when SSI became effective on January 
1, 1974. 
The former adult assistance programs remain in effect 
in the 
Virgin Islands and Guam (as well as Puerto Rico) subject to a 
cap (42 U.S.C. 
1301(a)(1), 
1308). 
They do not now apply and 
have never applied in Samoa. 
The desirability of their being 
made expressly inapplicable 
to the Northern Marianas, 
as 
a 
result 
of the uncertain 
effect 
of the 
language 
of section 
502(a)(1) 
of the Covenant, 
is discussed above under Title 
I 
and other pertinent Titles. 
The disparate treatment under the SSI program of U.S. 
citizens resident in the States, on the one hand, and those in 
most of the territories, 
on the other, presents an important 
and fundamental question of policy. 
The disparity was held 
not to be constitutionally objectionable in Califano v. Torres 
(435 
U.S. 
1 
(1978)), 
because 
(1) citizen-residents 
of 
the 
1092 
193 
Memorandum No. 42-3 
insular area there involved 
(Puerto Rico, 
but the principle 
applies equally to the other insular areas here involved) 
do 
not pay Federal income taxes, 
(2) costs of inclusion would be 
very high, and (3) larger benefits could be disruptive to the 
insular 
economy. 
But 
some 
territorial 
governments 
and 
residents have continued to seek the extension of SSI, basing 
their arguments essentially upon both equity and need. 
They 
argue that U.S. citizens should not be treated less favorably 
because 
they 
live 
in 
a 
territory 
rather 
than 
a 
State-- 
Particularly 
when such 
citizens 
do receive 
SSI benefits 
if 
they live in one such area, namely the Northern Marianas--and 
that territorial residents probably have a financial need that 
exceeds 
that 
of State 
beneficiaries 
generally. 
Among 
the 
arguments to the contrary are the heavy costs to the U.S., and 
the disruptive effect 
that such Federal 
SSI 
payments would 
have on local economies. 
As an example of the latter point, 
the Department of Health and Human Services calculated in 1989 
in connection with the proposed Guam Commonwealth Act that if 
SSI 
were 
extended 
to 
Guam, 
SSI 
benefits 
would 
represent 
roughly 
55% 
of the 
per capita 
income 
on Guam. 
No effort 
will be made here to resolve 
these argumeuts, 
on the ground 
that any conclusion reached here would be without significance 
in any event. 
The SSI program applies 
to the Northern Marianas on 
the same 
terms 
as 
it applies 
to the States. 
No statutory 
distinctions are made among the areas covered. 
Y the 
disruptive-to-local-economy 
argument 
caused 
Justice 
Marshall, 
in his dissent from the per curiam decision in Harris v. 
Rosario, 
446 
U.S. 
651 
(1980)--a 
decision 
pertinent 
to 
Aid 
to 
Families with Dependent Children and cited above under Title Iv, 
Part A--to offer the following observation: 
{The argument] 
suggests 
that programs designed 
to help 
the poor 
should 
be less 
fully applied 
in those 
areas 
where 
the 
need 
may 
be 
the 
greatest, 
simply 
because 
otherwise the relative poverty of recipients compared to 
other persons in the same geographic area will somehow be 
upset. 
(at pp. 655-656) 
1093 
T94 
Memorandum No. 42-3 
One 
section 
may 
warrant 
comment, 
because 
at 
first 
glance it appears that 
it could pose a problem to Samoans or 
in the Northern 
Marianas. 
(But 
on 
second 
glance, 
it does 
not.) 
In defining which "aged, 
blind, 
or disabled" persons 
can 
be 
beneficiaries 
of 
SSI, 
a 
provision 
at 
42 
U.S.C. 
1382c(a)(1)(B) requires that they be residents of the United 
States (which in effect means of the States, 
the District of 
Columbia, 
or 
the Northern Marianas), 
and 
that 
they also 
be 
either citizens or aliens admitted for permanent residence, 
or 
“otherwise permanently 
residing 
in the United 
States 
under 
color of law. 
. 
.". 
Most Samoans are noncitizen nationals, 
and as such they cannot be aliens, but those who have moved to 
the States--usually 
to Hawaii 
or the West Coast, 
where large 
Samoan 
communities 
exist--apparently 
qualify 
as 
permanent 
residents 
“under 
color 
of law". 
In addition, 
HHS advises 
informally 
that 
its 
regulations 
and 
guidelines 
treat 
"nationals" as "citizens", so that Samoans in the States would 
thereby be eligible. 
This section, however, has the effect of 
excluding the large alien population in the Northern Marianas, 
where such aliens, 
who have entered the Northern Marianas for 
a 
temporary 
period 
for 
employment, 
are 
believed 
now 
to 
outnumber local citizen-residents. 
Because under the Covenant 
the Federal 
immigration 
laws 
do 
not 
apply 
to 
the 
Northern 
Marianas, 
these workers are not aliens "lawfully admitted for 
permanent residence" 
as that phrase 
is used 
in Federal 
law. 
They thus 
do not meet 
the statutory 
requirement, 
and alien 
temporary 
workers 
in 
the 
Northern 
Marianas 
are 
therefore 
ineligible 
for SSI benefits.” 
*# In further elaboration of this point, 
HHS states: 
.- 
in order to be eligible for SSI, 
a noncitizen 
(or non- 
national) 
must 
be either 
(1) 
"lawfully admitted 
. 
. 
. 
for 
permanent residence" or (2) “permanently residing 
. 
. 
. under 
color of law" 
(otherwise known 
as PRUCOL). 
However, 
[any] 
suggestion that admission of guest workers under the laws of 
NMI would meet the first test is incorrect: 
lawful admission 
for a temporary period, 
no matter how long, 
does not satisfy 
this test. 
(continued...) 
1094 
195 
Memorandum No. 
42-3 
Title 
XVII. 
Grants 
for 
Planning 
Comprehensive 
Action 
to 
Combat Mental Retardation 
(42 U.S.C. 
1391-1394). 
Title XVII, added in 1963, provides for grants for the 
Purpose stated 
in the title, 
to the States and to the Virgin 
Islands, Guam, and Samoa (42 U.S.C. 
1391). 
The authorizations 
for appropriations have long since expired, 
but were they to 
be revived, 
the Northern Marianas would also be comprehended 
by operation of section 502(a)(1) 
of the Covenant. 
++-continued) 
Nor, 
under HHS regulations, 
can an alien permanently 
residing in NMI meet the PRUCOL test, since that test depends 
on the failure of the Immigration and Naturalization Service 
(INS) to take official action. 
20 CFR 416.1618(a) declares in 
part: 
"We 
will 
consider 
you 
to 
be 
permanently 
residing 
in 
the 
United States under color of law 
and you may be eligible for SSI 
benefits 
if 
you 
are 
an 
alien 
residing 
in 
the 
United 
States 
with 
the 
knowledge 
and 
permission 
of 
the 
Immigration 
and Naturalization 
Service 
and 
that agency does not contemplate 
enforcing your departure." 
INS has no jurisdiction over NMI, 
but the HHS regulations do 
not 
treat 
a comparable 
failure 
to act 
by the Commonwealth 
government 
as sufficient to establish PRUCOL status. 
HHS further advises that the Social Security Administration, which 
administers the SSI program, 
is unaware of any problems created by 
the lack of an option 
in the Northern Marianas 
to establish 
SSI 
eligibility on the basis of PRUCOL status. 
1095 
1G 
Memorandum No. 42-3 
Tith 
XVIII 
Health 
_Insurani 
for 
an 
Di 
led, 
"Medicare" 
(42 U.S.C. 1395-1395ccc). 
Title XVIII provides 
for the Medicare program. 
Its 
geographic 
application 
is 
the 
same 
as 
that 
of 
the 
Social 
Security System under Title II (see 42 U.S.C. 
1395x(x)), 
and 
accordingly Medicare applies to and within the Virgin Islands, 
Guam, 
Samoa, 
and 
the Northern Marianas. 
(For purposes 
of 
Medicare, 
"State" has the meaning accorded 
it at 42 U.S.C. 
410, where it includes expressly the Virgin Islands, Guam, and 
Samoa. 
Medicare applies to and within the Northern Marianas 
under either section 606 of the Northern Marianas Covenant, 
which extends 
to the Northern Marianas 
"benefits 
from 
the 
United States Social Security System", 
or section 502(a)(1), 
which makes applicable to the Northern Marianas 
“laws which 
provide federal services and financial benefits 
. 
. 
. 
as they 
apply to Guam".) 
These 
four areas 
are treated under 
the Medicare 
law 
precisely in the manner of the States, with one exception. 
In 
the 
States 
and 
the 
District 
of 
Columbia, 
payments 
for 
inpatient 
hospital 
services 
may 
be 
made 
on 
the 
basis 
of 
prospective rates 
(42 U.S.C. 
1395ww(d)(1)(A)(iii)), 
but this 
is 
not 
possible 
for 
the 
territories 
(42 
U.S.C. 
1395ww(d)(1)(B)). 
It 
seems 
probable 
that 
this 
exclusion 
results 
from 
the difficulty--perhaps 
the 
impossibility--of 
applying to these small and isolated territories the complex 
formula used for establishing prospective payment rates. 
Part 
of 
the 
formula 
is 
based 
on 
a 
"diagnosis-related 
group 
prospective 
payment 
rate” 
for 
the region, 
and such 
a rate 
would 
be 
hard 
to 
come 
by, 
or 
to 
compute, 
for 
a 
small 
territory. 
Apart 
from 
that 
provision, 
however, 
the 
four 
territories are accorded the same statutory treatment as the 
States. 
Two points warrant comment. 
First, 
in a few instances 
Puerto 
Rico 
receives 
special 
treatment. 
It 
does 
so 
for 
purposes of the payment on the basis of prospective rates for 
inpatient hospital services--the point just referred to above 
--with Puerto Rico being the subject 
or 
a long and complex 
provision for itself alone 
(42 U.S.C. 
1395ww(d)(9), 
and the 
related 
42 U.S.C. 
1395g(e)(1)). 
Puerto Rico’s comparatively 
1096 
197 
Memorandum No. 
42-3 
large size and population doubtless make such rates feasible 
there. 
Puerto Rico is also differently treated for purposes 
of automatic enrollment 
under Part B of Medicare, 
the part 
pertaining 
to Supplementary 
Medical 
Insurance 
Benefits 
for 
Aged and Disabled. 
(Part 
A pertains 
to Hospital Insurance 
Benefits.) 
Individuals are "deemed to have enrolled" in Part 
B if they meet certain 
statutory 
tests, 
including 
that 
of 
“residing in the United States, exclusive of Puerto Rico" (42 
U.S.C. 1395p(£)(3)). 
Second, 
two 
provisions 
of 
the 
Medicare 
law 
make 
reference to "citizens", 
in contexts that would appear 
to be 
potentially disadvantageous to noncitizen nationals in or from 
Samoa-—-but 
because 
HHS 
regulations 
and 
guidelines 
treat 
“nationals” 
as 
"citizens", 
there 
is 
in 
fact 
no 
practical 
problem. 
At 
42 U.S.C. 
1395i-2, 
provision 
is made 
for 
the 
enrollment under Part A of certain individuals not otherwise 
comprehended. 
Among 
the qualifications 
required 
for 
such 
enrollment 
is that the individual be a resident of the U.S. 
and 
either 
a 
citizen 
or 
an 
alien 
lawfully 
admitted 
for 
permanent 
residence 
(42 U.S.C. 
1395i-2(a)(3)). 
Similarly, 
individuals covered by Part A may enroll in Part B if they are 
65, 
residents 
of 
the 
U.S., 
and 
either 
citizens 
or 
aliens 
lawfully 
admitted 
for 
permanent 
residence 
(42 
U.S.C. 
13950(2)). 
As stated, HHS's willingness to treat nationals as 
citizens 
eliminates 
any 
need 
to 
modify 
these 
statutory 
provisions. 
‘itle 
XIX. 
Grants 
to 
Sta 
for Medical Assistance Programs, 
“Medicaid” 
(42 U.S.C. 
1396-1396s). 
Title XIX provides for the Medicaid program, 
a program 
under which the United States provides funds to the "States" 
for medical care 
for low income persons who are 
65 or over, 
blind, 
disabled, 
or 
members 
of 
families 
with 
dependent 
children. 
Grants are paid to States that have plans that meet 
Federal 
standards, 
but 
the 
State 
has 
leeway 
to determine 
eligibility and the level of aid. 
The territories are all eligible for Medicaid grants, 
with 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern 
1097 
193 
Memorandum No. 
42-3 
Marianas all defined as "States" for purposes of Title xXIx (42 
U.S.C. 
1301(a)(1)). 
They receive less generous grants than 
the 
States, 
however, 
owing 
to 
a different 
formula 
and 
a 
special cap on their grants. 
-- 
A key ingredient 
in determining 
the 
size of 
Medicaid 
grants 
to 
the 
States, 
as 
such, 
is 
the 
"Federal 
medical 
assistance 
percentage". 
Under 
42 U.S.C. 
1396d(b), 
that percentage 
takes 
into account 
the per capita 
income of 
the State, so that poorer States receive a greater percentage 
of their total costs from the Federal Government than do we 
more affluent States. 
For the States, however, 
the percentage 
can 
be no 
less 
than 
50% nor 
more 
than 
83%, 
while 
for 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the Northern 
Marianas 
(as 
well as Puerto Rico), the percentage “shall be 50 percentum". 
(If per capita income were the sole guide, it is probable that 
most territories would be entitled to 83%.) 
-- 
In addition, 
a separate cap is imposed for each 
area. 
Under 42 U.S.C. 
1308(c), the caps for fiscal year 1990 
and thereafter are for the Virgin Islands, 
$2.6 million; 
for 
Guam, 
$2.5 
million; 
for 
Samoa, 
$1,450,000, 
and 
for 
the 
Northern Marianas, 
$750,000. 
These sums correspond roughly 
with population figures. 
This disadvantageous treatment of the territories 
is 
well known to them and much criticized. 
It will be noted that 
it is prompted perhaps entirely by budgetary considerations, 
because 
treating 
the 
territories 
fully 
as 
"States" 
for 
Medicaid purposes 
would 
be costly. 
(In its 1987 
report 
on 
fully extending the benefits of this program, among others, to 
the insular areas, 
including Puerto Rico, 
GAO estimated that 
Medicaid costs 
to the U.S. 
would have risen 
$333 million 
in 
1984, 
but GAO cast doubt on that figure by pointing out the 
numerous variables that make an estimate close to impossible.) 
In 
any 
event, 
the 
argument 
based 
on 
fragile 
territorial 
economies 
(used, 
for example, 
in connection 
with 
SSI 
under 
Title 
XVI) 
would 
seem 
to 
have 
no 
application 
here. 
No 
recommendation is offered here for change, 
on the ground that 
a recommendation would be without value. 
1098 
193 
Memorandum No. 
42-3 
The Medicaid law contains a number of other provisions 
of particular application 
to insular areas, 
however, 
all of 
which are at least potentially of value to them. 
-- At 42 U.S.C. 
1396a(j), 
the Secretary of Health 
and Human 
Services 
is authorized 
to waive 
with 
respect 
to 
Samoa 
or 
the Northern 
Marianas 
“any requirement" 
of Title 
XIX--except for the Federal Percentage, 
the territorial cap, 
and the requirement that expenditures be made by the insular 
government for health services covered by the program. 
Such 
a waiver was enacted for Samoa when the program was extended 
there in 1982, and the Northern Marianas Commission on Federal 
Laws recommended 
its extension 
to that 
area, 
on 
the ground 
that medical 
services 
in both areas 
were 
similar, 
with 
the 
government 
serving 
as 
the 
principal 
provider 
of 
health 
services. 
The waiver authority was extended to the Northern 
Marianas in 1987,5/ 
-- At 42 U.S.C. 
1396a(a)(23), 
persons 
receiving 
Medicaid assistance must be free to choose their own health 
Provider, 
but the Virgin Islands and Guam 
(and Puerto Rico) 
are 
expressly 
exempt 
from 
this 
Provision. 
The 
Northern 
Marianas 
would 
also 
be 
exempt, 
by 
operation 
of 
section 
502(a)(1) 
of the Covenant, 
and Samoa 
could 
be made exempt 
under the waiver authority of 42 U.S.c. 
1396a(3), 
discussed 
above. 
The function of the territorial exclusion is to permit 
the insular areas 
to focus 
on their 
own public health 
care 
systems, 
which are used by most of the insular residents. 
~- 
At 42 U.S.C. 
1396b(r) requirements are imposed 
on the "States" 
for the use of mechanized claims processing 
and information retrieval systems, 
but any “Commonwealth, 
or 
territory or Possession, 
of the United States" may obtain an 
exemption 
(42 U.S.C. 
1396b(r)(7)(A)(ii)). 
i 
Yin 
its 
report 
of 
August 
1985, 
the 
Northern 
Marianas 
Commission 
on 
Federal 
Laws 
gave 
extended 
consideration 
to 
the 
Medicaid 
program 
(pp 160-172), 
but 
its 
sole 
recommendation 
for 
change 
in 
the 
law 
was 
that 
the 
waiver 
authority 
for 
Samoa 
be 
extended to the Northern Marianas. 
As noted, that was accomplished 
in 1987. 
1099 
Memorandum No. 
42-3 
-- At 42 U.S.C. 
1396(u), 
provision 
is made 
for 
reduced Federal payments in connection with erroneous excess 
payments by a State, but the provision does not apply to the 
insular areas 
(42 U.SC. 
1396b(u)(3)(A)(4)). 
-- At 42 U.S.C. 1396r-6, requirements are imposed 
with 
respect 
to 
the extension 
of eligibility 
for medical 
assistance 
in connection 
with families receiving 
aid under 
Part 
A of Title 
IV 
(the AFDC program). 
These requirements 
apply only to the States as such and the District of Columbia 
(42 U.S.C. 
1396r-6(c)(2)). 
Title 
Xx. 
Block Grants 
to States 
for 
Social 
Services 
(42 
U.S.C. 
1397-1397e). 
The 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the Northern 
Marianas are all entitled to receive block grants under Title 
XX 
(42 U.S.C. 
1301(a)(1)). 
Grants 
are 
for 
the purpose 
of 
services directed toward such goals as eliminating dependency, 
achieving 
self-sufficiency, 
preventing 
neglect 
or 
abuse 
of 
children 
or 
adults, 
preventing 
inappropriate 
institutional 
care and arranging for it when appropriate 
(42 U.S.C. 
1397). 
The 
States 
receive 
grants, 
within 
the 
amounts 
authorized, 
based on their respective populations 
(42 U.S.C. 
1397b(b)), 
while 
the 
Virgin 
Islands, 
Guam, 
the 
Northern 
Marianas, 
and Samoa are in effect subject to a special set- 
aside, based upon amounts received by them under prior law for 
the fiscal year 1981 
(42 U.S.C. 
1397b(a)). 
For purposes of 
the chart at the beginning of this memorandum that shows the 
application 
to the territories 
of each 
title 
of 
the Social 
Security 
Act, 
and 
the presence 
of 
a territorial 
cap, 
this 
Title XX set-aside 
is treated as a cap. 
(Samoa was not then 
covered 
by this 
Title, 
but Title 
XX was 
extended 
to it 
in 
1987, 
and the law provides that Samoa’s grant is the same as 
that 
to 
the 
Northern 
Marianas, 
adjusted 
to 
reflect 
their 
relative populations.) 
It is not possible to determine on the 
basis 
of the pertinent 
laws themselves whether 
the insular 
areas receive grants under Title XX that are less generous, 
comparatively, 
than 
those 
received by the States. 
It does 
1100 
_ oer eo 
Memorandum No. 42-3 
appear, however, that the insular areas experienced in fiscal 
years 
1982 
through 
1988 
a 
comparative 
increase 
in 
their 
entitlements, inasmuch as such entitlements are required to be 
calculated 
on 
the basis 
of a total program amount 
of $2.9 
billion, 
while the amounts authorized 
for the States under 
Title 
xx 
for 
those 
fiscal 
years 
1982 
through 
1988 
are 
calculated 
on 
the basis 
of amounts 
under 
$2.9 billion 
(42 
U.S.C. 
1397b(c)). 
The 
Title 
contains 
no other 
provisions 
of special 
application to the insular areas. 
Conclusion: 
The Social Security Act presents 
fundamental policy 
questions concerning 
the treatment 
of the territories, 
and 
these 
questions 
are 
likely 
to 
continue 
to 
give 
rise 
to 
complaints from the territories until "State-like" treatment 
is accorded them: 
-- by eliminating the caps on Federal expenditures 
for purposes 
of the adult assistance programs 
(Titles 
I, X; 
XIV, and the "old" Title xvI), the Program of Aid to Families 
with 
Dependent 
Children 
(Title 
Iv-A), 
and Medicaid 
(Title 
XIX); 
>> by removing the unfavorable allotment formula 
for the territories under Titles IV-A and XIX; and 
-- by extending to the Virgin Islands, Guam, and 
Samoa the Supplemental Security Income program of Title xvI 
(and 
at 
the 
same 
time 
eliminating 
the 
adult 
assistance 
Programs in those areas). 
The problem of State-like treatment 
for the territories, which these changes would create, is made 
vastly the more difficult because Puerto Rico is for the most 
Part subject to the same treatment under the Social Security 
Act 
as 
are 
the 
territories 
generally--so 
that 
the 
fiscal 
consequences to the U.S. 
are potentially very great. 
Suggestions 
of 
a lesser 
sort 
are 
contained 
in the 
preceding title-by-title discussion: 
1101 
Memorandum No. 
42-3 
-- The desirability of making clear that the adult 
assistance programs of Titles I, X, and XIV, and of the "old" 
Title XVI, do not apply to the Northern Marianas, 
inasmuch as 
the SSI program is applicable there; 
-- 
The desirability 
of extending 
to Samoa 
these 
adult assistance programs, while recognizing that Samoa’s own 
cultural system may make them less important there; 
-- The desirability of establishing a special cap 
for the Northern Marianas for purposes of Titles IV-A and IV- 
E, to avoid a possible windfall if the Guam cap is applied to 
the Northern Marianas; 
and 
-- The 
desirability 
of 
certain 
perfecting 
amendments 
as to Samoa, 
identified 
in the discussions under 
Titles 
II, 
IV-B, 
and XI-A; 
and as 
to the Northern Marianas 
under SSI (Title XVI). 
Federal 
agency 
comments: 
Comments 
were 
requested 
from 
the 
Department of Health and Human Services and the Department of 
Justice. 
All comments received have been reflected above. 
' 
1102 
bee 
Memorandum No. 
42-4 
November 1989 
Subject: 
(a) Low-Income Housing 
Title 42, Chapter 8 (42 U.S.C. 
1404a-1440) 
(b) Slum Clearance, Urban Renewal, 
and Farm Housing 
Title 42, Chapter 8A (42 U.S.C. 
1441-14900) 
(c) Housing of Persons Engaged in National Defense 
Title 42, Chapter 9 (42 U.sS.c. 
1501-1594f) 
Comment: 
Chapters 8 and 8A now apply to the territories, 
with the 
latter of special importance to them because it contains laws 
administered 
b* 
the 
Farmers 
Home 
Administration. 
The 
application 
of 
Chapter 
9 
is 
less 
certain 
but 
probably 
sufficient, 
and academic, 
at this time. 
Discussio: 
(a) Low-Income Housing (42 U.S.C. 
1404a-1440). 
The housing laws appearing in Chapter 8 of Title 
42, 
which 
constitute 
a part 
of 
the 
Housing 
Act 
of 
1937, 
provide various 
forms of Federal assistance--grants, 
loans, 
"commitments", 
and contributions--to 
"State" 
public housing 
agencies 
to assist 
in remedying 
"the unsafe 
and unsanitary 
housing conditions and the acute shortage of decent, safe, and 
sanitary dwellings 
for families 
of lower income 
.. 
." 
(42 
U.S.C. 
1437). 
Each 
time 
the 
term 
"State" 
is defined, 
it 
includes 
the 
territories 
and 
possessions 
(42. 
U.S.C. 
1437a(b)(7), 1440(b)(2)(B)), so that the Virgin Islands, Guam, 
Samoa, and the Northern Marianas are covered by the provisions 
of this 
chapter. 
Most 
such provisions 
derive 
from 
a 
1974 
enactment, 
so section 
502(a)(2) 
of the Covenant operates 
to 
include the Northern Marianas. 
There are no provisions of particular application 
to the territories, 
and none that would appear to impede the 
implementation 
of the provisions 
of 
this 
chapter 
in any 
of 
them. 
Given housing practices in some of the territories that 
differ from those in the States, and given the local land laws 
in some that depart markedly from usual U.S. 
practice, 
it is 
possible 
that 
some 
tailoring 
might 
be 
required 
to 
meet 
1103 
ry 
Memorandum No. 42-4 
territorial needs. 
This is particularly true in Samoa and the 
Northern Marianas. 
But no such provision 
is known 
to have 
been identified, 
and 
it therefore 
appears 
that 
the current 
State-like treatment for them all serves them sufficiently. 
It is worth noting that the chapter takes account 
of the status 
of most Samoans 
as noncitizen 
nationals 
(42 
U.S.C. 1436a(c), 
(d)), and that Davis-Bacon wage rates must be 
paid in connection with Federally-assisted projects (42 U.S.C. 
14373, 
1440(g)). 
(b) Slum Clearance, 
Urban Renewal, 
and Farm Housing 
{42 U.S.C. 
1441-14900). 
Chapter 
8A 
of 
Title 
42 
contains 
much 
of 
the 
Housing Act of 1949 and acts supplementary and amendatory to 
it. 
Loans 
and grants 
under 
the 
slum clearance 
and urban 
renewal 
provisions 
(42 
U.S.C. 
1450-1469c) 
ceased 
to 
be 
authorized after January 1, 1975 (42 U.S.C. 5316(a)), but they 
were before that available to "territories 
and possessions" 
(see former 42 U.S.C. 
1460(h)). 
The important provisions on farm housing, however, 
and the provision of Federal financial assistance through the 
Farmers Home Administration, 
remain 
(42 U.S.C. 
1471-14900). 
The 
Farmers 
Home 
Administration 
is 
authorized 
to 
extend 
assistance 
in 
"the 
Virgin 
Islands, 
the 
territories 
and 
possessions of the United States” and certain other areas (42 
U.S.C. 
1471(a)), 
and it has functioned 
in them all, 
to the 
great 
benefit 
of 
territorial 
populations. 
The 
Northern 
Marianas are covered by operation of section 502(a){2) of the 
Covenant. 
There 
are 
no 
provisions 
in 
the 
farm 
housing 
sections 
that 
are peculiar 
to any 
of the territories, 
and 
those that could create difficulties seem to be drafted so as 
to avoid them. 
For example, 
42 U.S.C. 
1480(d) authorizes the 
use of U.S. Attorneys in the collection of claims, 
and there 
is 
no 
U.S. 
Attorney 
with 
jurisdiction 
in 
Samoa; 
but 
the 
section also permits use of “any other attorney" on a contract 
1104 
115 
Memorandum No. 42-4 
basis, 
so that difficulty 
can be overcome. 
Similarly, 
the 
security required for a loan need not involve the borrower's 
real property, which could run afoul of restrictive land laws 
in Samoa or the Northern Marianas 
(42 U.S.C. 
1472(a), 
(b)). 
In sum, 
the farm housing provisions 
in this chapter appear 
adequate 
to meet peculiar territorial 
requirements, 
and as 
noted, the farm housing program functions with success in them 
all. 
There is no definition of "State", 
although the 
term is often used throughout the farm housing sections. 
(Two 
examples of many that could be cited are 42 U.S.C. 
1490e on 
technical 
assistance, 
and 
42 U.S.C. 
1490m 
on preservation 
grants.) 
The problem 
is made 
the greater 
by the explicit 
reference to territories and possessions, 
as well as States, 
in 42 U.S.C. 
1490h, concerning taxation. 
It is probable that 
the reference 
to 
the 
territories 
in 
42 U.S.C. 
1471(a) 
is 
sufficient 
to carry through 
the remainder of 
the chapter’s 
provisions, 
but to insure that 
it does, 
it would be well 
to 
add an appropriate definition when 
a convenient legislative 
vehicle is at hand. 
(c) Housing of Persons Engaged in National Defense (42 
U.S.C. 
1501-1594f). 
Many 
of the housing 
laws 
formerly contained 
in 
Chapter 9 of Title 
42 have been repealed, 
others have been 
omitted as executed, 
and there seems to be rather little life 
in those that remain. 
Many were enacted in 1940 and most of 
the remainder 
no later 
than 
the early 
1950’s; 
and most of 
these have not been amended (except for nonsubstantive changes 
in nomenclature) 
for about 40 years. 
They do not, therefore, 
require extensive attention. 
Nevertheless, although these laws contain few tidy 
provisions concerning their territorial application, 
they all 
contain language that would point toward their application to 
the territories,if other statutory circumstances were met. 
1105 
Memorandum No. 
42-4 
Subchapter 
I, 42 U.S.C. 1501-1506 (entitled "Projects 
Generally", 
which dates 
from 
1940 
and which authorizes 
the 
heads of the military departments and the housing department 
to 
cooperate 
in 
connection 
with 
housing 
for 
enlisted 
personnel, 
junior 
officers, 
and 
defense 
workers) 
contains 
internal 
references 
to the Housing 
Act 
of 
1937 
(42 U.S.C. 
1502, 
1503, 
1504), 
and as explained above at 
(a), 
that Act 
applies to the “territories and possessions". 
Subchapter 
II, 42 U.S.C. 
15221524 (entitled "Defense 
Housing", 
which 
also 
dates 
from 
1940, 
but 
only 
disposal 
provisions 
remain) 
contains 
no-~ 
extant 
provisions 
on 
geographical application. 
But there remains at 42 U.S.C. 1547 
(which 
is applicable 
to Subchapters 
II-VII) 
a section 
that 
preserves 
the civil and criminal 
jurisdiction of a "State", 
"including any Territory or possession", over Federal defense 
housing 
areas. 
The 
intent 
was 
doubtless 
to 
include 
the 
territories 
in the affected subchapters of Chapter 9. 
Subchapter 
VIT, 
42 
U.S. 
C. 
1581-1590 
(entitled 
"Disposal 
of War and Veterans’ 
Housing", 
dating 
from 1948) 
does contain 
a tidy definition. 
At 
42 U.S.C. 
1590(e), 
the 
term "State" is defined to include any "Territory, dependency, 
or possession". 
Subchapter 
VIII, 
42 
U.S.C. 
1591-1591d 
(entitled 
"Critical 
Defense 
Housing 
Areas", 
dating 
from 
1951) 
has 
substantially expired 
(42 U.S.C. 
1591c). 
Subchapter 
IX, 
42 
U.S. 
C. 
1592-15920 
(entitled 
"Defense Housing and Community Facilities and Services" dates 
from 
1951 
and authorizes 
the Secretary of Housing and Urban 
Development 
to 
provide 
housing 
for 
defense 
and 
military 
personnel) 
applies to the "Territories, 
and possessions" 
(42 
U.S.C, 
1592n). 
Subchapter 
XI, 
42 
U.S. 
C. 
1594-1594 
(entitled 
“Housing for Military Personnel", dating from 1955) 
is silent 
as to its geographical application, except that it applies in 
part to the construction of housing on U.S. 
land "on or near 
a military 
reservation" 
(42 
U.S.C. 
1594(a)). 
That 
would 
1106 
117 
°° 8 = 
So 
Memorandum No. 
42-4 
probably suffice, 
but it is more likely that the laws in this 
subchapter 
are 
moribund, 
to judge 
from 
internal 
dates 
(42 
U.S.C. 
1594a). 
The 
inclusion 
of 
the 
territories 
appears 
wholly academic at this time. 
Conclusion: 
The laws discussed above, contained in Chapters 8, 8A, 
and 9 of Title 
42, do not appear to require modification 
to 
meet 
territorial 
needs 
at 
this 
time, 
although 
a perfecting 
addition 
to Chapter 8A (to provide 
a definition of "State") 
could have value. 
$ 
Federal 
agency 
comments: 
None 
have 
been requested 
because 
none 
appear necessary. 
1107 
113 
Memorandum No. 42-5 
November 1989 
Subject: 
(a) Compensation 
for 
Disability 
or 
Death 
to 
Perscns 
Employed at Military, 
Air, 
and Naval Bases Outside 
United States 
The Defense Base Act 
Title 42, Chapter 11 
(42 U.S.C. 
1651-1654) 
(b) Compensation 
for 
Injury, 
Death, 
or 
Detention 
of 
Employees of Contractors with United States Outside 
United States 
The War Hazards Compensation Act 
Title 42, Chapter 12 (42 U.S.C. 
1701-1717) 
Comment: 
The Defense Base Act and the War Hazards Act both apply 
to 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern 
Marianas--although Guam has received a broad waiver under the 
Defense Base Act with respect to contracts of the Department 
of Defense. 
No other territory is known to have experienced 
any 
difficulties 
with 
respect 
to 
the 
application 
of 
the 
Defense Base Act, 
and none with respect to the War Hazards 
Act. 
Discussion: 
(a) The Chapter entitled Compensation for Disability 
or Death to Persons Employed at Military, Air, and Naval Bases 
Qutside 
United 
States 
(42 
U.S.C. 
1651-1654) 
contains 
the 
Defense 
Base Act, 
which was until 
recent years 
a cause 
for 
consternation in ‘Guam. 
That problem has apparently now been 
eliminated. 
The Defense Base Act, 
enacted 
in 1941 
and often 
amended in the 20 years that followed (but not since), extends 
coverage of the Longshore and Harbor Workers Compensation Act 
(see Memorandum 
No. 
33-4) 
to employees who suffer death or 
injury in the course of their employment, 
if that employment 
is 
-- 
"upon any lands occupied or used by the United 
States for military or naval purposes in any Territory or 
possession outside the Pont tacnter United States... 
(42 U.S.C. 1651(a)(2))7 
1108 
19 
Memorandum No. 
42-5 
-- "upon 
any 
public 
work 
in 
any 
Territory 
or 
possession outside the continental United States. 
. 
. if 
such employee 
is engaged 
in employment 
at such place 
under the contract of a contractor 
. 
. 
. with the United 
States 
. 
. 
." (42 U.S.C. 
1651(a)(3). 
The Act makes 
other 
kinds 
of "employment" 
subject 
to 
the 
Longshore and Harbor Workers Compensation Act as well (see 42 
U.S.C. 1651(a) generally), but they are not now relevant. 
The 
term "continental United States" is defined to nzan the States 
and the District of Columbia (42 U.S.C. 1651(b)(4)). 
In light 
of that definition, the two provisions quoted above make clear 
that the Defense Base Act applies to the Virgin Islands, Guam, 
and American Samoa. 
Inasmuch 
as 
the Act applies differently 
to the 
States and the territories, section 502(a)(2) of the Covenant 
does not serve to extend the Act to the Northern Marianas. But 
it may reasonably be argued that section 105 of the Covenant 
does 
so, 
inasmuch 
as 
the Defense 
Base 
Act could 
"be made 
applicable 
to the several 
States" 
if 
the Congress 
were 
to 
choose 
to do so. 
Accordingly, 
it is not necessary that 
the 
Northern Marianas be expressly named in order for the Defense 
Base Act to apply to it; 
it applies without express mention 
pursuant to section 105, 
The remedy 
of the Longshore 
and Harbor Workers 
Compensation 
Act 
is exclusive, 
and 
"in place" 
of whatever 
liability the employee might otherwise experience under local 
worker's compensation laws (42 U.S.C. 1651(c)). 
Additionally, 
the beneficiaries are "employees", with no distinction made as 
to citizenship, 
nationality, 
or residence. 
In sum, 
aliens 
employed on U.S. contracts ina territory are as fully covered 
as U.S. citizen employees. 
The application of the Defense Base Act to Guam 
became an issue of moment 
to employers there in the 1970’s, 
when insurance premiums 
for insurance 
contracts 
written 
on 
Guam suddenly rose dramatically and multiplied several-fold, 
allegedly placing Guam’s local contractors 
at a competitive 
disadvantage 
in 
bidding 
on 
Defense 
Department 
contracts. 
1109 
¥2v 
Memorandum No. 
42-5 
Whatever the premiums, 
they became in most cases part of the 
contract cost that was ultimately borne by the United States. 
In this state of affairs, 
the Department of Labor in a letter 
of April 14, 
1982, 
to the 
Department 
of Defense 
issued 
a 
waiver of the Defense Base Act with respect 
to all contracts 
of the Department of Defense on Guam. 
The Secretary of Labor 
is given authority to issue waivers under the Act (42 U.S.C. 
1651(e)). 
The Department of Labor reports informally that the 
1982 Guam waiver was unusual, 
and apparently unique, 
in that 
it 
extended 
to 
all 
Defense 
Department 
contracts, 
without 
limitation as to the duration of the waiver, 
and the waiver 
applies 
to all employees, 
including 
U.S. 
citizens. 
It 
is 
reportedly highly unusual 
for the Labor Department 
to waive 
the application of the Act with respect to U.S. citizens, 
and 
most waivers in the past have been for particular contracts in 
particular foreign countries. 
No other area, whether it be a 
U.S. territory or a foreign country, 
has received so broad a 
waiver. 
The Defense Base Act continues 
to apply to Guam 
with respect to "employment" of the kind described above under 
42 U.S.C. 1651(a)(2) and (3) by a Federal department of agency 
other 
than 
Defense, 
and 
it 
applies 
fully 
to 
the 
Virgin 
Islands, 
Samoa, 
and 
the 
Northern 
Marianas. 
None 
is 
the 
subject of any waiver under the Act--but 
a waiver could be 
ootained if a case were made, 
as in the case pressed by Guam 
in the 1970’s and early 1980's. 
Mention should be made of the court jurisdiction 
provision at 42 U.S.C. 
1653(b), 
a provision that is unusual 
because 
it would appear not to create 
a problem 
for 
Samoa, 
which has no Federal District Court. 
The subsection provides 
in part that judicial proceedings in respect toa compensation 
order under the Defense Base Act can be instituted 
“in the 
judicial 
district 
nearest 
the base 
at which 
the 
injury 
or 
death occurs". 
The U.S. District Court in Hawaii, thus, would 
be available for a death or injury order arising in Samoa. 
(b) The 
Chapter 
entitled 
Compensation 
for 
Injury, 
Death, 
or Detention of Employees of Contractors with United 
States Outside United States 
(42 U.S.C. 
1701-1717) 
contains 
the War Hazards Compensation Act, enacted 
in 1942 but still 
1110 
beet 
Memorandum No. 
42-5 
live. 
Like 
the 
Defense 
Base 
Act, 
it 
too 
treats 
the 
territories 
differently 
from 
the 
States, 
but 
in 
a manner 
unlikely to be objectionable 
to them. 
The 
War 
Hazards 
Compensation 
Act 
provides 
compensation for injury or for death resulting from injury if 
the injury “proximately results 
from a war-risk hazard" 
(42 
U.S.C. 
1701(a)); 
and a war-risk hazard means one arising not 
only from 
a war 
in which 
the U.S. 
is engaged, 
or 
an armed 
conflict in which the U.S. is engaged without a declaration of 
war, but also "a war or armed conflict between military forces 
of 
any 
origin, 
occurring 
within 
any 
country" 
(42 
U.S.C. 
1711(b))}. 
The Act thus has potential application at almost 
any time. 
The Act provides that certain persons who suffer 
injury or death from a war-risk hazard are to be compensated 
under the Federal Employees Compensation Act, 
as though they 
are civil employees of the U.S. 
(see Memorandum No. 5-1, Part 
III(3)). 
The persons 
so covered include 
the following 
now 
pertinent: 
-- a person "engaged by the United States under a 
contract 
for 
his 
personal 
services 
outside 
the 
continental United States", 
~~ 
a person employed 
in a nonappropriated 
fund 
activity by the Department 
of Defense 
(post exchanges, 
ships’ 
stores, 
and 
the like) 
"outside 
the continental 
United States", 
and 
-- a person employed to provide welfare or similar 
services for service personnel "outside the continental 
United States" 
(42 U.S.c. 
1701(a)(2), 
(3), and (5)). 
The 
“continental 
United 
States" 
means 
the 
States 
and 
the 
District of Columbia (42 U.S.c. 
1711(£)). 
That definition of 
"continental United States" makes clear that the Act applies 
to 
the 
virgin 
Islands, 
Guam, 
and 
American 
Samoa. 
The 
14 
122 
Memorandum No. 42-5 
reasoning set out in part (a) of this memorandum, pertaining 
to the application of the Defense Base Act to the Northern 
Marianas, applies equally here. 
It should, thus, be concluded 
that 
the War Hazards Compensation Act also applies 
to the 
Northern Marianas, and that this result follows from section 
105 
of 
the 
Covenant, 
notwithstanding 
the 
fact 
that 
the 
Northern Marianas is not specifically named. 
Obviously the States and the territories receive 
different treatment under the War Hazards Compensation Act, 
and that fact often triggers in this study a recommendation 
for a suggested change in the law. 
But none is warranted in 
this case. 
The territories suffer no burden, and in fact may 
derive 
an 
indirect 
benefit 
from 
their 
treatment, 
because 
compensation 
payments 
in the circumstances 
stated 
are 
not 
their responsibility. 
Conclusion: 
The Defense Base Act and the War Hazards Compensation 
Act require no change to meet the needs of the territories. 
Waiver 
authority 
contained 
in 
the 
former, 
and 
used 
in 
connection 
with 
Guam, 
is available 
through 
administrative 
action should the application of the former become onerous in 
any area. 
Federal 
agency 
comments: 
Comments 
were 
requested 
from 
the 
Department 
of Labor 
and 
the 
Department 
of Justice. 
All 
comments received are reflected above. 
1112 
193 
Memorandum No. 42-6 
November 1989 
Revised December 1991 
Subject: 
(a) School Lunch Programs 
Title 42, Chapter 13 (42 U.s.c. 
1751-1769e) 
(b) Child Nutrition 
Title 42, Chapter 13A (42 U.S.c. 
1771-1789) 
| 
Comment: 
These Federal feeding programs are fully applicable to 
| 
the 
territories 
subject 
to 
this 
study, 
and 
accord 
them 
treatment 
at least 
as 
favorable 
as 
that 
accorded 
to 
the 
States. 
Discussion: 
(a) Chapter 
13 entitled School 
Lunch Programs 
(42 
U.S.C. 
1751-1769e) 
contains 
the National 
School Lunch Act. 
The 
Act 
applies 
in 
full 
to 
the 
territories 
that 
are 
the 
subjects of this study, and its benefits are available to them 
(with one exception, 
discussed below, 
which 
is probably of 
value to them) on the same basis as they are available to the 
States. 
It involves the distribution of assistance payments 
and of agricultural commodities and other food to the States 
for the operation of several nonprofit lunch programs, among 
them a school lunch program, 
a summer food service program, 
and a program to provide nonprofit food service to children in 
institutions providing child or adult day care. 
(Breakfasts 
and suppers also are covered in the child and adult day care, 
and the summer food service programs). 
The Act also includes 
@ 
program 
to 
provide 
meal 
supplements 
for 
children 
in 
afterschool care. 
The term "State" has included the Virgin Islands 
from the date of enactment of the statute in 1946. 
It was 
expanded to include Guam in 1952, Samoa in 1962, and the Trust 
Territory 
in 
1975 
(42 
U.S.C. 
1760(d) (1). 
The 
Northern 
Marianas are comprehended by operation of section 502(a)(2) of 
the Covenant, and are referred to explicitly in several recent 
amendments 
to the Act 
(42 U.S.C. 
1760(£), 
1761(a)(1)), 
so 
there 
can 
be 
no doubt 
that 
that 
area 
is 
included. 
The 
formulae 
for 
the 
distribution 
of 
Federal 
aid 
does 
not 
distinguish between States and territories 
(42 U.S.C. 
1753, 
1759a)), and those formulae confer greater benefits on poorer 
children 
(42 
U.S.C. 
1753(b)(2), 
1759a(a)(1), 
which 
would 
result in relatively greater assistance for the territories. 
1113 
194 
: 
: 
Memorandum No. 42-6 
As 
a point of historical 
interest, 
it is worth 
noting that in its early years, 
the National School Lunch Act 
treated 
the 
territories 
to which 
it 
then 
applied--Alaska, 
Hawaii, 
Puerto Rico, 
and the Virgin Islands--by means 
of a 
set-aside. 
No 
more 
than 
3 
percent 
of 
the 
amounts 
appropriated, 
or of food purchased, 
could be distributed 
to 
them under the Act (42 U.S.C., 
1946 ed., 
1753, 
1754). 
Since 
set-asides for them could disfavor the territories, 
and in any 
event 
accord 
them treatment 
that differs 
from that of the 
States, 
the abandonment of the set-aside here can reasonably 
be viewed as representing progress. 
As noted above one provision of the Act treats the 
territories 
differently, 
but 
almost 
certainly 
to 
their 
benefit. 
Under 
42 
U.S.C. 
1760(f), 
the 
Secretary 
of 
Agriculture may "establish 
appropriate 
adjustments” 
to the 
formulae cited above in the case of the Virgin Islands, Guam, 
Samoa, 
and the Northern Marianas--and also in the case of the 
States 
of Alaska and Hawaii 
and the Commonwealth 
of Puerto 
Rico--in order "to reflect the differences between the costs 
of providing lunches and breakfasts 
in those States and the 
costs 
of 
providing 
lunches 
and 
breakfasts 
in 
all 
other 
States". 
This provision was added in 1978. 
While the readily 
available legislative history is silent 
as 
to the rationale 
for the provision (1978 U.S. Code Cong. and Admin. News 9227, 
9254), the inclusion of two States among the areas that can be 
affected by it means that the authority could not be used to 
reduce 
benefits. 
Its 
purpose 
is, 
the 
Department 
of 
Agriculture advises, to allow the Department of Agriculture to 
increase 
its per meal payments 
to these noncontiguous areas 
when they can demonstrate higher per capita meal costs than in 
the United States as a whole. 
Such higher costs often result 
from 
the high 
costs 
of transportation 
of 
food 
and nonfood 
items which must be imported to those areas. 
The only other special reference to a territory is 
now obsolete: 
42 U.S.C. 
1760(d)(4) 
provides that per capita 
income data for Samoa "for periods ending before July 1, 1967" 
may be disregarded in certain computations--almost certainly 
owing to the unavailability or unreliability of such data. 
1114 
Memorandum No. 
42-6 
The 
territories, 
thus, 
fare 
well 
under 
this 
important law. 
(b) Chapter 
13A entitled Chila Nutrition 
(42 U.S.c. 
1771-1789) 
contains 
the 
Child 
Nutrition 
Act 
of 
1966, 
as 
amended, 
a statute that builds upon the National School Lunch 
Act 
(42 
U.S.C. 
1771). 
It 
provides 
additional 
programs 
relating to food and other assistance, among them a program to 
encourage milk consumption in schools, 
a breakfast program, 
a 
Preschool feeding program, 
a supplementary 
food program 
for 
mothers 
and 
infants 
and 
young 
children, 
and 
a program 
of 
nutrition education. 
The territories are in all connections 
covered 
(42 
U.S.C. 
1772(a)(3), 
1784(1)), 
with 
the 
Virgin 
Islands, Guam, 
and Samoa being expressly named, and with the 
Northern 
Marianas 
comprehended 
by 
operation 
of 
section 
502(a)(2) 
of the Covenant. 
No other provision makes special 
reference 
to 
the 
territories; 
they 
are 
in 
all 
particulars 
treated as are the States. 
No provision appears that would 
create special difficulties for them, 
so they are adequately 
accommodated under this law. 
Conclusion: 
Neither the National School Lunch Act nor the Child 
Nutrition 
Act 
of 
1966 
require 
change 
to meet 
territorial 
needs. 
Federal 
agency 
comments: 
Comments 
were 
requested 
from 
the 
Department of Agriculture and the Department of Justice. 
All 
comments received are reflected above. 
1115 
Memorandum No. 42-7 
November 1989 
Subject: 
(a) Reciprocal Fire Protection Agreements 
Title 42, Chapter 15A (42 U.S.C. 
1856-1856d) 
{b) National Science Foundation 
Title 42, Chapter 16 (42 U.S.C. 
1861-1887) 
(c) Contracts for Scientific and Technological Research 
Title 42, Chapter 16B (42 u.S.C. 
1900-1900b) 
(d) Youth Medals 
Title 42, Chapter 18 (42 U.SC. 
1921-1926) 
(e) Water Resources Planning 
Title 42 Chapter 19B (42 U.S.C. 
1962-1962d-20) 
Comment: 
Some 
of 
the 
laws 
concerning 
the 
National 
Science 
Foundation 
would 
profit 
from 
amendments 
clarifying 
their 
territorial application, but this is nonurgent because in most 
important respects the Foundation’s authority with respect to 
the 
territories 
is 
now 
clear 
and 
sufficient. 
The 
law 
concerning 
youth 
medals 
should 
be 
amended 
to extend 
its 
provisions beyond "citizens" 
to "nationals". 
In all other 
respects these chapters of Title 42 are now adequate to meet 
territorial needs. 
Discussion: 
(a) The chapter entitled Reciprocal Fire Protection 
Agreements (42 U.S.C. 1856-1856d) authorizes Federal agencies 
that provide fire protection for U.S. property to enter into 
reciprocal 
agreements 
for 
mutual 
aid 
in 
furnishing 
fire 
protection with any "fire organization" that maintains nearby 
fire 
protection 
facilities. 
The 
term 
"fire 
organization" 
includes 
any 
entity maintaining 
fire protection 
facilities 
“within the United States, 
its Territories and possessions" 
(42 U.S.C. 
1856(c)), 
so the territories that are subjects of 
this 
study 
are 
all 
included--the 
Northern 
Marianas 
under 
section 502(a)(2) of the Covenant, because the law was enacted 
(and it applied to Guam) 
in 1955. 
(b) The 
ional 
ien 
don (42 U.S.C. 
1861- 
1887), created in 1950 and now a component of the Department 
of Education, exists to encourage and support basic scientific 
research, 
which 
it does 
in 
significant 
part 
by awarding 
1116 
127 
Memorandum No. 
42-7 
scholarships and graduate fellowships for study and research 
in the sciences and engineering. 
The territories and their 
people are in all important respects covered by the law. 
Some 
imperfections 
of 
drafting 
appear 
with 
respect 
to 
the 
territories, 
but 
they 
do 
not 
appear 
to 
require 
early 
correction. 
The term "United States" 
is defined at 42 U.S.c. 
1873(g) 
to include 
"all territories 
and possessions of the 
United 
States" 
(a definition 
added 
in 
1968, 
so 
that 
the 
Northern Marianas are covered through section 502(a)(2) of the 
Covenant), and a later (1988) amendment pertaining to awards 
for 
teaching 
excellence 
refers 
explicitly 
to 
the Northern 
Marianas 
and 
to 
"other 
commonwealths, 
territories, 
and 
possessions of the United States" 
(42 U.S.C. 1881b(a)(1)(B)). 
Significantly, 
too, 
awards 
of 
scholarships, 
graduate 
fellowships, 
and 
science 
medals 
may 
be made 
not 
only 
to 
citizens but also to U.S. nationals (42 U.S.C. 1869, 1881(c)). 
The 
drafting 
imperfections 
referred 
to 
above 
relate to the use occasionally of "Nation" 
(42 U.S.C. 
1862a, 
1863(c)) 
and 
"State" 
(42 
U.S.C. 
1862c(d)(1), 
1862a(a)(4), 
1862g), both of which terms are undefined. 
But the former is 
used 
in sections 
that 
are essentially 
exhortatory, 
and the 
latter 
in contexts 
that 
are 
not 
likely 
to be of material 
importance 
to the 
territories--perhaps 
excluding 
42 
U.S.c. 
1862g, 
which 
pertains 
to 
special 
Federally-operated 
Experimental 
Programs 
to Stimulate 
Competitive Research 
in 
"States" 
that 
have demonstrated 
a commitment 
to improving 
scientific and engineering research in their institutions of 
higher education. 
Even if eligible, territorial institutions 
would be hard-pressed to compete for such a Federal program at 
this 
time, 
but 
any 
doubt 
as 
to 
eligibility 
should 
be 
eliminated when a convenient legislative vehicle is available, 
so that a territorial college could be a beneficiary of the 
Federal program if it otherwise qualifies. 
(c) The chapter entitled Contracts for Scientific and 
Technological Research 
(42 U.S.C 
1900-1900b) 
authorizes 
the 
Secretary 
of the Interior 
to enter 
into research 
contracts 
with 
institutions 
or 
individuals 
on 
"any 
aspect 
of 
the 
problems 
related 
to the programs 
of the Department 
of 
the 
1117 
123 
Memorandum No. 
42-7 
Interior which are authorized by statute" (42 U.S.C. 1900(a)). 
There is nothing to exclude the territories, and they would be 
included 
if the pertinent authorizing statute--all of which 
are 
examined 
elsewhere 
in 
this 
study--comprehends 
them. 
Virtually all Interior laws do so. 
(d) Youth Medals (42 U.S.C. 1921-1926) authorizes the 
award of two kinds of medals 
to persons 
18 years 
of age or 
younger: 
a Medal for Bravery, 
to “any child residing in the 
United 
States'’ 
who 
has 
demonstrated 
unusual 
courage 
in 
attempting 
to save 
another’s 
life 
(42 U.S.C. 
1921); 
and 
a 
Medal 
for Service 
for "American 
boy or girl citizens" 
for 
character and service 
(42 U.S.C. 
1922). 
Whiie 
the "United 
States" 
(undefined 
in this 1950 law) might easily be read to 
include the territories, 
it would be unusual if "citizen" were 
construed 
to 
include 
a "national". 
The 
readily 
available 
legislative history is silent on these points (1950 U.S. Code 
Cong. Service 2878-2881). 
A young Samoan should be eligible 
for the Medal for Service, 
so this small law should be amended 
to define a citizen as including a national, and tc make clear 
that the "United States" includes the territories. 
(e) Water Resources Planning (42 U.S.C. 1962-1962d-20) 
contains the Water Resources Planning Act, enacted in July of 
1965, 
plus 
a number 
of sections derived 
from various other 
laws on related subjects. 
For the most part, the general laws 
here codified contain 
few indications 
of their geographical 
application, 
but 
it 
does 
not 
appear 
that 
any 
require 
clarifying amendments. 
Much of what appears in this Chapter 19B is either 
obsolete 
or 
restricted 
to 
particular 
water 
project 
developments, 
unrelated 
to the territories. 
In the former 
category 
is much 
of 
the 
1965 
Water 
Resources 
Planning 
Act 
itself, 
because 
its 
provisions 
concerning 
river 
basin 
commissions 
in effect 
ceased with 
the 
1981 
Executive order 
terminating 
the commissions; 
and the provision 
for Federal 
financial assistance to "States" (defined at 42 U.S.C. 1962c-5 
to include 
the Virgin 
Islands 
and 
Guam) 
for comprehensive 
Planning 
terminated 
after 
fiscal 
year 
1979 
(42 
U.S.C. 
1962c(a)). 
1118 
129 
Memorandum No. 
42-7 
Four 
sections 
in 
the chapter, 
however, 
are 
of 
possible interest, 
and only one is clearly applicable to the 
territories. 
That one appears at 42 U.S.C. 
1962d-16, 
where 
the Corps of Engineers 
is authorized 
to cooperate with 
the 
"States" 
in the development of comprehensive plans for water 
resource 
development, 
for which purpose 
the 
term 
"States" 
includes expressly 
the Virgin Islands, 
Guam, 
Samoa, 
and the 
Northern Marianas 
(42 U.S.C. 
1962d-16(c)). 
The other three 
sections 
contain 
nothing 
to 
assist 
in 
determining 
their 
application. 
These are 
42 
U.S.C. 
1962d-5, 
authorizing 
the 
Corps 
of 
Engineers to undertake resource projects under certain terms 
if the estimated "Federal first cost" is less than $5 million; 
42 U.S.C. 
1962d-5a, authorizing reimbursement 
to 
"States" 
when 
they 
contribute 
towards 
Corps 
of 
Engineers 
Projects; 
and 
42 
U.S.C. 
1962d-5d, 
authorizing 
the 
Corps 
to 
contract with "States" for increased law enforcement services 
at Corps’ 
projects. 
Neither 
these 
sections 
nor 
the 
laws 
from which 
they 
were 
originally 
derived 
contain 
helpful 
provisions 
to 
suggest 
whether 
the 
territories 
are 
or are 
not comprehended.} 
In 
the usual case, 
that situation would give rise 
to a recom- 
mendation here that the laws be amended so as to make clear 
their application to the territories. 
That recommendation is 
not made 
here, 
on 
the ground 
that 
the Corps 
of Engineers 
already conducts extensive water resource project activity in 
all of the territories, and that it has extensive authority to 
do 
so 
under 
a multitude 
of Federal 
laws. 
(Some 
of 
its 
authority 
in the territories 
is discussed 
in Memoranda Nos. 
Y The three sections stem from the Flood Control Act of 1965, 
Pub. 
L. 89-298, 
79 Stat. 
1073 (42 U.S.c. 
1962d-5); 
the Rivers and 
Harbors 
Act 
of 
1968, 
Pub. 
L. 
90-483, 
82 
Stat. 
731 
(42 
U.S.C. 
1962d-5a); 
and the Waters Resources Development Act of 1976, 
Pub. 
L. 94-587, 
90 Stat. 
2917 
(42 U.S.C. 
1962d-5d). 
1119 
130 
Memorandum No. 
42-7 
33-1(a), 
33-2, 
and 33-3(c) 
and 
(f).) 
In the absence 
of 
a 
showing that uncertainty with respect to the three sections in 
Chapter 
19B handicap either the Corps or the territories 
in 
connection 
with such projects, 
it seems proper 
to conclude 
that changes in these sections are unnecessary. 
Conclusion: 
The laws concerning 
the National Science Foundation 
could 
profit 
from 
perfecting 
amendments, 
while 
those 
concerning 
youth medals 
should 
be expanded 
to include 
U.S. 
nationals. 
Federal 
en 
ents: 
None have been sought because none appear 
to be necessary. 
1120 
TAi 
Terri 
Memorandum No. 
42-8 
December 1989 
Revised December 1991 
Subject: 
Elective Franchise 
Title 42, Chapter 20 (42 U.S.C.1921-1974e) 
Purpose: 
To 
prohibit 
discrimination 
against 
voters 
and 
to 
facilitate voting in Federal elections. 
rial 
Li 
ion: 
The election and voting laws codified in 
Chapter 20 of Title 
42 are arranged 
in several subchapters, 
discussed 
separately 
herein, 
and 
the 
application 
of 
these 
subchapters differs among the territories. 
As explained 
in 
detail below, 
Subchapter 
I on 
voting 
rights 
generally, 
and 
derived 
initially from a federal law of 1870, applies in part to the 
territories but not in its entirety. 
Subchapter I-A on enforcement of voting rights, derived 
from the Voting Rights Act of 1965, 
appears largely 
not 
to 
apply to the territories, 
although some sections suggest the 
contrary. 
Subchapter 
I-B 
contains 
later-enacted 
provisions 
supplementary 
to Subchapter 
IA 
and 
does 
not 
apply 
to 
the 
territories. 
Subchapter I-C concerning the 18-year old vote does not 
apply to the territories. 
Subchapter I-D and I-E have been repealed. 
Subchapter 
I-F 
requiring 
voting 
accessibility 
by 
the 
elderly and the handicapped applies 
to the Virgin 
Islands, 
Guam, 
and Samoa, 
but not to the Northern Marianas. 
1121 
Memorandum No. 42-8 
Subchapter I-G concerning voting by service personnel and 
overseas voters also applies to the Virgin Islands, Guam, and 
Samoa, but not to the Northern Marianas. 
Subchapter II imposing requirements for Federal election 
records does not apply to the territories. 
Recommendation: 
Although 
the territories 
are generally 
free 
of 
problems arising from the deprivation of voting rights, or of 
discrimination against voters based on race, 
the protections 
afforded 
to 
voters 
in 
the 
States 
ought 
generally 
to 
be 
provided to those in the territories as well. Accordingly, 
the 
application 
of Subchapter 
I ought 
at least 
in part 
to be 
clarified, and the protections provided in Subchapters I-A and 
I-B 
could, 
in 
the 
interest 
of 
symmetry, 
be 
extended 
to 
them--but there does not now appear to be a demonstrated need. 
Subchapter I-C raises an additional question. 
Subchapter II 
could reasonably also be extended. 
Discussion: 
Subchapter 
I, 
concerning 
the 
elective 
franchise 
Generally 
(42 
U.S.C. 
1971-1972), 
is 
derived 
from 
Revised 
Statutes 
enacted 
in 
1870 
and 
1865, 
respectively. 
It 
is 
therefore unsurprising that the principal section, 
42 U.S.C. 
1971, uses the term "Territory" without definition, and it is 
quite 
certain 
that 
the 
term 
would 
be 
construed 
today 
to 
include 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern 
Marianas 
on 
the rationale 
of Puerto Rico v. 
Shell Co. 
(302 
U.S. 253 (1937)). 
Thus the voters of the territories would be 
protected by 42 U.S.C. 
1971(a)(1), 
which provides 
that U.S. 
citizens otherwise qualified 
to vote 
in an election "in any 
State, 
Territory, 
district, 
county" 
or 
other 
political 
subdivision may do so "without distinction of race, color, 
or 
previous 
condition 
of 
servitude"any 
"constitution, 
law, 
custom, usage, 
or regulation of any State or Territory 
to the contrary notwithstanding". 
Further, 
a provision at 42 U.S.C. 
1971(b) makes clear 
that the draftsmen of that subsection (added in 1957) then had 
the territories 
in mind. 
That subsection prohibits acts of 
intimidation, 
threats, 
or coercion against persons voting in 
an election 
1122 
133 
Memorandum Nc. 
42-8 
for 
the 
office 
of 
President, 
Vice 
President, 
presidential elector, Member 
of the Senate, or Member of the House of 
Representatives, 
Delegates 
or 
Commissioners 
from 
the 
Territories 
or 
possessions. 
Voters 
in 
the 
Virgin 
Islands, 
Guam, 
and 
Samoa 
vote 
for 
territorial 
"Delegates", 
although 
they 
vote 
for 
no 
others 
among 
those 
listed. 
(The 
Northern 
Marianas 
Resident 
Representative 
to the United States, 
provided for in section 
901 of the Northern Marianas Covenant, 
is not comprehended by 
the 
foregoing 
quoted 
language, 
and 
accordingly 
Northern 
Marianas voters would not be protected by 42 U.S.C. 
1971(b). 
That position of Resident Representative may be converted into 
a territorial Delegate who sits 
in the Congress, 
and 
if and 
when that occurs, 
care should be taken to be sure 42 U.S.C. 
1971(b) applies in the Northern Marianas, because that result 
might not inevitably follow, 
given the provisions of section 
502 of the Covenant.) 
Except for the foregoing reference to “Territory” in 
42 
U.S.C. 
1971(a)(1), 
and 
the 
reference 
to 
territorial 
Delegates 
in 
42 
U.S.C. 
1971(b), 
this 
rather 
long section 
refers exclusively to "States", and thus its application to 
the territories 
is arguable. 
(See, 
for example, 
42 U.S.C. 
1971(a)(2), 
(c), and (e).) 
In commenting on this memorandum, 
the Department of Justice has stated informally: 
In considering section 1971 one needs to 
distinguish 
the 
general 
directives 
or 
Y one further reference to "territory" does appear, 
but it is 
of 
no 
aid 
in establishing 
the geographical 
application 
of 
the 
section. 
In 42 U.S. 
1971(c), 
in connection with the creation of a 
presumption of literacy, reference is made to "a public school in, 
or a private school accredited by, any State or territory". 
But 
the subsection otherwise refers only to a "State". 
The reference 
to "territory" thus appears to be an afterthought, 
and a useless 
one for current purposes. 
1123 
wl 
Memorandum No. 
42-8 
prohibitions (see, for example, section 
1971(a)({1)) 
from 
the 
elaborate 
and 
specialized 
machinery 
created 
by 
the 
Civil 
Rights Acts 
of 1960 
and 
1964 
to 
effect 
black 
enfranchisement 
in 
the 
South 
(see, 
for 
example, 
section 
1971(e)). 
The general provisions remain 
vital, while the specialized machinery, 
while theoretically still available, 
as 
a practical matter became obsolete with 
the enactment of the Voting Rights Act 
of 1965. 
As 
a practical matter, 
therefore, 
it may be unnecessary 
to 
expand "State" to include the territories throughout 42 U.S.C. 
1971. 
At least subsection 
(e) could be excluded from repair 
work, and the important subsections 
(a) and (b) appear not to 
require it. 
* 
It 
should 
be 
noted, 
however, 
that 
even 
these 
subsections are not free of difficulties. 
The question of the 
inclusion 
of 
the Northern 
Marianas warrants 
attention, 
in 
light of the current non-Federal status of its Representative 
in Washington, 
and 
Samoa 
presents 
two difficulties: 
its 
voting 
laws 
permit 
noncitizen 
nationals 
in 
Samoa 
to vote 
(American Samoa Code, 
sec. 
6.0214(a)(8)), 
as they must since 
a majority of Samoa’s voters are U.S. nationals but not U.S. 
citizens; and Samoa has no Federal court. 
But Samoa does hold 
a 
"Federal" 
election, 
for 
its 
Delegate. 
So, 
while 
the 
obsolescence 
factor 
probably 
argues 
against 
modifying 
42 
U.S.C. 1971 to accommodate the territories fully, 
in the event 
that corrective legislation is undertaken, 
special attention 
needs also to be given to these peculiarities of the Northern 
Marianas and Samoa. 
The 1865 statute appearing at 42 U.S.C. 
1972 applies 
by its terms only to a "State". 
‘It prohibits an officer in 
the armed forces from interfering iu a "State" election. 
The 
only cases under it were decided soon after the Civil War, and 
it does 
not appear necessary 
as 
a practical matter 
to make 
explicit its application to the territories. 
1124 
135 
Memorandum No. 
42-8 
Subchapter I-A, entitled Enforcement of Voting Rights 
(42 U.S.C. 
1973-1973p), 
contains a part of the voting Rights 
Act of 1965. 
It prohibits a "State" from imposing or applying 
a voting qualification that results in denying a vote to "any 
citizen of the United States" on the basis of race or color or 
because the voter is "a member of a language minority group" 
(42 U.S.C. 
1973(a), 
1973b(£)(2)). 
Among other 
things, 
the 
Subchapter 
prescribes 
the method 
of enforcement, 
using 
the 
Federal courts. 
Again, 
most of the sections 
of the Subchapter 
refer 
solely to the "States" 
(see, 
for example, 
42 U.S.C. 
1973a, 
1973b(a), 
1973c, 
19731), 
and the term is undefined. 
(It is 
undefined generally in the Voting Rights Act of 1965, 
79 Stat. 
437.) 
But curiously, 
references 
to the territories do occur 
from time to time: 
42 U.S.C. 1973b(e)(2), 
in connection with 
schools in "any State or territory"; 
42 U.S.C. 
1973g(c), 
in 
connection with jurisdiction for a narrow purpose pertaining 
to eligibility listings in “any district court of the United 
States 
or 
the 
United ‘States 
court 
of 
any 
territory 
or 
possession"; 
42 
U.S.C. 
1973i(c), 
which 
imposes 
criminal 
penalties 
for false registration information 
in an election 
for "Delegate from 
. 
. 
. Guam, 
or the Virgin Islands"; and 42 
U.S.C. 
1973i(e)(1), 
which 
imposes 
criminal 
penalties 
for 
multiple voting in an election for "Delegate from. 
. 
. Guam, 
or the Virgin Islands". 
Obviously the application of Subchapter I-A generally 
to the territories is doubtful. 
Except for the two criminal 
provisions 
just cited, 
which certainly apply 
to the Virgin 
Islands and Guam, 
the application of all others 
is unlikely. 
Yet the provisions of the Subchapter were enacted to enforce 
the 
voting 
guarantees 
of 
the 
Fourteenth 
and 
Fifteenth 
Amendments 
(42 U.S.C. 
1973a(a)), and those provisions of the 
Constitution have been expressly extended by statute to the 
Virgin 
Islands, 
Guam, 
and 
the Northern Marianas 
(48 U.S.C. 
1561 
(Virgin Islands); 
48 U.S.C. 
1421b(u) (Guam); 
and section 
501(a) 
of the Northern Marianas Covenant). 
As a matter of 
law, 
it has been argued 
that 
voting 
rights 
are 
among 
the 
fundamental protections of the Constitution, applicable to the 
people 
of 
the unincorporated 
territories 
under 
the 
Insular 
1125 
Memorandum No. 42-8 
Cases, 
and on that rationale, 
such rights are guaranteed to 
the people of Samoa as well. 
In the circumstances, 
it appears at first blush that 
Subchapter I-A should be extended to all of the territories. 
The definition 
of the 
term 
"State" 
to include 
them 
would 
largely suffice, but additional provisions would be necessary 
to accomplish the purpose fully. 
The subchapter is directed 
toward "State" elections generally, 
and not merely 
to those 
for Federal 
offices, 
so 
the Northern Marianas 
ought 
to be 
comprehended as fully as the Virgin Islands and Guam. 
There 
seems no reason to refrain from protecting the voting rights 
of noncitizen nationals 
in Samoa, 
and the problem of court 
jurisdiction 
there can 
be met 
in a number 
of ways--perhaps 
most easily 
by placing 
jurisdiction 
of Samoa 
cases 
in 
the 
District Court of Hawaii. 
On the other hand, 
the Justice Department offers the 
following comments on the foregoing discussion of Subchapter 
I-A: 
It should 
be noted 
that 
the application 
of 
42 U.S.C. 
1973b 
to 
the territories 
and 
possessions 
would 
require 
the 
Attorney 
General 
and 
the Director 
of 
the Census 
to 
make 
factual 
and legal determinations 
with 
respect to events and circumstances in 1964, 
1968, and 1972, 
If there is a desire to make 
section 
1973b applicable to the territories 
and 
possessions, 
consideration 
should 
be 
given to adding a coverage formula that would 
be relevant 
to present circumstances. 
The 
application of 42 U.S.C. 
1973c, 
1973d-1973g, 
and 
1973k 
is 
dependent 
on 
section 
1973b 
coverage. 
It 
should 
be 
further 
noted, 
moreover, 
that 
the enactment 
of 
the Voting 
Rights 
Act was 
a response 
to a very severe 
2/ this argument 
is spelled out 
in detail 
in the Task Force 
Report of the Executive Branch to the House Committee on Interior 
and 
Insular 
Affairs 
on 
H.R. 
98, 
101st 
Congress, 
the 
Guam 
Commonwealth legislation. 
1126 
yA? 
Memorandum No. 
42-8 
but 
localized 
Problem: 
the 
continued 
disenfranchisement 
of blacks 
in large parts 
of the South, 
in clear violation of the 15th 
Amendment and of federal legislation. 
While 
the 
general 
provisions 
of 
the 
Act 
(for 
example section 1973) apply in all 50 states 
and could reasonably protect 
the rights 
of 
those 
in 
the 
territories 
and possessions, 
there 
is 
unlikely 
to 
be 
a 
need 
in 
the 
territories 
and 
possessions 
for 
the 
specialized 
provisions 
designed 
for 
the 
historical 
situation 
in 
the 
South 
in 
1965 
(see sections 1973b-1973g). 
In the circumstances and particularly 
in the absence 
of 
evidence 
that 
voters 
in 
the 
territories 
have 
been 
disenfranchised on the basis of race, color, 
or language, 
it 
may 
not 
be 
necessary 
to 
extend 
the 
protections 
of 
these 
provisions 
to them. 
But if such an extension of the law is 
undertaken, 
obviously careful drafting would be required 
to 
avoid the pitfalls and to meet the special problems described 
above. 
Subchapter I-B, entitled Supplemental Provisions 
(42 
U.S.C. 1973aa-1973aa-6), contains laws after the Voting Rights 
Act of 1965 that augment it. 
While one section is concerned 
solely 
with 
voting 
in 
Presidential 
elections 
(42 
U.S.C. 
1973aa-1), and is therefore rightly limited in its application 
to those areas where voters may do so (i.e., 
the States and 
the 
District 
of 
Columbia, 
42 
U.S.C. 
1973aa-1(h)), 
other 
sections 
are 
not 
so 
limited. 
Most 
apply 
generally 
to 
protecting 
voters 
in 
the 
"States" 
and 
their 
political 
subdivisions. 
(Such sections Prohibit the use of literacy and 
other discriminatory tests, for example.) 
Such sections ought 
probably 
to apply to voters 
in the territories as well, 
and 
this could for the most part be achieved by defining the term 
"State" to include the territories--although again the matters 
of voting by noncitizen nationals in Samoa, and the absence of 
a Federal court there, require special attention. 
If, on the 
other hand, there is no significant minority language problem 
associated with voting in the territories, 
as appears 
to be 
true at this time, then extension of this Subchapter to them 
is not necessary. 
1127 
128 
Memorandum No. 
42-8 
Subchapter 
I-c, 
Eighteen-Year-O1d 
Voting 
Age 
(42 
U.S.C. 
1973bb-1973bb-1) 
was enacted in 1970, 
and amended in 
1975, to implement the Twenty-Sixth Amendment. 
That Amendment 
guarantees the right to vote to U.S. citizens 18 years old or 
older. 
The Subchapter authorizes the U.S. Attorney General to 
take enforcement action in Federal district courts, and by its 
own terms, 
it applies only to the States and the District of 
Columbia 
(42 U.S.C. 
1973bb-1). 
Congress 
has 
by 
statute 
made 
the 
MTwenty-Sixth 
Amendment 
applicable 
to 
the 
Northern 
Marianas, 
by section 
501(a) 
of 
the 
Covenant. 
The 
Amendment 
has 
not 
yet 
been 
extended 
by statute 
to any other territory--although 
it has 
been proposed for Guam by the Executive Branch, 
in its report 
on H.R. 98, 101st Congress, 
the Guam Commonwealth legislation. 
Whether the right of an 18-year old to vote is "fundamental", 
and thus within the protections afforded U.S. citizens in the 
territories under the Insular Cases, 
is arguable. 
The point 
has not been tested. 
In the meantime, 
the laws of each of the territories 
now 
permit 
those 
who 
are 
18 
or 
older 
to 
vote. 
(Virgin 
Islands, 
18 V.I.C. 
99(a); 
Guam, 
Government Code, 
sec. 
2056; 
Samoa, American Samoa Code, sec. 
6.0211; Northern Marianas, 
1 
CMC 6201.) 
Given the premise of this Subchapter 
(i.e., 
the 
Twenty-Sixth 
Amendment), 
it 
seems 
illogical 
for 
the 
implementing law to apply to areas where the Amendment does 
not. 
Because, 
in addition, 
there 
is no visible problem of 
voter deprivation based on age in the territories, 
it appears 
to 
be 
appropriate 
to refrain 
from 
making 
this 
Subchapter 
applicable to them. 
Subchapter I-F, Voting Accessibility for the Elderly 
and Handicapped 
(42 U.S.C. 
1973ee-1973ee-6}, 
was enacted 
in 
1984, 
and it requires 
that polling places be accessible 
to 
handicapped 
and 
elderly 
voters 
for 
"Federal 
elections" 
Enforcement jurisdiction is in the Federal district courts (42 
U.S.C. 1973ee-4). 
A "Federal" election includes an election 
for Delegate 
to the Congress, 
and the term "State" 
includes 
"any territory or possession of the United States" (42 U.S.C. 
1973ee-6). 
1128 
133 
ees 
Memorandum No. 42-8 
Because 
the Virgin 
Islands, 
Guam, 
and Samoa 
all hold 
elections 
for 
Delegates, 
each 
is 
covered 
by 
Subchapter 
I-F--but enforcement 
in Samoa would be dubious owing to the 
absence 
of 
a Federal 
District 
Court 
with 
jurisdiction 
in 
Samoa. 
The matter could be corrected by vesting appropriate 
jurisdiction 
in the District Court of Hawaii. 
The Northern 
Marianas, which does not now have a Delegate to the Congress, 
would not be comprehended. 
If the Northern Marianas’ current 
Resident Representative is converted into a Delegate, 
it seems 
probable 
that 
the 
application 
of 
Subchapter 
I-F 
to 
the 
Northern Marianas would follow as a matter of law, given the 
terms of the first sentence 
of section 
105 
of the Northern 
Marianas Covenant. 
Subchapter 
I-G, 
Registration 
and Voting 
by Absent 
Uniformed Services Voters and Overseas Voters in Elections for 
Federal 
Office 
(42 
U.S.C. 
1973£f-1973ff-6), 
contains 
the 
Uniformed and Overseas Citizens Absentee Voting Act, enacted 
in 1986. 
The Act requires each "State"--defined to include by 
name Guam, 
the Virgin Islands, and American Samoa 
(42 U.S.C. 
1973££-d6(6))--to 
permit absent uniformed services voters 
and 
overseas 
voters 
to 
use 
absentee 
registration procedures 
and to vote by 
absentee ballot in general, special, and 
runoff 
elections 
for 
Federal 
office. 
(42 U.S.C. 
1973££-(1) 
A "Federal office" includes a Delegate to Congress 
(42 U.S.C. 
1973££-6(3)). 
A 
“Federal 
write-in 
absentee 
ballot" 
is 
prescribed for uniformed and overseas voters who apply for but 
do not receive 
a State 
absentee 
ballot--but 
such 
Federal 
absentee ballots are not counted if they are submitted from a 
location in the "United States" 
(42 U.S.c. 
1973 ££-2(b)(1)), 
with the "United States" defined for this purpose to include 
Guam, the Virgin Islands, and Samoa (42 U.S.C. 1973££-6(8)). 
Hence, 
these 
three 
territories 
are 
precisely 
the 
equivalent of the States for purposes of the Overseas Citizens 
1129 
Vda 
Memorandum No. 
42-8 
Absentee 
Voting 
Act, 
and 
this 
is 
as 
it should 
be. 
Their 
uniformed or overseas voters are protected to the same extent 
as such voters are elsewhere in the United States. 
The same 
is not true 
in the Northern Marianas, 
which has no Federal 
election as defined in the Act, and which area is not included 
as a State or as within the United States for purposes of the 
Act. 
The 
conversion 
of 
the 
Northern 
Marianas’ 
Resident 
Representative 
into 
a 
Delegate 
in 
Congress 
would 
not 
be 
sufficient to bring the Northern Marianas within the terms of 
Subchapter I-G, given the specificity of its definitions, 
so 
that particular amendments would be required at such time as 
the conversion occurs. 
In commenting on this memorandum as to Subchapter I-G, 
the Justice Department points out the following: 
One question that might be raised with 
respect 
to 
the 
application 
of 
the 
Uniformed and Overseas Citizens Absentee 
Voting 
Act 
in 
the 
territories 
and 
possessions 
is whether, 
as 
is now 
the 
case, 
a registered voter of one of the 
50 states 
or 
the District 
of Columbia 
who 
is 
temporarily 
in 
a 
distant 
territory 
of 
possession 
(Guam 
or 
American 
Samoa) 
should 
receive 
no 
protection 
under 
the act while such 
a 
voter 
who 
is 
in 
a 
foreign 
but 
more 
accessible 
country, 
such 
as Canada, 
is 
covered. 
The suggestion 
for 
such 
additional 
coverage 
appears 
to be 
entirely reasonable, 
even though it is somewhat outside the 
scope of this study. 
Subchapter 
II, 
Federal Election 
Records 
(42 U.S.C. 
1974-1974e) 
is a part of the Civil Rights Act of 1960. 
The 
Act requires the retention of records pertaining to elections 
for 
Federal 
offices--the 
President, 
Vice 
President, 
the 
Senate, 
and 
the House, 
including 
the Resident Commissioner 
from Puerto Rico--(42 
U.S.C. 
1974)--and 
requires 
that such 
1130 
VAl 
Memorandum No. 
42-8 
records be made available for inspection by the U.S. Attorney 
General 
(42 
U.S.C. 
1974b). 
The 
Subchapter 
is 
clearly 
applicable 
to Puerto 
Rico 
(42 U.S.C. 
1974e), 
but 
just 
as 
clearly 
not 
applicable 
to 
any 
of 
the 
territories. 
The 
explanation 
doubtless 
lies 
in 
the 
date 
of 
its 
enactment 
(1960), 
which 
preceded 
the 
creation 
of 
the 
offices 
of 
Delegates 
from the Virgin Islands and Guam 
(1972) 
and Samoa 
(1978). 
(Puerto Rico’s office of Resident Commissioner has 
existed since 1917.) 
The problem to which Subchapter II is directed, i.e., 
the protection of civil rights with particular attention 
to 
poll taxes 
(42 U.S.c. 
1974), 
is not a problem 
in any of the 
territories. 
The extension of this law to them is therefore 
not needed realistically, 
but a purist would take comfort in 
the extension, 
and it could not be hurtful. 
Conclusion: 
Subchapters 
I, 
I-A, 
and 
I-B 
could 
profit 
from 
carefully 
drafted 
amendments 
tailored 
to 
territorial 
peculiarities--although 
they are 
directed 
to problems 
from 
which the territories are largely free. 
Subchapters I-c- I-F, and I-G do not require amendment, except 
that the overseas absentee voting law (Subchapter I-G) could 
usefully be extended 
to State voters temporarily present 
in 
the 
territories, 
as 
suggested 
above 
by 
the 
Department 
of 
Justice. 
Subchapter 
II is not required in the territories, 
but it could not be harmful. 
Federal 
agency 
comments: 
Comments 
were 
requested 
from 
the 
Department of Justice. 
Its extensive comments are reflected 
above. 
1131 
142 
Memorandum No. 
42-9 
January 1990 
Subject: 
Civil Rights Commission 
Title 42, Chapter 20A (42 U.S.C. 
1975-1975£) 
Purpose: 
To establish the Commission on Civil Rights and provide 
for its functions. 
Territorial 
application: 
Although 
the 
law 
establishing 
the 
Commission does not clearly specify its geographic reach, the 
Commission believes it has authority to perform its duties in 
insular areas. 
Recommendation: 
The law establishing the Civil Rights Commission 
does 
not 
require 
modification 
to 
meet 
the 
needs 
of 
the 
territories. 
Discussion: 
The eight-member Civil Rights Commission, 
created in 
1957 and often modified since, 
is currently subject to termin- 
ation on September 30, 1991. 
Its duties are investigatory-- 
and it has neither regulatory nor enforcement authority--being 
charged with, 
among 
other 
things, 
investigating 
complaints 
that U.f. citizens are being deprived of their right to vote 
because 2f their color, race, religion, sex, age, handicap, or 
national origin; 
studying matters of discrimination 
on such 
bases; 
and appraising Federal laws and policies with respect 
to discrimination 
(42 U.S.C. 
1975c). 
The law contains no statement of the geographic areas 
that are within the Commission’s jurisdiction. 
Such hints as 
can 
be 
found 
are 
in 
conflict: 
at 
42 
U.S.C. 
1975d(c), 
provision is made for advisory committees in "each State”; but 
at 
42 
U.S.C. 
1975d(g), 
jurisdiction 
in 
cases 
involving 
contumacy 
or refusal 
to obey 
a subpoena 
is vested 
in “any 
district court of the United States or the United States court 
of any territory or possession 
. 
. 
.". 
No explicit geographic 
limitation on the Commission appears. 
The 
Commission’s 
General 
Counsel’s 
Office 
advises 
informally that it believes 
it does have jurisdiction in the 
1132 
143 
Dc 
ee 
Memorandum No. 42-9 
territories, 
and that it in fact conducted an investigation in 
Puerto Rico during the 1970's. 
The existing law does not fit the Samoa situation, where 
most residents are U.S. nationals but not citizens 
(and the 
law 
is directed 
toward 
"citizens", 
42 
U.S.C. 
1975c(a)(1), 
(5)), and with respect to which no Federal district court has 
jurisdiction. 
But discrimination on any of the bases set out 
in the law is not a known problem in Samoa, so modification of 
the 
law 
to 
accommodate 
Samoa’s 
situation 
does 
not 
seem 
necessary. 
Conclusion: 
The law creating the Civil Rights Commission does not 
require modification 
to meet the needs of the territories. 
Federal agency comments: 
The content of this memorandum has been 
discussed with the Office of the General Counsel, Civil Rights 
Commission, which does not disagree. 
1133 
rAd 
Memorandum No. 
42-10 
January-April 1990 
Revised December 1991 
Subject: 
Civil Rights 
Title 42, Chapter 21 
(42 U.S.C. 1981-2000h-6) 
Purpose: 
To provide protections 
for the civil rights of persons 
in 
the 
United 
States 
and 
to 
accord 
to 
them 
the 
equal 
protection of the laws. 
Territorial 
Li 
ion: 
The 
civil 
rights 
laws 
in 
Chapter 
21 
are derived 
from various statutes 
enacted over more 
than 
a 
century, 
and they are arrayed 
in numerous 
subchapters, 
the 
application of which differs with respect to the territories. 
As more fully explained 
in the Discussion 
that follows: 
Subchapter I 
("Generally", 
42 
U.S.C. 
1981-1996), 
containing 
immediate post-Civil War laws that are sometimes 
referred to as the Civil Rights Laws, 
applies geographically 
in 
the 
territories, 
but 
the 
manner 
of 
application 
is 
uncertain. 
Subchapter I-A 
("Institutionalized 
Persons", 
42 
U.S.C. 
1997-19973) applies to the territories. 
Subchapter II 
("Public 
Accommodations", 
42 
U.S.C. 
2000a-2000a-6), Subchapter III ("Public Facilities", 42 U.S.C. 
2000b-2000b-3), 
Subchapter IV ("Public Education", 
42 U.S.C. 
2000c-2000c-9), 
and 
Subchapter v 
("Federally 
Assisted 
Programs", 
42 
U.S.C. 
2000d-2000d-7) 
are 
of 
uncertain 
application 
to 
the 
territories, 
but 
Subchapters 
II 
and 
V 
contain bases 
for arguing 
in favor of their application 
to 
some of the territories. 
Subchapter VI ("Equal Employment Opportunities", 
42 
U.S.C. 2000e-2000e-17), usually referred to as "Title VII" of 
the 
Civil 
Rights 
Act 
of 
1964, 
applies 
fully 
in 
the 
territories. 
1134 
Memorandum No. 42-10 
Subchapter VII ("Registration and Voting Statistics", 
42 
U.S.C. 
2000£), 
Subchapter vIII 
("Community 
Relations 
Service", 
42 
U.S.C. 
 2000g-2000g-3), 
and 
Subchapter 1X 
("Miscellaneous Provisions", largely of a procedural sort, 42 
U.S.C. 
2000h-2000h-6) 
are 
of uncertain 
application 
in the 
territories. 
Recommendation: 
Given the unusual delicacy and complexity of most 
of the laws contained in Chapter 21, and given the absence for 
the most part in the territories of the kinds of problems to 
which 
these 
laws are directed 
(although 
this 
is untrue, 
as 
discussed below, 
of 42 U.S.C. 
1983, which has been the basis 
in 
recent 
years 
of 
considerable 
litigation 
in 
the 
territories), amendments 
to clarify the application of these 
laws 
to 
the 
territories 
does 
not 
appear 
necessary 
or 
appropriate. 
Discussion: 
Subchapter I, Civil Rights Generally (42 U.S.C. 1981- 
1996). 
The laws contained in Subchapter I of Chapter 21 were 
all 
(except 
for 
those 
at 
42 
U.S.C. 
1995 
and 
1996) 
enacted 
shortly after the Civil War, some as part of the Civil Rights 
Act of 1866, 
some 
as part of the Ku Klux Klan Act of 1871. 
They appeared 
in the Revised Statutes 
of 1874, 
and none has 
been 
substantively 
amended 
since--except 
for 
the 
1979 
amendment 
to 42 U.S.C. 
1983, 
to make 
it applicable 
to the 
District 
of 
Columbia. 
They 
are 
sometimes 
referred 
to 
collectively as the Civil Rights Laws. 
These laws provide the 
foundation for an enormous amount of litigation, 
much of it 
eccurring 
in the last quarter century. 
The most significant provisions are these: 
42 
U.S.C. 
1981, 
which 
provides 
that 
all 
"persons 
within the jurisdiction of the United States shall 
have the 
same right in every State and Territory" to make contracts, to 
sue, and to enjoy the equal benefit of laws "for the security 
of persons and property as is enjoyed by white citizens". 
42 U.S.C. 
1982, which provides that all "citizens of 
the United States" shall have the same right "in every State 
1135 
Memorandum No. 42-10 
and Territory" to acquire, hold, and dispose of property that 
"is enjoyed by white citizens". 
42 U.S.C. 
1983, which provides that 
Every 
person 
who, 
under 
color 
of 
any 
statute, 
ordinance, 
regulation, 
custom, 
or usage, 
of any State or Territory or 
the District 
of Columbia, 
subjects, 
or 
causes 
to be subjected, 
any citizen of 
the United States or other person within 
the 
jurisdiction 
thereof 
to 
the 
deprivation 
of any rights, 
privileges, 
or 
immunities 
secured 
by 
the 
Constitution and laws, 
shall be liable 
to 
the party 
injured 
in an 
action 
at 
law. 
2... 
42 U.S.C. 
1985, 
which provides 
a cause of action 
for damages arising from a conspiracy to deprive a person "in 
any State or Territory" of certain civil rights. 
42 U.S.C. 
1994, which abolishes peonage "in any 
Territory or State of the United States". 
The remaining sections contained in the Subchapter are 
for 
the 
most 
part 
procedural, 
and 
except 
for 
language 
concerning 
the jurisdiction 
of Federal 
courts, 
and placing 
certain 
responsibilities 
on 
Federal 
court 
officers, 
the 
provisions are of no special importance for current purposes. 
There seems to be no room for doubt that the foregoing 
laws apply within the Virgin Islands, 
Guam and the Northern 
Marianas. 
Section 
1983 
has been 
the 
basis 
for decisions 
involving 
them 
all: 
Frett 
v. 
Government 
of 
the 
Virgin 
Islands, 
839 F.2a 968 (1988); Bunyan v. Camacho, 
770 F.2d 773 
(1985), 
cert. denied 477 U.S. 
903 
(1986) 
(Guam); 
Fleming 
v. 
Bepartment of Public Safety, 
837 F.2d 401, cert. denied, 
109 
1136 
1VA7 
Memorandum No. 
42-10 
S. 
Ct. 
222 
(1968) 
(Northern Marianas). 
The rationale 
for 
these decisions means that 42 U.S.C. 
1983 applies to American 
Samoa as well. 
The courts have had no difficulty 
in reading 
"Territory" to mean "territory" under 42 U.S.C. 
1983, and it 
is reasonable to suppose that the term would be given the same 
meaning when it appears elsewhere in these civil rights laws. 
That does not, however, end the matter, 
for these laws 
give rise to myriad, rather abstruse additional questions, 
a 
major one of which is what or who is a "person" for purposes 
of liability under 42 U.sS.c. 1983, and for purposes of related 
sections that use the term. 
As an example, 
the University of 
Puerto Rico has been held 
to be a "person" under 
42 U.S.C. 
1983 
(Marin 
v. University 
of Puerto Rico, 
377 
F. 
Supp. 
613 
(1974)), 
while 
the not strikingly dissimilar College of the 
Virgin Islands has been held not to be (Dennis v. College of 
the 
Virgin 
Islands, 
398 
F. 
Supp. 
1317 
(1975)). 
More 
important, 
in its recent decision 
in Ngiraingas 
v. 
Sanchez, 
109 L. 
Ed. 
163 
(1990), 
the Supreme Court concluded that the 
territory of Guam is not a "person" that could be liable under 
section 1983. 
This decision calls into question the earlier 
Frett and Fleming decisions, 
but it does not cast doubt upon 
the 
geographic 
application 
of 
42 
U.S.C. 
1983 
to 
the 
territories involved. 
These refinements and others like them 
will not 
be discussed 
further here. 
The matters 
are 
both 
delicate 
and 
dynamic, 
and 
the 
cases 
both 
abundant 
and 
ever-changing. 
In the circumstances, 
even 
if there were 
a 
compelling local need for a modification of the law--and none 
is 
known 
to 
exist--an 
unusual 
expertise, 
accompanied 
by 
clairvoyance, 
would 
be 
needed 
to 
deal 
with 
the 
matter 
Properly. 
As 
is so often 
the case, 
Samoa’s situation differs 
from 
that 
of 
the other 
areas 
here involved. 
While 
it 
is 
almost certainly as fully a "Territory" as any of the others, 
its lack of a Federal court 
might 
interfere with effective 
enforcement 
there. 
(But then again, 
it might not, 
given the 
subtleties 
of 
these 
old 
laws. 
The 
proceeding 
before 
the 
Supreme 
Court 
in 
the 
recent 
42 
U.S.C. 
1983 
case, 
Will 
v. 
Michigan 
Dep't 
of 
State 
Police, 
109 
S$. 
Ct. 
2304 
(1989), 
commenced 
in 
a 
State 
court.) 
The 
need 
for 
civil 
rights 
protection 
is not 
a known problem 
in Samoa. 
If it were 
to 
1137 
143 
Memorandum No. 
42-10 
become 
so, 
careful 
tailoring 
of these 
laws 
to meet Samoa’s 
special situation would be needed. 
Subchapter I-A, Institutionalized Persons 
(42 U.S.C. 
1997-19974). 
This 
subchapter contains 
the Civil 
Rights 
of 
Institutionalized Persons Act, enacted in 1980. 
It provides 
for 
the 
institution 
by 
the 
U.S. 
Attorney 
General 
in 
“any 
appropriate United States district court" of a civil action to 
protect the civil rights of a person in a public institution, 
such as a hospital for the mentally ill, 
a jail or prison, or 
a nursing home (42 U.S.C. 
1997(1), 1997a(a)). 
The Act applies 
to 
covered 
institutions 
in 
“any 
of 
the 
territories 
and 
possessions of the United States" (42 U.S.C. 1997(4)), so that 
the Virgin Islands, 
Guam, 
and Samoa 
are unarguably covered. 
While section 502(a)(2) 
of the Covenant would not serve 
to 
extend the law to the Northern Marianas, given its enactment 
in 1980, section 105 of the Covenant would do so, because the 
law 
is also fully applicable 
to the States 
so that express 
mention of the Northern Marianas 
is not necessary. 
Because 
Samoa lacks a United States District Court, enforcement could 
pose a problem there. 
A means might be found to institute an 
action 
in the District Court 
for 
the District 
of Columbia, 
were 
the need to arise. 
Subchapter II, 
Public 
Accommodation 
(42 
U.S.C. 
2000a-2000a-6). 
This Subchapter constitutes Title II of the 
Civil 
Rights 
Act 
of 
1964. 
That 
Act 
contains 
no 
general 
definition 
or 
other 
provision making 
clear 
its geographic 
reach 
(78 Stat. 
241), 
but a provision 
of Title 
II defining 
"commerce" serves 
to make it applicable to the territories. 
This 
Subchapter 
(or 
Title) 
prohibits 
discrimination 
or 
segregation on the basis of race, color, religion, or national 
origin 
in 
“any 
place 
of public 
accommodation" 
(42 
U.S.C. 
2000a(a)), 
if 
“its operations 
affect 
commerce" 
(42 
U.S.C. 
2000a(b)). 
The kinds of establishments that are comprehended 
are 
further 
defined, 
and 
"commerce" 
is 
stated 
to include 
travel, 
commerce, 
transportation, 
or communication among the 
States “or between 
. 
. 
. 
any territory or possession and any 
State" 
(42 U.S.C. 
2000a(c)). 
Accordingly, 
places of public 
accommodation in the territories, 
if their operations affect 
commerce, 
are comprehended by Subchapter II. 
(The 1964 date 
of enactment 
causes 
section 
502(a)(2) 
of 
the 
Covenant 
to 
extend the provisions 
to the Northern Marianas. ) 
1138 
Vag 
Memorandum No. 
42-10 
Enforcement 
may 
be 
effected 
either 
by 
the 
person 
aggrieved or by the U.S. Attorney General, but in either event 
jurisdiction is in U.S. District Courts 
(42 U.S.C. 
2000a-6). 
Samoa is again disadvantaged, 
because no District Court has 
jurisdiction 
with 
respect 
to 
Samoa. 
Because 
Samoa 
is 
understood 
to be free of discriminatory practices 
in public 
accommodations, 
this shortcoming can probably be overlooked. 
Alternatively, 
if a problem exists or needs to be anticipated, 
the Samoa High Court could be given jurisdiction, by way of an 
amendment to the basic law. 
Subchapter IIT 
Public 
Facilities 
(42 
U.S.C. 
2000b-2000b-3). 
This Subchapter constitutes Title III of the 
Civil Rights Act of 1964. 
It authorizes 
the United States 
Attorney 
General 
to 
institute 
a 
civil 
action 
in 
a 
U.S. 
District Court based upon a complaint by an individual that he 
has been 
"denied equal 
utilization 
of 
any 
public 
facility 
which is owned, 
operated, 
or managed by or on behalf of any 
State or subdivision thereof 
. 
. 
." on account of race, color, 
religion, 
or national origin (42 U.S.C. 2000b(a)). 
The term 
"State" 
is 
not 
defined, 
either 
for 
purposes 
of 
the 
Act 
generally or for purposes of this Subchapter, and no language 
appears 
elsewhere 
in 
the 
Subchapter 
to 
suggest 
that 
jurisdictions other than States are affected. 
Accordingly, 
it 
must be inferred that Subchapter III does not apply to public 
facilities in the territories. 
Subchapter Iv, Public 
Education 
(42 
U.S.C. 
2000c- 
2000c-9). 
Subchapter 
Iv, which is derived from Title IV of 
the Civil Rights Act of 1964, is directed toward "the 
orderly 
achievement of desegregation in public education" 
(42 U.S.C. 
2000c-6(a)) but disclaimers in the Subchapter make clear that 
it is not to constitute the basis for student busing or other 
techniques for achieving racial balance 
(42 U.S.C. 
2000c(b), 
2000c-6(a)). 
If 
he 
believes 
that 
the 
goal 
of 
orderly 
desegregation 
will 
thereby 
by furthered, 
the 
U.S. 
Attorney 
General 
may bring 
a civil 
action 
in a U.S. 
District 
Court, 
based on a complaint that minor children are being deprived of 
the equal protection 
of the laws, 
or 
that individuals 
have 
been denied admission 
to a public 
college 
on 
the basis of 
race, 
color, 
religion, 
sex, 
or 
national 
origin 
(42 
U.S.C. 
2000c-6(a)). 
1139 
150 
Memorandum No. 42-10 
The Subchapter applies to public schools and public 
colleges operated by a "State", 
a term that appears 
in the 
Subchapter 
(42 
U.S.C. 
2000c(c), 
2000c-2) 
but 
is 
nowhere 
defined. 
In the circumstances, 
it must be supposed that the 
term 
does 
not 
include 
the territories. 
Inasmuch 
as 
none 
maintains, 
or 
has 
maintained 
for 
many 
decades, 
segregated 
schools, 
no loss to the people of the territories 
from the 
inapplication of the Subchapter would seem to arise. 
Subchapter V, Federally Assisted Programs 
(42 U.S.C. 
2000d-2000d-7). 
This Subchapter, derived from Title VI of the 
Civil Rights Act of 1964, 
provides that 
No person in the United States shall, on 
the ground of race, 
color, 
or national 
origin, 
be excluded 
from participation 
in, 
be denied 
the benefits 
of, 
or 
be 
subjected 
to discyimination 
under 
any 
program 
or 
activi 
, receiving 
Federal 
financial assistance. 
(42 U.S.C. 2000d) 
The 
term 
"United 
States" 
is not defined, 
nor 
is the 
term 
"State", which appears elsewhere in the Subchapter (42 U.S.C. 
2000d-2, 2000d-6). 
But the territories are the beneficiaries 
of numerous 
Federal 
financial 
assistance 
programs, 
and the 
Congressional 
intent 
was 
almost 
certainly 
to 
protect 
territorial 
as 
well 
as 
State 
recipients. 
Enforcement 
is 
through rules and regulations issued by the granting Federal 
agency, 
and 
a violation 
of 
the 
language 
above 
quoted 
can 
result in the termination of Federal financial assistance (42 
U.S.C. 
2000d-1). 
The regulations 
of the Department 
of the 
Interior extend to all of the territories 
(43 CFR 17.12(d)), 
and 
this 
appears 
to 
be 
a 
proper 
reading 
of 
the 
law. 
Accordingly, 
it may be concluded that Subchapter V applies to 
the territories. 
Subchapter VI, 
Equal 
Employment 
Opportunities 
(42 
U.S.C. 2000e-2000e-17). 
This portion of the Civil Rights Act 
of 1964--commonly referred to as Title VII of the Act--is of 
greatest importance, 
at least 
as measured by the amount 
of 
1140 
Memorandum No. 42-10 
litigation 
it has spawned. 
The purpose 
of Title VII 
is to 
eliminate discrimination 
in employment based on race, 
color, 
religion, 
sex, or national origin (42 U.S.C. 2000e-2), and it 
creates 
the 
Equal 
Employment 
Opportunities 
Commission 
for 
administration 
and 
enforcement 
(42 
U.S.C. 
 2000e-4). 
Subchapter VI (or Title VII of the Act) unquestionably applies 
to the territories, 
with the Virgin Islands, 
Samoa, 
and Guam 
expressly 
named 
(42 
U.S.C. 
2000e(i)), 
and 
with 
section 
502(a)(2) 
of 
the 
Covenant 
operating 
to 
extend 
it 
to 
the 
Northern Marianas as well. 
The 
absence 
of 
a 
Federal 
District 
Court 
with 
jurisdiction 
in 
Samoa 
could 
hamper 
enforcement 
there 
(42 
U.S.C. 
2000e-5(£), 
2000e-6), 
and an amendment to the law to 
make provision for court jurisdiction ought to be achieved, 
if 
employment discrimination becomes a problem in Samoa. 
It is 
not known to be at this time. 
Subchapter VII, Registration and voting Statistics (42 
U.S.C. 
2000f). 
The sole section of this Subchapter directs 
the Secretary of Commerce to collect registration and voting 
statistics, 
focussing 
on 
race, 
color, 
and national 
origin. 
The section contains no hint of the areas to be covered, 
but 
because 
the 
first 
information 
was 
to 
be part 
of 
the 
next 
Decennial 
Census, 
and because 
the territories are generally 
covered by the census laws (see Memorandum No. 
13-1 ), they are 
probably comprehended here as well. 
Subchapter VIII, 
Community 
Relations 
Service 
(42 
U.S.C. 2000g-2000g-3). 
This Subchapter, derived from Title x 
of 
the 
Civil 
Rights 
Act 
of 
1964, 
creates 
the 
Community 
Relations Service, now within the Department of Justice. 
It 
is charged in pertinent part with assisting "communities and 
persons 
therein" 
in 
resolving 
disputes 
relating 
to 
discriminatory practices "which impair the rights of persons 
in such communities 
under 
the Constitution 
or 
laws 
of the 
United States" (42 U.S.C. 2000g-1). 
Although the term "State" 
(undefined) 
appears 
in 
some 
sections 
(42 
U.S.C. 
2000g-1, 
2000g-2), 
the references 
are not necessarily geographically 
limiting. 
Key provisions 
of the Constitution, 
particularly 
the Fourteenth Amendment, apply in the territories. 
Were the 
territories to present disputes relating to discrimination-- 
1141 
1H: i 
Memorandum No. 
42-10 
which they are unlikely to do, as a factual matter--it seems 
probable that the Community Relations Service could provide 
assistance. 
Subchapter IX, 
Miscellaneous 
Provisions 
(42 
U.S.C. 
2000h-2000h-6). 
These provisions, 
derived 
from Title XI of 
the Civil Rights Act of 1964, 
are procedural 
and they 
thus 
have no geographical application as such. 
They would apply if 
the pertinent provision of the 1964 Act applies. 
One section 
makes 
clear 
that 
Congress 
did 
not 
intend 
to preempt 
the 
subject 
matter, 
to the 
exclusion 
of 
"State" 
laws 
or 
the 
subject 
(42 U.S.C. 
2000h-4). 
While 
there 
appear 
* 
-2 no 
cases on the point, 
it seems probable that the section would 
be 
read 
so 
as 
not 
to 
foreclose 
territorial 
laws 
on 
the 
subject, 
either. 
Conclusion: 
The relationship 
of many 
of 
the 
civil 
rights 
laws 
contained 
in Chapter 
21 
of Title 
42 
to the 
territories 
is 
ragged and arguable. 
But given the delicacy of the subject 
matter, particularly in connection with the old post-Civil War 
laws, 
and given the general absence in the territories of the 
kind 
of 
discrimination 
to 
which 
these 
laws 
were 
largely 
directed (i.e., discrimination based on race), 
it is probable 
that the decision-makers 
in both the Executive Branch and the 
Congress 
would 
be 
reluctant 
to 
amend 
them. 
The 
same 
considerations 
apply, 
but 
to a lesser extent, 
to the Civil 
Rights Act of 1964, 
in connection with which the draftsmen 
were largely oblivious to the territories. 
At least at such 
time as these later laws undergo revision and updating, 
they 
ought 
to be modified 
to clarify 
their 
application 
to 
the 
territories. 
Before 
that, 
should the territories become the 
sites 
of 
the 
kind 
of discrimination 
to which 
the 
Act 
is 
directed--which 
they do not now appear 
to be--the 
1964 
Act 
should be amended to make appropriate provision for them. 
Federal 
agency 
comments: 
Comments 
were 
requested 
from 
the 
Department 
of Justice, 
which 
after 
consideration, 
offered 
none. 
1142 
Memorandum No. 
42-11 
February 1990 
Revised December 1991 
Subject: 
(a) Privacy Protection 
Title 42, Chapter 21A (42 U.S.C. 2000aa-2000aa-12) 
(b) Indian Hospitals and Health Facilities 
Title 42, Chapter 22 (42 U.S.C. 
2001-2005£) 
(c) Development and Control of Atomic Energy 
Title 42, Chapter 23 (42 U.S.c. 
2011-2296) 
(da) Disposal of Atomic Energy Communities 
Title 
42, Chapter 24 (42 u.s.c. 
2301-2394) 
(e) Federal Flood Insurance 
Title 42, Chapter 25 (42 u.S.c. 
2414(e)) 
{£) National Space Program 
Title 42, Chapter 26 (42 U.S.C. 
2451-2484) 
{g) National Space Grant College and Fellowship Program 
Title 42, Chapter 26A (42 U.S.C. 
2486-2486 i) 
(h) Loan 
Service 
of 
Captioned 
Films 
and 
Educational 
Media for Handicapped 
Title 42, Chapter 27 
(42 U.S.C. 
2495) 
(i) Public Works Acceleration Program 
Title 42, Chapter 31 
(42 U.S.C. 
2641-2643) 
(3) Third Party Liability for Hospital and Medical Care 
Title 42, Chapter 32 (42 U.S.C. 
2651-2653) 
(k) Economic Opportunity Program 
Title 42, Chapter 34 
Work-Study Programs 
(42 U.S.C. 
2751-2756a) 
Native American Programs 
(42 U.S.C. 
2991-2992d) 
Legal 
Services 
Corporation 
(42 
U.S.C. 
2996-29961) 
(L) Programs for Older Americans 
Title 42, Chapter 35 (42 U.S.C. 
3001-3058d) 
(m) Community Facilities and Advance Land Acquisition 
Title 42, Chapter 37 (42 U.S.C. 
3101-3108) 
1143 
ra4 
PTET 
SVS ESS 
Memorandum No. 
42-11 
(n) Public Works and Economic Development 
Title 
42, Chapter 38 (42 U.S.C. 
3121-3245) 
(o) Soil Information 
Assistance 
for Community Planning 
and Resource Development 
Title 
42, Chapter 40 (42 U.S.C. 
3271-3274) 
(p) Demonstration 
Cities 
and Metropolitan 
Development 
Program 
Title 
42, 
Chapter 
41 
(42 U.S.C. 
3331-3339, 
3371- 
3374) 
Comment: 
The 
several 
chapters 
of Title 
42 
considered 
in 
this 
memorandum relate to a wide variety of subjects, many of which 
are 
of 
little 
interest 
in 
or 
to 
the 
territories. 
The 
important 
Federal 
financial 
assistance 
program 
discussed 
herein--the Older Americans Act {(1) below)--applies fully to 
the territories and contains comparatively generous allotment 
provisions 
for them. 
Discussion: 
(a) Privacy 
Protection 
(42 U.S.C. 
2000aa-2000aa-12) 
contains the 1980 law, the Privacy Protection Act, which makes 
it unlawful 
for 
"a government 
officer 
or employee" 
in 
the 
course of a criminal investigation or prosecution to search 
for or seize documentary materials possessed by a person not 
suspected of criminal activity (42 U.S.C. 2000aa(a)). 
The Act 
followed a Supreme Court decision that Congress viewed as an 
invasion of 
the personal privacy 
of innocent 
third parties, 
and it is intended "to limit governmental search and seizure 
of documentary materials possessed by persons engaged in first 
amendment activities" 
(1980 U.S. 
Code Cong. 
and Admin. 
News 
3950). 
A person aggrieved by a search or seizure that is 
barred by the Act has a civil cause of action 
(1) "against the United States, against 
a State which has waived 
its sovereign 
immunity 
under 
the 
Constitution 
to 
a 
claim 
for 
damages 
resulting 
from 
a 
1144 
Memorandum No. 
42-11 
violation 
[of the Act], 
or against any 
other governmental unit 
. 
. 
-"3 and 
(2) “against an officer or employee of a 
State who has violated {this Act] 
. 
. 
., 
if 
such 
State 
has 
not 
waived 
its 
sovereign immunity". 
(42 U.S.C. 2000aa— 
6(a)). 
The 
term 
"governmental 
unit" 
includes 
Puerto 
Rico, 
"any 
territory 
or 
possession 
of 
the 
United 
States", 
any 
local 
governmental unit, or any unit of State government 
(42 U.S.C. 
2000aa~7(c)). 
The Federal district courts have jurisdiction 
of actions under the Act (47 U.S.C. 2000aa-6(h)). 
The effects 
of 
the 
foregoing 
are 
not 
entirely 
clear. 
The Act would 
apply 
fully 
to constrain Federal 
or 
territorial officers in the Virgin Islands and Guam--and also 
in American Samoa, but the absence of a Federal district court 
there would deprive an aggrieved person in Samoa of the route 
to a remedy. 
But the Act may not apply at all to the Northern 
Marianas, because the two Covenant Provisions that customarily 
serve as vehicles 
for extension appear not 
to apply in this 
case. 
Section 502(a)(2) cannot operate to extend the law to 
the 
Northern 
Marianas, 
because 
it 
was 
enacted 
after 
the 
January 9, 1978, effective date of that section; 
and section 
105 
applies 
only 
if 
the 
law 
names 
the 
Northern 
Marianas 
expressly (which this Act does not) or if it is one that could 
"also 
be 
made 
applicable 
to 
the 
several 
States". 
The 
references 
in the Provisions quoted above 
to the waiver or 
nonwaiver 
by 
a 
State 
of 
sovereign 
immunity 
suggest 
that 
Congress may be constitutionally constrained 
from providing 
for actions against a State government for violations of the 
Act by its officers or employees. 
In the circumstances, 
the 
application 
of the Act to the Northern Marianas 
is at least 
arguable. 
If 
the 
matter 
is 
of 
sufficient 
moment 
in 
the 
Northern Marianas 
to warrant doing so, 
as seems likely, 
then 
the definition of "governmental unit" ought to be amended to 
refer expressly to the Northern Marianas. 
And the deficiency 
as to court jurisdiction in Samoa could at the same time be 
corrected--perhaps by Placing jurisdiction in the Samoan High 
Court. 
1145 
145 
Memorandum No. 
42-11 
(b) The 
chapter 
on 
Indian Hospitals 
and 
Heaith 
Facilities (42 U.S.C. 2001-2005f) deals with the 1954 transfer 
of Indian Health Services from the Bureau of Indian Affairs 
and 
the 
Department 
of 
the 
Interior 
to 
the 
Public 
Health 
Service. 
The subject matter 
js 
irrelevant 
for purposes 
of 
this 
study. 
Several 
internal 
references 
to 
"States 
and 
Territories" 
are 
explained 
by 
the 
then 
current 
status 
of 
Alaska 
as 
a 
Territory, 
2nd 
the 
presence 
there 
of 
many 
beneficiaries of Indian health services. 
(c) The chapter entitled Development_and Control of 
Atomic Energy (42 U.S.C. 2011-2296) contains the Atomic Energy 
Act of 
1954, 
as amended, 
together with extensive amendatory 
and 
supplementary 
legislation. 
The 
authority 
originally 
conferred 
on 
the 
Atomic 
Energy 
Commission 
is 
now, 
with 
modifications over the years, placed in the Nuclear Regulatory 
Commission and the Secretary of the Department of Energy. 
The 
chapter is long and complex, 
as befits its subject matter. 
With 
few 
exceptions--all 
of 
which 
may 
be 
of 
academic interest only, 
as discussed below--the 
laws 
in this 
chapter apply in the same manner to the Virgin Islands, 
Guam, 
Samoa, 
and the Northern Marianas 
as they do to the States. 
For purposes of the Chapter, 
the term “United 
States" when 
used 
in a geographical 
sense 
includes 
"all Territories and 
possessions of the United States" and Puerto Rico (42 U.S.C. 
2014(bb)). 
And 
in 
an 
important 
section 
dealing 
with 
cooperation 
with the States 
and with, 
in general, 
Federal- 
State relations under the Atomic Energy Act (42 U.S.C. 2021), 
the 
term 
"State" 
is defined 
to 
include 
any 
Territory 
or 
possession 
(42 U.S.C. 
2021(n)). 
That 
is probably sufficient 
to meet the current needs of the territories. 
There are some sections, 
however, 
that refer 
to 
"States" 
without 
a 
definition, 
or 
that 
contain 
one 
that 
excludes the territories. 
These probably create no problems 
at this time, but a general definition of the term "State" to 
include the territories (perhaps with exceptions that may be 
appropriate) might be of value for the future. 
The sections 
in question are 
1146 
Memorandum No. 42-11 
~~ 
42 U.S.C. 2014(s), 
(w), and (gg), which contain 
definitions 
of 
"person", 
“public 
utility", 
and 
"precautionary evacuation", 
respectively, 
and in so 
doing use the term "State" without definition; 
-- 
42 U.S.C. 
2018, referring to the authority of 
a 
"State" 
agency 
over 
electric 
power 
produced 
by 
nuclear facilities; 
~~ 
42 U.S.C. 
2021a, 
referring 
to facilities 
for 
nuclear storage or disposal; 
-- 
42 U.S.C. 
2021b, which at 2021b(14) defines 
a 
“state” to include only the States, 
the District, and 
Puerto Rico for purposes of sections concerning low- 
level 
radioactive 
waste 
policy 
(42 
U.S.C. 
2021b- 
20213), 
but 
because 
the 
program 
relates 
to 
waste 
disposal 
on 
a regional 
basis, 
it would appear 
to be 
irrelevant as 
a practical matter to the territories; 
-- 
42 
U.S.C. 
2098, 
but 
the 
section 
relates 
to 
public 
lands, 
of 
which 
there 
are 
none 
in 
the 
territories 
(see Memorandum No. 43-1); 
-- 
42 
U.S.C. 
2113 
(concerning 
provisions 
of 
Commission 
licenses resulting 
in the production 
of 
uranium or thorium mill tailings) and 2114 (concerning 
Commission 
authority 
with 
respect 
to 
uranium 
and 
thorium mill tailings) refer to States, undefined, but 
they 
are 
at 
least 
now 
as 
a 
practical 
matter 
irrelevant, 
for there are no nuclear activities in the 
territories that would be affected; 
-- 
42 U.S.C. 
2201, relating to the duties of the 
Commission, which ai subsection (f) refers to the use 
of "State" personnel, 
and at 
(q) to easements 
to a 
"State", but the latter reference is to public lands; 
and 
further 
language 
in 
(q) 
contains 
a 
useful 
1147 
Memorandum No. 
42-11 
reference to Territories and possessions 
(pertaining 
to corporations); 
-- 
42 U.S.C. 2208, permitting payments in lieu of 
taxes to "States" where the Commission holds property, 
but it has none in the territories; 
and 
-- 
42 U.S.C. 2238 and 2239, relating to procedures 
in connection with licenses issued by the Commission 
for nuclear facilities, of which there are none in the 
territories. 
It 
seems 
appropriate 
to 
conclude 
that’ 
the 
foregoing 
create 
no 
problems 
at 
this 
time, 
but 
when 
a 
convenient legislative vehicle is at hand, 
it would be well to 
define "State" to include the territories. 
(da) The 
Disposal 
of Atomic 
Energy 
Communities 
(42 
U.S.C. 
2301-2394) 
contains 
the law, 
first 
enacted 
in 
1955, 
that authorized the sale and other disposition of property in 
the communities created by the Atomic Energy Commission at Oak 
Ridge, 
Tennessee, 
Richland, 
Washington, 
and Los Alamos, 
New 
Mexico. 
The chapter has no relevance to the territories or to 
this study. 
(e) The 
chapter 
entitled 
Federal 
Flood 
Insurance 
consists now of but one subsection (42 U.S.C. 2414(e)), and it 
concerns 
the issuance of notes 
to the Treasury Department by 
the Federal Emergency Management Agency. 
The provision is as 
a practical 
matter 
a part 
now 
of Chapter 
50 
of Title 
42, 
National Flood Insurance (42 U.S.C. 4001-4128), considered in 
Memorandum No. 
42-12(g). 
(£) The National Space Program (42 U.S.C. 
2451-2484) 
provides 
for 
the 
National 
Aeronautics 
and 
Space 
Administration, 
the 
National 
Space 
Council, 
and 
the 
breathtaking activities of each--plus such lesser matters as 
how prices are set for the use of the Space Shuttle 
(42 U.S.C. 
2466-2466c). 
Nothing in these laws has application, 
as such, 
1148 
1439 
Memorandum No. 
42-11 
to 
the 
territories, 
and 
nothing 
in 
them 
results 
in 
any 
different treatment 
for the territories 
than for any other 
areas 
of 
the United States. 
In just one instance 
the term 
"State" 
‘creeps 
in, 
undefined--this 
in connection 
with 
the 
removal from a "State" court to a Federal court of tort claims 
for negligence by medical professionals employed by NASA 
(42 
U.S.C. 2458a(c))--but this presents no genuine problem. 
The 
territories and their people are beneficiaries of this program 
as fully as are the people of the States. 
(g) The National Space Grant College and Fellowship 
Program 
(42 
U.S.C. 
2486-24861) 
contains 
the 
1987 
law 
that 
provides Federal funds for grants and contracts to individuals 
and institutions, 
and fellowships 
to graduate students, 
for 
work in fields related to space. 
The term "State" is defined 
to include explicitly the Virgin Islands, Guam, Samoa, and the 
Northern 
Marianas 
(42 
U.S.C. 
2486b(12)), 
so 
that 
public 
institutions 
in 
all 
of 
them 
are, 
if 
otherwise 
qualified, 
eligible 
for the 
financial 
assistance 
authorized. 
The Act 
applies 
to 
the 
territories 
as 
fully 
as 
it applies 
to 
the 
States. 
(h) The chapter 
entitled 
Loan 
Service 
of Captioned 
Films and Educational Media for Handicapped now consists of 
one section only (42 U.S.C. 
2495), 
and that section provides 
for the National Advisory Committee on Education of the Deaf. 
Its 
function 
is, 
as 
its 
name 
makes 
clear, 
to advise 
the 
Secretary of Education on programs relating to the education 
of the deaf. 
No language excludes the territories nor affects 
them in any unusual manner. 
(i) The Public Works Acceleration Program 
(42 U.S.C. 
2641-2643) contains the Public Works Acceleration Act, enacted 
in 1962, 
which provided Federal grants-in-aid 
to facilitate 
public works projects in areas of substantial unemployment or 
areas 
designated 
as redevelopment 
areas. 
Because 
the 
1962 
Executive order that implemented the Act (Executive Order No. 
11049 
of September 
14, 
1962) 
was revoked 
by Executive Order 
No. 12553 of February 25, 1986, the law may now be regarded as 
obsolete. 
1149 
Memorandum No. 
42-11 
(3) The chapter 
entitled 
Third 
Party 
Liabili 
Hospital and Medical Care 
(42 U.S.C. 
2651-2653) permits the 
United 
States 
to recover 
its 
costs 
of hospital, 
medical, 
surgical, or dental care when the United States is required by 
law to provide for such care, 
if the costs arise from injury 
inflicted upon the patient by the negligence of a third party. 
Certain 
care 
and 
treatment 
furnished 
by 
the 
Veterans’ 
Administration is excluded. 
The chapter contains no provision 
concerning 
its geographic 
scope, 
but because 
no geographic 
limitation 
is 
imposed, 
the 
law 
would 
apply 
in any 
area-- 
including the territories--where jurisdiction over the third 
party could be obtained. 
(k) The Economic Opportunity Program, which is Chapter 
34 
of 
Title 
42, 
formerly 
contained 
the extensive 
Economic 
Opportunity 
Act of 
1964, 
a law 
that 
has 
now 
largely 
been 
repealed or become obsolete, 
except 
for three programs 
that 
will be considered separately. 
-- The Work-Study Programs (42 U.S.C. 2751-2756a) 
provides 
Federal 
assistance 
to 
institutions 
of 
higher 
education, 
to permit 
them 
to provide 
financial 
aid through 
work-study 
arrangements 
for 
needy 
students 
at 
the 
under- 
graduate or graduate levels, or in professional schools. 
The 
cited 
sections 
contain 
no 
provision 
as 
to 
geographical 
application (although the former 42 U.S.C. 
2752(a) did so, by 
stipulating 
a 2% set-aside 
for the territories, 
plus Puerto 
Rico 
and 
the 
Trust 
Territory), 
but 
the 
special 
authority 
granted 
to 
the 
Secretary 
of 
Education 
under 
the 
Higher 
Education 
Act 
of 
1965, 
as 
amended, 
with 
respect 
to 
the 
territories, 
applies 
to 
the 
Work-Study 
Programs 
as 
well. 
(These 
programs 
were 
originally 
enacted 
as 
part 
of 
the 
Economic Opportunity 
Act of 1965, 
but 
they were 
later made 
part of the Higher Education Act.) 
That special authority, 
codified 
at 
20 U.S.C. 
1144a and discussed 
in Memorandum No 
20-4, gives broad authority to the Secretary of Education to 
act 
to "take 
into account 
the unique circumstances 
in" and 
“adapt programs under 
this 
Act 
to the needs of" Guam, 
the 
virgin Islands, 
Samoa, and the Northern Marianas. 
-- Native American Programs (42 U.S.C. 2991-2992d) 
contain the Native American Programs Act of 1974, a program of 
1150 
181 
Memorandum No. 
42-11 
Federal 
financial 
assistance 
to American 
Indians, 
Alaskan 
Natives, 
Native Hawaiians, 
and by an amendment in 1987, 
Native 
American 
Pacific 
Islanders 
(including 
American 
Samoan 
Natives). 
(42, 
U.S.C. 
2991a) 
An extensive report from the Senate Select Committee on Indian 
Affairs makes clear that "Native American Pacific Islanders" 
means 
the natives of Guam, 
Samoa, 
and the Northern Marianas 
(1987 U.S. Code Cong. and Admin. News 896-908). 
‘The purpose 
of the program is to provide financial assistance to “public 
and nonprofit agencies serving" such Native American Pacific 
Islanders, but they appear to have a lesser priority than the 
other groups who are beneficiaries of the program, because the 
Secretary 
of 
Health 
and 
Human 
Services 
is 
authorized 
to 
provide for them "subject 
to the availability of funds" 
(42 
U.S.C. 2991b(a)). 
Funds for the program are authorized to be 
granted 
"to promote 
the goal 
of economic 
and social 
self- 
sufficiency” 
(42 U.S.C. 
2991a). 
As of the spring of 
1991, 
four awards 
had been 
made, 
to agencies in American Samoa, 
the Northern Marianas, 
Seattle, 
and San Francisco. 
The Senate Committee’s comments 
in 1987 suggested that among the earliest beneficiaries would 
be agencies 
in Hawaii, 
California, 
and 
Washington, 
all 
of 
which 
have 
substantial 
Samoan 
populations 
(1987 
U.S. 
Code 
Cong. 
and Admin. 
News 698). 
The presence 
in communities 
in 
the States 
of sizeable 
groups 
of disadvantaged 
Samoans may 
account for the special and redundant parenthetical reference 
to "American 
Samoan Natives" 
following 
the 
use 
of "Native 
American Pacific Islanders". 
But the report makes clear that 
assistance to agencies serving such Native American Pacific 
Islanders 
in their 
own 
territories 
is intended 
also 
to be 
authorized. 
A question necessarily arises as to the exclusion 
of natives of the Virgin Islands. 
The legislative history of 
the 
1987 
amendments 
suggests 
that 
the 
Congress 
was 
then 
focusing on discrete ethnic groups, and it might be difficult 
1151 
TRD 
Memorandum No. 42-11 
to define such a group of native Virgin Islanders, 
given the 
movement into and out of the U.S. Virgin Islands historically 
of Caribbean natives generally. 
Nevertheless, equity requires 
that 
the 
inclusion 
of 
native 
Virgin 
Islanders 
be 
given 
thoughtful 
consideration, 
if the program 
continues 
and 
if 
Pacific natives become significant beneficiaries of it. 
-- The Legal Services Corporation (42 U.S.C. 2996- 
2996-1), derived from the Act of that name enacted in 1974, is 
a 
private, 
nonprofit 
organization 
that 
provides 
Federal 
financial 
support 
for 
legal 
assistance 
in 
noncriminal 
Proceedings 
to persons 
financially 
unable 
to afford 
legal 
assistance. 
It does so through grants to and contracts with 
individuals, 
partnerships, 
corporations, 
and 
nonprofit 
organizations, and with State and local governments (42 U.S.C. 
2996e(a)(1)). 
The 
term 
"State" 
is 
defined 
to 
include 
expressly the Virgin Islands, Guam, and Samoa, as well as “any 
other territory or possession of the United States" (42 U.S.C. 
2996a(8)). 
The 
Northern 
Marianas 
are 
comprehended 
by 
operation of section 502(a)(2) of the Covenant, 
so all of the 
areas that are subjects of this study are fully covered in the 
same manner as the States. 
{1) The chapter entitled Programs for Older Americans 
(42 U.S.C. 
3001 et seq.) contains the Older Americans Act of 
1965, as amended. 
The Act provides a great number of Federal 
grant programs--some formula grants, 
some project grants--to 
assist the elderly, 
relating 
for example 
to senior centers, 
coordinate 
nutrition 
services, 
home 
delivered 
nutrition 
services, 
in-home 
needs, 
transportation, 
and 
many 
others. 
Because 
the Virgin 
Islands, 
Guam, 
Samoa, 
and 
the Northern 
Marianas are all defined as "States" 
(42 U.S.C. 3002(3)), and 
because they are treated no differently from the States except 
in 
connection 
with 
allotments, 
discussed 
below, 
the 
territories are fully covered by the Act and are entitled to 
all the benefits the States receive. 
No provision appears to 
be disadvantageous 
to them, 
nor does 
any appear 
to create 
particular difficulties for them. 
The Act is administered by 
the Department of Health and Human Services, 
except for the 
provisions concerning community service employment for older 
Americans 
(42 U.S.C. 3056-3056g), which is the responsibility 
of the Department of Labor. 
The administrative arrangements 
within 
a State, 
and 
the State plans that 
are required 
as 
a 
1152 
183 
Memorandum No. 42-11 
basis 
for grants under 
the Act 
(42 U.S.C. 
3025, 
3026), 
are 
enormously complex, 
but the territories have received grants 
under the Act so these requirements 
have evidently not been 
found to be insurmountable. 
three, 
better, 
As to the allotment percentages, 
the Act contains 
and 
in 
all 
of 
them 
the 
territories 
fare 
somewhat 
relatively, 
than do the states: 
-- 
42 
U.S.C. 
3024(a) 
provides 
allotments 
for 
purposes 
of many 
of 
the programs 
authorized 
by the 
Act. 
The 
States 
(expressly 
excluding 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern 
Marianas) 
receive allotments based on their over-60 populations, 
with a minimum for each State stipulated at 1/2 of one 
percent of the sum appropriated. 
Guam and the Virgin 
Islands 
are 
to receive 
not 
less 
than 
1/4 of 
one 
percent 
of the 
sum appropriated, 
and Samoa 
and the 
Northern Marianas 
are to receive not less than 1/16 
of 
one 
percent. 
Based 
on 
their 
respective 
populations, contrasted with those of the States, the 
territories receive generous treatment. 
-- 
42 
U.S.C. 
3028(b) 
provides 
a 
formula 
for 
allotting funds for the costs of administration of the 
State plan, and associated administrative costs. 
The 
formula for the Virgin Islands, 
Guam, 
Samoa, 
and the 
Northern Marianas again appears to guarantee them each 
a sum greater than that of the States, 
in relation to 
respective populations. 
-~ 42 U.S.C. 3056d(a), relating to allotments for 
the community 
service 
employment 
program 
for older 
Americans, 
provides 
that the territories 
receive 
an 
allotment percentage of 75 percent 
(while the States 
can vary under their formula from 33 1/3 percent to 75 
percent), and they are thus guaranteed a minimum which 
again, 
on a population basis, 
is more generous 
than 
the minimum for the States. 
1153 
Memorandum No. 
42-11 
In sum, 
the Older Americans Act appears in general to treat 
the territories 
fairly, 
by according 
them 
the same program 
treatment as the States, and to provide for them somewhat more 
generously, relative to the States, 
in the allotment of funds. 
(m) The 
provisions 
under 
the 
title 
Community 
Facilities and Advance Land Acquisition (42 U.S.C. 3101-3108) 
may 
relate 
to 
a 
grant 
program 
that 
has 
expired. 
The 
appropriation authorization at 42 U.S.C. 
3108 suggests this, 
but 
the 
law 
was 
amended 
as 
recently 
as 
1982 
(42 
U.S.C. 
3105(b)), 
so the program may continue in some manner. 
In any 
event, current law authorizes Federal assistance 
to "States" 
and their local public bodies in the form of grants for the 
advance acquisition 
of 
land 
for public purposes 
(42 U.S.C. 
3104), 
with 
the 
term 
"State" 
defined 
to 
include 
the 
“territories and possessions"--so defined 
in 1965 
(42 U.S.C. 
3106(a)). 
Accordingly, 
the Virgin Islands, 
Guam, 
Samoa, 
and 
the 
Northern 
Marianas 
all 
qualify, 
the 
latter 
through 
operation of section 502(a)(2) 
of the Covenant. 
(mn) The 
chapter 
entitled 
Public 
Works 
and Economic 
Development 
(42 U.S.C. 
3121-3245) 
is derived from the Public 
Works and Economic Development Act of 1965, 
as amended. 
It 
provides for numerous Federal programs of project grants and 
loan 
guarantees 
to 
the 
“States" 
for 
a 
wide 
variety 
of 
economic development undertakings, including health projects, 
navigation 
projects, 
and 
a great 
number 
of others. 
Some 
portions of the Act have been repealed, and the appropriations 
authorizations for the rest have expired, 
but programs under 
the Act continue 
to this writing under other means, although 
the Catalog 
of Federal 
Domestic 
Assistance 
indicates 
that 
several such programs are "proposed" for termination no later 
than September 30, 1990 (CFDA 11. 300-11.312). 
For immediate 
purposes it may be sufficient to note that the territories all 
qualify, 
as fully and on the same terms as the States, 
for the 
Federal programs provided. 
The term 
"State" 
is defined 
to 
include 
expressly 
the Virgin 
Islands, 
Guam, 
and 
Samoa 
(42 
U.S.C. 
3216), 
and because the definition dates from 1965, 
it 
comprehends 
the Northern 
Marianas 
as 
well, 
by operation 
of 
section 
502(a)(2) 
of the Covenant. 
A portion 
of the Act 
pertaining to economic recovery for disaster areas 
(42 U.S.C. 
3231-3235), 
amended 
as recently 
as 
1988, 
continues, 
and the 
territories are eligible for its benefits. 
1154 
Memorandum No. 
42-11 
Of academic interest--but only that--is a portion 
of the 1965 Act (now repealed) that made special and necessary 
provision 
for the Virgin 
Islands, 
but not 
for 
the Pacific 
territories. 
The Act originally provided for the creation of 
regional planning commissions (formerly 42 U.S.C. 3181-3196), 
with 
the 
regions 
"within 
contiguous 
States", 
except 
for 
Alaska, 
Hawaii, 
Puerto Rico, 
the Virgin Islands, California, 
and Texas 
(formerly 
42 U.S.C. 
3181(a)), 
each of which could 
have regional 
planning commissions 
wholly within 
their 
own 
borders. 
The failure to name the Pacific territories in that 
exception obviously effectively foreclosed their participation 
in that program. 
But as noted, the matter is academic at this 
time, 
the regional commission authority having been repealed 
in 1981. 
{o) The chapter entitled Soil Information Assistance 
for Community Planning 
and Resource 
Development 
(42 U.S.C 
3271-3274) contains a short, 1966 statute that authorized the 
Secretary of Agriculture to enter cooperative agreements "to 
make available soil surveys to meet 
. 
. 
. needs of the States 
and 
other 
public 
agencies 
in 
connection 
with 
community 
planning 
and 
resource 
development" 
(42 U.S.C. 
3271). 
The 
appropriation authorization 
is open-ended 
(42 U.S.C. 
3274). 
Although the States 
(and other "public agencies") alone are 
mentioned 
in 
the 
statute, 
the 
territories 
would 
all 
be 
eligible 
for 
its benefits 
if the 
Secretary 
of Agriculture 
were, 
in his discretion, 
to choose to implement the law in any 
of those areas. 
He 
could do so under the authority contained 
in 
the 
1980 
law 
that 
permits 
the 
extension 
of 
"programs 
administered 
by the Department of Agriculture 
to Guam, 
the 
Northern 
Mariana 
Islands, 
.. 
. 
the 
Virgin 
Islands, 
and 
American Samoa" (48 U.S.C. 1469(c)). 
Under that authority the 
Secretary may waive or modify statutory requirements 
if "he 
deems it necessary in order to adapt the programs to the needs 
of the respective territory". 
(p) Demonstration Cities and Metropolitan Development 
Program (42 U.S.C. 3331-3339, 3371-3374) contains what remains 
of 
the 
1966 
legislation 
commonly referred 
to as 
the Model 
Cities 
program. 
The sections 
concerning planned area-wide 
development 
(42 U.S.C. 3331-3339) provide for coordination of 
Federal 
programs 
directed 
toward 
particular 
area-wide 
1155 
WRG 
Memorandum No. 42-11 
developments--developments that are themselves the recipients 
of Federal benefits 
flowing 
to sometimes 
a multiplicity 
of 
State 
and local 
agencies 
involved 
in the same 
development, 
from 
a multiplicity 
of Federal 
agencies. 
It 
is improbable 
that the territories have been or will be involved in any such 
area-wide developments, 
but if they are, they like the States 
and their public agencies are eligible for planning grants (42 
U.S.C. 
3335, 
3338(3)), 
and are otherwise within the terms of 
the law. 
The remaining section 
(excluding 
42 U.S.C. 
3371 
which pertains only 
to Alaska) 
authorizes 
the Secretary 
of 
Defense to acquire housing from the home owner, 
if the closing 
of 
a military 
installation 
has 
resulted 
in there 
being 
no 
market for the property 
(42 U.S.C. 
3374). 
The authority of 
the 
Secretary 
of Defense 
applies 
only 
to closures 
in 
the 
States and the District of Columbia 
(42 U.S.C. 
3374(m)), 
but 
the limited 
circumstances 
under which 
the authority 
can 
be 
exercised suggest that it could not realistically be applied 
in the only territory--Guam--where 
a military closure could 
under 
present 
circumstances 
occur. 
For 
example, 
the home 
owner must be a Federal employee or serviceman employed at the 
closed facility, whose services are terminated by the closure 
(42 0.8.C. 
3374(a)), 
and there would be few, 
if any in Guam, 
who would meet 
those requirements. 
But 
if there were 
any, 
their property would almost certainly gain in value, 
so they 
could then not meet the further statutory test of "no present 
market" 
(42 U.S.C. 
3374(a) 
(3)). 
The inapplicability of this 
law 
to the 
territories, 
thus, 
does 
not 
appear 
to require 
modification. 
Conclusion: 
The laws discussed herein apply for the most part to 
the territories, 
and on terms that appear to be fair to them. 
In two instances, however, technical problems are present that 
ought, 
nonurgently, 
to 
be 
corrected: 
in 
connection 
with 
Privacy Protection ((a) above) and the Development and Control 
of Atomic 
Energy 
((c) 
above). 
In addition, 
consideration 
should be given to whether natives of the Virgin Islands ought 
to be entitled 
to the same benefits 
as are afforded "Native 
American Pacific Islanders" under the Native American Programs 
provided for by the Economic Opportunity Act, as amended 
(({k) 
above). 
1156 
Ry 
Memorandum No. 
42-11 
Federal agency comments: 
Comments were not sought with respect to 
many of the foregoing provisions of Title 42, because they do 
not seem required. 
In several 
instances, 
however, 
comments 
were 
invited: 
from 
the Justice Department 
on 
(a), 
Privacy 
Protection; 
from the Department of Health and Human Services 
with respect 
to (k), 
the Native American Programs under the 
Economic 
Opportunity 
Act, 
and 
(1), 
Programs 
for 
Older 
Americans; 
and 
from 
the Nuclear 
Regulatory Commission 
with 
respect 
to 
(c), 
Atomic 
Energy, 
and related 
chapters. 
All 
comments received are reflected above. 
1157 
Subject: 
(a) 
(b) 
(e) 
{d) 
(e) 
(£) 
(g) 
(h) 
(i) 
(i) 
(k) 
(m) 
(n) 
Memorandum No. 
42-12 
April 1990 
Revised December 1991 
Narcotic Addict Rehabilitation 
Title 42, Chapter 42 (42 U.S.C. 
3401-3441) 
Department of Health and Human Services 
Title 42, Chapter 43 (42 U.S.C. 
3501-3514) 
Department of Housing and Urban Development 
Title 42, Chapter 44 (42 U.S.C. 
3531-3545) 
Fair Housing 
Title 42, Chapter 45 
(42 U.S.C. 
3601-3631) 
Justice System Improvement 
Title 42, Chapter 46 (42 U.S.C. 
3711-3797) 
National Housing Partnerships 
Title 42, Chapter 49 
(42 U.S.C. 
3931-3941) 
National Flood Insurance 
Title 42, Chapter 50 (42 U.S.C. 
4001-4128) 
Design 
and 
Construction 
of 
Public 
Buildings 
to 
Accommodate Physically Hendicapped 
Title 42, Chapter 
51 
(42 U.S.C. 
4151-4157) 
Advisory Commission on Intergovernmental Relations 
Title 42, Chapter 
53 
(42 U.S.C. 
4271-4279) 
National Environmental Policy 
Title 42, Chapter 
55 
(42 U.S.C. 
43271-4370b) 
Environmental Quality Improvement 
Title 42, Chapter 56 (42 U.S.C. 
4371-4375) 
Environmental Pollution Study 
Title 42, Chapter 
57 (42 U.S.C. 
4391-4395) 
National Urban Policy and New Community Development 
Title 42, Chapter 
59 (42 U.S.C. 
4501-4503) 
Comprehensive 
Alcohol 
Abuse 
and 
Alcoholism 
Prevention, 
Treatment, 
and Rehabilitation Program 
Title 4Z, Chapter 60 (42 U.S.C. 
4541-4594) 
1158 
TRI 
Memorandum No. 
42-12 
{o) Uniform 
Relocation 
Assistance 
and 
Real 
Property 
Acquisition 
Policies 
for 
Federal 
and 
Federally 
Assisted Programs 
Title 
42, Chapter 61 
(42 U.S.C. 
4601-4655) 
(p) Intergovernmental Personnel Program 
Title 42, Chapter 62 (42 U.S.C. 
4701-4772) 
(q) Lead Based Paint Poisoning Prevention 
Title 42, Chapter 63 (42 U.S.c. 
4821-4846) 
(r) Noise Control 
Title 42, Chapter 65 (42 U.S.C. 
4901-4918) 
(s) Domestic Volunteer Service 
Title 42, Chapter 66 (42 U.S.C. 
4951-5085) 
Comment: 
The chapters of Title 42 considered herein do not appear 
to have major importance in or to the territories. 
These laws 
for 
the 
most 
part 
apply 
to 
them, 
and 
with 
only 
minor 
exceptions, 
do not appear 
to require modification. 
Discussion: 
(a) The 
chapter 
entitled 
Narcotic 
Addict 
Rehabilitation 
(42 U.S.C. 
3401-3441) 
contains 
the Narcotic 
Addict Rehabilitation 
Act 
of 1966--a 
law that has not been 
amended 
in an important 
way 
since 
its enactment 
(the only 
amendments having been made to the definitions at 42 U.S.C. 
3411, 
and 
those 
amendments 
having 
occurred 
no 
later 
than 
1972), 
notwithstanding 
the 
increasing 
importance 
of 
the 
subject matter. 
The Act does not apply to the territories. 
It applies only to the States, 
the District of Columbia, 
and 
Puerto Rico (42 U.S.c. 
3411(g), 
(h)). 
The 
purpose 
of the Act 
is 
to provide 
treatment 
under the aegis of the Surgeon General, usually in facilities 
of the 
Public 
Health 
Service, 
of 
narcotic 
addicts 
in 
two 
categories: 
those who have been charged with or convicted of 
a 
Federal 
crime, 
if 
such 
persons 
are 
“likely 
to 
be 
rehabilitated" 
if 
confined 
and 
treated, 
instead 
of 
being 
prosecuted and sentenced to serve; 
and those who, not charged 
with committing an offense, "may be rehabilitated and returned 
to society as useful members" 
(42 U.S.C. 
3401). 
Proceedings 
1159 
170 
Memorandum No. 42-12 
to achieve confinement and treatment are conducted by the U.S. 
Attorney 
in Federal District Courts, 
and the details 
of the 
process 
are set forth in detail 
in the law (42 U.S.C. 
3413- 
3420). 
The foreseen result is hospitalization in a "facility 
of 
the 
Public 
Health 
Service 
especially 
equipped 
for 
the 
accommodation of addicts", or "any other appropriate public or 
private hospital or facility available to the Surgeon General 
for the care 
and treatment 
of addicts" 
(42 U.S.C. 
3411(d), 
3424). 
It is reasonable to infer that this 1966 law has 
not spawned an active program, such inference being drawn from 
the absence of amendments to the law for most of its life, and 
from the paucity of litigation 
that has arisen under 
it 
(to 
judge 
from 
the 
U.S. 
Code Annotated). 
That 
being 
so, 
the 
exclusion 
of the territories 
from 
its application 
does 
not 
seem 
to warrant correction. 
Further, 
not only are 
there 
no 
Public Health Service hospitals in any of the territories, but 
in addition 
the care and treatment of narcotic addicts that 
may now be afforded by hospitals 
in the territories are not 
likely 
to 
be 
sufficiently 
sophisticated 
to 
meet 
whatever 
standards 
the 
Surgeon 
General 
may 
apply. 
In 
these 
circumstances, 
even though drug problems 
in the territories 
rank very high for governmental attention, 
this Act does not 
appear to be a useful candidate for meeting them. 
(b) The chapter entitled the Department of Health and 
Human Services 
(42 U.S.C. 
3501-3514), 
contains organic laws 
for that Department, relating to its organization and some of 
its functions. 
Nothing in it is of concern to this study, 
and 
nothing appears that is troublesome to the territories. 
(c) Similarly, 
the laws codified under Department of 
Housing and Urban Development 
(42 U.S.C. 
3531-3545) 
concern 
the creation 
and some 
of the functions 
of that Department. 
They contain nothing pertinent to this study and nothing that 
appears troublesome to the territories. 
(d) Fair Housing 
(42 U.S.C. 
3601-3631) 
contains 
the 
Fair Housing Act, 
a law that prohibits discrimination 
in the 
sale 
or 
rental 
of 
certain 
housing, 
based 
on 
race, 
color, 
1160 
Memorandum No. 
42-12 
religion, 
sex, 
or national 
origin--and, 
as 
added 
in 
1988, 
discrimination 
based 
on 
physical 
or 
mental 
handicap 
or 
familial status. 
The Act applies to the territories, with the 
term "State" defined 
to include "any of the territories and 
possessions 
of the United States" 
(42 U.S.c. 
3602(g)). 
As 
explained below, however, 
the effect of the Act in Samoa and 
the Northern Marianas 
is reduced 
by the locally-applicable 
laws restricting land alienation. 
In commenting on this memorandum, 
the Department 
of 
Housing 
and 
Urban 
Development 
points 
out 
that 
the 
prohibitions apply to all housing, 
and not just to Federally- 
assisted housing. 
The prohibitions do not apply generally to 
“any single-family 
house 
sold 
or 
rented 
by an owner" 
(42 
U.S.C. 3603(b)). 
Enforcement is provided through conciliation 
agreements negotiated by the Secretary 
of Housing and Urban 
Development, 
by 
administrative 
proceedings 
before 
an 
administrative law judge of that Department, or by suit filed 
in 
a 
Federal 
District 
Court 
(42 
U.S.C. 
3610-3614). 
The 
absence 
of a Federal District Court 
in Samoa would limit 
a 
complainant’s remedies there, 
but a conciliation agreement or 
an administrative proceeding would be available for a Samoan, 
although court enforcement of the latter would not. 
The 
laws 
of the Northern Marianas 
and of Samoa 
restrict 
land alienation based 
on race 
or national origin. 
The Northern Marianas restriction appears 
in section 805 of 
the 
Covenant, 
a 
Federal 
law 
{Public 
Law 
84-241, 
approved 
March 24, 
1976). 
The Court of Appeals for the Ninth Circuit 
recently concluded that section 805 does not violate the equal 
protection requirements 
of 
the 
U.S. 
Constitution 
(Wabol_ 
v. 
Villacrusis, 
No. 
87-1736, 
February 20, 
1990). 
The 
Samoa 
restriction 
is 
authorized 
by Article 
I, 
section 
3 of 
the 
Samoan Constitution and by laws enacted in Samoa to implement 
that provision. 
The Samoan Constitution was locally drafted, 
but has Federal recognition as of 1983 
(48 U.S.C. 
1662a). 
It 
is not, 
however, 
a Federal 
law and the constitutionality of 
the restrictions 
on land alienation 
in Samoa‘’s Constitution 
and laws, 
based 
upon 
race, 
has 
not 
been 
tested 
in Federal 
court. 
The 
constitutionality 
of 
these 
race-based 
land 
alienation laws was before the U.S. 
Court of Appeals for the 
District of Columbia in Corporation of the Presiding Bishop 
v. 
Hodel 
(830 
F.2d 
374 
(1987), 
cert. 
denied 
108 
S. 
Ct. 
1752 
1161 
Ve 
Memorandum No. 
42-12 
(1988)), but the court found it "unnecessary" to consider the 
constitutional question (at p. 383). 
The court did, however, 
allude to the alienation restraints with a hint of approval, 
based on historic and cultural considerations (at p. 386-387). 
The Wabol decision would doubtless assist 
a court, were 
the 
Samoa 
question 
to 
arise, 
in 
concluding 
that 
Samoa’s 
restrictive 
alienation 
laws 
also 
are 
not 
constitutionally 
vulnerable. 
A provision of the Fair Housing Act invalidates a 
"State’s" own "discriminatory housing law" 
(42 U.S.C. 
3615). 
But 
this 
provision 
would 
be superseded 
in 
the case 
of 
the 
Northern Marianas and Samoa--in 
the Northern Marianas by the 
Federal law agreeing to restraints (in 1976, 
in section 805 of 
the Covenant), and in Samoa by the Federal law recognizing the 
Samoa 
Constitution 
(in 
1983), 
which 
the 
D.C. 
Circuit 
has 
stated to "some extent 
. 
. 
. ratified 
. 
. 
. 
in principle" the 
restraints 
in the Samoa Constitution 
(Presiding 
Bishop, 
at 
386). 
It seems reasonable 
to conclude, 
therefore, 
that 
the 
Fair 
Housing 
Act 
is 
not 
applicable 
to 
Samoa 
and 
the 
Northern Marianas to the extent that land alienation laws in 
those 
areas 
are 
in conflict witn 
it. 
That 
does 
not mean, 
however, 
that the Fair Housing Act is otherwise inapplicable 
to Samoa 
and the Northern Marianas--it 
is applicable 
in its 
entirety 
to 
the 
Virgin 
Islands 
and 
Guam--inasmuch 
as 
it 
prohibits 
discrimination 
in sales 
or 
leases 
on 
the several 
grounds recited 
above 
in addition 
to "race" 
and "national 
origin". 
Those prohibitions would apply to covered property 
in Samoa and the Northern Marianas. 
(e) The chapter entitled Justice 
System Improvement 
(42 U.S.C. 
3711-3797) 
contains 
the numerous 
laws enacted 
in 
the last twenty years that have replaced the original Omnibus 
Crime Control and Safe Streets Act of 1968, 
which originally 
constituted 
this 
chapter. 
The 
current 
provisions 
of 
the 
chapter apply fully 
to the Virgin Islands, 
Guam, 
Samoa, 
and 
the Northern Marianas (42 U.S.C. 3791(a)(2)), with these areas 
in all instances accorded the same treatment as the States-- 
except for a single provision referred to below that relates 
to 
the 
allocation 
of 
funds 
under 
the Act’s 
formula 
grant 
1162 
193 
Memorandum No. 42-12 
program. 
These 
laws 
do not require 
change 
to accommodate 
territorial needs. 
Under the provisions of this chapter, 
the Office 
of Justice Programs is created in the Department of Justice, 
along with its components which include the National Institute 
of Justice, 
the Bureau of Justice Statistics, 
and the Bureau 
of Justice Assistance. 
Each is authorized to make grants for 
which 
the territories and their agencies 
are eligible. 
The 
most important of the grants are probably the formula grants 
“for 
the 
purpose 
of enforcing 
State 
and 
local 
laws 
that 
establish 
offenses 
similar 
to offenses 
established 
in 
the 
Controlled Substances Act. 
. 
. and to improve the functioning 
of the criminal justice system with emphasis on violent crime 
and serious offenders" (42 U.S.C. 3751(b)); and discretionary 
grants 
for, 
among 
other 
things, 
educational 
programs 
for 
criminal justice personnel and technical assistance to States 
(and territories) 
and local 
units 
of government 
(42 U.S.C. 
3760). 
The 
exception 
referred 
to 
above 
pertains 
to 
the 
allocation of funds for the formula grant program. 
To receive 
a formula grant, a "State" (including each of the territories) 
must apply to the Bureau of Justice Assistance for it, and its 
application must be approved. 
Thereafter each participating 
"State" 
is 
entitled 
to 
.4 
percent 
of 
the 
Federal 
funds 
available 
for the program, 
and after 
those allocations 
are 
made, 
the 
remainder 
is 
allocated 
to 
the 
States 
(and 
territories) 
on the basis of population 
(42 U.S.C. 
3756(a)). 
The law provides, 
however, 
that in the case of Samoa and the 
Northern 
Marianas, 
they 
will 
together 
be 
treated 
as 
one 
"State", 
with 
the 
.4 
percent 
divided 
so 
that 
Samoa 
is 
allocated 
67 percent 
of 
that 
.4 percent, 
and 
the Northern 
Marianas, 
33 
percent 
(42 
U.S.C. 
3791(a)(2)). 
Given 
their 
populations in relation to the populations of the States, 
it 
can 
readily 
be 
observed 
that 
these 
floors 
are 
extremely 
generous. 
The same is, of course, also true of the .4 percent 
floor accorded the Virgin Islands and Guam, 
each separately. 
One other definition makes explicit provision for 
the territories. 
The term "public agency” includes them all, 
for purposes of the law Providing death benefits 
for public 
safety officers 
(42 U.S.C. 
3796b(5)). 
In the circumstances, 
no need appears 
to modify 
the laws 
in this chapter 
to meet 
territorial requirements. 
1163 
wd 
Memorandum No. 
42-12 
(£) National 
Housing Partnerships 
(42 
U.S.C. 
3931- 
3941) 
contains 
the 
1968 
law, 
as amended 
(most 
recently 
in 
1984), 
that authorizes the creation of a private corporation 
or corporations "to encourage maximum participation by private 
investors in programs and projects to provide low and moderate 
income 
housing" 
(42 
U.S.C. 
3931). 
The 
corporations 
so 
organized are not agencies of the Federal Government, 
and are 
subject 
to the Business 
Corporation Act of the District 
of 
Columbia (42 U.S.C. 3932(a)). 
The laws in question contain no 
geographic limitations on the operations of the corporation or 
corporations. 
(g) National 
Flood 
Insurance 
(42 
U.S.C. 
4001-4128) 
refers to the Act of that name passed in 1968, 
as amended, 
in 
recognition 
of 
the difficulty 
property 
owners 
encounter 
in 
obtaining 
flood 
insurance 
from 
the 
private 
sector. 
The 
Federal 
program, 
which 
is 
administered 
by 
the 
Federal 
Emergency Management Agency, applies fully to the territories 
(42 U.S.C. 4121(a)(2)), 
and the Act has value to them because 
the term "flood" means not only the phenomena that that word 
usually denotes, but also "tidal surges, abnormally high tidal 
water, 
tidal waves 
.. 
. 
hurricanes" 
and tidal erosion 
(42 
U.S.C. 
4121(a)(1), 
(c)). 
The statute authorizes an industry 
program with Federal financial assistance 
(42 U.S.C. 
4051), a 
Federal program with industry assistance (42 U.S.C. 4081), and 
a program of direct insurance 
(42 U.S.C. 4011)--with priority 
in the last of these given to private residences, 
churches, 
and small businesses 
(42 U.S.C. 4012(a)). 
But flood insurance 
coverage cannot be provided in any area “unless an appropriate 
public body shall have adopted adequate land use and control 
measures 
(with effective enforcement provisions)" which 
the 
Director 
of 
FEMA 
finds 
to 
be 
consistent 
with 
the 
"comprehensive criteria for land management and use" that he 
has developed under authority elsewhere in the Act (42 U.S.C. 
4022, 
4102). 
It 
will 
be 
noted 
that 
a 
cut-off 
date 
for 
eligibility for flood insurance of December 
31, 1971--by which 
time the “State’s"” land use and control measures had to be in 
place (42 U.S.C. 4012(a)(c)(2))--has in effect been eliminated 
under 
a 1983 amendment 
(42 U.S.C. 
4022), 
so that 
a State 
or 
territory that missed the earlier date may still qualify. 
1164 
Memorandum No. 
42-12 
(h) The chapter entitled Design and Construction of 
Public Buildings 
to Accommodate 
Physically 
Handicapped 
(42 
U.S.C. 
4151-4157) 
requires 
that certain 
public buildings-- 
generally those constructed by the United States, or leased by 
it, 
or financed 
with Federal 
financial 
assistance--must 
be 
accessible 
to the physically handicapped. 
Design standards 
are 
prescribed 
by the 
Administrator 
of 
General 
Services, 
except that the Departments of Housing and Urban Development 
and 
Defense, 
and 
the 
Postal 
Service, 
have 
authority 
to 
Prescribe standards for construction of facilities relevant to 
them. 
The Act, 
passed 
in 1968, contains 
no provision as 
to 
geographic application, 
but GSA regulations provide that the 
GSA design standards apply to “construction and alteration of 
public buildings 
in the United States" 
(41 CFR 101-19.000), 
with the "United States" defined to include "the territories 
and 
possessions" 
(41 
CFR 
101-19.003-7). 
Waivers 
may 
be 
granted on a case-by-case basis 
(42 U.S.C. 
4156). 
(i) The 
Advisory 
Commission 
on 
Intergovernmental 
Relations 
(42 U.S.C. 
4271-4279) 
of 26 members, 
appointed by 
the President and the heads of each house of the Congress, was 
created in 1959 to foster cooperation "between the levels of 
government" 
(42 
U.S.C. 
4272). 
The 
law creating 
it refers 
several 
times 
to 
the 
"States" 
without 
definition--e.g., 
a 
function 
of 
the 
Commission 
is 
to 
"bring 
together 
representatives of the Federal, 
State, 
and local governments 
for the consideration of common problems" 
(42 U.S.C. 4272(1)) 
--and it appears 
that 
the term "State" means 
just that. 
It 
also appears, 
based on informal advice from the Commission, 
that "local governments" have not been understood to include 
the territories. 
So far as can be established, 
the Commission 
has not given consideration 
to territorial 
problems, 
it has 
not 
undertaken 
special 
studies 
concerning’ 
then, 
and 
territorial personnel have not served on the Commission. 
The 
likeiihood is, therefore, 
that if a territory were interested 
in the work of the Commission, 
the function of which is the 
study of intergovernmental problems and reporting the results, 
an expansion of the law would be required. 
It does not seem 
likely, however, that the Advisory Commission would constitute 
a particularly useful forum for the resolution of territorial 
xoblems 
of governmental 
relationships. 
The Commission 
is 
structured to deal with the problems of States, 
whose legal 
relationship 
to 
the 
Federal 
Government, 
whose 
size 
and 
populations, 
and whose 
locations 
probably distinguish 
them 
1165 
176 
Memorandum No. 
42-12 
fundamentally 
for purposes 
of the studies conducted 
by the 
Advisory Commission. 
Unless a territory presents an argument 
for the expansion of the responsibilities of this Commission, 
it seems appropriate to refrain from recommending any change 
in the status quo. 
(3) The National Environmental Policy Act (42 U.S.C 
4321-4370b), 
approved on January 
1, 1970, represents a major 
and relatively 
new statement 
of fundamental 
Federal 
policy 
concerning 
protection 
of 
the 
environment. 
It 
requires 
analysis 
of 
the 
environmental 
effects 
of 
Federal 
agency 
proposals 
to help 
insure 
informed 
decisionmaking. 
The Act 
creates the Council on Environmental Quality; and soon after 
its 
enactment 
the 
Environmental 
Protection 
Agency 
was 
established. 
Perhaps the most significant provision of the 
Act is the requirement that Federal departments and agencies 
must 
prepare 
detailed 
environmental 
impact 
statements 
in 
connection with "major Federal actions significantly affecting 
the quality of the human environment" 
(42 U.S.C. 4332(a)(C)). 
The requirement is placed upon Federal agencies, 
and not upon State or territorial agencies. 
But the question 
arose 
soon 
after 
enactment 
as 
to whether 
an 
environmental 
impact 
statement 
was 
required 
of 
a Federal 
agency 
if 
the 
“major 
Federal 
action" 
was 
to 
occur 
outside 
the 
States. 
Neither the term "United States" nor "State" is defined in the 
Act. 
The U.S. District Court in Hawaii concluded in 1973 that 
the Act applied to the Trust Territory {People 
of Enewetak v. 
Laird, 
353 F. Supp. 811), based on the legielative history of 
the Act and the "expansive" use in it of the term "Nation" at 
pp. 
814-819). 
In a Northern Marianas 
case 
that 
arose 
soon 
thereafter, 
the Ninth 
Circuit 
reached 
the 
same 
conclusion 
(People of Saipan v. United States Dept. of Interior, 
502 F.2d 
90 (1974)). 
The reasoning of these courts makes clear that 
the Virgin Islands, 
Guam, 
Samoa, 
and now the Commonwealth of 
the Northern Marianas are fully comprehended as well. 
The Act 
therefore 
does 
not require 
amendment 
to make 
explicit 
that 
major 
Federal 
actions 
in 
the 
territories 
affecting 
the 
environment require environmental impact statements. 
There are, however, many sections of the Act that 
use the term "States" 
that could profit from clarification. 
1166 
ge 
Memorandum No. 
42-12 
These 
sections, 
which 
relate 
to 
such 
matters 
as 
program 
coordination, the sharing of information, and the eliciting of 
views 
(e.g., 
42 U.S.C. 
4331(a), 
4332(2)(D) 
and 
(G), 
4334, 
4341) are generally regarded by pertinent Federal agencies as 
comprehending 
the territories, 
in light of the above court 
decisions. 
The Council on Environmental Quality 
so advises 
informally. 
Consistent with this reasoning is the language of 
Executive Order No. 12114 of January 
4, 1979, which deals with 
“environmental effects abroad" and which applies 
to actions 
“outside the geographical borders of the United States and its 
territories and possessions" 
(section 2-1). 
But there appear 
to be no regulations making clear that "States" include the 
territories 
for 
purposes 
of 
the 
Act, 
and 
a_ 
statutory 
definition so stating would give comfort. 
More important are 
two sections of the Act more recently added that provide for 
discretionary grants: 
grants to "qualified citizens groups in 
States and regions" for certain environmental work (42 U.S.C. 
4368), 
added in 1978; 
and grants 
to programs 
that use 
"the 
talents of older Americans" in certain projects of "Federal, 
State, 
and local environmental agencies" 
(42 U.S.C. 
4368a), 
added 
in 
1984. 
The 
territories 
are 
not 
known 
to 
have 
expressed 
an 
interest 
in 
these 
grant 
programs, 
but 
when 
a 
convenient legislative vehicle is at hand, 
the term "State" 
might well be defined to include them, 
to foreclose possible 
argument and to make explicit their status under the Act. 
(k) Environmental Quality Improvement (42 U.S.C. 4371- 
4375) refers to the law passed in 1970 soon after the National 
Environmental 
Policy 
Act, 
and which 
created 
the Office 
of 
Environmental 
Quality, 
to provide 
a professional 
staff 
to 
support the work of the Council on Environmental Quality and 
to 
assure 
compliance 
by 
Federal 
agencies 
with 
Federal 
environmental 
laws. 
This 
law too uses 
the 
term 
"States", 
undefined, 
but 
informal 
advice 
from 
the 
Office 
of 
Environmental 
Quality 
is 
that 
the 
term 
is 
not 
viewed 
as 
excluding the territories. 
The Office and the Council have in 
fact concerned themselves with environmental matters arising 
from Federal activities in the territories. 
{1) The 
Environmental 
Pollution 
Study 
(42 
U.S.C. 
4391-4395) 
required 
by 
this 
1970 
law 
was 
required 
to 
be 
submitted 
by the President 
in 1971, 
with 
the potential 
for 
1167 
193 
Memorandum No. 
42-12 
annual supplements thereafter. 
The content of the report did 
not exclude the territories 
(42 U.S.C. 
4391). 
(m) National 
Urban 
Policy 
and 
New __ Community 
Development (42 U.S.C. 4501-4503) refers to a law first passed 
in 1970, 
significantly 
amended 
in 1977, 
and 
in substantial 
part 
repealed 
in 
1983. 
What 
remains 
is 
a 
series 
of 
exhortations 
toward 
a 
"rational", 
"“orderly", 
“balanced” 
national 
urban 
policy 
(42 
U.S.C. 
4501, 
4502), 
and 
a 
requirement for a report to the Congress biennially 
on such 
policy 
(42 U.S.C. 
4503). 
It is unclear from the language of 
the law whether the territories are included, 
but references 
to "the Nation" 
(e.g., 
42 U.S.C. 
4502(a)) 
suggest that they 
are. 
This result 
is fortified by the fact that the program 
that was repealed in 1983--a program of Federal assistance in 
the 
form 
of 
loans, 
loan guarantees, 
and grants 
for public 
services to support community development--did apply expressly 
to "any territory 
or possession" 
as 
well 
as 
to the States 
(former 42 U.S.C. 
4512(d)). 
(n) The chapter entitled Comprehensive Alcohol Abuse 
and 
Alcoholism 
Prevention, 
Treatment, 
and 
Rehabilitation 
Program 
(42 
U.S.C. 
4541-4594) 
provides 
for 
discretionary 
grants 
for projects 
and programs 
on 
that subject 
to public 
agencies 
and nonprofit 
private 
entities, 
with 
coordination 
provided by the "State" 
in which they are located 
(42 U.S.C. 
4577(c)(1)). 
The term “State” 
is undefined, 
but since 
the 
program is administered by the Secretary of Health and Human 
Services 
through 
the Public 
Health 
Service, 
and 
since 
the 
Public Health Service Act applies almost in its entirety to 
the territories 
(see Memorandum 
No. 
42-2), 
the term almost 
certainly 
includes 
the 
territories. 
Additionally, 
the 
Secretary is directed to give "special consideration" to grant 
applications 
directed 
to 
serving 
"Native 
American 
Pacific 
Islanders" 
(42 U.S.C. 
4577 
(c)(4)), 
and that direction would 
confirm 
the 
inclusion 
of 
the 
territories. 
All 
of 
the 
foregoing 
is academic, 
however, 
because 
the program has not 
been funded for many years. 
(o) The chapter entitled Uniform Relocation Assistance 
and 
Real 
Property 
Acquisition 
Policies 
for 
Federal 
and 
Federally Assisted Programs (42 U.S.C. 4601-4655) contains the 
1168 
173 
Memorandum No. 
42-12 
Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970. 
It applies fully to Federal actions on 
these subjects 
in the territories 
(42 U.S.C. 
4601(2)), 
with 
the 
Northern 
Marianas 
being 
comprehended 
by operation 
of 
section 
502(a)(2) 
of the Covenant. 
The Act deals with two 
different 
but 
related 
subjects: 
the 
requirement 
that 
a 
Federal agency whose programs displace persons must provide 
compensation 
to 
such 
persons 
in 
the 
form 
of 
moving, 
relocation, 
and related expenses 
(42 U.S.C. 
4622-4624); 
and 
the requirement that a Federal agency follow certain expressed 
policies (42 U.S.C. 4651) in the acquisition of real property. 
The first such stated policy is that the Federal agency must 
"make every reasonable effort 
to acquire expeditiously 
real 
property by negotiation" 
(42 U.S.C. 4651(1)), 
a stricture that 
Parallels 
one 
contained 
in section 
806(b) 
of 
the Northern 
Marianas 
Covenant. 
None 
of 
the 
remaining 
acquisition 
practices stipulated are in conflict with section 806, and as 
a consequence 
the Northern Marianas derives protection 
from 
both this Federal acquisition law and from its own Covenant. 
In commenting on this memorandum, 
the Department 
of Housing and Urban Development points out that not only are 
Federal 
agencies 
subject 
to 
this 
Act, 
but 
so 
also 
are 
Federaily-assisted entities. 
(p) The Interqovernmental Personnel Program (42 U.S.C. 
4701-4772) is derived from the Intergovernmental Personnel Act 
of 
1970, 
the 
purpose 
of which 
is, 
among 
other 
things, 
to 
encourage "a high caliber of public service in State and local 
governments" (42 U.S.C. 4701). 
The term "State" is defined to 
include "a territory or possession of the United States" 
(42 
U.S.C. 4762(3)), 
so that, combined with section 502(a)(2) of 
the Northern Marianas Covenant, 
all of the insular areas of 
immediate 
concern 
are 
covered. 
But 
the 
provisions 
of 
consequence are no longer live, 
so the matter is not of great 
consequence. 
The 
Act 
provides 
for 
three 
grant 
programs 
pertaining to personnel administration and training (42 U.S.C. 
4722, 
4723, 
4743), 
with 
the territories 
eligible by law to 
participate, 
but 
the 
administering 
agency 
(the 
Office 
of 
Personnel 
Management) 
advises 
informally 
that 
these 
grant 
programs 
ceased 
to be 
funded 
in 
1981 
and 
that 
there 
is 
no 
current expectation that they will be revived. 
The allocation 
formula makes special provision for the territories, 
in light 
1169 
T40 
Memorandum No. 
42-12 
of their lack of political subdivisions of the sort customary 
in the States (42 U.S.C. 4766(b)(2)); but the provision (which 
pertains to the division of Federal grants between State and 
local governments) is not applicable to the Northern Marianas, 
because section 502(a)(2) of the Covenant does not operate to 
extend to the Northern Marianas provisions applicable to Guam 
that do not apply to the States. 
The point 
is 
a minor one, 
and can be regarded as wholly academic at this time, 
owing to 
the moribund status of the grant programs. 
(q) Lead Based Paint Poisoning Prevention 
(42 U.S.C. 
4821-4846) 
contains 
the 1971 
law which authorizes a research 
program by the Secretary of Housing and Urban Development on 
the subject 
of lead-based paint poisoning, 
provides 
for the 
elimination 
of 
the 
hazard 
under 
certain 
programs 
of 
that 
Department, 
and requires 
the Secretary 
of Health 
and Human 
Services to prohibit the use of lead-based paints for cooking, 
eating, 
or drinking utensils. 
"State" standards relating to 
lead-based paint are superseded by this Federal law (42 U.S.C. 
4846), 
and 
the 
term “State” 
includes 
"the 
territories 
and 
possessions" 
(42 U.S.C. 
4841(1)), 
so they are all treated in 
the same manner 
as the States for purposes of this law. 
(r) Noise Control 
(42 U.S.C. 
4901-4918) contains the 
Noise Control 
Act of 
1972, 
which provides 
for 
research 
and 
reporting 
by 
the 
Environmental 
Protection 
Agency 
on 
the 
adverse 
effects 
of 
noise, 
for 
the 
development 
of 
noise 
emission 
standards 
for 
products 
distributed 
in 
commerce, 
including 
motor 
carriers, 
and 
for 
the 
dissemination 
of 
information 
to 
the 
public 
on 
such 
matters. 
The 
Virgin 
Islands, 
Guam, 
and Samoa are as fully covered 
as 
the States 
(42 U.S.C. 
4902(9)), 
as is the Northern Marianas by operation 
of 
section 
502(a)(2) 
of 
the Covenant--with 
two exceptions. 
First, 
because 
all are outside of 
the United States customs 
territory, 
regulations pertaining 
to noise emissions 
of new 
products "imported" would not apply to them (42 U.S.C. 
4908); 
and second, 
because 
there 
is no Federal 
District Court 
with 
jurisdiction in Samoa, enforcement there would be in doubt (42 
U.S.C. 
4910(c), 
4911(a)). 
The 
former 
problem 
is 
not 
susceptible 
to ready correction; 
the 
latter 
could easily 
be 
remedied through any number 
of methods 
(such as vesting the 
same jurisdiction in the High Court of American Samoa), 
if the 
1170 
133 
Memorandum No. 42-12 
matter were to be viewed as sufficient to warrant correction. 
Very likely it is not. 
(s) The chapter 
entitled Domestic Volunteer 
Service 
(42 U.S.C. 4951-5085) contains the Domestic Volunteer Service 
Act 
of 
1973--the 
Act 
that 
creates 
the ACTION 
agency 
which 
oversees 
the 
several 
volunteer 
programs 
established 
by the 
Act: 
the Volunteers 
in Service 
to America 
(VISTA), 
student 
volunteers 
under 
the 
title University 
Year 
for Action, 
the 
retired 
senior 
volunteer 
program, 
the 
foster 
grandparent 
program, 
and 
the senior companion 
program--with 
these 
last 
three 
known 
collectively 
as 
the 
Older 
American 
volunteer 
Programs. 
The Act applies fully to the territories, both from 
the standpoint of their eligibility to receive the services of 
these 
volunteer 
programs, 
and 
from 
the 
standpoint 
of 
the 
eligibility of persons resident in the territories to serve as 
volunteers. 
The terms "United States" and "States" include by 
fname the Virgin Islands, 
Guam, 
and Samoa 
(42 U.S.C. 
5061(2)), 
and section 502(a)(2) of the Covenant would operate to include 
the Northern Marianas as well. 
The VISTA provisions, arguably 
the most important of the programs 
here authorized, 
at least 
from 
the 
vantage 
of 
the 
territories, 
expressly 
permit 
the 
Program 
in 
the Virgin 
Islands, 
Guam, 
and 
Samoa 
(42 
U.S.C. 
4953(a)(1)), 
along 
with 
the 
States, 
and 
again 
section 
502{a)(2) 
effectively inserts the Northern Marianas 
in that 
section. 
There 
is no bar to service 
as 
a VISTA volunteer by 
a noncitizen national, 
and indeed aliens who are resident 
in 
a State or territory may be selected 
(42 U.S.C. 
4954(c)). 
A defect appears in connection with the provision 
for subsistence 
allowances 
for VISTA volunteers: 
the usual 
allowance payable may be exceeded 
in “Hawaii, 
Guam, 
American 
Samoa, 
and Alaska" 
(42 U.S.C. 
4955(b)(2)(B)). 
Because 
the 
Virgin 
Islands 
and 
the Northern Marianas 
are 
also high cost 
areas, 
they 
too 
should 
be named--but 
because 
there 
are 
no 
VISTA programs 
in any of these areas at this time, 
the matter 
is without 
urgency. 
Fiscal 
year 
1390 
information 
indicates 
that only the foster grandparents 
program, 
from among those 
authorized 
by 
this 
Act, 
is 
currently 
in 
use, 
and 
that 
is 
solely 
in the Virgin Islands. 
1171 
4Q3 
Memorandum No. 
42-12 
Conclusion: 
Except 
for 
the 
provisions 
titled 
Narcotic 
Addict 
Rehabilitation 
(part 
(a)) 
and 
the 
Advisory 
Commission 
on 
Intergovernmental Relations (part (i)), 
the foregoing laws in 
most 
important 
respects 
apply 
to the 
territories. 
In 
two 
instances, 
however, 
minor corrections 
could 
be helpful, 
but 
the need for them is not urgent. 
These relate to the National 
Environmental 
Policy 
Act 
({3) 
above) 
and 
to 
the 
Domestic 
Volunteer Service programs 
({s) above). 
Federal 
agency 
comments: 
Comments 
were 
been 
requested 
from 
the 
Department of Health and Human Services concerning parts (a), 
Narcotic Addict Rehabilitation, and (n), Comprehensive Alcohol 
Abuse Program; 
and from the Department of Justice concerning 
part (d), Fair Housing, 
and (e), Justice Systems Improvement. 
Informal 
advice 
was 
received 
from 
pertinent 
agencies, 
as 
stated above, 
in connection with the preparation of comments 
on other parts. 
The remaining parts do not appear to require 
expert 
agency 
comment. 
All 
comments 
received 
have 
been 
reflected above. 
1172 
Subject: 
(a) 
(b) 
(c) 
(a) 
(e) 
(f) 
(g) 
(h) 
(i) 
(3) 
(k) 
(m) 
(n) 
Memorandum No. 
42-13 
June 1990 
Revised December 
1991 
Child 
Abuse 
Prevention 
and Treatment 
and 
Adoption 
Reform 
Title 42, Chapter 67 (42 U.S.C. 
5101-51174) 
Disaster Relief 
Title 42, Chapter 68 
(42 U.S.C. 
5121-5201) 
Community Development 
Title 42, Chapter 69 (42 U.S.C. 
5301-5320) 
Manufactured Home Construction 
and Safety Standards 
Title 42, Chapter 70 (42 U.S.C. 
5401-5426) 
Solar Energy 
Title 
42, Chapter 
71 
(42 U.S.C. 
5501-5594) 
Juvenile Justice and Delinquency Prevention 
Title 42, Chapter 
72 
(42 U.S.C. 
5601-5778) 
Development of Energy Sources 
Title 
42, Chapter 
73 
(42 U.S.C. 
5801-5891) 
Nonnuclear Energy Research and Development 
Title 
42, Chapter 
74 
(42 U.S.C. 
5901-5920) 
Programs for Persons with Developmental Disabilities 
Title 42, Chapter 
75 (42 U.S.C. 
6000-6083) 
Age Discrimination 
in Federally Assisted 
Programs 
Title 
42, Chapter 
76 
(42 U.S.C. 
6101-6107) 
Energy Conservation 
Title 
42, Chapter 
77 (42 U.S.C. 
6201-6422) 
National Petroleum Reserve 
in Alaska 
Title 
42, Chapter 78 (42 U.S.C. 
6501-6508) 
Science 
and 
Technology 
Policy, 
Organization 
and 
Priorities 
Title 42, Chapter 79 (42 U.S.C. 
6601-6685) 
Public Works Employment 
Title 
42, Chapter 80 (42 U.S.C. 
6701-6736) 
1173 
124 
Memorandum No. 42-13 
(o) Energy Conservation and Resource Renewal 
Title 42, Chapter 81 (U.S.C. 6801-6892) 
(p) Solid Waste Disposal 
Title 42, Chapter 82 (42 U.S.C. 
6901-6992k) 
(q) Energy Extension Service 
Title 42, Chapter 83 (42 U.S.C. 
7001-7011) 
(xr) Department of Energy 
Title 42, Chapter 84 
(42 U.S.C. 
7101-7375) 
Summary: 
The chapters 
examined herein 
involve 
for the most part 
programs administered by the Departments of Health and Human 
Services 
and 
Energy. 
Many 
provide 
for 
Federal 
financial 
grants, 
and with rare exceptions 
the territories are not only 
eligible, 
but assistance 
to them is authorized on terms 
that 
are particularly generous, 
relative 
to the treatment 
of the 
States. 
Discussion: 
(a) The chapter 
entitled Child Abuse Prevention and 
Treatment and Adoption Reform (42 U.S.C. 
5101-5117d) contains 
the 
Act 
of 
that 
title 
enacted 
in 
1974, 
as 
substantially 
amended since. 
The Act now consists of four components, 
three 
of which apply as fully 
to the territories 
as to the States, 
but the fourth of which, somewhat oddly, 
does not. 
It should 
be amended to do so. 
With respect 
to the three that apply, 
the first, 
entitled "General Program", provides for the establishment of 
certain 
Federal machinery--including 
the National 
Center 
on 
Child 
Abuse and Neglect within 
the Department 
of Health and 
Human 
Services, 
an 
Advisory 
Committee, 
and 
an 
Inter-Agency 
Task 
Force--and 
for 
a number 
of @iscretionary 
and 
formula 
grants 
to 
"States" 
and 
to 
public 
agencies 
and 
nonprofit 
private organizations 
for 
projects 
and 
programs 
related 
to 
child abuse prevention and treatment 
(42 U.S.C. 
5106, 
5106a, 
5106a-1, 
5106b, 
5106c). 
The Virgin Islands, Guam, 
Samoa, 
and 
the Northern Marianas, 
each of which is expressly named, 
are 
eligible 
for these grants 
(42 U.S.C. 
5106g(8)), 
and on 
the 
same terms as the States. 
(The term "State" 
is also defined 
at 
42 U.S.C. 
5103(h) 
for 
the purpose 
of that section, 
which 
1174 
125 
Memorandum No. 42-13 
relates 
to the Inter-Agency 
Task Force. 
In 
fact 
the 
term 
"State" 
is not now used in that section, 
so that particular 
definition contributes nothing.) 
Additionally, 
two other portions of the Act also 
apply to the territories, 
and on the same terms as the States. 
These 
are 
the 
portions 
that 
provide 
for Federal 
challenge 
grants 
to encourage 
the States and territories 
to establish 
"trust 
funds 
or other 
funding mechanisms 
.. 
. 
to support 
child 
abuse 
and 
neglect 
prevention 
activities" 
(42 
U.S.C. 
5116(b)); and Federal grants to the States and territories to 
provide 
temporary 
child 
care 
for children 
with disabilities 
and to provide crisis nurseries for children who are abused or 
neglected 
(42 
U.S.C 
5117). 
For 
purposes 
of 
all 
of 
the 
foregoing, 
the 
term 
"State" 
includes 
explicitly 
the Virgin 
Islands, 
Guam, 
Samoa, 
and 
the Northern Marianas 
(42 U.S.C. 
5116a(2), 
5117¢(d)(5)). 
It is therefore surprising that the provisions of the 
Act 
pertaining 
to 
"Adoption 
Opportunities" 
(42 
U.S.C. 
5111-5115) 
contain 
no similar 
definition. 
The definitions 
referred 
to above 
do not apply 
to the sections 
on Adoption 
Opportunities. 
And the Catalog of Federal Domestic Assistance 
does not state 
that territories 
are eligible 
for assistance 
under 
the Adoption Opportunities program, 
nor are they shown 
as_ 
being 
eligible 
on 
the 
Applicant 
Index 
of 
the 
Catalog 
(93.652). 
The absence of a definition of "State" to include 
the insular areas 
therefore 
appears 
to be controlling--even 
though, 
somewhat 
inconsistently, 
the 
statement 
of 
Congressional 
findings 
and 
purpose 
that 
introduces 
the 
adoption opportunities sections states 
the Congress’ 
purpose 
to 
be, 
in 
part, 
to 
promote 
"the 
establishment 
of 
model 
adoption 
legislation 
and 
procedures 
in 
the 
States 
and 
territories 
. 
. 
." (42 U.S.C. 5111(1)). 
In the circumstances, 
a definition should be added, 
so that 
the four insular areas 
will 
be eligible 
for the same 
Federal 
assistance concerning 
child adoption, 
including grants, 
as are the States (42 U.S.C. 
5112, 
5113). 
(b) Disaster 
Relief 
(42 U.S.C. 
5121-5201) 
refers 
to 
the Disaster 
Relief 
Act 
of 
1974, 
as amended, 
a law clearly 
applicable 
to the territories, 
and one 
from which they have 
1175 
Ty 
Memorandum No. 
42-13 
often benefited. 
This is the law administered by the Federal 
Emergency 
Management 
Agency, 
which 
is 
well 
known 
in 
the 
territories. 
The terms "United States" and "State" 
include 
the 
Virgin 
Islands, 
Guam, 
and 
Samoa 
by 
name 
(42 
U.S.C. 
5122(3)and 
(4)), 
and 
the Northern Marianas 
are 
included 
by 
operation of section 502(a)(2) of the Covenant. 
The law defines the process by which emergencies 
and major disasters 
are determined to exist, 
and "disasters" 
include 
hurricanes 
and 
tidal 
waves, 
which 
are 
among 
the 
principal natural catastrophes that strike the territories (42 
u.S.c. 
5122(2)). 
A 
Presidential 
determination 
triggers 
Federal 
assistance 
of 
many 
sorts, 
including 
repair 
and 
restoration of facilities, debris removal, temporary housing, 
unemployment assistance, 
food coupons and food, 
and emergency 
communications and transportation. 
Only one section 
appears 
potentially 
deficient: 
penalties 
are available 
under 
42 U.S.C. 
5157 
in connection 
with a person "who knowingly misapplies the proceeds of a loan 
or other cash benefit" obtained under the Act, and enforcement 
through 
a 
civil 
action 
is 
in 
the 
discretion 
of 
the 
U.S. 
Attorney General. 
Such enforcement action “may be brought in 
an 
appropriate 
United 
States 
district 
court" 
(42 
U.S.C. 
5157(b)). 
There is no Federal District with jurisdiction over 
Samoa, 
but Samoans ought 
to be subject 
to no less stringent 
enforcement 
techniques 
than 
are 
available 
elsewhere 
in 
the 
United States. 
The permissive language used in the law (and 
quoted 
from 
42 U.S.C. 
5157(b)) 
might permit use of the High 
Court 
of American 
Samoa, 
but 
this 
result 
is arguable. 
The 
wiser course would be to make special provision by amendment 
to provide a forum for Samoa. 
(c) The 
chapter 
entitled Community Development 
(42 
U.S.C. 
5301-5320) 
contains 
the 
Housing 
and 
Community 
Development 
Act 
of 
1974, 
as 
frequently 
and 
extensively 
amended. 
The 
Act 
provides 
for 
grant 
programs 
of 
unusual 
complexity, 
several 
of 
which 
are 
not 
applicable 
to 
the 
territories, 
but 
one 
program 
of 
discretionary 
grants 
is 
directed 
to them alone. 
The draftsmen appear 
to have taken 
into account the uniqueness of the territories, 
as contrasted 
with political 
subdivisions 
of States 
and 
the demographics 
1176 
127 
Memorandum No. 
42-13 
usually 
associated 
with 
them. 
It 
would 
be, 
given 
the 
requirements 
of 
the 
law, 
at 
least 
difficult 
and sometimes 
impossible to accord to the territories State-like treatment. 
Accordingly, 
no recommendation 
is made here for any change in 
the 
law. 
Equitable 
treatment 
of 
the 
territories 
can 
be 
achieved 
under 
existing 
law, 
even 
though 
that 
treatment 
differs 
from 
the 
treatment 
of 
the 
States 
and 
their 
subdivisions. 
The "primary objective" 
of the Act 
is 
the development of viable urban 
communities, by providing decent 
housing 
and 
a 
suitable 
living 
environment 
and 
expanding 
economic 
opportunities, 
principally 
for 
persons 
of low 
and moderate income. 
(42 U.S.C. 
5301(c).) 
To this end, 
the Act provides for grants by the Secretary of 
Housing and Urban Development to a number of grantees that are 
defined in a way that would exclude the territories: 
a State 
(42 
U.S.C. 
5302(2)), 
a 
metropolitan 
area 
(5302(3)), 
a 
metropolitan city 
(5302(4)), 
a city (5302(5)), 
and 
an urban 
country 
(5302(6)). 
But 
the 
term 
"unit 
of 
general 
local 
government" 
is 
defined 
to 
include, 
by 
name, 
the 
Virgin 
Islands, 
Guam, 
American Samoa, 
and the Northern Marianas 
(42 
U.S.C. 
5302(2)). 
In addition, 
each of the territories could 
constitute 
a “nonentitlement area" 
(42 U.S.C. 
5$302(7)). 
And 
each constitutes a "city" for one particular grant program (42 
U.S.C. 5318(n)(z)). 
As a result of these definitions, 
-- Formula grants to carry out the Purposes of the 
Act, 
which 
are 
available 
to metropolitan 
cities 
and 
urban 
counties under 42 U.S.C. 5306(a), and to nonentitlement areas 
and to units of general local government--but only if they are 
in "States"--under 42 U.S.C. 5306(d), are not available to the 
1177 
125 
Memorandum No. 
42-13 
territories. 
The territories are thus relieved of an infinity 
of requirements 
(42 U.S.C. 
5304) 
that 
they would doubtless 
have severe difficulty 
in meeting-~ 
-- The territories are, by name, each eligible for 
special 
purpose 
grants 
under 
42 
U.S.C. 
5307(b)(1), 
the 
requirements 
for 
which 
are 
relatively 
simple 
(42 
U.S.C. 
5307(e)). 
-- 
The 
territories 
are 
not 
eligible 
for 
loan 
guarantees 
and guarantee 
commitments 
under 
42 U.S.C. 
5308, 
because 
these 
forms 
of 
assistance 
are 
available 
only 
to 
a 
"unit of general local government" receiving a grant under 42 
U.S.C. 
5306(a). 
As explained above, 
the territories are not 
eligible 
for assistance under that section. 
-- Owing to the definitions of "city" 
to include 
each of the territories 
by name 
(42 U.S.C. 
5318(n)(1)), 
they 
are eligible 
for urban development action grants, 
which 
are 
available to cities and urban counties "which are experiencing 
severe 
economic 
distress 
to 
help 
stimulate 
economic 
development activity needed to aid in economic recovery" 
(42 
U.S.C. 5318(a)). 
Im light of the mandatory selection criteria 
which 
the 
Secretary 
is 
required 
to devise 
"for 
a national 
competition for grants" under this action grant program--which 
requires sophisticated 
statistical 
data probably beyond 
the 
easy 
reach 
of 
the 
territories--and 
selections 
based 
on 
the 
awarding of points based on such criteria (42 U.S.C. 5318(d)), 
it is improbable that any territory could compete successfully 
to achieve 
a grant under 
this program. 
The 
purpose 
of 
the 
Act 
is 
as 
relevant 
to 
the 
territories as for the States, 
so it is important that they be 
eligible for the assistance 
it provides. 
Realistically, 
they 
cannot 
be 
accorded 
the 
complex 
treatment 
provided 
for 
the 
States. 
But 
the 
Act already provides 
special 
treatment 
in 
recognition of their particular circumstances, 
and this would 
appear 
to be sufficient. 
1178 
Memorandum No. 
42-13 
(d) Manufactured 
Home Construction 
and 
__Safety 
Standards 
(42 U.S.C. 
5401-5426) 
refers 
to the Act 
of that 
title 
enacted 
in 
1974, 
which 
authorizes 
the 
Secretary 
of 
Housing 
and 
Urban 
Development 
to 
establish 
Federal 
construction 
and safety standards 
for "manufactured homes". 
The 
definition 
of 
that 
term 
indicates 
that 
it 
means, 
in 
popular 
parlance, 
mobile 
homes 
(42 
U.S.C. 
5402(6)). 
The 
stated purpose of the Act is to reduce personal injuries and 
deaths, 
and insurance costs, 
related 
to mobile homes of poor 
quality 
(42 U.S.C. 
5401). 
In general, only mobile homes that 
meet the Secretary’s standards for construction and safety may 
be manufactured, 
transported, 
sold, 
or 
leased 
in interstate 
commerce 
(42 U.S.C. 
5409(a)(1)). 
An 
effort 
has 
clearly 
been 
made 
to 
cover 
the 
territories, 
and it is in large measure successful. 
The term 
“State includes the Virgin Islands, Guam, and American Samoa 
(42 U.S.C. 5402(12)), and because the Act with that definition 
was 
enacted 
in 
1974, 
the 
Northern 
Marianas 
would 
also 
be 
included 
by operation of section 
502(a)(2) 
of the Covenant. 
There is no definition of "commerce" or "interstate commerce", 
but in light of the application of the Act 
to the foregoing 
territories, 
it must be supposed that mobile homes transported 
to them 
from 
the States 
and 
later 
sold 
in the territories 
would 
be included 
in the 
terms. 
Rather unusually, 
the term 
"United States district courts" 
is defined 
to include 
“the 
United 
States 
courts 
of" 
Guam, 
the 
Virgin 
Islands, 
and 
American 
Samoa 
(42 
U.S.C. 
5402(13)). 
The 
effect 
of 
this 
language, 
because Federal district courts 
in the States 
are 
also 
of 
course 
included, 
would 
be 
to comprehend 
the 
U.S. 
District 
Court 
for 
the 
Northern 
Marianas, 
under 
section 
502(a)(2) 
of the Covenant. 
It also seems probable, 
though not 
unarguable, 
that 
the High Court of American Samoa would meet 
that definition. 
Although 
the High Court, because 
it is not 
an Article 
III court, 
is not 
a "court of the United States” 
when that term is used as a term of art--that is, it is not a 
“constitutional court"--the High Court was created pursuant to 
Federal 
authority, 
so 
it 
is reasonable 
to suppose 
that 
it 
constitutes a "United States court". 
That is almost certainly 
what the Congress intended, 
in enacting the definition. 
The likely area of inapplicability of this law to 
the territories relates to imports. 
A mobile home offered for 
41179 
Tn 
Memorandum No. 
42-13 
importation 
that 
does 
not 
meet 
the 
Secretary’s 
standards 
“shall 
be refused admission 
into 
the United 
States” 
under 
regulations issued by the Secretary jointly with tne Secretary 
of the Treasury (42 U.S.C. 5409(3)). 
The term "United States" 
is 
not 
defined 
for 
purposes 
of 
this 
law, 
and 
in 
those 
circumstances 
it 
is 
likely 
to mean 
only 
those 
areas 
that 
constitute 
the United States customs territory. 
All of the 
territories here involved are outside the customs territory. 
Enforcement 
personnel 
of 
the 
Treasury 
Department 
are 
not 
available 
in the territories 
(except for the Virgin Islands, 
pursuant to its special customs law at 48 U.S.C. 
1406i). 
The 
probability, 
therefore, 
is 
that 
mobile 
homes 
of 
foreign 
manufacture could be imported into and sold in the territories 
with impunity--either because 
the import restrictions do not 
as a matter of law apply to them, 
or because, 
even 
if they do, 
there 
is no one present to enforce them. 
The absence 
of Federal control 
over 
imported mobile 
homes in the territories--as opposed to those shipped to them 
from 
the States--is 
not 
known 
to have 
presented 
any actual 
problem 
to them. 
For 
that 
reason 
no recommendation 
for 
a 
change 
in 
the 
law--which 
would 
be 
complicated 
to achieve, 
owing to the territories’ 
general exclusion from the customs 
laws--is offered here. 
But the problem is identified, 
should 
circumstances change and a need for Federal protection arise. 
Grants 
to 
the States, 
and 
thus 
to the 
territories, 
are 
authorized 
under 
42 
U.S.C. 
5423, 
to 
assist 
grantees 
in 
identifying 
their 
needs 
and 
in 
developing 
plans 
for 
enforcement. 
The 
Federal 
share 
may 
not 
exceed 
90% 
of 
the 
project cost. 
(e) The 
chapter 
entitled 
Solar 
Energy 
(42 
U.S.C. 
5501-5594) 
contains 
the 
legislation 
authorizing 
research, 
development, 
and demonstration projects with respect to solar 
energy, 
solar 
heating 
and 
cooling, 
and 
solar 
photovoltaic 
energy. 
Principal 
responsibilities 
are 
vested 
in 
the 
Secretaries 
of Housing and Urban Development and Energy, 
and 
the 
Administration 
of 
the 
National 
Aeronautics 
and 
Space 
Administration. 
There 
are 
no 
geographic 
barriers 
or 
exclusions 
contained 
in 
these 
laws, 
and 
the 
occasional 
references 
to 
the "States" 
(undefined) 
would 
not 
serve 
to 
1180 
VOL 
Memorandum No. 
42-13 
exclude 
the 
territories, 
given 
the 
contexts 
in 
which 
the 
references appear 
(42 U.S.C. 
5510(a), 
5510(c)(3), 
5589). 
No 
change 
is needed in these laws. 
(f) The 
chapter 
entitled 
Juvenile 
Justice 
and 
Delinquency 
Prevention 
(42 
U.S.C. 
5601-5778) 
contains 
the 
Juvenile Justice 
and Delinquency Prevention 
Act of 1974, 
as 
amended and supplemented. 
It provides 
for numerous Federal 
grant programs, 
some 
formula and some discretionary grants, 
and for Federal technical assistance, 
all directed to Federal 
juvenile 
delinquency 
programs 
"relating 
to 
prevention, 
diversion, 
training, 
treatment, 
rehabilitation, 
evaluation, 
research, 
and improvement 
of the juvenile 
justice system 
in 
the United States 
" (42 U.S.C. 
5614(a)). 
The territories are 
eligible 
for all grants provided by the law, 
sometimes under 
special 
formulae 
that 
appear 
to 
accord 
them 
especially 
generous 
treatment. 
These 
laws have been drafted 
with 
the 
territories 
in view, 
and no change appears 
to be needed. 
The 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the Northern 
Marianas 
are all named as "States" 
(42 U.S.C. 
5603(7)), 
and 
they are thus eligible for the same Federal assistance 
as is 
available to the States. 
The most important grants are those 
made by the Administrator 
of the Office of Juvenile Justice 
and Delinquency Prevention 
in the Department of Justice 
for 
the 
development 
of 
more 
effective 
education, 
training, 
research, 
prevention, 
diversion, 
treatment, 
and 
rehabilitation 
programs 
in the area 
of 
juvenile 
delinquency 
and 
programs 
to 
improve the juvenile justice system. 
(42 
U.S.C. 5631(a)) 
Under 
provisions 
concerning 
the 
allocation 
of 
funds, 
a 
specified minimum 
amount 
is 
to be allocated 
to each State, 
with 
a lesser minimum 
to each 
of 
the 
four 
territories 
here 
involved, 
depending 
on 
the 
total 
amount 
appropriated 
(42 
U.S.C. 
5632(a)(2)). 
The figures specified 
are 
fair, 
and 
in 
some cases extremely generous, 
to the territories: 
when the 
minimum to a State 
is $325,000, 
the minimum for each of these 
1181 
a 
Memorandum No. 42-13 
four 
areas 
is $75,000, 
and when 
the State minimum rises 
to 
$400,000, 
the minimum for each territory is $100,000. 
On the 
basis of relative populations, each of the territories is thus 
treated far more generously than almost all of the 50 States. 
It may be noted that the "State plan" required to 
receive 
the 
foregoing 
grant 
is 
exceedingly 
complex, 
being 
required 
to meet 
a 
long 
list 
of specifications 
(42 
U.S.C. 
5633) 
that 
would 
appear 
to 
burden 
any 
of 
the 
territories 
substantially. 
But reports 
to the Interior Department 
show 
that 
all 
four have received grants 
under 
42 U.S.C. 
5631 
in 
fiscal 
years 
1989 
and 
1990, 
so 
the burden 
obviously 
can 
be 
borne. 
Two other grant programs under 
this 
Act contain 
special 
provisions 
for 
territorial 
funding, 
with 
the 
first 
pertaining 
to 
grants 
for 
Special 
Emphasis 
Prevention 
and 
Treatment Programs 
(42 U.S.C. 
5665). 
These are discretionary 
grants, 
awarded 
on 
a competitive 
basis 
(42 U.S.C. 
5665a)-- 
except that there is a set-aside of 5% of the funds available 
for the grant program for allocation 
to the four territories, 
plus the Trust Territory 
(42 U.S.C. 
5665(e)). 
(At this 
time 
the "Trust Territory" would mean only Palau. 
The set-aside is 
thus surprisingly generous.) 
Y tn commenting on this memorandum, 
the Department of Justice 
stated 
the following 
in June 1991: 
We would like to comment on the 5% territorial 
set-aside from Special Emphasis Prevention and 
Treatment 
Program 
funds 
(42 
U.S.C. 
5665). 
Since 
the 
addition 
of 
this 
set-aside 
to 
the 
Juvenile 
Justice 
Act 
in 
1980, 
the 
four 
territories 
have 
received 
a 
total 
of 
$4,581,417: 
Northern 
Marianas 
$1,130,262; 
Virgin 
Islands 
$1,059,304; 
Guam 
$1,419,307, 
and American 
Samoa 
$972,544. 
For 
1990, 
the 
four territories 
received $417,100 
of 
a total 
Special 
Emphasis 
discretionary 
grant 
allocation 
of $8,654,820. 
This "surprisingly 
(continued...) 
1182 
Memorandum No. 
42-13 
The 
second 
program 
with 
a 
special 
territorial 
funding provision 
is also generous. 
Under 
the program 
of 
grauts 
for 
runaway 
and 
homeless 
youth 
projects 
(42 
U.S.C. 
571i(a)), each State is guaranteed a $75,000 minimum, and each 
territory at least $30,000 
(42 U.S.c. 5711(b)(2)). 
With respect to the many other grants provided for 
in the Act--including those for programs relating to juvenile 
gangs and drug abuse and drug trafficking (42 U.S.C. 5668), to 
transitional 
living projects 
for homeless 
youth 
(42 U.S.C. 
5714-1), 
and 
to 
missing 
children 
(42 
U.S.C. 
5775)--the 
territories are eligible on the same bases as the States. 
(g) Development 
of 
Energy 
Sources 
(42 
U.S.C. 
5801-5891) refers to the Energy Reorganization Act of 1974, an 
act 
that 
created 
the 
Energy 
Research 
and 
Development 
Administration (whose functions have since been transferred to 
the 
Department 
of 
Energy), 
and 
the 
Nuclear 
Regulatory 
Commission 
(which performs 
the regulatory 
functions 
of the 
former Atomic Energy Commission). 
No provisions of geographic 
consequence 
appear 
in 
this 
chapter. 
There 
are 
neither 
VW... . continued) 
generous" 
(per the Interior memorandum) 
set- 
aside 
is in addition 
to the already generous 
minimum 
allocation 
under 
the Formula 
Grants 
program of $75,000 to $100,000 annually versus 
the 
fifty 
states’ 
minimum 
allocation 
of 
$325,000 to $400,000. 
, 
It is highly questionable whether, 
at 
a time 
of 
shrinking 
Federal 
grant 
resources, 
the 
continued 
allocation 
of 
these 
scarce 
discretionary funds to supplement territorial 
Planning 
and 
administration 
and 
juvenile 
justice program activities, 
particularly on a 
noncompetitive basis, 
can be justified. 
This 
is an issue which will be further evaluated by 
OJJDP and may lead to a proposal to modify the 
set-aside provision of the statute in 1992. 
1183 
194 
Memorandum No. 42-13 
statements of exclusion nor provisions as to application, 
but 
that 
is not 
a shortcoming inasmuch as this 
is essentially a 
law concerning Federal agency structure. 
One provision restricts membership on the Nuclear 
Regulatory Commission to U.S. citizens (42 U.S.C. 5841(a)(1)), 
but 
the 
possibility 
of appointment 
of 
a 
Samoan 
who 
is 
a 
noncitizen national 
seems 
remote 
and 
a recommendation 
for 
expansion 
of 
the 
provision 
is 
therefore 
unnecessary. 
A 
related, 
uncodified law that appears 
as 
a note following 
42 
U.S.C. 
5841 
deserves 
mention, 
for 
it concerns 
a subject 
of 
special 
interest 
in 
the 
Pacific 
territories: 
Public 
Law 
96-295 
(1980) 
in section 
301 requires regulations providing 
for 
the notification 
of "the Governor of any State" before 
nuclear waste, 
including spent nuclear fuel, 
is transported 
to, through, or across the State. 
That law defines "State" to 
include 
expressly 
the Virgin Islands, 
Guam, 
Samoa, 
and 
the 
Northern 
Marianas. 
It will 
be observed, 
however, 
that 
the 
territories are even more fully protected with respect to the 
transportation of such material by section 605 of Public Law 
96-205, 
enacted a few weeks earlier 
(48 U.S.C. 
1491). 
(h) The chapter entitled Nonnuclear 
Energy Research 
and Development (42 U.S.C. 5901-5920) contains the 1974 law of 
that name, 
as amended. 
For the most part the law vests in the 
Secretary 
of 
Energy 
authority 
with 
respect 
to 
research, 
development, 
and 
demonstration 
projects 
concerning 
new, 
nonnuclear energy technologies. 
No geographic provisions are 
contained 
in these sections, 
although the language 
used 
is 
usually 
expansive--see, 
for 
example, 
42 
U.S.C. 
5904(b)(1) 
which 
refers 
to "all 
regions 
of 
the United 
States"--so 
it 
seems likely that the territories are among the beneficiaries. 
Two programs of Federal assistance may, 
however, 
be 
of 
interest. 
The 
first, 
at 
42 
U.S.C. 
5919, 
provides 
Federal 
loan 
guarantees 
for 
demonstration 
projects 
for 
alternative 
fuel conversion 
facilities 
(42 U.S.C. 
5919(b)), 
and for demonstration projects for the conversion of municipal 
waste into synthetic fuels 
(42 U.S.C. 
5919(y)). 
Projects 
in 
the Virgin Islands, 
Guam, and Samoa are expressly covered 
(42 
U.S.C. 5919(0)(2)), and in the Northern Marianas by operation 
of section 502(a)(2) of the Covenant. 
The availability of the 
1184 
195 
Memorandum No. 42-13 
second program, 
at 42 U.S.C. 
5920, 
in the territories is less 
clear. 
That program is one of Federal financial assistance 
for programs "to demonstrate municipal waste reprocessing for 
the production 
of fuel 
and energy 
intensive products" 
(42 
U.S.C. 
5920(a)(1)). 
It 
is available 
to "municipalities", 
meaning 
a 
public 
body 
created 
by 
"State 
law" 
(42 
U.S.C. 
5920(b)(3)), and "State" is undefined. 
There is thus doubt as 
to whether this program is available in the territories, 
and 
if any 
is a candidate 
for 
a demonstration project 
for waste 
reprocessing 
for 
the 
production 
of 
energy--probably 
not 
likely--this section should be amended to make clear that the 
law applies to the territories. 
(i) Programs 
for 
Persons 
with 
Developmental 
Disabilities (42 U.S.C. 6000-6083) consist of several Federal 
financial assistance programs 
to benefit the developmentally 
disabled 
and 
to protect their legal and human rights. 
The 
territories 
are 
all, 
by 
name, 
eligible 
for 
the 
Federal 
assistance 
provided 
(42 
U.S.C. 
6001(1)), 
and 
on 
generous 
terms, relative to the States. 
The principal Federal payments are made "to assist 
in the development of a comprehensive system and a coordinated 
array 
of 
services 
and 
other 
assistance 
for 
persons 
with 
developmental disabilities 
. 
. 
." (42 U.S.C. 
6021). 
Minimum 
allotments 
are 
provided 
depending 
on 
the 
level 
of Federal 
funds appropriated. 
When the State minimum 
is $300,000 per 
State, the minimum per territory is $160,000; and if the State 
minimum 
is $350,000, 
that for each territory 
is $200,000 
(42 
U.S.C. 
6025(a)). 
The territories 
are obviously well-treated 
on a population basis. 
The local administrative machinery and 
the 
“plan” 
which 
is 
a prerequisite 
for 
a grant 
are 
both 
elaborate 
(42 U.S.C. 
6022), but the territories have met the 
burden because all have received grants under this program in 
recent years. 
A State (or territory) that disputes the amount of 
its grant award by the Secretary of Health and Human Services 
may appeal in the Court of Appeals for the appropriate circuit 
(42 
U.S.C. 
6029), 
a provision 
without 
meaning 
for 
Samoa, 
because 
it is not within any Federal judicial circuit. 
The 
matter is identified here, 
but no solution 
is offered. 
It is 
1185 
195 
Memorandum No. 
42-13 
one 
often presented 
by Federal 
statues, 
and 
its resolution 
could 
best 
be afforded 
by a major modification 
in Samoa’s 
relationship 
to the Federal 
judicial system. 
If there were 
likely 
to be a genuine problem in Samoa, 
a lesser solution 
could 
be devised, 
but Samoa 
is unlikely 
to complain 
of its 
award. 
Grants 
are 
aiso 
available 
to 
States 
and 
territories 
"to support a system 
. 
. 
. 
to protect 
the legal 
and human rights of persons with developmental disabilities" 
(42 U.S.C. 
6041), 
and again the minimum allotment 
to each of 
the territories compares 
favorably with 
that 
to each of the 
States: 
$107,000 
to 
$200,000, 
and 
at 
a 
lesser 
Federal 
appropriation level, $80,000 to $150,000 
(42 U.S.C. 
6042(b)). 
A protection and advocacy "system" must be provided (42 U.S.C. 
6042(a)), 
but 
the 
territories 
have 
done 
so, 
and 
they 
all 
receive these grants. 
Further grant programs, 
for which the territories 
are eligible but under which no special territorial provisions 
appear, 
are 
grants 
for 
training 
programs 
for 
university 
affiliated programs (42 U.S.C. 
6062), and grants for projects 
of 
"national 
significance" 
for 
persons 
with 
developmental 
disabilities 
(42 
U.S.C. 
6081). 
These 
are 
project 
or 
discretionary grant programs. 
The 
laws 
in 
this 
chapter 
do 
not 
require 
modification 
because 
the 
territories 
are 
(except 
for 
the 
technical problem associated with Samoa and identified above) 
accorded fair treatment. 
(j) Age Discrimination in Federally Assisted Programs 
(42 U.S.C. 6101-6107) refers to the Age Discrimination Act of 
1975, 
the purpose of which is "to prohibit discrimination on 
the basis of age in programs or activities receiving Federal 
financial assistance" 
(42 U.S.C. 
6101). 
General regulations 
are required to be issued by the Secretary of Health and Human 
Services, 
followed by regulations by each Federal department 
and agency with respect 
to “any program 
or activity" 
which 
receives 
Federal 
financial 
assistance 
provided 
by 
such 
department or agency 
(42 U.S.C, 
6103(a)). 
Compliance may be 
1186 
197 
Memorandum No. 
42-13 
achieved 
by the 
termination 
by the department 
or agency 
of 
Federal financial assistance to the "program or activity" 
if 
it is found 
that age discrimination 
has occurred 
(42 U.S.C. 
6104(a)); 
aad 
in addition, 
"any interested 
person" 
(a term 
that 
is 
undefined, 
but 
it 
doubtless 
comprehends 
one 
who 
believes he or she has been discriminated against on the basis 
of 
age), 
may 
bring 
an 
action 
in 
a 
U.S. 
District 
Court 
to 
enjoin 
a violation 
of the Act "by any program 
or activity 
receiving Federal financial assistance" 
(42 U.S.C. 
6104(e)). 
The 
availability 
of, the 
Act 
to persons 
in 
the 
territories 
who 
believe 
themselves 
to 
be 
victims 
of 
age 
discrimination is at best uncertain, 
and in fact in doubt. 
A 
great number of Federal financial assistance programs apply to 
the territories, 
as this study demonstrates, 
but no provision 
of the Age Discrimination Act makes express reference 
to the 
territories. 
And the phrase that is material to enforcement, 
i.e., 
"program or activity", which is used in subsection 
(a) 
and 
(e) of 42 U.S.C. 
6104, 
referred 
to above, 
is defined to 
include State and local governments only--a phrase that does 
not include 
the territories. 
Under 
42 U.S.C. 
6107(4), 
the 
term 
"program 
or 
activity" 
includes 
the 
operations 
of 
a 
department or agency "of a State or local government", or "the 
entity of such State or local government that distributes" the 
Federal financial assistance. 
In light of that definition, 
a 
literal-minded court would likely conclude that an “interested 
person" in a territory could not seek an injunction against a 
territorial government agency 
that has allegedly engaged 
in 
age discrimination. 
Additionally, 
the absence 
of a Federal 
court 
in American Samoa eliminates that enforcement tool 
so 
far as Samoans are concerned. 
These problems could quite easily be corrected, by 
defining 
"State" 
to 
include 
the 
four 
offshore 
areas 
here 
involved, 
and by vesting in a Samoan court the jurisdiction 
now vested in Federal District Courts. 
Such amendments appear 
to be worth seeking, 
for the territorial elderly deserve 
as 
full protection 
as those in the States. 
(k) The 
chapter 
entitled 
Energy 
Conservation 
(42 
U.S.C. 6201-6422) contains the Energy Policy and Conservation 
Act, enacted in 1975, as amended. 
The Act is of considerable 
1187 
193 
+ 
Memorandum No. 
42-13 
length and complexity but, 
except for the routine problem of 
court jurisdiction in American Samoa (which dos not appear of 
sufficient moment here to warrant legislative correction), 
it 
very largely treats the territories in the same manner as the 
States--with 
a 
few 
variations, 
all 
of 
which 
appear 
to 
be 
reasonable, 
that 
are discussed 
below. 
For purposes 
of the 
Act, the term "State" includes "any territory or possession of 
the United 
States" 
(42 U.S.C. 
6202(4)), 
and because 
of the 
1975 enactment date, the Northern Marianas would be covered by 
operation of section 502(a)(2) of the Covenant. 
And the term 
“United States" includes "all of the States", 
so defined 
(42 
U.S.C. 
6202(5)). 
The first three titles of the Act are of interest 
here: 
Title 
I 
(42 
U.S.C. 
6211-6251) 
concerns 
the 
availability 
of 
domestic 
energy 
sources. 
It 
contains 
no 
special provisions for the territories, 
but the authority 
it 
grants could have 
an indirect effect 
on them all. 
Title 
I 
provides 
special 
incentives 
for 
the 
development 
of 
underground coal mines, special provisions for Interior leases 
for energy production, 
and rules for the establishment of the 
Strategic Petroleum Reserve. 
It also permits the President to 
restrict 
the 
export 
of certain 
energy 
supplies 
(42 U.S.C. 
6212), 
and any such restriction would apply to exports 
from 
the territories 
to foreign points. 
Title II 
(42 
U.S.C. 
6261-6285), 
pertaining 
to 
standby authority, authorizes the President to prepare energy 
conservation 
contingency 
plans 
and 
a rationing 
contingency 
plan. 
He may also require compliance with international 
oil 
allocations, 
accepted by the United States 
in international 
agreements. 
The territories 
are no 
less 
affected 
by these 
provisions than are the States. 
Title II 
(42 U.S.C. 
6291-6374d) 
is directed 
to 
improving energy efficiency. 
To this 
end, 
the Secretary 
of 
Energy is authorized to promulgate energy efficiency standards 
for a wide variety of consumer products 
(42 U.S.C. 
6292) and 
for electric motors, pumps, and other industrial equipment (42 
1188 
193 
Memorandum No. 
42-13 
U.S.C. 
6311). 
Products must bear suitable efficiency labels, 
and nonconforming products are refused entry into "the customs 
territory of the United States" 
(42 U.S.c. 
6301), 
and cannot 
be distributed "in commerce" 
(42 U.S.C. 
6302(a)). 
Although 
the territories, 
all of which are outside the U.S. 
customs 
areas 
(see Memorandum No. 
19-2) are thereby excluded from the 
customs 
enforcement 
provision, 
they 
are 
covered 
by 
the 
“distribution 
in commerce” 
language, 
given 
the definitions 
contained at 42 U.S.C. 6292(16) and (17). 
The territories are 
thus 
effectively 
comprehended 
by 
the 
energy 
efficiency 
standards. 
Title 
III also contains 
a number of programs 
of 
Federal technical assistance and Federal financial assistance 
to States (and territories) for energy-related programs: 
for 
the development of energy conservation plans (42 U.S.C. 6321), 
for programs to encourage energy conservation in schools and 
hospitals 
(42 
U.S.C. 
6371), 
and 
for 
programs 
for 
energy 
conservation 
in 
certain 
public 
buildings 
and 
public 
care 
institutions 
(42 U.S.C. 
6372). 
In no case 
does 
the usual, 
rather 
rigid statutory 
formula appear, 
but 
there 
are 
local 
participation requirements, 
as 
in the case of 20% for energy 
conservation plans 
(42 U.S.C. 
6323a), 
or from 10% to 50% for 
school and hospital programs 
(42 U.S.C. 
6371e({b)). 
There are 
two minimum grant provisions 
(42 U.S.C. 
6371g{b) 
in the case 
of schools 
and 
hospitals, 
42 
U.S.C. 
6372g 
in the 
case 
of 
public 
buildings and care institutions), and the territories 
are-~-quite reasonably, given their populations--excluded from 
these floors. 
(A 
technical 
defect 
may 
appear 
to 
exist 
in 
connection with the second of these floors--that pertaining to 
public buildings and institutions at 42 U.S.C. 6372g(b), which 
does 
not 
name 
the 
Northern 
Marianas. 
The 
earlier 
one 
pertaining to schools and hospitals, at 42 U.S.C. 6371g, names 
the Northern Marianas 
as 
a result 
of a 1984 amendment. 
At 
first blush this would appear to give the Northern Marianas a 
potential windfall under the program for public buildings and 
institutions, 
but it does not, 
in light of section 502(a) (1) 
of 
the 
Covenant, 
which 
provides 
that 
Federal 
financial 
assistance under laws in effect on January 9, 1978 and their 
"subsequent amendments" apply to the Northern Marianas as they 
apply 
to 
Guam. 
The 
basic 
Act 
was 
enacted 
in 
1975. 
1189 
9°95 
Memcrandum No. 
42-13 
Accordingly 
the floor imposed on Guam at 42 U.S.C. 
6372g(b) 
applies to the Northern Marianas as well). 
The 
remaining 
provisions 
of 
the 
Act 
concern 
housekeeping, and are of no immediate importance except to the 
extent 
that 
they 
involve enforcement 
in Federal 
courts 
(42 
U.S.C. 
6395). 
Other provisions 
of 
the Act 
do 
so 
as well, 
including those at 42 U.S.C. 6303-6306. 
The subject matter of 
this 
law 
does 
not 
seem 
to 
compel 
amending 
it 
to 
reflect 
Samoa’s peculiar judicial arrangements, 
and indeed, 
there is 
some 
administrative 
enforcement 
authority 
granted 
to 
the 
Secretary 
of 
Energy 
(42 
U.S.C. 
6303), 
and 
that 
could 
be 
available 
if a need for it were 
to arise 
in Samoa. 
In the 
circumstances, 
it 
does 
not 
seem 
necessary 
to make 
special 
provision for enforcement of this Act in Samoa. 
(1) The 
National 
Petroleum 
Reserve 
in 
Alaska 
(42 
U.S.C. 
6501-6508), 
administered 
under 
this 
chapter 
by 
the 
Secretary of the Interior, 
is irrelevant 
to this study. 
(m) The 
chapter 
entitled 
Science 
and 
Technology 
Policy, 
Organization 
and 
Priorities 
(42 
U.S.C. 
6601-6685) 
provides for the establishment in the Executive Office of the 
President 
of 
the 
Office 
of 
Science 
and 
Technology 
Policy. 
These 
provisions 
concern 
internal 
arrangements 
within 
the 
Executive Branch. 
No geographic limitations appear. 
(n) The chapter entitled Public Works Employment 
(42 
U.S.C. 6701-6736) 
contains the Public Works Employment Act of 
1976, 
as amended. 
This 
is one 
of the laws under which 
the 
Economic 
Development 
Administration 
of 
the 
Department 
of 
Commerce provides Federal financial and technical assistance 
to 
the 
States 
and 
territories, 
and 
all 
of the 
latter--the 
Virgin Islands, 
Guam, 
Samoa, 
and the Northern Marianas--have 
received such assistance. 
Two programs are involved, 
the first relating 
to 
local public works and the second, 
to antirecession programs. 
The four insular areas are covered by each, but on terms that 
differ 
from 
those 
that 
apply 
to 
the 
States. 
The 
first 
1190 
Memorandum No. 
42-13 
involves Federal grants for 100% of the cost of "public works 
Projects" in the "States", and that term is defined to include 
the Virgin Islands, 
Guam, 
and Samoa 
(42 U.S.C. 
6701(2)). 
By 
operation of section 502(a)(2) of the Covenant, 
the term also 
includes 
the Northern 
Marianas. 
After certain 
set-asides, 
funds appropriated are allocated to the "States" on the basis 
of their unemployed populations, 
with a floor for the States 
of 
at 
least 
three 
quarters 
of 
one 
percent 
of 
the 
funds 
appropriated, 
but with a floor for Guam, 
the Virgin Islands, 
Samoa, 
and the Trust Territory of one-half of one percent in 
the aggregate 
(42 U.S.C. 6707(a)(3). 
On a population basis, 
the figure does not seem inequitable, particularly since Palau 
alone now constitutes "the Trust Territory". 
Financial 
assistance 
under 
the 
antirecession 
provisions--directed 
to 
"stimulate 
economic 
recovery" 
(42 
U.S.C. 6722(a))--are confined to the States as such (42 U.S.C. 
6723(b) 
(3)(A)), and they receive allocations under a formula 
derived 
from unemployment 
figures. 
But 
insular 
areas 
are 
dealt 
with 
separately, 
so 
that 
they 
too 
are 
eligible 
for 
antirecession grants. 
Under 
42 U.S.C. 
6736, 
one percent of 
the amounts authorized is to be directed to Puerto Rico, Guam, 
Samoa, 
and the Virgin Islands. 
(This provision, 
added in May 
1977, 
in effect 
includes 
the Northern Marianas 
as well, 
in 
light of section 502(a)(1) 
of the Covenant, 
which equalizes 
Federal 
financial 
assistance 
to the Northern 
Marianas with 
that of Guam.) The inclusion of Puerto Rico in this provision, 
given Puerto Rico’s population that is about six times that of 
the 
least 
populous 
State, 
suggests 
that 
this 
one 
percent 
figure 
is unfair 
to 
the 
smaller 
insular 
areas. 
But 
the 
program in question appears not now to be implemented 
(it is 
not 
contained 
in 
the 
current 
Catalog 
of Federal 
Domestic 
Assistance, 
11.300 et seq.), so this possible problem probably 
does not require correction. 
(o) The 
chapter 
entitled 
Ener 
an 
Resource Renewal 
(42 U.S.C. 
6801-6892) 
contains 
the Energy 
Conservation 
and Production 
Act 
of 
1976, 
as 
amended. 
Its 
provisions treat the insular areas fairly. 
The first program 
pertains to the design of electric utility rate proposals to 
encourage energy conservation 
(42 U.S.C. 
6803),. to grants to 
"State" consumer protection offices 
(42 U.S.C. 
6805), 
and to 
grants 
to utility regulatory commissions 
(42 U.S.C. 
6807), 
1191 
v2 
Memorandum No. 
42-13 
with the term "State" defined 
to include 
“any territory or 
possession" 
(42 U.S.C. 
6802(6)). 
The 
second concerns 
the 
development of voluntary energy conservation standards for new 
buildings and includes technical assistance 
to the "States" 
for energy efficient buildings 
(42 U.S.C. 
6837), 
again with 
the 
term 
"State" 
defined 
to 
include 
“any 
territory 
and 
possession" 
(42 U.S.C. 
6832(12)). 
The third program, one of "weatherization" for the 
dwelling 
units 
of low income persons, 
applies 
only 
to the 
States 
and 
the 
District 
of Columbia 
(42 
U.S.C. 
6862(8)). 
Inasmuch as the definition of that term makes clear that it is 
directed to conserving energy in the heating (and not the air- 
conditioning) 
process 
(42 
U.S.C. 
6862(9)), 
the 
subject 
is 
irrelevant 
in light of the warm climates 
of all 
the insular 
areas. 
Additionally, 
even 
if cooling equipment were 
to be 
covered, low income persons in the territories (and elsewhere) 
would 
not 
be significantly 
affected, 
for 
this 
is 
a luxury 
generally beyond their reach. 
(p) The 
chapter 
entitled 
Solid 
Waste 
Disposal 
(42 
U.S.C. 
6901-6992k) 
contains the Solid Waste Disposal Act and 
the 
Resource 
Conservation 
and 
Recovery 
Act. 
Under 
the 
authority contained 
in the chapter, 
the Administrator of the 
Environmental 
Protection 
Agency 
is 
authorized 
to 
assist 
"States"--a 
term 
defined 
expressly 
to 
include 
the 
Virgin 
Islands, 
Samoa, 
Guam, 
and 
the Northern Marianas 
(42 U.S.C. 
6903(31))--in 
the 
development 
of 
solid 
waste 
management 
programs 
and hazardous 
waste management 
programs. 
Federal 
technical and financial assistance are available. 
It 
is perhaps 
sufficient 
to 
say 
here 
that 
the 
territories are treated for all purposes in the same manner as 
the States, 
and that appears to be fair to them. 
There are no 
provisions of particular application to the territories; 
but 
one contains the potential for unusual generosity. 
A State or 
territory 
with 
an 
approved 
solid 
waste 
plan 
may 
receive 
Federal financial assistance 
in its implementation, and sums 
appropriated 
for this purpose 
are 
allotted 
on 
a population 
basis, 
"except that no State shall receive less than one-half 
of 
1 per centum of the sums 
so allotted 
in any 
fiscal 
year" 
(42 U.S.C. 6948(b)). 
No territory has received a grant under 
1192 
Memorandum No. 42-13 
this 
Act 
(see 
CFDA 
66.801), 
perhaps 
because 
the 
Federal 
requirements 
for approval 
are stringent. 
Obviously 
if one 
were 
to qualify, 
its entitlement 
to "State" treatment would 
substantially exceed a population-based award. 
Additionally, enforcement provisions rely upon the 
Presence of a Federal District Court (42 U.S.C. 
6928, 6972), 
so that requirement would present a difficulty in Samoa, where 
none 
exists. 
Samoa 
is 
not 
now 
known 
to 
present 
serious 
problems concerning solid or hazardous waste disposal, 
so the 
correction of this deficiency may appear to be nonurgent. 
But 
in informal 
comments 
on this memorandum, 
the Department 
of 
Justice 
has stated, 
"We urge correction 
of this deficiency 
before problems become apparent." 
(q) The 
Energy 
Extension 
Service 
(42 
U.S.C. 
7001- 
7011), created in 1977, 
is administered by the Department of 
Energy through "State" energy extension programs. 
The term 
"State" 
includes 
"the 
territories 
and 
possessions 
of 
the 
United States" (42 U.S.C. 7011(2)), and in fact all four areas 
that are the subjects of this study receive Federal financial 
assistance 
under 
this Program--which 
is one of outreach 
on 
energy conservation and new energy technologies. 
The insular 
areas fare well under the allocation formula, which requires 
that half the sum appropriated be divided “equally among all 
the States", 
with 
the other 
half divided 
on 
the basis 
of 
population 
(42 U.S.C. 
7010(c)(2)). 
(x) The Department of Energy, established in 1977, 
is 
the product of the laws contained in this chapter 
(42 U.S.C. 
7101-7375) 
which define 
some 
of 
its responsibilities, 
its 
management 
and 
administration. 
Because 
the 
chapter 
is 
fundamentally housekeeping 
in nature, 
its shortcomings from 
the 
stand-point 
of 
the 
insular 
areas 
are 
probably 
of 
no 
Practical 
importance, 
so 
it 
does 
not 
appear 
to 
warrant 
modification. 
But shortcomings do exist: 
an early reference 
to "citizens" 
in a Congressional 
finding concerning energy 
requirements 
to meet health and welfare needs of "citizens" 
{42 U.S.C. 7111(2)) does not recognize that Samoans have such 
needs too; many references to the "States" appear (e.g., at 42 
U.S.C. 
7113, 
7191(£), 
7211(a)(2), 
7256a, 
7265(a)), 
and that 
term 
is undefined, 
but 
in context 
the 
territories 
do not 
1193 
Memorandum No. 
42-13 
appear 
to be inconvenienced 
thereby; 
and the references 
to 
District 
Courts 
of 
the 
United 
States 
(42 
U.S.C. 
7192(b), 
7218(b)) 
ignore Samoa's 
special 
judicial situation--but 
it 
seems quite unlikely that a forum for Samoa would be necessary 
for purposes of the sections in question. 
The territories are 
not entirely 
ignored: 
at 42 U.S.C. 
7259(a) 
the Secretary of 
Energy 
and 
the 
Federal 
Energy 
Regulatory 
Commission 
are 
authorized 
to 
use 
research, 
equipment, 
and 
facilities 
of 
agencies of the States “or any territory or possession"--with 
their consent, 
and with or without reimbursement. 
But they 
are otherwise unmentioned. 
They do not appear thereby to be 
disadvantaged. 
Conclusion: 
The 
laws 
examined 
herein 
do 
not 
appear 
to require 
modification to meet the needs of the territories, except that 
one portion of the Child Abuse Prevention and Treatment and 
Adoption Reform Act (part 
(a) above), 
pertaining to adoption 
opportunities, 
should be modified to include the territories; 
the Disaster Relief Act (part (b) above) should be amended to 
provide for enforcement 
in Samoa; 
the Age Discrimination Act 
(part 
(j) 
above) 
should 
be clarified 
to make 
certain 
its 
application 
in 
the 
territories 
and 
to 
provide 
for 
its 
enforcement 
in Samoa; 
and the solid waste disposal laws (part 
(p) 
above) 
should 
be amended 
to provide 
for enforcement 
in 
Samoa. 
Federal 
agency 
comments: 
Comments 
were 
requested 
from 
the 
Departments 
of HHS, 
Energy, 
HUD, 
and Justice, 
and from EPA, 
and FEMA. 
All comments received have been reflected above. 
1194 
Subject: 
(a) 
(b) 
{c) 
(d) 
{e) 
(f£) 
(k) 
(m) 
(n) 
Memorandum No. 
42-14 
September-November 
1990 
Revised December 
1991 
Air Pollution Prevention and Control 
Title 42, Chapter 85 (42 U.S.C. 
7401 
et seg.) 
Earthquake Hazards Reduction 
Title 42, Chapter 86 (42 U.S.C. 
7701-7706) 
Uranium Mill Tailings Radiation Control 
Title 42, Chapter 88 (42 U.S.C. 
7901-7942) 
Congregate Housing Services 
Title 42, Chapter 89 (42 U.S.c. 
8001-8010) 
Neighborhood 
and 
City 
Reinvestment, 
Self-Help 
and 
Revitalization 
Title 42, Chapter 90 (42 u_s.c_ 
8101-8146) 
National Energy Conservation Policy 
Title 42, Chapter $1 (42 U.S.C. 
8201-8187c) 
Powerplant and Industrial Fuel Use 
Title 42, Chapter 92 (42 U.S.C. 
8301-8484) 
Emergency Energy Conservation 
Title 42, Chapter 93 (42 U.S.c. 
8501-8541) 
Low-Income Energy Assistance 
Title 42, Chapter 94 (42 U.S.c. 
8621-8629) 
United States Synthetic Fuels Corporation 
Title 42, Chapter 95 (42 U.S.c. 
8719) 
Biomass Energy and Alcohol Fuels 
Title 42, Chapter 96 (42 U.S.C. 
8801-8871) 
Acid Precipitation Program and Carbon Dioxide Study 
Title 42, Chapter 97 (42 uU_s.c. 
8901-8912) 
Ocean 
Thermal 
Energy 
Conversion 
Research 
and 
Development 
Title 42, Chapter 98 (42 U.S.C. 
9001-9009) 
Ocean Thermal Energy Conversion 
Title 
42, Chapter 99 (42 U.S.c. 
9101-9168) 
1195 
BT 
Memorandum No. 
42-14 
{o) Wind Energy Systems 
Title 42, Chapter 100 
(42 U.S.C. 
9201-9213) 
(p) Magnetic Fusion Energy Engineering 
Title 42, Chapter 
101 
(42 U.S.C. 
9301-9312) 
Comment: 
The laws of Title 42 that are considered herein are for 
the most part of little 
direct concern 
to the territories. 
The exceptions 
are 
the grant program 
for low-income 
energy 
assistance 
(in 
(i) below) 
and the two OTEC statutes 
(in 
(m) 
and 
(n) 
below). 
These 
make 
adequate 
provision 
for 
the 
territories. 
Discussion: 
(a) The chapter entitled Air Pollution Prevention and 
Control 
(42 U.S.C. 
7401 
et seq.) contains the Clean Air Act, 
first enacted 
in 1955 and often amended since. 
It has most 
recently been amended and much expanded by the Clean Air Act 
Amendments of 1990 (Public Law 101-549, approved November 
15, 
1990), 
and 
because 
the 
1990 
amendments 
have 
not 
yet been 
codified, and because they run to approximately 750 pages, the 
analysis of the Act, 
as amended, 
is difficult. 
Further, 
the 
Act as amended 
is not only very 
long but also very complex, 
requiring 
an expertise 
fully 
to comprehend 
it that 
is not 
readily available for purposes of this study. 
Nevertheless, 
at can with some confidence be said that 
(1) the Act applies 
to the 
areas 
that are 
the subjects 
of this 
study, 
(2) 
the 
important exemption authority for the territories remains in 
effect, 
(3) the grant programs under the Act remain available 
to 
the 
territories, 
and 
(4) 
the 
possible 
shortcomings 
are 
minor, 
and it would be untimely now to seek their correction. 
Each of these propositions will be examined in turn. 
(1) Territorial application. 
The Clean Air Act, 
both before and after the 1990 amendments, 
in general applies 
to the Virgin Islands, Guam, Samoa, and the Northern Marianas, 
|
all of which are explicitly defined 
as 
"States" 
(42 U.S.C. 
|
7602(d)). 
(The Northern Marianas were expressly added to the 
|
definition 
in 
1977, 
for 
reasons 
not 
disclosed 
in 
the 
legislative 
history.) 
These 
insular 
areas, 
however, 
are 
expressly excluded 
from 
the new 
1990 
Title 
Iv of the Act, 
pertaining to acid rain. 
Only the 4B contiguous States and 
the District of Columbia are comprehended by that Title, which 
1196 
P27 
Memorandum No. 
42-14 
carries its own definition of "State" (secs. 401 (b), 402(14)). 
The territories 
are also excluded, 
but not expressly, 
from 
section 
801 
of 
the 
1990 
amendments, 
which 
pertains 
to air 
pollution 
from 
Outer 
Continental 
Shelf 
activities. 
This 
results from their exclusion generally from Outer Continental 
Shelf laws (see Memorandum No. 43-1). 
All of the foregoing is 
as it should be. 
(In its Interim Report of January, 
1982, 
the 
Northern Mariana Islands 
Commission 
on Federal 
Laws warmly 
endorsed the general application of the Clean Air Act to the 
Northern 
Marianas 
(p. 
61), 
although 
it 
recommended 
their 
exclusion--since 
accomplished 
by the territorial 
exemption 
authority--from certain motor vehicle constraints.) 
In connection with the territorial application of 
the law, 
it should be observed that some care has been taken 
to 
include 
the 
terriiories 
in 
the 
new 
(1990) 
Title 
VI, 
concerning 
Stratospheric 
Ozone 
Protection. 
That 
title 
is 
concerned with the production, importation, and exportation of 
substances with an "ozone depletion potential", and at section 
601(7) 
it defines "import" as the act of bringing into "any 
Place 
subject 
to 
the 
jurisdiction 
of 
the 
United 
States, 
whether 
or 
not 
such 
... 
bringing 
.. 
. 
constitutes 
an 
importation 
within 
the meaning 
of 
the 
customs 
laws 
of 
the 
United 
States". 
That 
definition 
was 
directed 
to 
the 
territories, because they alone (with the Trust Territory) are 
under 
U.S. 
jurisdiction 
but 
outside 
the 
U.S. 
customs 
territory. 
(2) Territorial 
exemption 
authority. 
From 
the 
territories’ 
standpoint, 
the most important provision of the 
Clean Air Act is very likely the authority conferred by a 1983 
amendment 
upon 
the 
Administrator 
of 
the 
Environmental 
Protection 
Agency 
to 
grant 
exemptions 
from 
the 
Act’s 
requirements. 
That 
authority 
was 
expanded 
by 
the 
1990 
amendments. 
As codified before the 1990 amendment, 
the law 
provided 
in pertinent part: 
Upon 
petition 
by 
the 
Governor 
of 
Guam, 
American 
Samoa, 
or 
the 
Commonwealth 
of 
the 
Northern 
Mariana 
Islands, 
the 
Administrator 
[of 
the 
Environmental 
Protection 
Agency] 
is 
1197 
28 
Memorandum No. 
42-14 
authorized 
to 
exempt 
any 
person 
or 
source or class of persons or sources in 
such 
territosy 
from 
any 
requirement 
under 
this 
chapter 
other 
than 
section 
7412 
of this 
title 
or any requirement 
under section 7410 of this title or Part 
D 
of 
subchapter 
I 
of 
this 
chapter 
necessary 
to 
attain 
or 
maintain 
a 
national 
primary 
ambient 
air 
quality 
standard. 
Such exemption may be granted 
if 
the 
Administrator 
finds 
that 
compliance with such requirement 
is not 
feasible 
or 
is 
unreasonable 
due 
to 
unique geographical, meteorological, 
or 
economic 
factors 
of such territory, 
or 
such 
other 
local 
factors 
as_ 
the 
Administrator 
deems 
significant. 
(42 
U.S.C. 
7625-1) 
The 
1990 amendments 
add the Virgin Islands 
to those who may 
petition 
(sec. 
806), 
but 
the quoted 
language 
is otherwise 
untouched. 
The 
1983 
exemption 
authority 
was 
enacted 
(in 
legislation 
from 
the 
House 
Interior 
and 
Senate 
Energy 
Committees, 
which became Public 
Law 98-213, 
the Territorial 
Omnibus 
Act of that year) 
in response 
to urgent pleas 
from 
Guam and the Northern Marianas. 
Guam argued that the costs of 
compliance 
by 
its 
generating 
plants 
with 
Clean 
Air 
Act 
standards were enormously high, and without benefits because 
pollutants were swiftly blown over the Pacific; 
the Northern 
Marianas 
argued 
that 
compliance 
with 
motor 
vehicle 
requirements were similarly costly, without benefits, 
for the 
same 
reason 
(Interim 
Report, 
pp. 
51-62). 
The 
readily 
available legislative history offers no explanation (1983 U.S. 
Code Cong. and Admin. News 2210), 
the Clean Air Act exemption 
having been added to the bill late in the legislative process. 
The sections or parts of the Act that are stated 
in the foregoing quotation to be exceptions are central to the 
air quality standards of the Act: 
-- The section appearing at 42 U.S.C. 7410 (which 
is section 110 of the Act) concerns State implementation plans 
1198 
pag 
Memorandum No. 
42-14 
for 
national 
primary 
and 
secondary 
ambient 
aix 
quality 
standards. 
New language 
has been added 
to the section 
by 
section 101 
of the 1990 amendments. 
-- The section appearing at 42 U.S.C. 
7412 (which 
is 
section 
112 
of 
the 
Act) 
concerns 
national 
emission 
standards 
for hazardous 
air pollutants, 
and 
it too has been 
much expanded, 
by Title III of the 1990 amendment. 
~~ Part D of Title I of the Clean Air Act (which 
is 
referred 
to 
in 
the 
foregoing 
quotation 
as 
"Part 
D of 
subchapter I of this chapter", codified currently at 42 U.S.C. 
7501-7508), 
which 
has 
been 
much 
expanded 
by amendments 
in 
Title 
I of the 1990 amendments, 
concerns 
plan requirements 
for nonattainment areas. 
A "nonattainment area" is one whose 
air pollutants exceed national air quality standards. 
It 
seems 
possible 
to 
construe 
the 
exemption 
authority at 42 U.S.C. 
7625-1 
as not permitting an exemption 
for a territory from any of these three portions of the Act if 
the continued application 
of the section 
or portion 
to the 
territory 
is "necessary 
to attain 
or 
maintain 
a national 
primary 
ambient 
air 
quality 
standard". 
In 
commenting 
informally on this memorandum, however, the Justice Department 
states as to 42 U.S.C. 
7625-1: 
This provision permits the EPA, upon petition 
from the governor of Guam, American Samoa, 
or 
the 
Commonwealth 
of 
the 
Northern 
Mariana 
Islands, 
to exempt any person or source of air 
pollution 
"from 
any 
requirement 
under 
[the 
Clean Air Act] other than section 7412... 
7410 
. 
. 
. 
or Part D of subchapter 
I of this 
chapter 
necessary 
to 
attain 
or 
maintain 
a 
national 
primary 
ambient 
air 
quality 
standard." 
42 U.S.C. 7625-1(a)(1). 
Interior 
interprets the phrase "necessary to attain or 
maintain 
a 
national 
primary 
ambient 
air 
quality standard" as limiting EPA’s authority 
to exempt a territory from all three portions 
of 
the 
Act. 
This 
phrase 
may 
have 
been 
1199 
Memorandum No. 
42-14 
intended 
to apply only to exemption from Part 
D, 
concerning 
plan 
requirements 
for 
nonattainment 
areas. 
EPA 
may 
have 
no 
authority to exempt 
the Territories 
from 
the 
requirements 
of 
section 
7412, 
regarding 
hazardous 
air 
pollutions, 
or 
the 
State 
Implementation 
Plan 
requirements 
of 
section 
7410. 
In any event, territorial complaints about the Clean Air Act in 
recent years have ceased. 
In sum, 
the evidence suggests that 
the territories are content with this exemption authority, and 
that it has served their particular requirements. 
(3) Grant programs. 
The Clean Air Act contains 
several grant programs, 
and the territories are eligible for 
them: 
-- 42 U.S.C. 7403 and 7404, as amended by Title IX 
of 
the 
Clean 
Air Amendments 
of 
1990, 
concern 
research 
and 
development, 
and 
permit 
grants 
to 
"public 
and 
nonprofit 
agencies" for these purposes. 
-- 
42 U.S.C. 
7405 provides formula grants to the 
States 
and 
territories 
for 
the 
support 
of 
air 
pollution 
planning and control programs. 
As amended by section 802(d) 
of the 1990 amendments, the program contains the potential for 
a territorial 
windfall 
(as 
did 
its 
predecessor, 
currently 
found at 42 U.S.C. 
7405(c)), 
because each State or territory 
is guaranteed a minimum grant of "one-half of 1 per centum of 
the annual appropriation"; but it may be that the requirements 
that the grant be measured in part by the grantee’s prior year 
expenditures 
for air pollution programs, 
plus the grantee’s 
need to pay 2/5ths of the program cost (42 U.S.C. 7405(b) and 
(c)), serve 
to eliminate such a potential windfall. 
In any 
event, 
the territories 
have 
all received grants 
under 
this 
section. 
Y as reported to the Interior Department, 
these grants have 
(continued...) 
1200 
pli 
Memorandum No. 
42-14 
-- 42.U.S.C. 
7406 authorizes discretionary grants 
to the States and territories for "up to three-fourths of the 
air 
quality 
planning 
program 
costs" 
of 
the 
State 
or 
territorial agency. 
-- 42 U.S.C. 7544 authorizes grants to States (and 
territorial) 
agencies 
"in an amount 
up to two-thirds of the 
cost of developing and maintaining effective vehicle emission 
devices 
and 
systems 
inspection 
and 
emission 
testing 
and 
control programs", 
(4) Possible shortcomings. 
It is possible that as 
experience 
develops 
with 
the 
administration 
of 
the 
newly- 
amended Clean Air Act, 
problems peculiar 
to the territories 
may emerge, 
just as 
they did 
in years 
past 
that 
caused 
the 
enactment 
of 
the 
territorial 
exemption 
authority 
in 
1983. 
None appears from a reading of the amended law, and it seems 
probable at this time that the continuing availability of the 
1983 
exemption 
authority 
will 
be 
sufficient 
to 
meet 
the 
territories’ 
special 
needs. 
One 
possible 
shortcoming 
is 
identified above, 
in connection with minimum grants under 
42 
U.S.C. 
7405, 
but that may be more apparent than real, and it 
may 
be manageable administratively. 
A further shortcoming, 
probably entirely academic at this time, 
is the absence of a 
forum in American Samoa for enforcement of the Act. 
Federal 
district courts have jurisdiction (e.g., 42 U.S.C. 7413, 7523, 
7603-7607), 
and Samoa has none. 
Samoa may be freer of air 
pollution 
than any other area of the United States, 
so this 
defect 
is not 
pressing--at 
least 
for 
now. 
And 
given 
the 
anguish so widely experienced in achieving the 1990 amendments 
to the Act, 
this is surely no time to seek further changes. 
¥(...continued) 
fluctuated surprisingly between fiscal years 
1989 and 
1990. 
‘The 
following 
figures 
show 
the changes 
from 
1989 
(actual) 
tc 
1990 
(estimated): 
the Virgin Islands, 
from $4,000 in 1989 to $105,000 
in 1990; 
Guam, 
from $148,000 
to $74,000; 
Samoa, 
from $15,000 
to 
$8,000; and the Northern Marianas, 
from $23,000 to $8,000. 
1201 
Pt2 
Memorandum No. 42-14 
(b) Earthquake Hazards Reduction (42 U.S.C. 7701-7706) 
refers to the 1977 Act of that name, 
which creates a Federal 
program directed toward earthquake prediction and mitigation. 
Although it names certain areas, all of which are States, that 
are at particular earthquake risk (42 U.S.C. 7701(1)), the Act 
also 
applies 
to 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern Marianas by name 
(42 U.S.C. 
7703(4)). 
Principally 
the 
Act 
charges 
various 
Federal 
agencies 
with 
earthquake 
related 
responsibilities, 
with 
the 
Federal 
Emergency 
Management Agency as lead agency. 
It also provides assistance 
to the States and territories, so that when assistance is made 
available to them under the Disaster Relief Act (which applies 
to the territories, 
as discussed in Memorandum No. 42-13(b)), 
the 
President 
may 
also 
"make 
such 
assistance 
available 
to 
further the purposes" of the Earthquake Hazards Reduction Act 
(42 U.S.C. 7704(g)). 
The territories are, 
thus, accorded the 
same treatment as the States. 
{c) Uranium Mill Tailings Radiation Control (42 U.S.C. 
7901-7942) refers to the 1978 Act of that name, ‘shich concerns 
the 
disposal 
and, 
when 
appropriate, 
reprocessing 
of 
radioactive residues 
from processing plants associated with 
uranium 
and 
thorium 
mining 
operations. 
The 
Secretary 
of 
Energy is authorized to designate processing sites "within the 
United 
States" 
that 
require 
remedial 
action 
(42 
U.S.C. 
7912(a)(1)), with the "United States" defined to include "the 
territories 
and 
possessions" 
(42 
U.S.C. 
7911(10)). 
The 
insular 
areas 
are 
thus 
covered, 
but 
the 
point 
is academic 
because there are no such mines 
in any of them. 
(d) Congregate Housing Services (42 U.S.C. 8001-8010) 
refers 
to 
the 
program, 
administered 
by 
the 
Department 
of 
Housing and Urban Development, of Federal financial assistance 
to local public housing agencies and nonprofit corporations 
that 
provide 
housing 
and 
services 
to 
the 
elderly, 
the 
handicapped, 
and 
the 
temporarily 
disabled, 
so 
as 
to avoid 
their institutionalization. 
The law was amended 
in 1990 to 
make 
it expressly 
applicable 
to the virgin 
Islands, 
Guam, 
Samoa, 
and the Northern Marianas (42 U.S.C. 8011(k)(18)). 
The 
law was probably applicable to them before the 1990 addition, 
owing 
to internal 
references 
to other 
Federal 
laws 
that 
do 
apply to them all, 
but the amendment removed any doubt. 
1202 
Memorandum No. 
42-14 
(e) The 
chapter 
entitled 
ighborh 
ni 
it 
Reinvestment, Self-Help and Revitalization 
(42 U.S.C. 
8101- 
8146) provides for two Federal programs. 
The first creates a 
Government 
corporation, 
the 
Neighborhood 
Reinvestment 
Corporation, 
which 
is authorized 
to make grants and provide 
technical 
assistance 
to programs 
for 
neighborhood 
housing 
services in order to revitalize "older urban neighborhoods by 
mobilizing 
public, 
private, 
and community 
resources 
at 
the 
neighborhood 
level" 
(42 
U.S.C. 
8101(a)(1)). 
There 
is 
no 
provision 
for the geographic areas 
in which this assistance 
may 
be 
provided, 
but 
inferentially 
the 
territories 
are 
included in light of a section that refers 
to the tax status 
of the corporation. 
That section provides 
tax exemption for 
the Corporation 
by any 
State, 
the 
United 
States, 
"or 
any 
territory, dependency, or possession thereof", except for the 
corporation’s real property, which is subject to taxation (42 
U.S.C. 
8102{d)). 
It 
is thus reasonable 
to infer 
that 
the 
corporation 
could 
carry 
on 
its 
activities 
in 
the 
insular 
areas. 
The second program concerns "livable cities", and 
provides grants to nonprofit organizations for the development 
and preservation 
of 
the 
"artistic, 
cultural, 
and 
historic 
resources 
. 
. 
. of the Nation’s urban areas" (42 U.S.C. 8141), 
such grants to be made by the Secretary of Housing and Urban 
Development in consultation with the Chairman of the National 
Endowment 
for the Arts 
(42 U.S.C. 
8144). 
‘There 
is in this 
portion of the law also no indication of its geographic reach, 
but 
no 
language 
to exclude 
the 
territories 
appears. 
The 
National 
Endowment 
for 
the Arts 
is authorized 
to provide 
assistance in the territories. 
(See Memorandum No. 20-3(f).) 
The probability 
is that this program 
is not now funded. 
It 
does not appear 
in the current 
Catalog of Federal Domestic 
Assistance, 
and 
the authorization 
contained 
in 
the 
law has 
expired (42 U.S.C. 
8146). 
(£) The chapter entitled National Energy Conservation 
Policy (42 U.S.C. 
8201-8287c) 
refers to the Act of that name 
enacted 
in 1978, 
and states as its purposes 
the reduction of 
growth in demand for energy in the U.S., and the conservation 
of nonrenewable energy resources 
(42 U.S.C. 8201(b)). 
The Act 
provides for several programs to meet these purposes, and they 
very largely do not apply to the areas that are the subjects 
1203 
ony 
Memorandum No. 
42-14 
of this study--but in the circumstances, 
that does not appear 
inappropriate 
or 
injurious 
to 
them. 
The 
program 
for 
residential 
energy 
conservation 
(42 U.S.C. 
8211 
et 
seq.), 
which applies only to the States, 
the District 
of Columbia, 
and Puerto 
Rico 
(42 U.S.C. 
8211(13)), 
imposes 
requirements 
through 
State 
plans 
upon 
large 
gas 
and 
electric 
utility 
companies 
to aid residential customers 
in installing energy 
conservation 
devices. 
The 
utilities 
affected 
are 
indeed 
large: 
those that sell natural gas 
in excess 
of 10 billion 
cubic 
feet 
per 
year 
(and 
there 
is 
no 
natural 
gas 
in 
the 
territories), and those that sell electric energy in excess of 
750 
million 
kilowatt-hours 
per 
year 
(42 
U.S.C. 
8212)--an 
amount vastly greater than electricity production 
in any of 
the territories. 
Their exclusion 
from this program 
is thus 
appropriate. 
A related section, 
however, 
which authorizes the 
Secretary of Housing and Urban Development to make grants "to 
finance energy conserving improvements” 
in housing projects 
that have received certain Federal financial assistance under 
specified sections 
of the National Housing 
Act of 1934 
(42 
U.S.C. 
8231), 
is available to the territories--to the extent 
they may have such projects. 
(As discussed in Memorandum No. 
12-6, 
that 
Act 
is 
for 
the 
most 
part 
applicable 
to 
the 
territories.) 
Remaining portions of the Act, with one exception 
referred to below, apply essentially to Federal agencies and 
Federal 
buildings, 
and 
are 
thus 
not 
applicable 
to 
the 
territories 
as 
such: 
Federal 
initiatives 
for 
energy 
demonstrations 
and 
conservation 
in 
Federal 
buildings 
(42 
U.S.C. 
8241 
et 
seq.), 
Federal 
energy 
data 
collection 
(42 
U.S.C. 
8286 
et seq.),and Federal 
agency 
contracts 
to share 
energy savings (42 U.S.C. 8287 et seq.). 
The exception is the 
program of Federal grants for the training of individuais to 
conduct energy audits for residential and commercial buildings 
(42 U.S.C. 
8285-8285c) - 
Such 
grants 
are 
available 
to the 
territories 
by name 
(42 U.S.C. 
8285a(2)), 
and 
on 
the 
same 
terms as apply to the States. 
(g) The 
chapter 
entitled 
Powerplant 
and 
Industrial 
Fuel 
Use 
(42 U.S.C. 
8301-8484) 
contains 
the Powerplant 
and 
1204 
ots 
Memorandum No. 
42-14 
Industrial Fuel Use Act of 1987, as amended. 
It does not now 
apply in any particular to any area outside the 48 contiguous 
States and the District of Columbia (42 U.S.C. 8303)--this as 
a result of a 1987 amendment, 
the rationale for which does not 
appear in the readily available legislative history (1987 U.S. 
Code 
Cong. 
and 
Admin. 
News 
270,278). 
(Formerly 
the 
Act 
applied 
to 
all 
of 
the 
States, 
Puerto 
Rico, 
and 
"the 
territories 
and possessions", 
but the territories 
were then 
excluded from certain provisions of the Act.) 
Their exclusion 
is doubtless welcome to the territories. 
The Fuel Use Act is 
regulatory in nature, being designed to discourage the use of 
natural 
gas 
and 
petroleum 
in 
new 
and 
existing 
electric 
powerplants, 
and 
to encourage 
the 
use 
instead 
of coal 
and 
alternate fuels. 
(h) Emergency 
Energy 
Conservation 
(42 
U.S.C. 
8501-8541) refers to the Emergency Energy Conservation Act of 
1979, 
which 
provided 
emergency 
authority 
for 
dealing 
with 
disruptions 
in 
gasoline 
and 
diesel 
fuel 
markets. 
Its 
provisions 
permitted 
establishing 
"monthly 
emergency 
conservation targets" 
in the States 
(42 U.S.C. 8511)--a kind 
of rationing plan--with the "States" defined to include “any 
territory 
or possession" 
(42 U.S.C. 
8502(8)), 
as well 
as 
a 
kind 
of 
“anti-topping" 
provision 
for 
gasoline 
sales 
for 
automobiles 
(42 
U.S.C. 
8521) 
and 
restrictions 
on 
odd-even 
gasoline purchase plans (42 U.S.C. 
8522). 
A sunset provision 
has become effective, with termination of all of the foregoing 
effective July 1, 1983 
(42 U.S.C. 
8541(c)). 
.i) The chapter entitled Low-Income Energy Assistance 
(42 U.S.C. 
8621-8629) 
contains 
the 
Low-Income 
Home 
Energy 
Assistance 
Act 
of 
1981, 
which 
authorizes 
grants 
from 
the 
Department 
of Health 
and Human Services 
to the States 
and 
territories to assist eligible, low-income households to meet 
the costs of home energy. 
Although the territories are not 
defined 
as States 
(42 U.S.C. 
8622(6)), 
a special 
set-aside 
applies 
to the Virgin Islands, 
Guam, 
Samoa, 
and the Northern 
Marianas, along with Puerto Rico and the Trust Territory 
(now 
Palau 
only). 
That 
set-aside 
can 
range 
from 
1/10 
of 
one 
Percent to 1/2 of one percent, 
as determined by the Secretary 
of HHS, based on the need for assistance (42 U.S.C. 8623(b)). 
All of the insular areas that are the subjects of this study 
now receive grant assistance under this program (CFDA 93.028). 
1205 
Ors 
Memorandum No. 
42-14 
While the set-aside at first blush may appear to be low, given 
relative populations and the sizeable low-income populations 
in all 
of the insular 
areas, 
it 
is clear 
that 
none 
would 
require assistance in meeting heating bills, 
and few in that 
population would possess household cooling systems. 
In the 
circumstances, 
the percentages do not appear to be unfair. 
(5) The United States Synthetic Fuels Corporation (42 
U.S.C. 
8719), 
created by the Energy Security Act of 1980 
to 
oversee 
a program 
to 
produce 
synthetic 
oil 
and 
gas 
from 
unconventional 
sources, 
exists 
no 
longer, 
having 
been 
abolished in 1986. 
One section of the law, pertaining to an 
advisory 
committee 
to 
the 
Corporation 
(42 
.S.C. 
8719) 
unaccountably remains live, 
but for no apparent purpose. 
(k) The chapter entitled Biomass Energy 
and Alcohol 
Fuels 
(42 U.S.C. 8801-8871) derives from a 1980 act of that 
title, 
which 
was also 
a part of the Energy Security Act of 
1980 and which has also terminated 
(42 U.S.C. 
8821), 
as of 
1987. 
But the law remains codified. 
For that reason it can 
be noted 
that "biomass" 
means 
“any organic matter 
which 
is 
available on a renewable basis, 
including agricultural crops 
and 
agricultural 
wastes 
and 
residues 
.. 
." 
(42 
U.S.C. 
8802(2)(A)); 
the purpose of the Act was to create a national 
program 
for 
the 
production 
of 
biomass 
energy 
(such 
as 
gasohol), 
so 
as 
to reduce 
the United 
States dependence 
on 
imported petroleum and natural gas (42 U.S.C. 
8801); 
and the 
insular areas were fully comprehended by its terms 
(42 U.S.C. 
8802(18)). 
(1) The 
laws 
titled 
Acid 
Precipitation 
Program 
and 
Carbon Dioxide Study (42 U.S.C. 8901-8912), also derived from 
the Energy 
Security Act 
of 1980, 
contain 
no provisions 
on 
geographic application. 
They provide for acid rain studies, 
and for studies of the impact on the carbon dioxide level in 
the 
atmosphere 
of 
fossil 
fuel 
combustion 
and 
other 
fuel 
activities--commonly termed the Greenhouse Effect. 
(m) Ocean 
Thermal 
Energy 
Conversion 
Research 
and 
Development 
(42 U.S.C. 9001-9009) contains the Ocean Thermal 
Energy 
Conversion 
Research, 
Development, 
and Demonstration 
1206 
e'7 
Memorandum No. 
42-14 
Act, enacted 
in 1980. 
(Ocean thermal energy conversion, 
or 
OTEC, 
is 
intended 
to 
exploit 
differences 
in 
temperatures 
between 
the 
ocean 
surface 
and 
its 
depths 
to 
generate 
electricity.) 
The program, 
administered by the Secretary of 
Energy, takes particular account of the insular areas, one of 
its purposes being to achieve ". 
. 
. for islands in the United 
States, 
its possessions and its territories" an average cost 
of electricity 
from OTEC 
systems 
that 
is competitive 
with 
conventional 
energy 
sources 
(42 
U.S.C. 
9001(b)(3)). 
In 
addition, in providing financial assistance for demonstration 
Plants, 
the Secretary 
of Energy 
is required 
to give “full 
consideration" 
to 
projects 
that 
provide 
energy 
to 
the 
"territories" and "possessions" 
(42 U.S.C. 9004(c)). 
(n) Ocean Thermal Conversion 
(42 U.S.C. 
9101-9168) 
refers to the Act of that name, enacted in 1980. 
It provides 
for 
the 
authorization 
and 
regulation 
through 
a 
licensing 
procedure, 
administered 
by 
the 
National 
Oceanic 
and 
Atmospheric 
Administration, 
of 
OTEC 
facilities 
and 
“plantships" that are "located in whole or in part between the 
highwater mark and the seaward boundary of the territorial 
sea, 
of 
the United 
States" 
(42 
U.S.C. 
9111(a)). 
The Act 
applies to the Virgin Islands, 
Guam, Samoa, 
and the Northern 
Marianas, 
all 
of 
which 
are 
expressly 
named 
(42 
U.S.C. 
9102(15)), 
and thus to OTEC facilities and Plantships 
in the 
territorial waters around them. 
In its 1985 Report, 
the Northern Mariana Islands 
Commission on Federal Laws considered but rejected the idea of 
causing the Northern Marianas to be separated from the Federal 
scheme and thus allowing it to enact its own OTEC regulatory 
laws. 
It concluded that Federal regulation 
in the Northern 
Marianas represents the "more economical course" (Report, 
p. 
521). 
But the Commission offered two lesser recommendations 
for change 
in 
the OTEC Act, 
the 
first 
of which 
has become 
unnecessary, 
but the second remains appropriate. 
The first 
related to U.S. citizenship requirements 
in various sections 
of 
the 
law, 
but 
that 
problem 
has 
been 
overcome 
by 
the 
subsequent 
collective 
naturalization 
of 
the people 
of 
the 
Northern 
Marianas under section 
301 
of 
the Covenant. 
The 
second 
Commission 
recommendation 
concerns 
jurisdiction 
and 
venue for enforcement of the Act, because the Act names 
the 
District 
Court 
of 
Guam 
as 
the 
proper 
forum 
for 
lawsuits 
1207 
ra 
Memorandum No. 
42-14 
arising 
in 
the 
Northern 
Marianas 
(42 
U.S.C. 
9153(c)). 
Inasmuch as 
the Northern Marianas has its own U.S. 
District 
Court 
(and in fact did have such a court 
in 1980, 
when the 
OTEC Act was passed), 
the Commission recommended 
that that 
fact be recognized and that the section be amended to name the 
District Court for the Northern Marianas 
as the appropriate 
forum for Northern Marianas litigation 
(Report, 
pp 157-160). 
That recommendation 
continues 
to be appropriate--but 
since 
there 
is no current OTEC activity 
there, 
the change 
can be 
viewed as nonurgent. 
It might be noted 
that 
the frequent 
problem of 
court 
jurisdiction 
for 
Samoa 
does 
not 
exist 
in 
this 
law, 
because 
the 
same 
section 
names 
the 
U.S. 
District 
Court 
of 
Hawaii as the "appropriate" forum for Samoan cases (42 U.S.C. 
9153(c)). 
Further, 
a section 
that 
makes 
Federal 
customs 
duties and taxes applicable to “foreign articles to be used in 
the construction" of OTEC facilities and plantships would not 
have the effect of making such duties and taxes applicable to 
OTEC undertakings around the territories, because such duties 
and taxes are to be paid “in accordance with laws applicable 
to 
merchandise 
imported 
into 
the 
customs 
territory 
of 
the 
United States" 
(42 U.S.C. 9163(c))--and the territories are 
all outside of the customs territory. 
(o) The 
chapter 
entitled 
Wind 
Energy 
Systems 
(42 
U.S.C. 9201-9213) contains the 1980 law of that title, 
which 
provides for the establishment under the Secretary of Energy 
of “an aggressive research, 
development, 
demonstration, 
and 
technical applications program for converting wind energy into 
electrical and mechanical energy" 
(42 U.S.C. 
9201(b)). 
The 
law provides Federal assistance to public and private entities 
working 
toward 
that 
end 
(42 
U.S.C. 
9205), 
and 
it applies 
expressly to "the Commonwealth of the Northern Mariana Islands 
and the territories and possessions of the United States" (42 
U.S.C. 
9212(b)). 
(p) Magnetic 
Fusion 
Energy 
Engineering 
(42 
U.S.C. 
9301-9312) 
refers 
to the 1980 Act of that name, 
designed to 
“accelerate the national effort in research, development, and 
demonstration 
activities 
related 
to magnetic 
fusion 
energy 
systems" 
(42 
U.S.C. 
9301(b)). 
The 
Act 
defines 
"magnetic 
1208 
Memorandum No. 
42-14 
fusion" to mean “the use of magnetic fields to confine a very 
hot, 
fully ionized gas of light nuclei, 
so that 
the fusion 
process 
can 
occur" 
(42 
U.S.C. 
9302{2)). 
Inasmuch 
as 
the 
definition of "fusion" is even less enlightening, 
it will not 
be repeated here, but the interested reader may find it at 42 
U.S.C. 
9302(1). 
Because 
the 
program 
is 
to 
be created, 
maintained, supervised, and funded by the Secretary of Energy, 
it contains no provisions concerning geographical application. 
None appear to be needed. 
Conclusion: 
Except for the Ocean Thermal Conversion Act of 1980 
((n) 
above), 
which 
ought 
to be modified 
to recognize 
the 
creation of the District Court of the Northern Marianas, 
the 
laws of Title 42 considered herein require no modification to 
accommodate the territories. 
A few contain no provisions as 
to geographic 
application, 
but 
in 
ali 
such 
instances 
none 
appears to be needed. 
Most of the remainder apply expressly 
to the territories, and in the cases of the few that do not, 
that 
result 
is 
appropriate 
and 
the 
territories 
are 
the 
beneficiaries. 
Federal agency comments: 
Comments were requested 
from EPA as 
to 
(a), 
from the Department of Health and Human Services as to 
(i), from the Department of Energy as to {c), 
(f), 
(g), 
(m), 
(o), 
and (p), 
and generally from the Department of Justice. 
All comments received have been reflected here. 
1209 
No @ 
Memorandum No. 42-15 
October 1990 
Revised December 1991 
Mental Health Systems 
Title 42, Chapter 102 (42 U.S.C. 
9401-9522) 
Comprehensive Environmental Response, Compensation, 
and Liability 
Title 42, Chapter 103 (42 U.S.C. 
9601-9675) 
Nuclear 
Safety 
Research, 
Development, 
and 
Demonstration 
Title 42, Chapter 104 
(42 U.S.C. 
9701-9708) 
Community Services Programs 
Title 42, Chapter 105 (42 U.5.C. 
9801-9887) 
Community Services Block Grant Programs 
Title 42, Chapter 105 (42 U.S.C. 9901-9912) 
Consumer-Patient Radiation Health and Safety 
Title 42, Chapter 107 (42 U.S.C. 10001-10008) 
Nuclear Waste Policy 
Title 42, Chapter 108 
(42 U.S.C. 
10101-10226) 
Water Resources Research 
Title 42, Chapter 
109 (42 D.5.C. 
10301-10309) 
Family Violence Prevention and Services 
Title 42, Chapter 110 
(42 U.S.C. 
10401-10413) 
Emergency Federal Law Enforcement Assistance 
Title 42, Chapter 111 
(42 U.S.C. 
10501-10513) 
Victim Compensation and Assistance 
Title 42, Chapter 112 
(42 U.S.C. 
10601-10605) 
State Justice Institute 
Title 42, Chapter 113 
(42 U.S.C. 
10701-10713) 
Protection and Advocacy for Mentally 111 Individuals 
Title 42, Chapter 114 
(42 U.5-C. 
10B01-10851) 
Child Development Associate Scholarship Assistance 
Program 
Title 42, Chapter 115 
(42 U.S.C. 
10901-10905) 
1210 
Memorandum No. 42-15 
(0) Emergency Planning and Community Right-to-Know 
Title 42, Chapter 116 (42 U.S.C. 
11001-11050 
(p) Encouraging 
Good 
Faith 
Professional 
Review 
Activities 
Title 42, Chapter 117 
(42 U.S.C. 
11101-11152 
(q) Alzheimer’s Disease 
and Related Dementias 
Services 
Research 
Title 42, Chapter 118 (42 U.S.C. 
17201-11294) 
(x) Homeiess Assistance 
Title 42, Chapter 119 (42 U.S.C. 
11301-11472) 
(s) Enterprise Zone Development 
Title 42, Chapter 120 (42 U.S.C. 
11501-11505) 
(t) International Child Abduction Remedies 
Title 42, Chapter 121 
(42 U.S.C. 
11601-11610) 
(u) Native Hawaiian Health Care 
Title 42, Chapter 122 (42 U.S.C. 
11701-11710) 
{v) Drug Abuse Education and Prevention 
Title 42, Chapter 123 
(42 U.S.C. 
11601-11851) 
(w) Public Housing Drug Elimination 
Title 42, Chapter 124 (42 U.S.C. 
11901-11925) 
(x) Renewable 
Energy 
and Energy Efficiency 
Technology 
Competitiveness 
Title 42, Chapter 125 (42 U.S.C. 
12001-12007) 
Comment: 
The chapters of Title 
42 that 
are examined 
herein all 
contain 
adequate 
language 
as 
to their 
application 
to 
the 
territories. 
Many such chapters provide 
for Federal grant 
programs, 
and 
in 
each 
case 
the 
territories 
appear 
to 
be 
treated 
with 
at 
least 
fairness, 
and 
sometimes 
generosity. 
Only one statute, 
the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, as amended (discussed 
below at (b)), 
appears 
to require change to accommodate the 
territories fully, and that change is essentially perfecting. 
1211 
p92 
Memorandum No. 
42-15 
Discussion: 
(a) The chapter entitled 
Mental 
Health 
Systems 
(42 
U.S.C. 
9401-9522) contains what remains of the Mental Health 
Systems Act, enacted 
in October, 
1980. 
The bulk of the Act, 
including all but one of its grant programs, 
was repealed in 
August 
1981. 
What remains 
are 
a definition 
of "State" 
to 
include 
the Virgin 
Islands, 
Guam, 
Samoa, 
and 
the Northern 
Marianas, 
by 
name 
(42 
U.S.C. 
9412(2)); 
a 
Congressional 
exhortation to the States and territories to enact legislation 
insuring fair treatment of mental health patients 
(42 U.S.C. 
9501); 
and a program of grants on the subject of sex offense 
prevention and control (42 U.S.C. 9511). 
These grants, by the 
Secretary of Health and Human Services, 
are for such matters 
as a continuing study of sex offenses, 
an information clearing 
house on sex offenses, 
the preparation of training materials 
for prevention, 
and 
research 
and 
demonstration 
projects 
on 
rape prevention and control. 
Under 
the law the territories 
are treated as States for purposes of these project grants. 
(b) Comprehensive Environmental Response, Compensation 
and 
Liability 
(42 
U.S.C. 
9601-9675) 
refers 
to 
the 
Comprehensive 
Environmental 
Response, 
Compensation, 
and 
Liability Act of 1980, 
as substantially amended in 1986. 
It 
is commonly referred 
to as CERCLA, 
or as the Superfund 
law. 
The Act is of great length and considerable complexity, being 
directed toward (1) enabling the Federal Government to respond 
to 
and 
mitigate 
the 
effects 
of 
releases 
of 
hazardous 
substances, 
pollutants, 
or 
contaminants, 
(2) creating 
a 
Hazardous Substance Superfund (now established in the Internal 
Revenue Code, 
at 26 U.S.C. 
9507) 
to assist in that response, 
and 
(3) imposing upon 
those responsible 
for the release 
of 
hazardous substances 
the costs of remedying the problem they 
created. 
The 
Environmental 
Protection 
Agency 
is 
chiefly 
responsible for the administration of the Act, but particular 
responsibilities are placed by it in the President and in the 
heads of various Departments and agencies. 
For the immediate purpose of this study, it may be 
sufficient to note that the territories are in all instances 
accorded the same treatment 
as the States, 
being defined as 
such at 42 U.S.C. 9601(27). 
(They are further defined as such 
--probably needlessly--for 
purposes 
of 
the 
1986 
amendments 
pertaining to pollution insurance 
(42 U.S.C. 
9671(5)), 
which 
are 
intended 
to facilitate obtaining 
such insurance.) 
The 
1212 
223 
Memorandum No. 
42-15 
Virgin Islands, 
Guam, 
Samoa, 
and the Northern Marianas, 
all 
being defined 
as States 
in the law, 
are accorded State-like 
treatment throughout 
it. 
With one possible exception only, 
discussed below, this appears to be appropriate for them. 
For 
example, 
when the President determines under 42 U.S.C. 
9604 
that 
remedial 
action 
relating 
to 
a 
hazardous 
substance, 
pollutant, 
or contaminant is required, coordination with and 
cooperation 
from 
the 
pertinent 
State 
(or 
territory) 
is 
required 
(42 
U.S.C. 
9604(c)(3)), 
and cost-sharing 
by such 
State (or territory) 
is also required. 
The possible exception to the appropriateness of 
this State-like treatment 
appears 
at 
42 U.S.C. 
9623, 
which 
authorizes the President to provide for federal reimbursement 
to a "general 
purpose 
unit 
of local government" 
which 
has 
incurred expenses 
in 
carrying 
out 
temporary 
emergency 
measures 
necessary 
to 
prevent 
or 
mitigate 
injury to human health 
or the 
environment associated with the release 
or threatened 
release 
of any hazardous 
substance 
or pollutant 
or contaminant. 
(42 U.S.C. 9623(b)(1)) 
A ceiling of $25,000 is imposed for each response by a local 
government. 
Inasmuch as none of the territories has "general 
purpose 
units 
of 
local 
government" 
(or 
"local 
community 
authorities", which the section uses as a synonym) of the sort 
apparently 
here 
contemplated, 
it 
is 
not 
clear 
how 
this 
reimbursement 
might 
be 
handled 
by 
them. 
EPA 
suggests 
informally, however, that if this were to become a problem, 
it 
could 
be 
corrected 
by 
EPA’s 
regulations, 
so 
corrective 
legislation is apparently not necessary. 
In 
addition, 
the 
familiar 
problem 
of 
court 
jurisdiction 
arises. 
District courts 
of the United 
States 
have jurisdiction under the Act (for example, under 42 U.S.C. 
3606, 
9607(1) 
and 
(m), 
9609, 
9613), 
and without 
a Federal 
District Court, 
Samoa 
is disadvantaged. 
Samoa 
is probably 
freer of hazardous 
waste 
sites than most communities under 
1213 
po) 
Memorandum No. 
42-15 
U.S. jurisdiction, but it would seem appropriate to provide a 
forum, 
lest that judgment be in error or that condition not 
continue. 
(The Act is obviously intended to apply to Samoa, 
given references to that territory at 42 U.S.C. 
9601(27) and 
9671(5).) 
The problem could be met by vesting jurisdiction of 
Samoa cases 
in the U.S. 
District Court of Hawaii, 
or in the 
Samoan High Court. 
(c) The 
chapter 
entitled 
Nuclear 
Safety 
Research, 
Development, and Demonstration (42 U.S.C. 9701-9708) contains 
the 
1980 
Act 
of 
that 
name. 
It requires 
the 
Secretary 
of 
Energy, 
in 
cooperation 
with 
other 
Federal 
agencies, 
to 
undertake various studies, 
as well as research, development, 
and 
demonstration 
projects, 
directed 
to 
reducing 
nuclear 
powerplant 
accidents 
and 
reducing 
population 
disruptions 
resulting from them. 
As is usual for a law of its sort, 
it 
contains 
no provisions 
as 
to geographic application, 
and 
it 
needs none. 
(d) The chapter entitled 
Communi 
ervices Programs 
(42 U.S.C. 
9801-9887) 
contains five separate programs, 
three 
dating 
from 
the Omnibus 
Budget Reconciliation 
Act of 
1981, 
with 
two 
more 
recently 
added. 
Not 
all 
such 
programs 
are 
currently live, 
but all make or made adequate provision for 
the territories. 
-- Community 
economic 
development 
programs, 
derived from the Community Economic Development Act of 1981 
(42 U.S.C. 
9801-9822), 
have been deleted from the Catalog of 
Federal Domestic Assistance 
(formerly 13.665), 
so it may be 
inferred that they are not now funded, 
though the law has not 
been repealed. 
Such programs involved urban and rural special 
impact programs, special rural programs in the form of grants 
to 
low-income 
rural 
families 
and 
to 
cooperatives, 
and 
development loans and loan guarantees for community economic 
development programs. 
The availability of these programs 
to 
the territories is unspecified in the law, but because funding 
for it, 
as provided at 42 U.S.C. 
9803, 
is available 
to the 
Secretary 
of 
Health 
and 
Human 
Services 
from 
funds 
made 
available under 42 U.S.C. 9910(c)--a section pertaining to the 
Community 
Services 
Block 
Grant 
Program, 
which 
is examined 
below at (e) in this Memorandum, 
and which applies fully to 
1214 
Memorandum No. 
42-15 
the territories--the territories were (and as a matter of law, 
are) eligible for this program assistance. 
-- The Head Start Programs 
(42 U.S.C. 
9831-9852) 
are alive and well and in use in the territories, 
to which 
they are expressly applicable (42 U.S.C. 9832(2)). 
(Such care 
has been exercised to guarantee this result that in 1984 the 
definition of "State" 
in that section was amended to change 
"the Northern Mariana 
Islands" 
to "the Commonwealth 
of the 
Northern Mariana Islands".) 
The territories are second on the 
priority list for Head Start allotments, following Indian and 
migrant 
Head 
Start 
programs 
and 
services 
for 
handicapped 
children--except 
that payments 
to the Virgin Islands, 
Guam, 
Samoa, 
and 
the Northern Marianas 
(plus Palau at this time) 
cannot exceed 1/2 of one percent of the sums appropriated 
(42 
U.S.C. 9835(a) (2)(B)). 
Ona relative child-population basis, 
which 
is the basis 
for allotments 
to the States 
(42 U.S.C. 
9835(a)(3)), 
this ceiling appears very generous. 
-- Follow 
Through 
Programs 
(42 
U.S.C. 
9861 
et 
seq.), directed toward older children, 
have been terminated. 
-- Grants by the Secretary 
of Health and Human 
Services for the establishment of referral systems to provide 
information on dependent 
care services 
(42 U.S.C. 
9874(a)), 
and for school-age child care services 
(42 U.S.C. 
9874(b)), 
are available to the territories by name (42 U.S.C. 9877(10)), 
but the minimum grant of $50,000 for each State does not apply 
to the 
territories 
(42 
U.S.C. 
9872). 
Because 
funds 
are 
allotted 
on 
a 
population 
basis, 
this 
provision 
seems 
reasonable. 
-- Grants are available under a program enacted in 
1988 
for 
Comprehensive 
Child 
Development 
(42 
U.S.C. 
9881-9887), 
consisting 
of 
grants 
for 
supporting 
the 
development of low-income children 
(42 U.S.C. 
9881(a)), 
and 
for certain supportive services for low-income infants, young 
children, 
and 
family 
members 
(42 
U.S.C. 
9881(c)). 
Geographical 
application 
is 
not 
stated, 
but 
the 
grant 
recipients 
are 
"eligible 
agencies" 
under 
the 
Head 
Start 
Program 
(42 
U.S.C. 
9886(2)), 
and 
because 
the 
Head 
Start 
1215 
25 
Memorandum No. 
42-15 
program applies to and is used in the territories, 
“eligible 
agencies" 
in the territories would qualify for these grants. 
In sum, 
the laws contained 
in this chapter make 
sufficient provision for the territories. 
(e) The Community 
Services 
Block 
Grant 
Program 
(42 
U.S.C. 
9901-9912), 
derived 
from 
the 
Omnibus 
Budget. 
Reconciliation 
Act of 
1981, 
applies 
to the Virgin Islands, 
Guam, 
Samoa, 
and 
the Northern 
Marianas 
by name 
(42 U.S.C. 
9902(4)), 
and is in use in them all (CFDA 93.031). 
This isa 
program 
of 
grants 
by 
the 
Secretary 
of 
Health 
and 
Human 
Services 
to the States 
and territories 
"to ameliorate 
the 
causes 
of 
poverty 
in 
communities" 
in 
the 
States 
and 
territories 
(42 U.S.C. 
9901(a)), 
with the grant funds being 
used by them for programs "having a measurable and potentially 
Major impact on causes of poverty in the community", programs 
"to 
assist 
low-income 
participants 
including 
the 
elderly 
poor", and programs related thereto 
(42 U.S.C. 
9904(c) 
(1)). 
These grants are formula grants, but with a set-aside for the 
Virgin Islands, 
Guam, 
Samoa, 
and the Northern Marianas 
(plus 
Palau, 
for 
now) 
of 
1/2 
of 
one 
percent 
of 
the 
amount 
appropriated 
(42 U.S.C. 
9903(b)). 
On a relative population 
basis, 
that set-aside 
is generous. 
The Secretary 
also 
has 
authority to make discretionary grants for training and other 
support 
activities 
(42 
U.S.C. 
9910), 
for 
programs 
for 
community food and nutrition services 
(42 U.S.C. 
9910a), 
and 
for certain demonstration 
projects 
(42 U.S.C. 
9910b). 
The 
territories are eligible for them all. 
(£) In the chapter entitled Consumer-Patient Radiation 
Health and Safety 
(42 U.S.C. 
10001-10008), 
the Secretary of 
Health and Human Services is required to promulgate standards 
for 
the 
accreditation 
of 
educational 
programs 
to 
train 
individuals 
who perform radiologic procedures, 
and 
for the 
certification 
of 
persons 
who 
perform 
such 
procedures 
(42 
U.S.C. 
10004), 
in order to "insure 
that medical 
and dental 
radiologic 
procedures 
are 
consistent 
with 
rigorous 
safety 
precautions 
and 
standards” 
(42 
U.S.C. 
10002(2)). 
Administration 
and 
enforcement 
are 
shared 
by 
the 
Federal 
Government and the States, with the latter defined to include 
1216 
297 
Memorandum No. 
42-15 
the Virgin Islands, Guam, Samoa, and the Northern Marianas (42 
U.S.C. 
10003(7)). 
(g) The chapter 
entitled Nuclear Waste Policy (42 
U.S.C. 
10101-10226) contains the Nuclear Waste Policy Act of 
1982, as appreciably amended in 1987. 
The Purposes of the Act 
are 
to provide 
(1) for the creation 
of 
a repository, 
or of 
repositories, 
for the storage of high-level radioactive waste 
and spent nuclear fuel 
(42 U.S.C. 
10131-10145), 
(2) for the 
interim storage of spent nuclear fuel (42 U.S.C. 10151-10157), 
(3) for the study of monitored retrieval storage facilities 
for high-level radioactive waste and spent nuclear fuel 
(42 
U.S.C. 
10161-10169), 
and 
(4) for an extensive program, 
with 
many details stipulated in the law, of research, development, 
and 
demonstrations 
regarding 
the 
disposal 
of 
high-level 
radioactive 
waste 
and 
spent 
nuclear 
fuel 
(42. 
U.S.C. 
10191-10204). 
The 
last 
of 
these 
contains 
a 
particular 
provision on sub-seabed disposal 
(42 U.S.C. 
10204). 
The Act 
does 
not 
apply 
to 
a 
repository 
used 
exclusively 
for 
the 
disposal of high-level radioactive waste or spent fuel "from 
atomic energy defense activities" or research and development 
activities by the Secretary of Energy 
(42 U.S.C. 
10107(c)), 
but 
if 
a repository 
were 
to 
be developed 
at 
such 
a site, 
cooperation with the Governor and Legislature of the pertinent 
State or territory would be required 
(42 U.S.C. 
10121). 
With one helpful exception, the Act applies to the 
territories--to 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern Marianas--on precisely the same terms as the States. 
They are 
all defined 
as such 
(42 U.S.C. 
10101(24)}. 
The 
exception 
appears 
at 
42 
U.S.C. 
10103, 
which 
expressly 
preserves the special protection, enacted in 1980 and found at 
48 
U.S.C. 
1491, 
that 
is 
accorded 
to 
each 
"territory 
or 
possession of the United 
States". 
Under 
that 
1980 
law 
no 
person can be authorized to transport high-level radioactive 
waste or spent nuclear fuel or to store it--on an interim, 
long-term, or permanent basis--in any territory or possession, 
unless 
the 
transportation 
or 
storage 
"has 
been 
expressly 
authorized by Act of Congress". 
the 1980 law was enacted 
Yin unpublished research, 
the staff of the Northern Mariana 
(continued...) 
1217 
Memorandum No. 42-15 
in recognition of the territories’ particular concern on this 
subject, and in light of Executive Branch site investigations 
in the offshore areas that came as a surprise to the Congress 
(Memorandum No. 48-2(c)). 
Although when 
the Nuclear Waste 
Policy 
Act was 
originally 
enacted 
the 
territories 
joined 
the 
States 
as 
possible candidates 
for selection as sites 
for a repository 
under the first purpose stated above, 
the amendments 
in 1987 
now focus on the site at Yucca Mountain in Nevada (42 U.S.C. 
10133), and as the law now stands, a second repository site is 
unlikely 
to be selected 
until 
the 
next 
century 
(42 U.S.C. 
10172, 10172a). 
The territories thus join 49 of the States in 
a welcome, 
de facto exclusion from this part of the program. 
As 
for 
the 
remaining 
parts--interim 
storage, 
monitored retrieval, research and development--the territories 
have as extensive participatory rights as do the States. 
For 
example, 
as to interim sites, the Governor and Legislature of 
each territory 
have 
the same right 
as 
those of a State 
to 
evidence disapproval 
(42 U.S.C. 
10155(d)(6)); 
they have 
the 
same 
right 
to veto 
a monitored 
retrieval 
storage 
site 
(42 
U.S.C. 10166); and they have the same rights to participate in 
research and development activities (e.g., 42 U.S.C. 10193(b), 
10195, 
10199). 
Y(...continued) 
Commission on Federal Laws recommended the amendment of 48 U.S.C. 
1491 
to make 
it expressly 
applicable 
to the Northern Marianas, 
inasmuch 
as 
it had been enacted following the effective date 
(in 
January 
1978) 
of section 
502 of the Covenant. 
Such an amendment 
appears unnecessary. 
While 48 U.S.C. 1491(b) defines “territory or 
possession" 
for purposes of the section to include 
“any area not 
within the boundaries of the several States over which the United 
States claims or exercises sovereignty", 
and by section 101 of the 
Covenant, 
the Northern Marianas are “under the sovereignty cf the 
United 
States 
of 
America", 
the 
Northern 
Marianas 
are 
not 
“specifically named", as section 105 of the Covenant provides. 
But 
under section 
105 
a law applies 
to the Northern Marianas 
if 
it 
could 
"also 
be made 
applicable 
to the 
several 
States", 
and 
48 
U.S.C. 
1491 
could have been or could be made so applicable. 
1218 
p99 
Memorandum No. 42-15 
Two further titles were added to the Nuclear waste 
Policy Act in 1987, but neither poses a particular problem for 
the territories. 
The first authorizes 
the appointment 
of a 
Nuclear 
Waste 
Negotiator 
(42 
U.S.C. 
10241-10251), 
whose 
function is to 
attempt 
to 
find 
a 
State 
or 
Indian tribe willing to host 
a 
repository 
or 
monitored 
retrievable storage facility at 
a technically qualified site on 
reasonable terms and [to] 
.. 
. 
negotiate 
with 
any 
State 
or 
Indian tribe which expresses 
an 
interest in hosting a repository 
or monitored retrievable storage 
facility. 
(42 U.S.C. 10242(b) 
The 
term 
"State" 
is defined 
for 
this 
title of 
the Act 
to 
include, 
among others, 
the Virgin Islands, 
Guam, 
Samoa, 
and 
the Northern Marianas 
(42 U.S.C. 
10241), 
a definition 
that 
Parallels 
that 
for the Act generally 
(42 U.S.C. 
10101(24)), 
except 
that 
for 
purposes 
of 
the 
Nuclear 
Waste 
Negotiator 
title, 
the 
term 
also 
includes 
the Marshall 
Islands. 
The 
second 
title, 
added 
in 
1987, 
provides 
for 
a Nuclear Waste 
Technical Review Board (42 U.S.c. 10261-10270), whose function 
is 
to 
evaluate 
the 
technical 
and 
scientific 
validity 
of 
pertinent 
activities 
of the Secretary 
of Energy 
(42 U.S.C. 
10263). 
The territories appear to be treated fairly under 
the Nuclear Waste Policy Act. 
(h) The chapter entitled water Resources Research (42 
U.S.C. 
10301-10309) contains the Act of that name, 
passed in 
1984. 
With the approval of the Secretary of the Interior, 
it 
provides 
for 
the 
establishment 
in each 
State, 
and 
in 
the 
Virgin Islands, 
Guam, 
Samoa, and the Northern Marianas, 
of a 
water resources research and technology institute, with local 
funding required to match Federal grants 
(42 U.S.C. 
10303). 
Discretionary 
grants 
are 
also 
available 
for 
"national 
1219 
Memorandum No. 
42-15 
interest" research and for water-related technology projects 
(42 U.S.C. 10304, 
10305). 
The named territories are eligible 
for such grants. 
(i) Family Violence Prevention and Services (42 U.S.C. 
10461-16413) refers to the Act of that name, enacted in 1984, 
under 
which 
the Secretary 
of Health 
and Human 
Services 
is 
authorized to make formula grants to the States (defined at 42 
U.S.C. 
10408(6) 
to include 
the Virgin Islands, 
Guam, 
Samoa, 
and the Northern Marianas) 
for programs to prevent incidents 
of family violence, 
and for programs 
to provide "immediate 
shelter" 
and 
related 
assistance 
to 
the 
victims 
of 
family 
violence 
(42 U.S.C. 
10402(a)(1)). 
The grants are made on a 
population basis, 
with each State assured of the greater of 
1/2 of one percent or $50,000, 
but with the Virgin Islands, 
Guam, Samoa, 
and the Northern Marianas each being entitled to 
a 1/8 of one percent set-aside (42 U.S.C. 
10403). 
Set-asides 
for these 
four areas, 
often 
including 
Palau 
at this 
time, 
customarily 
are stipulated 
at 1/2 of one percent 
(and when 
that is so, they are routinely described as "generous" in this 
study. 
The set-asides here considered are obviously on the 
same 
order 
of 
magnitude, 
and 
thus 
also 
"generous".) 
All 
territories 
currently 
participate 
in 
the 
program 
(CFDA 
93.671). 
The Secretary may also make discretionary grants for 
training and technical assistance 
{42 U.S.C. 
10410), 
and for 
these also the territories are eligible. 
(3) The 
chapter 
entitled 
Emergency 
Federal 
Law 
Enforcement 
istance 
(42 U.S.C. 
10501-10513) 
contains 
the 
1984 law under which 
the U.S. 
Attorney General may, 
if the 
Governor 
of 
a "State" 
applies 
for 
it, provide Federal 
law 
enforcement 
assistance 
"if 
such assistance 
is necessary 
to 
provide an adequate response to a law enforcement emergency" 
(42 U.S.C. 
10501(c)). 
The term "State" includes the Virgin 
Islands, 
Guam, 
Samoa, 
and the Northern Marianas 
(42 U.S.C. 
10502(4)). 
The 
Attorney 
General 
must 
respond 
to 
an 
application within 10 days (42 U.S.C. 
10501(b)); 
he must take 
into 
account 
several 
criteria 
before 
responding, 
including 
cost 
(42 U.S.C. 
10501(c)); 
and those engaged in Federal law 
enforcement 
are subject to several limitations, 
including 
a 
bar 
to 
their 
engaging 
in 
investigations 
of 
criminal 
law 
violations 
(42 
U.S.C. 
10503). 
Federal 
law 
enforcement 
agencies potentially available are listed and are numerous, 
1220 
221 
Memorandum No. 
42-15 
including the FBI, 
the Drug Enforcement Administration, 
the 
Marshals Service, and the Postal Service (42 U.S.C. 10502(2)). 
The territories are treated precisely as are the States under 
this law, and that seems appropriate. 
(k) The 
chapter 
entitled 
Victim Compensation and 
Assistance (42 U.S.C. 10601-10605) is derived from the Victims 
of Crime Act of 1984. 
The Act provides for the creation of 
the Crime Victims Fund, 
to which are 
deposited most fines 
coliected from persons convicted of Federal offenses, penalty 
assessments, 
and other funds (42 U.S.C. 10601(b)). 
From this 
Fund the Department of Justice is authorized to make grants to 
the States (and territories) 
for two principal programs. 
The 
first 
is a program of grants to State-operated crime victim 
compensation 
programs, 
to 
permit 
payments 
for 
medical 
expenses, 
loss 
of wages, 
and 
funeral 
expenses 
(42 
U.S.C. 
10602). 
Although 
the 
term 
"State" 
is defined 
to include 
Puerto 
Rico 
"and any other possession 
or 
territory 
of the 
United States" 
(42 U.S.C. 
10602(d)(4)), 
so that all of the 
areas 
that 
are 
subjects 
of 
this 
study 
are 
eligible 
to 
participate, 
reports 
prepared 
for 
the 
Department 
of 
the 
Interior 
show 
that 
the 
Virgin 
Islands, 
alone 
among 
the 
subjects of this study, receives these grants for crime victim 
compensation 
(CFDA 16.576). 
(The Northern Marianas would be 
included in the foregoing definition of "State", by operation 
of section 
105 of the Covenant.) 
The Department 
of Justice 
advises informally that the Virgin Islands alone receives 
a 
victim compensation grant under 42 U.S.C. 
10602 because it is 
the 
only 
territory 
that 
has 
a 
crime 
victim 
compensation 
program that meets the Act’s victim compensation grant program 
eligibility requirements. 
The second major grant program under this law is 
for crime victim assistance, 
with 
the requirement 
that 
the 
State or territorial Program must give priority to providing 
assistance 
to victims 
of sexual assault, 
spousal 
abuse, 
or 
child abuse 
(42 U.S.C. 
10603). 
Each State and territory is 
entitled to a base grant of $100,000, 
with that amount rising 
or falling depending upon the availability of money 
in the 
1221 
Memorandum No. 
42-15 
Crime 
Victims 
Fund 
(42 
U.S.C. 
10603(a)(3), 
(4)) .2/ 
The 
Justice Department reports informally that the “base amount” 
for fiscal year 1991 
is $150,000. 
The excess amount available 
in the Crime Victims Fund is then distributed among the States 
and 
territories 
on 
a relative 
population 
basis 
(42 U.S.C. 
1603(a)(3)(B)). 
The treatment accorded the territories under 
this formula 
is quite clearly fair to them. 
Reports to the 
Interior Department show that each that is the subject of this 
study has received grants for crime victim assistance during 
ail recent years, with fiscal year 1990 grants of $173,000 for 
the Virgin Islands, 
$180,000 for Guam, 
$159,000 
for American 
Samoa, 
and $155,000 for the Northern Marianas. 
(1) The chapter entitled State Justice Institute 
(42 
U.S.C. 
10701-10713) contains the 1984 Act of that name, which 
created the private, 
nonprofit corporation termed the State 
Justice Institute, governed by a Board of Directors appointed 
by the President. 
The purpose of the Institute is “to further 
the 
development 
and 
adoption 
of 
improved 
judicial 
administration 
in State 
courts 
in the 
United 
States" 
(42 
U.S.C. 
10702(a)). 
To this end the Institute is to focus on 
the 
State 
courts’ 
assuring 
ready 
access 
to 
a 
fair 
and 
effective 
system of justice, 
cooperation with 
the Federal 
judiciary, 
recognition 
of the importance of an independent 
judiciary, 
and 
encouraging 
education 
for 
judges 
and 
other 
personnel 
of State 
courts 
(42 U.S.C. 
10702(b)). 
The term 
“State" 
includes 
the Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern 
Marianas 
(42 U.S.C. 
10701(6)). 
To further 
these 
purposes, 
the Institute 
is authorized to make grants to, and 
to enter contracts and cooperative agreements with, State and 
territorial 
courts, 
national 
nonprofit 
organizations 
associated with State (and territorial) judiciaries, and other 
National 
nonprofit 
organizations 
(42 
U.S.C. 
10705). 
The 
grants are project grants. 
The territories are as eligible as 
the States for the assistance authorized. 
(m) The 
Protection 
and 
Advocacy 
for 
Mentally 
111 
Individuals 
(42 U.S.C. 
10801-10851) refers to the 1986 Act of 
Y the $100,000 has been raised for certain 
fiscal years, 
as 
shown 
in the notes following 42 U.S.C.A. 
10603, 
but 
the $100,000 
appears as the "permanent" figure at 42 U.S.C. 10603({a)(3)(A). 
1222 
233 
Memorandum No. 
42-15 
that name, 
by which 
formula 
grants 
are 
made 
to “eligible 
systems“ 
in the States and territories, 
for the purpose of 
protecting and advocating the rights of the mentally ill, and 
of 
investigating 
incidents 
of 
abuse 
and 
neglect 
of 
the 
mentally 
ill. 
The 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern 
Marianas 
are 
defined 
as 
“States” 
(42 
U.S.C. 
10802(6)), and “eligible systems" are those established under 
the Developmental Disabilities Assistance and Bill of Rights 
Act 
(42 
U.S.C. 
10802(2)), 
an 
Act 
that 
applies 
to 
the 
territories 
and 
from 
which 
they 
have 
derived 
financial 
assistance 
(see 
Memorandum 
No. 
42-13(i)). 
An 
“eligible 
system" must meet certain standards and comply with certain 
requirements (42 U.S.C. 
10805, 10806), and while these appear 
unduly elaborate for small territories, 
the territories have 
all met 
them and 
they have received grants under this Act 
(CFDA 93.138). 
It is difficult 
to judge whether 
the allotment 
formula 
is 
fair 
to 
the 
territories, 
but 
it would 
be 
even 
harder to devise one that would with confidence be more just. 
The allotment formula is unusually complex, 
involving three 
levels of computations. 
First, 
the Secretary of Health and 
Human 
Services 
allocates 
appropriated 
funds 
to States 
and 
territories which have “eligible systems", on the basis of the 
State’s or territory’s population and its population weighted 
by its relative per capita income--giving each element equal 
weight. 
A State’s relative per capita income is the quotient 
of the per capita income of the U.S. as a whole, and the per 
capita income of the State--thereby giving poorer States some 
advantage over richer ones. 
But the Virgin Islands, 
Guam, 
Samoa, and the Northern Merianas (plus Palau, 
for now) have a 
statutory quotient of “one", which places each of them in the 
category 
of 
the State with 
the average 
per capita 
income. 
{All of the foregoing emerges from 42 U.S.C. 
10822{a)(1)). 
That almost 
certainly places 
some 
of 
the territories 
(but 
probably not all of them) in a disadvantaged position for this 
Part of the allotment, 
but very likely the lack of reliable 
per 
capita 
income 
data 
from 
the 
territories 
prompted 
the 
statutory "one". 
But the second part of the allotment procedure, at 
42 U.S.C. 10822{a)(2), provides for territorial treatment more 
generous than that accorded the States. 
Under that provision, 
1223 
Gepending 
upon 
the appropriation 
level, 
each 
State 
(which 
includes 
for this purpose the District Columbia and Puerto 
Rico) is guaranteed the greater of either $140,000 or $125,000 
plus its entitlement under the first part of the allocation 
described above, while each of the territories is guaranteed 
the greater of either $75,000 or $67,000 plus its entitlement 
under 
the 
first 
part. 
On 
the basis of population, 
these 
amounts are clearly generous for the territories. 
The third part of the allotment procedure, 
at 42 
U.S.C. 10822{a)(3), has to do with adjustments in allotments 
to be made in light of the Consumer Price Index, 
and because 
it 
does 
not 
differentiate 
between 
the 
States 
and 
the 
territories, 
it can conveniently be ignored here. 
In sum, 
it seems reasonable to conclude that the 
territories receive allotment treatment that is appropriate, 
and perhaps on balance generous, under this program. 
In any 
event, 
information provided to the Interior Department shows 
that 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Worthern 
Marianas each received the same amount under the Act in fiscal 
year 1989--$81,000--and each was expected to receive the same 
amount-—-$89,000--in fiscal year 1990. 
{n) The 
Child 
Development 
Associate 
Scholarship 
Assistance 
Program 
{42 U.S.C. 
10901-10905) 
authorizes 
the 
Secretary of Heaith and Human Services to make grants to the 
States and territories to enable them to provide scholarships 
to financially 
needy 
candidates 
for the Child 
Development 
Associate Credential (42 U.S.C. 10902). 
A State or territory 
is eligible 
if 
it receives 
a grant under Title xx of the 
Social Security Act 
(42 U.5.C. 
1397), which is the authority 
for block grants for social services, and the Virgin Islands, 
Guam, 
Samoa, 
and the Northern Marianas are all eligible for 
such 
block 
grants 
(see 
Memorandum 
No. 
42-3). 
For 
good 
measure, 
the term “State” is also defined in this scholarship 
assistance act to include them all 
(42 U.S.C. 
10903(3))- 
(o) The 
chapter 
entitled 
Emergency Planning _and 
Community Right-to-Know (42 U.S.C. 
11001-11050) contains the 
1986 Act of that name, 
contained in the Superfund Amendments 
1224 
235 
Memorandum No. 
42-15 
of 1986. 
The Act imposes detailed reporting requirements upon 
the 
owners 
or 
operators 
of 
facilities 
that 
deal 
with 
or 
release hazardous substances, 
hazardous chemicals, 
and toxic 
chemicals 
(42 U.S.c, 
11102, 
11104, 
11123). 
The Governor of 
each 
State--defined 
to 
include 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the Northern 
Marianas 
(42 U.S.C. 
11049(9))--is 
required 
to 
appoint 
an 
emergency 
response 
commission 
(42 
U.S.C. 
11001(a)); 
and each such commission 
is required 
to 
designate 
emergency 
planning 
districts 
and 
local 
emergency 
planning committees 
(42 U.S.C. 
11001(b) 
and 
(c)). 
(This 
machinery seems unduly elaborate for a small territory, but in 
the 
absence 
of 
a 
State 
(or 
territorial) 
commission, 
the 
Governor may operate 
as 
such 
(42 U.S.C. 
11001({a)), 
so the 
territories 
need 
not 
be 
overburdened.) 
Information 
and 
reports filed with the emergency response commission is to be 
made 
available 
to 
the 
public 
upon 
request, 
subject 
to 
procedures of the commission (42 U.S.C. 
11044) and subject to 
certain 
statutory 
exceptions. 
Because 
enforcement 
jurisdiction is granted to Federal District Courts (42 U.S.C. 
11045, 
11046), 
Samoa would 
lack 
a forum, 
but 
at 
this 
time 
Samoa 
probably 
does 
not 
have 
the environmental 
problem 
to 
which the Act is directed. 
But other territories do, at least 
potentially, 
and 
as 
to them 
the act appears 
fully 
to meet 
their needs. 
(p) The 
chapter 
entitled 
Encouraging 
Good 
Faith 
Professional 
Review 
Activities 
(42 
U.S.C. 
11101-11152) 
contains the Health Care Quality Improvement Act of 1986, 
an 
act 
concerning 
medical 
malpractice. 
It 
is 
intended 
to 
encourage effective professional peer review and to reduce the 
ability of incompetent physicians 
to move from State to State 
(or territory) 
(42 U.S.C. 
11101). 
The term "State" includes 
each of the territories, 
by name 
(42 U.S.C. 
11151(13)). 
The 
Act limits the liability in damages under Federal or State (or 
territorial) 
law of professional 
peer reviewers 
(42 U.S.C. 
11111), 
and it requires reporting to the Secretary of Health 
and 
Human 
Services 
of 
medical 
malpractice 
payments 
by 
insurance companies 
(42 U.S.C. 
11131), 
of sanctions imposed 
by boards 
of medical 
examiners 
(42 U.S.C. 
11132), 
and 
of 
adverse 
actions 
taken 
by hospitals 
and other 
professional 
societies and entities 
(42 U.S.C. 
11133). 
A duty is imposed 
upon each hospital 
to seek 
from 
the Secretary 
information 
pertinent to applicants for the staff or for privileges at the 
hospital, as well as information pertinent to those already on 
1225 
P28 
Memorandum No. 
42-15 
its staff (42 U.S.C. 
11135). 
It is appropriate that this law 
apply to the territories and it does so fully. 
{q) Alzheimer's Disease and Related Dementias Services 
Research (42 U.S.C. 11201-11294) concerns the 1986 Act of that 
name. 
The 
Act 
contains 
no 
provisions 
on 
geographic 
application, 
and 
it 
needs 
none 
for 
it 
creates 
a Federal 
program of research and assistance on Alzheimer’s Disease and 
related disorders, 
and from it the territories would benefit 
as fully as the States. 
The Act creates some new machinery--a 
Council 
on Alzheimer’s Disease and an Advisory Panel 
on the 
same 
subject--and 
confers 
new responsibilities 
on existing 
agencies--the 
National 
Institute 
of 
Mental 
Health, 
the 
National Center for Health Services Research and Health Care 
Technology 
Assessment, 
and 
the 
Health 
Care 
Financing 
Administration. 
(xr) The 
chapter 
entitled 
Homeless 
Assistance 
(42 
U.S.C. 11301-11472) contains the Stewart B. McKinney Homeless 
Assistance Act, 
enacted in 1987, 
as amended. 
Its purpose 
is 
to 
coordinate 
programs 
for 
the 
homeless, 
and 
to 
provide 
Federal 
funds 
for 
programs 
to 
assist 
them, 
"with 
special 
emphasis 
on elderly persons, 
handicapped 
persons, 
families 
with 
children, 
Native 
Americans, 
and 
veterans" 
(42 
U.S.C. 
11301(b)). 
Somewhat 
oddly, 
there 
is no general definition 
that has the effect of making all of the Act applicable to the 
territories, 
but 
analysis 
of 
the 
Act 
demonstrates 
that 
portions of likely interest and use 
to the territories--some 
of which 
have problems of homelessness, 
but of 
a sort 
and 
dimension 
quite 
different 
from 
that 
known 
in 
mainland 
metropolitan areas--without exception apply to them. 
Titles 
I and 
II 
of the Act, 
containing general 
provisions (42 U.S.C. 11301-11304) and provisions establishing 
the 
Interagency 
Council 
on 
the 
Homeless 
(42 
U.S.C. 
11311-11320), 
respectively, 
appear 
not 
to 
apply 
to 
the 
territories, 
but 
they 
are 
not 
thereby 
the 
losers. 
Some 
provisions do apply to "States", undefined, 
but they are not 
of great importance (e.g., 42 U.S.C. 11313(a)(4), which refers 
to limited technical 
assistance, 
and 42 U.S.C. 
11320, which 
exhorts the States 
to become involved in the problem). 
1226 
P27 
Memorandum No. 
42-15 
The major assistance Programs 
are 
all expressly 
applicable 
to 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern Marianas, 
in each case by name, 
viz, 
-- The 
Federal 
Emergency 
Management 
Food 
and 
Shelter Program (42 U.S.C. 11331-11352), by the definition at 
42 U.S.C. 
11351(7); 
-- The Emergency Shelter Grants Program (42 U.S.C. 
11371-11377), by the definition at 42 U.S.C. 
11371(8)--but it 
is 
interesting 
to 
note 
that 
the 
comprehensive 
homeless 
assistance plan that 
is required of all States or political 
subdivisions 
(42 
U.S.C. 
11361) 
is 
not 
required 
of 
the 
territories; grants for the emergency shelter program for the 
territories 
are made by the Secretary 
of Housing and Urban 
Development 
"in 
accordance 
with 
an 
allocation 
formula 
established" by him (42 U.S.C. 
11373(e)); 
-- 
The Supportive Housing Demonstration 
Program 
(42 U.S.C. 
11381-11388) 
is available by the definition at 42 
U.S.C. 
11382(11); 
-- Supplemental 
assistance 
grants 
to 
aid 
the 
homeless 
(42 U.S.C. 
11391-11394), 
by the definition 
at 
42 
U.S.C. 
11391(8); 
~- Grants for education 
for homeless 
adults 
(42 
U.S.C. 
11421), 
by the definition at 42 U.S.C. 
11421(d); 
~- Grants for the education of homeless children 
and youth 
(42 U.s.c. 
11431-11435), 
by the definition 
at 42 
U.S.C. 
11435(2)--but 
note 
that 
the 
territories 
receive 
a 
set-aside 
of 
.1% 
of 
the 
appropriated 
funds 
(42 
U.S.C. 
11432(b)), which is relatively generous; 
-- Grants 
for 
job 
training 
(42 
U.S.C. 
11441-11450), 
by the definition at 42 U.S.C. 
11447(5); 
and 
1227 
993 
Memorandum No. 
42-15 
-- Grants 
for 
an 
Emergency 
Community 
Services 
Homeless program 
(42 U.S.C. 11461-11464), which is available 
to States and territories that administer programs under the 
Community Services Block Grant Act, and that Act is available 
bo the territories and they participate 
in it (see part 
(e) 
above). 
In addition, while the program of assistance for 
single room occupancy dwellings 
(42 U.S.C. 
11401) 
may be of 
little interest 
in the territories--since 
few, 
if any, 
have 
such 
dwellings--the 
program 
does 
apply 
to 
them, 
since 
its 
application 
turns 
on 
the 
applicability 
of 
the 
pertinent 
sections 
of 
the 
Housing Act 
of 
1937, 
which 
applies 
to the 
territories 
(see Memorandum No. 42-4(a)). 
In 
sum, 
the 
territories 
are 
eligible 
for 
all 
relevant grants under the Homeless Act, and on terms that are 
fair to them. 
(s) The chapter entitled Enterprise Zone Development 
(42 U.S.C. 
111501-11505) 
contains 
the 1988 law by which 
the 
Secretary 
of Housing and Urban Development 
is authorized 
to 
designate up to 100 areas 
in the States 
(and territories) 
as 
“enterprise 
zones". 
(The 
term "State" 
includes 
the Virgin 
Islands, 
Guam, 
Samoa, 
and the Northern Marianas 
(42 U.S.C. 
11501(e)(4)). 
But on the matter of geographic applicability, 
see 
the HUD comment 
in the paragraph immediately 
following 
below.) 
In order to be designated by the Secretary, 
the area 
must first be nominated by the State and local government in 
which 
it 
is 
located, 
and 
it 
must 
meet 
certain 
statutory 
requirements: 
it must meet certain unemployment and poverty 
rate levels, 
and it must be an area 
"of pervasive poverty, 
unemployment, 
and general distress" 
(42 U.S.C. 
11501(c)(3)). 
In addition, 
the pertinent State and local governments must 
agree to "a specified course of action" for the area that is 
intended to "reduce the various burdens borne by employers and 
employees in such area” (42 U.S.C. 11501(d)), with some of the 
components of that course of action, such as reduced taxes and 
increased public services, 
being stipulated 
in the 
law 
(42 
U.S.C. 
11501(d) 
(2)). 
When the designation as an enterprise 
zone has been achieved, 
the prize is the potential waiver or 
modification 
of Federal rules, 
"in order to further the job 
1228 
org 
Memorandum No. 42-15 
creation, 
community development, 
or economic 
revitalization 
objectives of the zone" (42 U.S.C. 11504(a)). 
It is difficult 
to imagine 
a territorial 
area 
that could meet 
the tests 
of 
nomination 
and 
designation, 
or 
that 
is 
significantly 
distinguishable from similar areas in the same territory, 
so 
their eligibility under this law is Probably academic. 
It was 
not designed to meet territorial problems. 
In commenting on this memorandum, 
the Department 
of Housing and Urban Development offers the following: 
Under the Enterprise 
Zone legislation, 
States are required to nominate areas to 
be 
designated 
as 
"enterprise 
zones." 
The term "State," is defined to include 
Guam, 
the Virgin Islands, 
Samoa and the 
Northern 
Marianas. 
However, 
the 
law 
also 
provides 
that 
in 
order 
to 
be 
eligible ay 
an enterprise zone, 
an area 
must 
be 
located 
wholly 
within 
the 
jurisdiction 
of 
a 
local 
government. 
eligible 
for 
assistance 
under 
section 
119 
of 
the 
Housing 
and 
Community 
Development Act of 1974 
(which governs 
the 
UDAG 
program). 
UDAG, 
which 
was 
available to cities and urban counties, 
defined "city" to include Guam and the 
Virgin 
Islands, 
but 
not 
Samoa 
or 
the 
Marianas. 
Consequently, 
it appears that 
the 
latter 
two 
entities 
may 
not 
be 
designated as enterprise zones. 
It is possible that section 502(a)(2) 
of the Covenant could 
serve 
to make this UDAG provision applicable to the Northern 
Marianas, 
but 
as 
already 
stated, 
the 
Enterprise 
Zone 
legislation here involved is almost certainly not calculated 
to 
meet 
territorial 
problems, 
so 
the 
point 
seems 
not 
to 
require further examination. 
(t) International Child Abduction Remedies (42 U.S.C. 
11601-11610) refers to the Act of that name, passed in 1988 to 
1229 
PEO 
Memorandum No. 42-15 
implement 
the 
1980 
International 
Convention 
on 
the 
Civil 
Aspects of International Child Abduction. 
The Convention and 
the Act pertain to the international abduction and retention 
of children, 
and they are ,intended to deter such action. 
The 
term 
"State" 
includes 
"any 
commonwealth, 
territory, 
or 
possession 
of the United States" 
(42 U.S.C. 
11602(8)), 
and 
courts of such "States" 
as well as Federal District Courts 
have 
concurrent 
jurisdiction 
of actions 
arising 
under 
the 
Convention 
(42 
U.S.C. 
11603{a)). 
The 
Act 
thus 
not 
only 
applies 
to the territories, 
but all territorial 
courts 
have 
jurisdiction under it. 
(u) The chapter entitled Native Hawaiian Health Care 
(42 U.S.C. 11701-11710) contains the Act of that name, enacted 
in 1988. 
It has no application to the territories, 
or to any 
area or people other than native Hawaiians in Hawaii. 
(v) The 
chapter 
entitled 
Drug 
Abuse 
Education 
and 
Prevention 
(42 U.S.C. 
11801-11851) contains 
a 1988 law that 
authorizes three grant programs, 
and all are available to the 
territories. 
(The 
term 
"State" 
is 
defined 
at 
42 
U.S.C. 
11851(10) as having the meaning given it at 42 U.S.C. 5603(7), 
and 
in that 
latter 
section, 
which 
is part of the Juvenile 
Justice and Delinquency Prevention Act of 1974 (Memorandum No. 
42-13(£)), 
it includes the Virgin Islands, 
Guam, 
Samoa, 
and 
the Northern Marianas. ) 
-- Project grants 
are 
authorized 
to public and 
nonprofit 
entities 
and 
individuals 
in 
the 
States 
and 
territories 
to prevent or reduce 
the participation of young 
people in activities of gangs that commit drug-related crimes 
(42 U.S.C. 
11801); 
-- Project grants 
are 
authorized 
to public and 
nonprofit agencies in the States and territories for services 
for 
runaway 
and 
homeless 
youths, 
with 
emphasis 
on 
their 
illicit use of drugs (42 U.S.C. 
11821); 
and 
-- Grants, 
partly 
on 
a 
formula 
basis, 
are 
authorized 
to 
the 
States 
and 
territories 
"for 
community 
1230 
PAl 
Memorandum No. 
42-15 
activities 
. 
.. 
targeted 
at drug abuse prevention 
through 
education, 
training, 
and 
recreation 
projects" 
(42 
U.S.C. 
11841(e)). 
Of the sums appropriated, 
1/2 of one percent 
is 
set 
aside 
for 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the 
Northern Marianas (plus, for now, Palau)--a generous sum when 
measured by population--and after specified sums are paid to 
other jurisdictions (the States, the District of Columbia, and 
Puerto Rico), the remainder is available for project grants, 
awarded on a competitive basis (42 U.S.C. 11841(c)(3)). 
Such 
project grants are also available to the territories. 
Their 
treatment 
under 
these programs, 
thus, 
is 
appropriate and fair. 
(w) Public Housing Drug Elimination (42 U.S.C. 11901- 
11925) represents 
a portion of the 1988 Anti-Drug Abuse Act. 
It authorizes the Secretary of Housing and Urban Development 
to make project grants to a "public housing agency" for use in 
eliminating drug-related crime in public housing projects (42 
U.S.C, 
11902), 
with 
the grant 
funds 
to 
be 
used 
for 
such 
purposes 
as 
payment 
of 
security 
personnel, 
and 
physical 
improvements 
in public housing projects 
to improve security 
(42 U.S.C. 
11903). 
The law contains no provisions as to its 
geographic 
reach, 
nor 
does 
it define 
the 
“public 
housing 
agency" 
that 
may 
apply 
for 
and 
receive 
the 
grants. 
(The 
pertinent 
section 
of 
the 
Catalog 
of 
Federal 
Domestic 
Assistance, 
14.854, 
also contains 
no 
relevant 
limitations, 
although the Applicant Index lists only "States" as eligible 
for grants. 
But 
this 
is not dispositive. 
Such lists have 
sometimes 
been 
found 
to 
be inaccurate 
in this 
study, 
and 
additionally, Indian tribal governments are also not shown on 
the 
Applicant 
Index 
to 
be 
eligible, 
although 
the 
law 
Particularly 
targets 
Indian housing authorities 
(42 U.S.C. 
11902).) 
In 
the circumstances, 
the 
term 
“public 
housing 
agency" must be viewed as generic, and as comprehending public 
housing agencies in the territories. 
Several territories have 
such agencies, 
and they would be eligible for these project 
grants. 
(x) The chapter entitled Renewable 
Ener 
nd@_ 
Ener 
Efficiency Technology Competitiveness (42 U.S.C. 12001-12007) 
contains 
the 
1989 
Act 
of that 
name, 
which authorizes 
the 
1231 
OAd 
Memorandum No. 
42-15 
Secretary of Energy "to pursue an aggressive national program 
of 
research, 
development, 
and 
demonstration 
of 
renewable 
energy 
and 
energy 
efficiency 
technologies" 
(42 
U.S.C. 
12001(b)). 
The Act imposes specific cost and other pertinent 
goals, 
to 
be 
achieved 
by 
1995, 
for 
programs 
in 
wind, 
photovoltaics, 
and solar thermal energy, 
and it requires the 
Secretary 
to submit similar goals for other forms of energy 
systems (42 U.S.C. 12003). 
The Act is intended to benefit the 
“United States" generally, and that term is defined to include 
expressly the Virgin Islands, 
Guam, 
Samoa, 
and the Northern 
Marianas 
(42 U.S.C. 
12002(6)). 
Although 
that 
term 
is 
not 
often used in the Act, 
it is used 
in such 
a way as to make 
clear 
that persons 
and firms 
in the territories, 
as 
in the 
States, 
may 
participate 
in 
joint 
ventures 
and 
other 
undertakings pursuant 
to the Act 
(e.g., 
42 U.S.C. 
12005(b), 
(c), 
(e)). 
While the term "State" 
is undefined, 
it is used 
only once (42 U.S.C. 
12002(3)(E)), 
and there it appears in an 
illustrative 
and not 
an exclusionary context. 
Accordingly, 
the territories are comprehended fully by the Act. 
Conclusion: 
The chapters of Title 42 discussed in this memorandum 
are, almost without exception, applicable in their entirety to 
the territories. 
One exception 
is the Stewart 
B. McKinney 
Homeless Assistance Act of 1987, discussed above at (r), some 
portions of which do not apply to the territories; but because 
the several grant programs under the Act do apply to all of 
the territories, and on terms that appear to be fair, there is 
no need to modify the law to accommodate them. 
One other law, 
however, 
needs 
refinement: 
the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA), discussed 
above 
at 
(b), 
should 
be 
amended 
to 
provide 
for 
court 
jurisdiction in Samoa and to make reference 
to the District 
Court of the Northern Marianas. 
Federal 
agency 
comments: 
Comments 
were 
requested 
from 
the 
Department of Justice and the Department of Health and Human 
Services as to (a), 
(d), 
(e), 
(£), 
(i), 
(m), 
(n), 
(p), and 
{v); from EPA as to (b) and (0); from the Department of Energy 
as to (c), 
(g), and (x); and from HUD as to (s) and (w). 
All 
comments received have been reflected above. 
1232 
PA3 
Title 
43 
~ 
PUBLIC 
LAND 
* 
Contains 
matters 
of 
interest 
to 
the 
territories, 
but 
no 
legislative recommendations. 
Memorandum 
43 U.S.C. 
Number 
Subject 
sections 
43-1 
* 
Public Lands 
1-2012 
1233 
PAS 
Memorandum No. 43-1 
April 1986 
Subject: 
Title 43 of the United States Code 
Public Lands’ 
Comment: 
The laws contained in Title 43, to the extent that they 
relate 
to 
the 
public 
lands 
of 
the 
United 
States, 
are 
inapplicable 
to and 
irrelevant 
to the current 
territories, 
where 
there 
are 
no 
such 
lands. 
A statute 
concerning 
oil 
spills 
on 
the 
outer 
continental 
shelf, 
however, 
does 
comprehend the territories. 
No change in the laws contained 
in Title 43 is necessary to meet the needs of the territories. 
Discussion: 
The term "public lands of the United States"--often 
used synonymously with "public domain"--is 
a term sometimes 
used 
in 
the 
law 
in 
a word-of-art 
sense 
to denote 
lands 
acquired by the United States upon their original cession to 
U.S. 
sovereignty, 
and 
now available 
for settlement 
or 
for 
other use under the public land laws. 
In that sense, 
there 
are 
none 
in 
the current 
U.S. 
territories. 
By 
a different 
route, 
that result 
is also clear, 
because 
the term "public 
lands" 
is 
nowhere 
defined 
in 
Title 
43 
to 
include 
the 
territories. 
In the monumental 
1976 revision of the public 
lands 
laws 
(the Federal 
Land Policy 
and Management 
Act of 
1976) the term means 
any 
land 
and interest 
in land owned 
by the 
United 
States within 
the several 
States 
and 
administered by the Secretary of the Interior 
through the Bureau of Land Management, without 
regard 
to 
how 
the 
United 
States 
acquired 
ownership... 
. 
(43 U.S.C. 
1702(e)). 
Y Title 
43 
contains 
about 
forty 
chapters, 
not 
otherwise 
subdivided, 
and they relate 
to disparate subjects, 
some creating 
Federal agencies, some providing guidance as to the administration 
of 
public 
lands, 
some 
relating 
to 
the 
treating 
of 
lands 
in 
particular States, 
some creating particular public projects. 
It 
appears that no useful purpose would be served either by a chapter- 
by-chapter 
analysis 
of 
the Title, 
or 
by 
a listing 
here 
of 
the 
chapter 
titles. 
Most 
are, 
as 
noted 
in the 
text 
above, 
without 
relevance to the current territories. 
1234 
245 
Memorandum No. 
43-1 
The term "States" is not further defined in the law, 
so it 
doubtless means "States" alone. 
In any event, 
the Bureau of 
Land Management has no administrative responsibilities in any 
of the current territories. 
American Samoa is the only current territory explicitly exempt 
from the U.S. public land laws, having been made so when the 
U.S. 
Congress 
first 
focussed 
on 
Samoa 
in 
1929 
(48 U.S.C. 
1661(b)). 
Hawaii as 
a territory was also explicitly exempt, 
and from the earliest possible point, for the 1898 Annexation 
Resolution 
so provided 
(30 Stat. 
750.)% 
But circumstances 
peculiar to each of the remaining territories make clear the 
inapplicability of the public land laws to them. 
-- In 
the Virgin 
Islands, 
the United 
States 
acquired 
public property from Denmark upon purchase of the Territory in 
1917, but that property has since passed into administration 
and ownership by the Government 
of the Virgin Islands under 
section 4 of the 1936 Organic Act, and section 31 of the 1954 
Revised 
Organic 
Act 
(48 
U.S.C. 
1545). 
Apart 
from 
land 
included within the Virgin Islands National Park, 
the United 
States’ 
land 
holdings 
in 
the 
Virgin 
Islands 
are 
now 
de 
minimis. 
-- 
In Guam, 
excluding 
the substantial 
tracts held 
for 
military purposes, largely acquired toward the end of and just 
after World War II (about one-third of the island), the United 
States’ 
land holdings are slight. 
Under section 
28 of the 
Guam Organic Act passed in 1950 (48 U.S.C. 
1421£), 
all United 
States 
property 
in 
Guam 
in 
1950 
was 
transferred 
to 
the 
Government of Guam except 
for that reserved essentially 
for 
military purposes. 
a 
y Although 
it 
was 
largely 
made 
up 
of 
public 
lands, 
the 
Territory of Alaska was never brought under the public land laws in 
general. 
Various of the public land laws were extended to Alaska, 
and Congress legislated extensively on the subject of the public 
lands 
in Alaska, 
but there was never 
a general extension of U.S. 
public land laws to that Territory. 
1235 
OAS 
Memorandum No. 43-1 
-- 
In the Northern Marianas, 
the United States owns no 
real property. 
That which it occupies is held on a leasehold 
basis. 
Article VIII of the Northern Marianas Covenant makes 
clear 
that 
the United 
States 
may 
own land 
in the Northern 
Marianas, 
but 
the Covenant 
also discourages 
the U.S. 
from 
doing so. 
Thus, 
there 
are 
no “public lands" 
in either 
a word-of-art 
sense 
or 
in 
any 
other 
realistic 
sense 
in 
the 
current 
territories. 
Title 43 nevertheless contains a number of sections that hold 
some interest to the territories, 
and some comment upon them 
is therefore warranted: 
The 
Interior 
Department’s 
organic 
legislation. 
Federal 
statutes passed over 
a period of almost 150 years that bear 
upon the organization and responsibilities of the Department 
of the Interior appear in Chapter 31 of Title 43 
(43 U.S.C. 
1451, 
et seq.) 
The laws 
in question have been enacted over 
almost that entire period, thus having an ad hoc quality, and 
only one bears directly upon the offshore areas. 
The first 
(and one of the few) Congressional indications of Interior’s 
role as administrator of or liaison to the territories is the 
Act of March 1, 1873, which transfers to the Secretary of the 
Interior 
all the powers 
. 
. 
. and duties in relation to 
the 
Territories 
of 
the 
United 
States 
that 
were, 
prior 
to March 1, 
1873, 
by law or by 
custom 
exercised 
and 
performed 
by 
the 
Secretary of State (43 U.S.C. 
1458). 
If 
any 
effort 
was 
ever 
made 
to 
catalogue 
those 
laws 
or 
customs, 
it has been 
lost 
in history. 
The 
effects 
of the 
provision 
are 
thus 
largely 
uncertain, 
except 
that 
it does 
provide 
the 
earliest 
statutory 
basis 
for 
an 
Interior 
role 
vis-a-vis the territories. 
1236 
Memorandum No. 
43-1 
Interior’ 
bur: 
s 
Three 
important 
components 
of 
the 
Interior 
Department 
are 
created 
by 
laws 
found 
in 
Title 
43: 
the Bureau of Land Management 
(43 U.S.C. 
1), 
the v.s. 
Geological Survey (43 U.S.C. 31) and the Bureau of Reclamation 
(43 U.S.C. 
371). 
None functions in the territories 
in the 
manne. in which they perform their activities 
in the States, 
and indeed, either because of the absence of public lands in 
the territories or because of the nature and size of these 
insular 
areas, 
there 
is no need 
for them 
to do so. 
The 
frequent 
appearance 
of the word "Territories" 
in chapters 
concerning 
these bureaus 
and elsewhere 
in the early public 
land laws (e.g., 
43 U.S.C. 36b, 83, 121), does not contradict 
this conclusion. 
As the term is used in 19th and early 20th 
century 
public 
land 
laws, 
it 
refers 
to 
the 
incorporated 
territories of the western continental United States, which 
unexceptionally were public land Territories--as they are now 
public land States. 
Although 
these 
Interior 
agencies 
do 
not 
function 
in 
the 
current territories as they do in the States, they can and do 
perform particular services in and for the territories when 
needed 
there, 
with 
the Bureau of Reclamation 
in particular 
having carried out substantial work in Guam in recent years. 
The laws authorizing technical assistance for the territories 
permit this 
(48 U.S.C. 
1469c, 
1469d(a)). 
Nothing further is 
now required to meet territorial needs. 
Citizenship 
requirements. 
The 
laws contained 
in Title 
43 
often confer benefits upon U.S. "citizens," thus necessarily 
excluding 
from eligibility noncitizen nationals 
in American 
Samoa, as well as the people of the Northern Marianas prior to 
trusteeship termination. 
For example, 
certain public lands 
aay be sold only to U.S. citizens (43 U.S.C. 145); desert land 
entries are confined to citizens (43 U.S.C. 321). 
Inasmuch as 
the Northern 
Marianas 
Commission 
on Federal 
Laws 
did 
not 
identify Title 43 citizenship requirements as ones that needed 
to be overcome (and they were not, therefore, 
the subject of 
the 
kind 
of 
waiver 
provided 
in 
Proclamation 
No. 
5207 
of 
dune 7, 
1984 
for 
so 
many 
other 
laws 
requiring 
U.S. 
citizenship), 
it 
can 
be 
supposed 
that 
that 
Commission 
considered that there was no practical problem involved. 
(The 
Commission was thorough in recommending the inclusion of the 
people of the Northern Marianas 
in several 
hundred Federal 
1237 
Memorandum No. 
43-1 
statutes, pending their becoming U.S. citizens.) 
That result 
seems appropriate, and it is equally appropriate in the case 
of 
noncitizen 
Samoans. 
None 
is 
known 
to 
have 
been 
disadvantaged by this requirement, 
so a modification of the 
law is unnecessary. 
Submerged Lands. 
‘The 1953 Submerged Lands Act, contained in 
Title 43 (43 U.S.C. 
1301-1343), conveyed to the U.S. Coastal 
States the lands lying between the line of mean high tide and 
three miles seaward from it. 
The conveyance was obviously a 
matter of great value, 
and also of great controversy at the 
time. 
The grantees 
in the 
law 
are 
the “States.” 
and 
to 
emphasize that the term means exactly that, 
the term “State” 
is defined to mean a “State” and no more 
(43 U.S.C- 1301(g))- 
In 1974, however, substantially the same action was taken in 
the case of the territories of the Virgin Islands, 
Guam, and 
American Samoa (48 U.S.C. 1704-1708), 
and all that remains is 
for the Northern Marianas to be given equal treatment. 
That 
recommendation is made in Memorandum No. 48-4, and the subject 
is 
discussed 
in 
great 
detail 
in 
the 
Northern 
Marianas 
Commission Report 
(pp. 
172-188). 
(The conclusions 
and the 
recommendations of Memorandum No. 48-4 and of the Commission 
Report coincide.) 
Quter Continental Shelf Lands Act Amendments of 1978. 
This 
1978 enactment provides for the leasing for oil and natural 
gas production of submerged lands 
on the Outer Continental 
Shelf (OCS) 
(43 U.S.C. 1344-1356), beyond the submerged lands 
lying 
within 
the 
three 
mile 
limit 
that 
were 
conveyed 
to 
coastal States by the Submerged Lands Act in 1953. 
There is 
no authority for the leasing of such OCS submerged lands off 
the coasts 
of the territories, 
and apparently 
it has never 
become 
an 
issue--possibly because 
of the 
absence 
of known 
mineral deposits, or possibly because of the absence at least 
in the 
case 
of some 
territories 
of anything 
resembling 
a 
continental shelf. 
In any event, 
the 1978 Act also provides 
two compensation 
funds 
related 
to 
outer 
continental shelf 
development, 
one 
an oil spill pollution 
fund, 
the second 
a 
fishermen’s 
contingency 
fund. 
Rather 
oddly, 
a 
generous 
definition 
of 
“State” 
makes 
the 
territories 
eligible 
to 
participate 
in the 
former 
(43 U.S.C. 
1811(12)), 
when 
oil 
spilis result 
in damage; but not in the latter, when fishing 
gear or vessels are hurt as a result of oil or gas exploration 
1238 
Memorandum No. 
43-1 
or production 
(see 43 U.S.C. 
1841, et seq.). 
In fact, 
it is 
extremely improbable that a territory could have an oil spill 
claim, 
given the requirement 
that the claims must generally 
relate to activity on an ocs leasehold 
(43 U.S.C. 
1811(9)); 
but an Interior Department expert speculates that conceivably 
Alaska North Slope oil might be transported near a territory, 
so as to give rise to a claim. 
If so, that possibility would 
seem 
to 
justify 
inclusion 
of 
the 
territories 
in 
the 
fishermen’s contingency fund--but 
it appears 
that that fund 
was created as a political response to a narrow but vigorous 
lobbying effort. 
And the territories were, 
for purposes 
of 
that 
fund, 
overlooked. 
Just 
as 
it seems unlikely 
that 
the 
territories will benefit from their inclusion in the pollution 
fund, 
so it seems just as unlikely that they will be hurt by 
their exclusion from the fishermen’s 
fund. 
Accordingly, 
it 
does 
not 
seem 
necessary 
to 
urge 
that 
this 
anomaly 
be 
corrected, 
because it is probably harmless. 
Conclusion: 
The laws contained in Title 43 are, for the most part, 
inapplicable to the territories, 
and there is no need for any 
change 
in 
the 
laws 
in 
Title 
43 
to meet 
any 
needs 
in 
the 
territories. 
Federal agency comments: 
Comments were invited from the Department 
of 
the 
Interior, 
and 
all 
comments 
received 
have 
been 
incorporated above. 
Title 44 
- PUBLIC PRINTING AND DOCUMENTS 
* Contains matters of particular interest to the territories, 
but 
no legislative recommendations. 
Memorandum 
44 U.S.C. 
Number 
Subject 
sections 
44-1 
* Public Printing and Documents 
101-3703 
Memorandum No. 
44-1 
April 1986 
Subject: 
Title 44 of the United States Code 
Public Printing and Documents!/ 
Comment: 
The laws contained in Title 44 are largely irrelevant to 
and 
inapplicable 
to 
the 
territories, 
and 
they 
require 
no 
modification 
to meet territorial needs. 
Discussion: 
Many of the laws contained in Title 44 relate 
to 
Federal agencies, 
and the usual view is that the territories 
are 
not agencies 
or instrumentalities 
of the United 
States 
Government .2/ 
Y Given the content of Title 44, it need not here be analyzed 
on a chapter-by-chapter basis. 
Its substance 
is revealed to some 
extent 
by 
its 
chapter 
headings, 
and 
they 
are 
the 
following: 
Chapter 1, Joint Committee on Printing (44 U.S.C. 101-103); Chapter 
3, 
Government 
Printing 
Office 
(44 
U.S.C. 
301-317); 
Chapter 
5, 
Production 
and 
Procurement 
of 
Printing 
and 
Binding 
(44 
U.S.C. 
501-517); Chapter 7, Congressional Printing and Binding (44 U.S.c. 
701-741); 
Chapter 
9, Congressional 
Record 
(44 U.S.C. 
901-910); 
Chapter 11, Executive and Judiciary Printing and Binding (44 U.S.C. 
1101-1123); Chapter 13, Particular Reports and Documents (44 U.S.C. 
1301-1344); 
Chapter 
15, 
Federal 
Register 
and 
Code 
of 
Federal 
Regulations 
(44 
U.S.c. 
1501-1511); 
Chapter 
17, Distribution 
and 
Sale 
of 
Public 
Documents 
(44 
U.S.C. 
1701-1722); 
Chapter 
19, 
Depository 
Library 
Program 
(44 
U.S.C. 
1901-1916); 
Chapter 
21, 
National Archives and Records Administration (44 U.S.C. 2101-2118); 
Chapter 
22, Presidential Archives 
(44 U.S.c. 
2201-2207); 
Chapter 
23, 
National 
Archives 
Trust 
Fund 
Board 
(44 
U.S.C. 
2301-2308); 
Chapter 25, National Historical Publications and Records Commission 
(44 U.S.c. 
2501-2506); 
Chapter 29, Records Management 
(44 U.S.C. 
2901-2909); Chapter 31, Records Management by Federal Agencies 
(44 
U.S.C. 3101-3107); Chapter 33, Disposal of Records (44 U.S.C. 3301- 
3324); Chapter 35, Coordination of Federal Information Policy 
(44 
U.S.C. 
3501-3520); 
and Chapter 
37, 
Advertisements 
by Government 
Agencies 
(44 U.S.C. 
3701-3703). 
2/ the weight of authority, and the standard Federal practice, 
is to the effect that the territorial governments are not Federal 
agencies. 
In its report on appropriations 
for fiscal year 
1986, 
(continued...) 
1241 
oe 
C: 
Memorandum No. 
44-1 
In 
one 
instance, 
pertaining 
to 
paperwork 
reduction, 
the 
definition 
expressly 
excludes 
the 
territories 
(44 
U.S.C. 
3502(1)); 
in 
another, 
pertaining 
to 
requirements 
for 
publication in the Federal Register (44 U.S.C. 
1501), they are 
not explicitly excluded, but they have in practice never been 
regarded 
as 
being 
covered 
by 
the 
Act. 
These 
results 
are 
altogether proper. 
An examination of the provisions of Title 44 reveals only one 
instance where legislation might later be desirable 
to meet 
territorial interests: 
the laws pertaining to the designation 
of 
depository 
libraries 
do 
not 
now 
include 
the 
Northern 
Marianas. 
That matter is discussed below, followed by a brief 
discussion 
of 
two 
other 
points 
of 
some 
interest 
to 
the 
territories and arising from this title: 
various privilege of 
Members 
of Congress, 
and the effect 
in the 
territories 
of 
Federal Register publication. 
Depository 
Libraries. 
U.S. 
Government 
publications 
are 
usually 
of 
"interest" 
to 
the 
"public" 
and 
usually 
have 
“educational 
value," 
and 
most 
Government 
publications-- 
excluding those classified 
for reasons 
of national security 
--are 
therefore 
made 
available 
without 
cost 
to depository 
2/(.. continued) 
for example, 
the Senate Appropriations Committee stated that 
these island governments 
[of Guam, 
the Virgin 
islands, 
American Samoa, 
and the Commonwealth 
of the Northern Marianas] 
are not entities of 
the Department 
of the Interior, 
nor are 
they 
agencies 
or instrumentalities 
of the Federal 
Government. 
(Senate Report 99-141, 
p. 50.) 
Occasionally, 
however, 
there 
is 
a decision 
to 
the contrary. 
A 
recent one is Sakamoto v. Duty Free Shoppers, 
Ltd., 
764 F.2d 1285 
(1985), 
where the Court of Appeals for the Ninth Circuit held the 
Government of Guam to be a Federal instrumentality for purposes of 
the Sherman Act. 
1242 
Memorandum No. 
44-1 
libraries (44 U.S.C. 
1902). 
A “depository library" is one so 
designated 
by 
Senators, 
Representatives, 
or 
the 
Resident 
Commissioner 
from 
Puerto 
Rico, 
or 
in 
the 
case 
of the 
territories, by the Governors of Guam, American Samoa, and the 
Virgin 
Islands 
(44 
U.S.C. 
1905). 
The 
law 
permits 
the 
designation of one by each territcrial Governor, except in the 
case of the Virgin Islands, where there may be one each on St. 
Thomas and St. Croix 
(44 U.S.C. 
1905). 
There is, 
in fact, 
a 
second depository library on Guam, at the University of Guam, 
because land-grant colleges are by law accorded 
that status 
(44 U.S.C. 
1905). 
The 
provisions 
of 
section 
502 
of 
the 
Northern 
Marianas 
Covenant that extend to the Northern Marianas numerous Federal 
laws 
do not 
here 
appear 
to have 
that 
effect, 
because 
the 
application of the law turns on named officials, 
and none in 
the Northern Marianas is named. 
The Northern Marianas Federal 
Laws Commission had the same view, 
and while 
it recommended 
the 
extension 
of 
the 
depository 
library 
program 
to 
the 
Northern Marianas, 
it expressed certain misgivings: 
it is not 
clear 
that 
the 
Northern 
Marianas 
now 
has 
a 
library 
of 
sufficient size (10,000 volumes at a minimum, 
44 U.S.C. 
1909) 
to 
qualify; 
it 
would 
be 
both 
expensive 
and 
otherwise 
difficult 
to maintain 
the 
high 
standards 
of 
service 
and 
custody that the law requires (44 U.S.C. 1909), given climatic 
conditions (Commission Report, 
pp. 188-191). 
The Commission 
suggested 
that 
the 
Guam 
library 
resources 
might 
meet 
the 
Northern Marianas 
needs 
for 
the present--and although 
that 
Commission 
did not 
so state, 
it seems quite likely that 
an 
inter-library 
loan 
program 
between 
Guam 
and 
the 
Northern 
Marianas 
might 
be developed 
if 
the 
need 
were 
to warrant. 
Librarians 
as 
a 
profession 
are 
unusually 
cooperative 
and 
creative, 
and by definition 
devoted 
to making 
books widely 
available. 
So, while libraries are, per se, 
a boon to society 
and thus to be encouraged--so that in due course the Northern 
Marianas should surely have its own depository library--it may 
be that for a time the Northern Marianas’ needs can reasonably 
be met by a less expensive procedure 
for borrowing books. 
3 Note added 
in 1993: 
Later in 1986, 
after this memorandum 
was written, 
the College of the Northern 
Marianas became 
a land 
grant college pursuant to section 9 of Public Law 99-396. 
As such, 
(continued...) 
1243 
95] 
Memorandum No. 
44-1 
Congressional privileges. 
Title 
44 contains provisions 
for 
certain 
privileges 
related 
to publications, 
and 
while 
the 
statutory references to the territories are uneven, 
there do 
not appear 
to be any deprivations 
that 
require 
legislative 
correction: 
-- 
44 U.S.C. 
733 provides that Members of Congress 
and the Resident Commissioner of Puerto Rico may obtain 
certain 
printing 
services 
and 
franked 
envelopes. 
Inasmuch 
as 
the 
Delegates 
from 
Guam 
and 
the 
Virgin 
Islands are entitled to the same benefits and privileges 
as the Resident Commissioner (48 U.S.C. 
1715), and the 
Delegate from Samoa is entitled to those of the Delegate 
from Guam 
(48 U.S.C. 
1735), 
all three Delegates 
are 
in 
effect included within this section. 
-- 44 U.S.C. 906 provides for the distribution of the 
Congressional 
Record, 
with 
each 
Representative 
and 
Delegate entitled to receive 34 copies. 
Accordingly, 
the 
provision later 
in this section for five copies of the 
Record for the Governors of Guam and the Virgin Islands 
does not realistically require expansion to include the 
Governors of Samoa and the Northern Marianas. 
It seems 
certain that a Delegate, probably any Delegate, would be 
quite willing to share with them his largesse. 
-- 
44 U.S.C. 
907 affords Members of Congress and the 
Resident Commissioner the benefit of separately printed 
extracts 
from the Record--a benefit that the Delegates 
also have on the rationale stated above. 
Federal Register notice. 
A section of the Federal Register 
Act, passed in 1935, provides that a notice of hearing that is 
published in a timely manner 
(i.e., usually at least 
15 days 
in advance) 
in the Federal Register 
¥(...continued) 
it 
became 
a 
depository 
library 
under 
44 
U.S.C. 
1906. 
See 
Memorandum No. 7-2. 
1244 
Memorandum No. 
44-1 
shall be deemed to have been given to 
all persons residing within the States 
of 
the 
Union 
and 
the 
District 
of 
Columbia. 
. 
. 
. 
(44 U.S.C. 
1508). 
It is probable that at the time of enactment, 
transportation 
of mail to points outside the original 48 States was so slow 
as to preclude their inclusion in the section. 
(Air mail to 
the territories was unusual until after World War II.) 
The 
section 
is thus out-dated, 
but there 
is no advantage 
to the 
territories in modernizing it, although there would seem to be 
an advantage from the standpoint of Federal agencies. 
Since 
the general modernization of the laws of the United States is 
beyond 
the 
purposes 
of 
this 
study, 
no 
recommendation 
is 
offered as to this section. 
It should be noted that 44 U.S.C. 
1507, which governs Federal 
Register 
notices 
other 
than 
notices 
of hearing, 
does 
not 
exclude the territories. 
(That section contains no provision 
as 
to its geographical effect, 
but does refer 
to "a person 
subject 
to 
or affected 
by" 
the 
Federal 
Register 
notice.) 
Section 1507 may have greater impact at this time than section 
1508, 
inasmuch as the former relates to informal rulemaking, 
which 
has 
become 
a 
procedure 
preferred 
to 
the 
hearing- 
adjudication procedure to which section 
1508 relates. 
Most 
Federal 
Register 
notices, 
thus, 
are 
effective 
within 
the 
territories. 
Conclusion: 
Title 44 holds little of interest to the territories, 
and 
no 
provision 
appears 
to 
require 
modification 
to meet 
territorial needs. 
Federal 
agency 
comments: 
None 
have 
been 
sought, 
because 
none 
appear to be needed. 
Title 
45 
- RAILROADS 
* Contains 
matters 
of 
interest 
to 
the 
territories, 
but 
no 
legislative recommendations. 
Memorandum 
45 U.S.C. 
Number 
Subject 
sections 
45-1 
* 
Railroads 
1-1214 
Memorandum No. 
45-1 
April 1986 
Subject: 
Title 45 of the United States Code 
Railroads 
Comment: 
Given the absence of railroads in the areas that are the 
subjects of this study, most of the laws contained in Title 45 
are irrelevant to them. 
The Railway Labor Act, however, which 
deals also with labor disputes in the airline industry, 
does 
apply to the territories. 
No modifications of any of the laws 
of Title 45 are needed to meet territorial needs. 
Discussion: 
There are no railroads 
in the Virgin Islands, 
Guam, 
Samoa, 
or 
the Northern Marianas, 
and it seems quite likely 
that 
that 
condition 
will 
continue 
more 
or 
less 
forever-- 
although there are in the Northern Marianas today the remnants 
of a narrow gauge railway used by the Japanese before World 
War II to transport sugar cane. 
Nevertheless, 
an examination 
of Title 45 reveals a few matters of at least slight interest 
to the territories: 
-- 
In 
general, 
the 
early 
Federal 
laws 
concerning 
vailroads apply to the current territories, sometimes because 
they expressly apply to "possessions" 
(e.g., 
the Employers’ 
Liability Act, 
45 U.S.C. 
52), 
and other times because 
they 
apply 
to 
"Territories"; 
and 
Puerto 
Rico--when 
it 
was 
unquestionably an unincorporated territory (or "territory" or 
possession) of the United States was held to be a "Territory" 
for purposes 
of the law in question 
(see, 
for example, Am. 
R.R. 
of 
Puerto 
Rico 
v. 
Didricksen, 
227 
U.S. 
145 
(1913), 
holding that Puerto Rico is a "Territory" for purposes of the 
Safety Appliance Act, 45 U.S.C. 8). 
It is interesting to note 
that the Railroad Hours of Service Act, when it was originally 
enacted 
in 1907, 
applied 
to "any Territory 
of 
the United 
States" 
(34 
Stat. 
1415); 
but 
a 
1969 
amendment 
changed 
"Territory" 
to "territory" 
(83 
Stat. 
463, 
45 U.S.C. 
61)-- 
Probably 
because 
some 
draftsman 
perceived 
the 
change 
as 
somehow increasing social justice, even though there were and 
Y Given the content of Title 45, and its general irrelevance 
to 
the 
territories, 
it 
seems 
unnecessary 
to 
analyze 
it 
on 
a 
chapter-by-chapter basis, 
or to list its chapter headings. 
1247 
Ra 
Memorandum No. 
45-1 
are no railroad employees in the territories 
to benefit from 
the change.2/ 
The application of these rather venerable railroad laws to the 
territories 
could, 
however, 
have 
more 
than 
a 
theoretical 
effect, 
in 
the 
event 
that 
a 
mainland 
railroad 
were 
to 
establish 
a 
subsidiary 
operation--say, 
for 
example, 
a 
refrigeration company--in a territory. 
None is known to have 
done 
so, 
and none may ever do so, 
so the legal consequences 
will not here be examined. 
It is enough to note that the laws 
could apply, 
if certain fact situations were 
to develop. 
-- Most railroad laws of more recent decades exclude the 
current territories, doubtless 
in recognition of the absence 
of any subject matter there. 
This 
is true, 
for example, 
of 
the Railroad Retirement Act (45 U.S.C. 
231(m)), 
the Railroad 
Unemployment 
Insurance 
Act 
(45 
U.S.C. 
351(s)), 
and 
the 
Railroad Safety Act (45 U.S.C. 
434). 
-- 
A few provisions of Title 45 contain U. S. citizenship 
requirements, thereby potentially disadvantaging people of the 
Northern Marianas and American 
Samoa, 
who do not have 
that 
status. 
The requirements appear, 
however, 
in sections quite 
unlikely 
to be of realistic concern 
to the people of those 
areas, 
so it seems acceptable to refrain from recommending a 
change: 
45 U.S.C. 
231(d)(3) and 231(h)(6), 
both relating to 
Railroad Retirement; 
45 U.S.C. 
351(e), 
relating to Railroad 
Unemployment 
Insurance; 
and 
45 U.S.C. 
543(a)(1) 
and 543(d), 
both relating to service on the Board of the National Railroad 
Passenger Corporation. 
-- One 
statute 
here 
codified 
is of 
importance 
to 
the 
territories: 
the 
Railway 
Labor 
Act, 
which 
in 
1936 
was 
extended 
to 
air 
carriers 
(45 
U.S.C. 
181). 
The 
original 
¥Y ~A 1916 law appearing at 45 U.S.C. 
65 appears 
to use both 
"Perritory" and "territory" within the same section, 
but this is 
not 
in fact 
a legal curiosity, 
but simply a typographical error. 
An examination of the primary source, 
at 39 Stat. 
721, shows that 
“Territory” should appear throughout. 
1248 
P59 
Memorandum No. 
45-1 
Railway Labor Act, enacted in 1926, probably does not apply to 
the territories, 
inasmuch as its application 
is confined 
to 
carriers that are subject to the Interstate Commerce Act (45 
U.S.C. 
151), 
and the territories are generally excluded from 
that 
Act 
(see Memorandum 
No. 
49-7). 
The 
1936 
extension, 
however, applies to "every common carrier by air engaged in 
interstate 
or foreign commerce” 
(45 U.S.C. 
181), 
and these 
words 
have been held 
to include 
the territories 
(Air Line 
Stewards, etc. Ass'n v. Northwest Airlines, Inc., 267 F.2d 170 
(1959)). 
The effect 
of 
their 
inclusion 
means 
that 
labor 
disputes in the territories involving air carriers are subject 
to the procedures 
for settlement 
of disputes 
that 
are 
set 
forth in the Act, 
and that are under the jurisdiction of the 
National 
Mediation 
Board. 
Since 
airline 
employees 
in 
the 
territories, 
as elsewhere 
in the United States, 
are usually 
members of national employees’ organizations, the effect is to 
provide 
the 
same 
treatment 
for 
territorial 
employees 
of 
airlines 
as 
for Stateside 
employees 
of 
the same 
airlines. 
This is as it should be. 
Conclusion: 
The laws contained 
in Title 45 require no change to 
meet the needs of the territories. 
Federal 
agency 
comments: 
An official 
of the National 
Mediation 
Board concurs with the above discussion. 
Title 46 — SHIPPING 
- 
Contains nothing of substantial interest to the territories. 
* 
Contains matters of particular interest to the territories, 
but no legislative recommendations. 
(**) Contains recommendations for changes in the law, but the need 
for them is not urgent. 
Memorandum 
46 U.S.C. 
Number __ 
Subject 
sections _ 
Prefatory Comment 
46-1 
(**) Vessels and Seamen (Subtitle II) 
2010-14702 
46-2 
* 
Maritime Liability 
(Subtitle I11) 
30101-30343 
46 Appendix 
U.S.C secs. 
46-3 
- 
(a) Oath of Ownership 
42 
- 
(b) Clearance and Entry 
91-113 
* 
(c) Tonnage Duties 
121-135 
- 
(d) Discriminating Duties 
and Reciprocal Privileges 
141-146 
- 
(e) Boarding Vessels Before 
Inspection 
163 
- 
(£) Limitation of Vessel 
Owner's Liability 
181-196 
46-4 
* 
The Nicholson Act 
251 
46-5 
* 
The Coastwise Laws 
289, 
883, 
and others 
46-6 
- 
(a) Regulation of Vessels 
in Domestic Commerce 
303-336 
- 
(b) Passports and Papers of 
Vessels Engaged in Foreign 
Commerce 
354-355 
- 
{(c) Inspection of Steam Vessels 
441-446(c) 
- 
{d) Transportation of Passengers 
and Merchandise by Steam 
Vessels 
466c 
1250 
46-9 
46-10 
Merchant Seamen 
Wrecks and Salvage 
Admiralty and Maritime 
Jurisdiction 
Suits in Admiralty 
Death on the High Seas 
Suits in Admiralty 
against the U.S. 
Shipping Act, 1916 
Intercoastal Shipping Act, 1933 
The Merchant Marine Act, 1920 
The Merchant Marine Act, 1928 
Merchant Marine Act, 
1936 
Carriage of Goods by Sea 
Safe Containers for 
International Cargo 
Maritime Administration 
International Ocean Commerce 
Transportation 
International Maritime 
and Port Security 
Maritime Drug Law Enforcement 
Merchant Marine Decorations 
and Medals 
Title 46 
Contents 
674-677, 688 
721-738a 
740 
741-752 
761-767 
781-790 
801-842 
843-848 
861-889 
891-891x 
1101-1295g 
1300-1315 
1501-1507 
1601-1610 
1701-1721 
1801-1809 
1901-1904 
2001-2007 
October 1992 
Prefatory Comment 
- Title 46 
During 
the 
1980's, 
the Congress 
in 
three 
steps 
enacted 
a 
substantial 
portion 
of Title 
46 
(Shipping) 
into positive 
law: 
Public Law 98-89 (1983), Public Law 99-509 (1986), and Public Law 
100-710 (1988). 
The laws so treated involve most of the maritime 
safety and seamen protection laws, 
which are administered by the 
Coast Guard (and which now constitute Subtitle II of Title 46, 45 
U.S.C. 
2101-14702), 
and the Ship Mortgage Act, 
1920, and related 
laws 
(which now constitute 
Subtitle 
III 
of Title 
46, 
46 U.S.C. 
30101-30343). 
(There is not yet a Subtitle 
I of Title 46.) 
The 
laws so codified had formerly been contained 
in about a dozen and 
a half chapters of the “old" Title 46, and although they had been 
scattered throughout 
that Title, 
they were 
largely 
in the early 
portion of it. 
All 
of 
the 
“old” 
Title 
46 was 
examined 
in 1981-1982 
for 
purposes 
of 
this 
project, 
and 
the 
resulting 
memoranda 
were 
carefully assessed in 1982 by the Coast Guard, among other Federal 
agencies. 
The codification 
and enactment 
into positive 
law of 
portions 
of Title 
46 thereafter have obviously rendered 
some 
of 
those memoranda obsolete--so the memoranda that were overtaken by 
the “new Subtitles of Title 46 have now been eliminated from this 
study. 
New 
memoranda 
on 
those 
Subtitles 
are 
presented 
here, 
designated 
as 
Memoranda 
Nos. 
46-1 
and 
46-2. 
In 
assessing 
the 
Subtitles for purposes of preparing Memoranda Nos. 46-1 
and 46-2, 
it became apparent that the bulk of the problems on their subjects 
identified 
in 
1981 
and 
1982 
have 
been 
eliminated 
by 
the 
new 
codification. 
In the interest of bringing this research project to a close, 
these 
new memoranda 
have 
not 
been circulated 
to 
the pertinent 
Federal 
agencies, 
nor 
to the Governors 
of 
the territories, 
for 
comment. 
None 
of the 
latter 
offered 
comments 
on 
the Title 
46 
memoranda when they were invited to do so in 1982, 
and the legal 
and 
other 
conclusions 
presented 
here, 
arising 
from 
the 
codification, 
are relatively free of complications 
or contention. 
On that basis, 
further Federal agency comment has not been sought. 
Substantial 
portions 
of 
Title 
46 
remain, 
however--those 
untouched by the 1980's enactments 
into positive law, 
and those 
containing more recent enactments. 
They are contained 
in what 
is 
1252 
Title 46 
Prefatory Comment 
now designated "Title 46 Appendix," but they are represented by the 
same section numbers as earlier. 
Accordingly Memoranda Nos. 
46-3 
through 
46-10 
that 
follow 
are 
largely 
the memoranda 
written 
on 
those subjects in 1982. 
They were commented upon at that time by 
pertinent Federal agencies, 
and that fact is noted in them. 
They 
have, however, been updated as necessary to reflect changes in the 
law through 
1991. 
Memorandum 
No. 
46-10 
in 
part concerns 
laws 
enacted after the completion of the 1982 research. 
For the reasons 
stated above, 
that memorandum 
too has not been 
the subject 
of a 
renewed request for comment by pertinent Federal agencies. 
1253 
Memorandum No. 
46-1 
June 1992 
Subject: 
Vessels and Seamen 
Title 46, Subtitle 
II 
(46 U.S.C. 
2101-14702) 
Purpose: 
To 
provide 
for 
vessel 
inspection 
in 
the 
interest 
of 
safety, and for some aspects of the safe operation of vessels; 
for the manning of vessels 
and the documentation of certain 
vessel personnel; 
and for the documentation 
or numbering of 
certain vessels. 
Territorial application: 
This relatively new Subtitle II of Title 
46 largely applies 
to the territories 
as 
it applies 
to the 
States. 
The exceptions, 
which are noted below, appear either 
appropriate 
or 
unobjectionable 
from 
the 
territories’ 
stand-point. 
Recommendation: 
Subtitle II should be amended to meet the problem 
of 
enforcement 
jurisdiction 
in 
American 
Samoa--perhaps 
by 
vesting such jurisdiction 
in the High Court--but otherwise 
these provisions of Title 46 appear to deal adequately with 
the territories and to reflect their peculiar needs. 
Comment: 
The enactment into positive law of a substantial portion 
of 
the shipping 
laws 
has had, 
from 
the standpoint 
of this 
study, many salutary effects--and some regrettable, but minor, 
ones. 
The principal salutary effect is that the modernization 
of the shipping laws into their current form has permitted the 
elimination of many of the recommendations first made in 1982, 
in memoranda 
for this study on Title 
46 in its then current 
form. 
That is largely a consequence of the new definition of 
"citizen" of the United States to include noncitizen nationals 
(and also of the fact that the people of the Northern Marianas 
in the intervening years achieved U.S. citizenship under the 
Covenant). 
Other problems identified in 1982 remain, and they 
are discussed below, 
but 
a further benefit of the moderniza— 
tion-codification 
is 
that 
upwards 
of 
75 
pages 
of 
1982 
memoranda have now been reduced to about 1/10 of that number. 
The regrettable effects 
are that once valuable Federal 
agency comment has been lost in the process. 
The Coast Guard 
in particular offered extensive comments in 1982. 
They were 
1254 
Memorandum No. 
46-1 
uniformly 
enlightening, 
if 
occasionally 
testy, 
and 
they 
reflected strongly held Coast Guard views. 
Most are not now 
repeated, either because the laws that precipitated them have 
been changed so that they are no longer pertinent, or because 
the recommendations contained herein have been changed. 
The 
testiness 
resulted 
from 
ill-advised 
draft 
recommendations. 
For example, 
a 1982 recommendation hac been that the Federal 
Boat Safety Act of 1971 
[FBSA] should contain exemptions for 
the Pacific territories, 
so that boats manufactured in foreign 
shipyards could be imported lawfully and used in and around 
those 
territories, 
even 
if 
they 
did not 
meet 
U.S. 
safety 
standards. 
The Coast Guard responded: 
The 
Coast 
Guard 
can 
envision 
many 
problems with the proposal 
to totally 
exempt 
certain 
territories 
from 
the 
FBSA, 
partially 
exempt 
others, 
and 
leave 
it 
intact 
for 
others. 
Particular care would have to be made 
to 
insure 
that 
noncomplying 
boats 
built 
in 
the 
exempted 
territories 
could not be exported to the 50 States 
or the nonexempt territories. 
Overall, 
we fail 
to see how the FBSA 
and 
the 
boating 
safety 
regulations 
place 
an 
undue 
burden 
on 
the 
territories 
or 
are 
an 
unreasonable 
intrusion 
in 
their 
affairs. 
The 
safety standards 
are 
for the benefit 
of consumers. 
They are minimums 
of 
good 
safety 
practice 
that 
have 
been 
developed 
to 
protect 
boaters 
from 
significant 
and 
well-documented 
hazards 
(e.g., 
overloading 
of 
small 
boats, 
fires 
and 
explosions 
in 
gasoline powered boats, 
etc.). 
Boat 
owners 
are 
also 
afforded 
the 
protection of the defect notification 
and correction provisions of the FBSA. 
This statute is meeting its objective 
of 
bringing 
about 
increased 
local 
control 
of 
boating 
safety 
under 
1255 
REG 
Memorandum No. 
46-1 
guidelines established by the federal 
government. 
That Coast Guard comment would have been enough to eliminate 
the 1982 draft recommendation for reduced standards. 
(But it 
might 
be 
noted 
that 
the 
new 
law 
permits 
the 
granting 
of 
exemptions 
from 
statutory 
or 
regulatory 
requirements 
for 
boating 
safety 
(46 
U.S.C. 
4305), 
so 
some 
flexibility 
is 
possible, 
and this could be of benefit to the insular areas.) 
And 
it 
is regrettable 
when 
an engaging, 
even 
if quite 
unimportant, 
statute is lost. 
One discussed in 1962 that was 
derived from a 1872 law that formerly appeared at 46 U.S.C. 
666 required that vessels carry “a chest of medicines," and 
more importantly, 
that they carry lemon or lime juice, sugar, 
vinegar, 
"or 
other 
antiscorbutics." 
The 
medicine 
chest 
requirement 
lives 
on 
(now at 
46 U.S.C. 
11102(a)), 
but the 
antiscorbutics law--complete with 
a recipe for minimum daily 
requirements--has 
departed 
forever. 
This 
provision, 
and 
others that served to bemuse the modern reader, were discussed 
in the 1982 memoranda that have now been eliminated, 
proving 
again that 
a change for 
the better often involves 
a little 
loss. 
Discussion: 
The laws considered herein constitute Subtitle 
II of 
the portion of Title 46 that has been enacted 
into positive 
law 
(46 U.S.C. 
2101-14702). 
Subtitle 
II, which is entitled 
Vessels and Seaman, constitutes the first of two Subtitles so 
treated (with the second being considered in Memorandum 46-2), 
and it replaces upwards of 20 chapters of the "old" Title 46. 
An examination of the new Subtitle II contrasted with analyses 
of these "old" chapters shows that-- 
(1) an unusual definition of "citizen of the United 
States" has now served to eliminate substantial problems that 
were earlier presented in connection with vessel documentation 
and vessel manning laws; 
(2) problems concerning the enforcement of these laws 
in American Samoa persist; 
but 
1256 
RY 
Memorandum No. 
46-1 
(3) while 
the 
insular 
areas 
are 
usually 
accorded 
State-like treatment in Subtitle II, occasionally they are not 
--but the exceptions to State-like treatment do not appear to 
be seriously objectionable from the territories’ 
standpoint. 
ese three propositions are considered in turn. 
(1) Citizenship. 
Earlier difficulties associated with 
the 
frequent 
requirement 
in 
the 
"ola" 
Title 
46 
of 
U.S. 
citizenship--for 
such 
purposes 
as 
vessel 
documentation 
and 
vessel 
operators--have 
been 
eliminated 
by 
the 
following 
definition, 
added in 1984: 
"citizen 
of 
the 
United 
States” 
means 
a 
national of the United States 
as defined 
in 
section 
101(a)(22) 
of 
the 
Immigration 
and 
Nationality Act 
(8 U.S.C. 
1101(a)(22) 
or 
an 
individual citizen of the Trust Territory of 
the 
Pacific 
Islands 
who 
is 
exclusively 
domiciled 
in 
the 
Northern 
Mariana 
Islands 
within the meaning of section 1005(e) 
of the 
Covenant 
to establish 
a Commonwealth 
of the 
Northern Mariana 
Islands 
in Political 
Union 
with the United States of America 
(48 U.S.C. 
1681 note). 
(46 U.S.C. 
2101(3a).) 
The reference to section 101(a)(22) of the Immigration 
and Nationality 
Act 
serves 
to include 
as "citizens" 
of the 
U.S. 
noncitizen 
nationals 
of 
the 
United 
States 
in 
Samoa, 
because 
that 
section 
defines 
"national" 
as 
either 
a U.S. 
citizen or "a person who, though not a citizen of the United 
States, 
owes 
permanent 
allegiance 
to 
the 
United 
States." 
Other sections 
of the Immigration 
and Nationality 
Act make 
clear that those born in Samoa are U.S. 
nationals 
(8 U.S.C. 
1408, 
1101(21), 
(29)). 
The second portion of the definition--that pertaining 
to 
the Trust 
'erritory 
citizens 
domiciled 
in 
the Northern 
Marianas--has served its purpose and has no further function, 
1257 
Memorandum No. 
46-1 
now 
that 
the people of the Northern Marianas have achieved 
U.S. 
citizenship 
following 
the 
1986 
termination 
of 
the 
Trusteeship Agreement. 
It was of value before that, however, 
as 
a transition provision, 
and it illustrated admirably 
the 
flexibility and generosity of the Coast Guard in administering 
its laws 
in 
a way 
that would accommodate 
the people of the 
Northern Marianas before trusteeship termination.) 
There 
is 
thus 
no 
longer 
any 
problem 
associated 
with 
vessel documentation or with service on vessels as they relate 
to citizens and nationals of the U.S. 
in the insular areas. 
(2) Enforcement 
in Samoa. 
Subtitle 
II 
is studded with 
references to the "district courts of the United States," to 
which jurisdiction to enforce its provisions is assigned: 
46 
U.S.C. 
2106, 
2107, 
2114, 
2305, 
3718, 
4311, 
6304(b), 
10707- 
10710, 
10902, 
11505, 
12111, 
and 12309. 
As 
is by now well- 
known to users of this study, 
there is no U.S. district court 
in Samoa, 
and 
none 
elsewhere 
with 
general 
jurisdiction 
in 
Samoa. 
The absence 
of 
a court with 
jurisdiction 
in Samoa 
ought to be overcome, 
perhaps by defining 
the High Court of 
American 
Samoa 
as 
a 
district 
court 
for 
purposes 
of 
the 
Subchapter. 
(This 
is 
the 
approach 
taken 
at 
46 
U.S.C. 
31301(2)(E)), 
but there are others.) 
In its 1982 comments, 
the Coast guard suggested that 
this 
problem 
might 
not 
be fatal. 
In connection 
with 
the 
VY tn an opinion dated June 27, 
1978 
(No. 
G-LMI-16675), 
the 
Chief 
Counsel 
of 
the 
Coast 
Guard 
concluded 
that 
in 
the 
period 
before trusteeship termination, 
citizens of the Northern Marianas 
could 
be 
treated 
as 
U.S. 
citizens 
for 
purposes 
of 
vessel 
documentation and licensing. 
Among other things, 
this facilitated 
the documentation as a U.S. 
vessel of the OLWOL, 
a fishing vessel 
delivered 
to 
the 
Northern 
Marianas 
as 
war 
reparations 
from 
Japan--and 
for 
a 
time 
immobilized 
in 
Northern 
Marianas 
water 
because Federal laws foreclosed both its documentation and manning 
(by Northern Marianas persons who were then aliens under U.S. law). 
The Coast Guard opinion and common sense administration overcame 
these problems. 
But regrettably the OLWOL sunk a few years later, 
reportedly as 
a result of deficient maintenance. 
1258 
Memorandum No. 
46-1 
Motorboat 
Act 
of 
1940, 
which 
had 
placed 
enforcement 
in 
a 
“court of the United States" 
(formerly 46 U.S.C. 
526n)), 
the 
Coast Guard offered the following comment--which could apply 
as well to other provisions of Title 46: 
While 
it 
is recognized 
that 
the 
High 
Court 
of American 
Samoa 
is not 
a U.S. 
court 
and 
that 
American 
Samoa 
is 
not 
within the jurisdictional limits of any 
U.S. 
District 
Court, 
collection 
action 
may 
not 
be 
impossible. 
The 
United 
States may be able to bring an action as 
a party 
in the High Court 
of American 
Samoa 
asserting 
personal 
jurisdiction 
against 
individuals 
who 
refuse 
to pay 
civil penalties. 
While 
this mechanism 
has not yet been utilized, 
preliminary 
discussions 
have 
been 
conducted 
with 
personnel 
of 
the 
High 
Court 
who 
have 
indicated 
a 
willingness 
to 
consider 
arguments for such jurisdiction. 
But it would be better not 
to leave 
this matter 
to so 
uncertain a route. 
Particularly because Subtitle III includes 
so full 
a definition, 
at 46 U.S.C. 
31301(2)(E), 
and 
in the 
absence 
of 
any 
explanation 
in 
the 
readily 
available 
legislative history 
to Suggest 
a reason 
for excluding 
from 
Samoa Subtitle II, 
it would be well 
to amend Subtitle 
II to 
meet this problem. 
(3) Exceptions to State-like treatment. 
For purposes 
of Subtitle 
II, 
the 
term 
"State" 
explicitly 
includes 
the 
Virgin 
Islands, 
Guam, 
Samoa, 
and 
the Northern 
Marianas 
(46 
U.S.C. 2101(36)), 
as does the term "United States" (46 U.S.C. 
2101(44)). 
It is, 
therefore, 
unsurprising 
that 
these 
four 
areas are treated 
in Subtitle 
II for the most part precisely 
as are 
the States. 
The substance 
of these many provisions 
does 
not 
suggest 
that 
the 
result 
should 
be different, 
and 
indeed, 
in the single financial assistance program contained 
in 
Subtitle 
II--a 
grant 
Program 
for 
Recreational 
Boating 
Safety (46 U.S.C. 
13101-13110)--the territories received aid 
on the same basis as the States (46 U.S.C. 13103). 
Reports to 
1259 
rae 
Memorandum No. 
46-1 
the 
Interior 
Department 
indicate 
that 
all 
four 
areas 
participate 
in 
the 
program. 
As 
a practical 
matter, 
they 
probably 
do 
so 
on 
terms 
more 
favorable 
than 
the 
States, 
inasmuch 
as 
the 
insular 
areas 
are 
the 
beneficiaries 
of 
a 
requirement 
for the waiver of matching 
(48 U.S.C. 
1469a(d)). 
The instances in these sections (46 U.S.C. 2101-14702) 
in which the territories received different treatment require 
examination 
in turn: 
--46 U.S.C. 
3704 
is one 
of the coastwise 
laws 
(see 
Memorandum No. 46-5), 
and it provides that if certain 
components (specificaily 
a "segregated ballast tank, 
a crude oil washing system, 
or an inert gas system") 
are required to be installed on a vessel entitled to 
engage 
in the coastwise 
trade 
under 
46 App. 
U.S.C. 
883, 
then 
the component 
"shall 
be installed 
in the 
United States."?/ 
The Virgin Islands, 
Samoa, 
and for 
the most part the Northern Marianas, 
are exempt from 
the 
coastwise 
laws, 
including 
46 
App. 
U.S.C. 
883. 
Guam is not, but the political difficulty of achieving 
an 
exemption 
for Guam appears 
insurmountable. 
The 
point is discussed further in Memorandum No. 
46-5. 
--46 
_U.S.C._5101 
defines 
"domestic 
voyage" 
for 
purposes of the load line laws (46 U.S.C. 5101-5116). 
The 
term excludes 
a voyage 
between 
a "territory 
or 
possession" 
and 
a place 
outside 
that 
territory 
or 
possession 
(46 U.S.C. 
5101(1)) 
The load line laws 
apply generally to vessels of the United States, among 
others 
(46 U.S.C. 
5102(a)), 
but among the exceptions 
to them--and recreational vessels and fishing vessels 
are among the exceptions--are several kinds of vessels 
"on 
a domestic voyage," 
including, 
for example, 
“a 
2/ after 
"United 
States" 
in 
46 U.S.C. 
3704, 
there 
appears 
"except the trust territories." 
The phrase can be ignored. 
Apart 
from the illiteracy 
(because the U.S. 
has never had more than one 
trust territory), 
there was probably never any question, and there 
surely is none now, 
that the U.S.-administered Trust Territory of 
the Pacific Islands was outside "the United States." 
1260 
27; 
Memorandum No. 
46-1 
small 
passenger 
vessel 
on 
a 
domestic 
voyage" 
(46 
U.S.C. 5102(b)(11)). 
There is no explanation for the 
territories’ 
exclusion 
from this definition 
in the 
readily 
available 
legislative 
history. 
The 
territories 
are 
thus, 
potentially, 
subject 
to more 
frequent load line requirements than vessels sailing 
between 
States. 
But 
this 
should 
probably 
not 
be 
regarded 
as 
undesirable, 
given 
their 
mid-ocean 
locations, 
and given the motive of human safety that 
underlies the load line laws. 
--46 
U.S.C. 
12105, 12106, 12108, 12112 
are 
all 
provisions 
pertaining 
to vessel 
documentation, 
and 
each 
makes 
express 
mention 
of 
some 
of 
the 
insular 
areas. 
The 
vessel 
documentation 
laws 
provide 
generally that vessels are eligible for documentation 
if they are at least 5 net tons, owned by citizens of 
the U.S. 
(or by an association, 
carefully defined at 
46 U.S.C. 
12102(a)(2)), 
and measured under the Title 
46 requirements. 
A vessel 
so documented is a vessel 
of 
the 
United 
States, 
and 
its 
documentation 
is 
"conclusive evidence of nationality for international 
purposes” 
(46 
U.S.C. 
12104). 
A 
certificate 
of 
documentation may then be "endorsed" for the coastwise 
(or coasting) trade (46 U.S.C. 12106)--with such other 
terms as "license" and “enrollment and license" also 
defined 
as referring 
to a coastwise endorsement 
(46 
U.S.C. 
12101(b)(2)); 
for 
the 
fisheries 
(46 
U.S.C. 
12108); or for the foreign trade--in which event it is 
termed 
a "registry 
endorsement” 
(46 U.S.C. 
12105). 
(Standard 
usage 
for 
some 
decades 
has 
involved 
a 
"register" or "registry" for the foreign trade, anda 
"license" and/or "enrollment" for the coastwise trade. 
“License"is 
usually 
applied 
to 
the document 
for 
a 
fishing 
vessel. 
“Documentation” 
is generic.) 
To 
obtain a coastwise or fishery endorsement, 
the vessel 
must 
be built 
in the U.S. 
(with exceptions 
not now 
pertinent; 
(46 
U.S.c. 
12106, 
12108). 
There 
is 
no 
requirement that the vessel be U.S.-built if it is to 
be registered for the foreign trade. 
Turning 
then 
to the sections 
above cited 
that make 
Particular 
reference 
to 
insular 
areas, 
46 
U.S.C. 
12105 
1261 
272 
Memorandum No. 46-1 
provides that a vessel's certificate of documentation that has 
been endorsed with a registry endorsement "may be emplcyed in 
foreign 
trade 
or 
trade 
with 
Guam, 
American 
Samoa, 
Wake, 
Midway, or Kingman Reef." 
The effect of this provision is to 
permit 
a foreign-built, 
U.S.-documented vessel 
to engage 
in 
trade between U.S. 
ports and the five named 
insular areas, 
thereby ameliorating 
the effect of the coastwise 
laws that 
would confine 
such trade 
to U.S.-built and U.S.-documented 
vessels. 
But 
it would 
seem 
that 
only Guam 
could 
be 
the 
practical beneficiary of this provision, inasmuch as Samoa, is 
exempt from the coastwise laws (see Memorandum No. 46-5), 
and 
the 
other 
named 
islands 
probably 
experience 
no 
commercial 
surface transportation. 
But Guam’s coastwise concern turns on 
its 
interest 
in transportation 
by foreign-registered 
{not 
foreign-built U.S.-registered) 
vessels, 
so the section will 
not meet Guam’s objective. 
The reference to these five island areas is curious, 
and its rationale may have been lost 
in history. 
The Coast 
Guard has advised unofficially 
that the statutory reference, 
dating from 1912, was part of a Congressional effort at that 
time 
to strengthen 
hastily 
the 
U.S. 
merchant 
fleet. 
The 
coastwise 
trade 
and 
the 
U.S. 
fisheries 
were 
accordingly 
confined to U.S.-built vessels. 
Documentation for vessels in 
the foreign trade did not require 
a U.S. 
construction site, 
but there was apparently some thought that these five remote 
islands might benefit from this special provision. 
So far as 
is known, none ever has. 
A useful, 
special provision 
of the Pacific 
insular 
areas 
appears 
at 
46 U.S.C. 
12106. 
The 
section 
concerns 
a 
coastwise endorsement of a certificate of documentation 
(for 
which 
the 
vessel 
must, 
as 
noted, 
be 
“built 
in 
the 
United 
States"), 
without 
which 
the 
vessel 
cannot 
engage 
in 
the 
coastwise 
trade. 
But 
a particular 
provision appears 
at 
46 
U.S.C. 
12106(c) 
by 
which 
a 
foreign-built 
vessel 
may 
be 
documented 
with 
a "coastwise 
endorsement 
to engage 
in the 
coastwise trade of fisheries products between places in Guam, 
American Samoa, and the Northern Mariana Islands." 
Similarly, 
under 
46 U.S.C. 
12108(c), 
a vessel 
"not built or rebuilt 
in 
the 
United 
States" 
may 
be documented 
and 
endorsed 
with 
a 
fishery endorsement “to engage in fishing 
in the territorial 
sea and fishery conservation zone adjacent to Guam, American 
1262 
73 
Memorandum No. 46-1 
Samoa, 
and the Northern Mariana Islands." 
These provisions 
are a reflection of the need in those areas to permit the use 
of vessels built in foreign shipyards--because they cost less. 
Foreign-built 
vessels 
may 
thus 
be 
used 
for 
the 
limited 
fisheries purposes above stated. 
Finally, 
the same five islands turn up once again, 
at 
46 
U.S.C. 
12112, 
which 
permits 
the 
Secretaries 
of 
Transportation and State to provide a temporary certificate of 
documentation 
to certain vessels 
procured 
outside 
the U.S. 
Such vessels may then proceed to the U.S., 
and en route they 
may engage “in the foreign trade or trade with Guam, American 
Samoa, 
Wake, Midway, 
or Kingman Reef." 
One wonders 
if one 
ever has. 
Conclusion: 
Subtitle II of Title 46 for the most part reflects the 
territories’ particular needs, but it should make provision of 
enforcement in American Samoa, perhaps by vesting jurisdiction 
in the High Court of American Samoa. 
Federal agency comments: 
Memoranda discussing chapters of Title 46 
before it was enacted into positive law, commencing in 1983, 
and 
that concerned 
the subjects 
that 
are 
now contained 
in 
Subtitle 
II, 
were 
distributed 
for 
comment 
to 
all 
of 
the 
pertinent 
Federal 
agencies: 
the 
Departments 
of 
Commerce, 
Justice, Labor, State, Transportation (particularly including 
the Coast Guard), 
and 
the Treasury. 
All comments 
received 
(with those from the Coat Guard being of particular value), 
were incorporated in revised memoranda and transmitted to the 
Governors of the four insular areas for their comments. 
(No 
substantive 
comments 
were 
received 
from 
them.) 
This 
memorandum on Subtitle II has not been transmitted to either 
Federal agencies or the governors for comment, in the interest 
of saving 
time, 
but 
some 
few 
comments 
in response 
to the 
earlier request have been restated herein, when they appear to 
remain timely. 
1263 
Memorandum No. 46-2 
July 1992 
Subject: 
Maritime Liability 
Title 46, Subtitle III 
(46 U.S.C. 
30101-30343) 
Comment: 
This Subtitle of Title 46, recently codified and enacted 
into 
positive 
law, 
applies 
fully 
to 
the 
territories 
and 
contains no problem for them. 
Discussion: 
Subtitle III 
of Title 
46 was enacted 
into positive 
law by Public Law 100-710 
in 1988. 
It represents essentially 
a codification 
of 
the Ship Mortgage 
Act, 
1920, 
a 
law that 
itself had applied generally to the territories 
(a conclusion 
with which 
expert 
Federal 
agency 
commentators 
in 
1981 
had 
agreed, 
in their review of a memorandum 
on 
the Act for this 
study.) 
The 
1920 
Act, 
like Subtitle 
III, 
was designed 
to 
encourage 
ship 
financing 
by offering 
security 
to 
private 
investors. 
These 
laws 
prescribe 
the manner 
of 
recording 
conveyances and mortgages; 
they define “preferred mortgages" 
and make clear the rights of preferred mortgagees; 
and they 
prescribe filing and foreclosures procedures. 
But 
while 
it 
was 
necessary 
to struggle 
to conclude 
that 
the 
1920 
Act 
applied 
to 
the 
territories, 
the 
new 
codification 
does 
so 
forthrightly. 
It 
not 
only 
defines 
"State" and “United States" 
to include expressly the 
Virgin 
Islands, 
Guam, 
Samoa, 
and the Northern Marianas 
(46 U.S.C. 
30101(6) and (8), respectively)--in the same manner as the new 
Subtitle 
II 
of Title 
46--but 
it also 
includes 
an unusually 
extensive 
and 
clear 
definition 
of 
"district 
court" 
at 
46 
U.S.C. 
31301(2). 
The 
term explicitly 
includes 
not only the 
District Courts of Guam, 
the Virgin Islands, 
and the Northern 
Marianas--provisions 
that 
are probably unnecessary, 
because 
each has the jurisdiction of a district court of the United 
States 
(see Memorandum No. 28-1)--but the term includes “the 
High Court of American Samoa" as well (46 U.S.C. 31301(2)(E))-. 
And, so as to anticipate developments not yet imagined, 
there 
is also included “any other court of original jurisdiction of 
a territory 
or possession 
of the United States” 
(46 U.S.C. 
31301(2)(F)). 
Conclusion: 
This portion of Title 46 makes adequate provision for 
the territories. 
1264 
273 
Memorandum No. 
46-2 
Federal 
agency 
comment: 
No 
comments 
were 
invited 
on 
this 
memorandum from other Federal agencies. 
Memorandum No. 46-3 
July 1992 
Subject: 
(a) Oath of Ownership (46 App. U.S.C. 
42) 
{b) Clearance and Entry 
Title 46 App., Chapter 3 (46 App. U.S.C. 
91-113) 
{c) Tonnage Duties 
Title 46 App., Chapter 4 (46 App. U.S.C. 
121-135) 
(d) Discriminating Duties and Reciprocal Privileges 
Title 46 App., Chapter 5 (46 App. U.S.C. 
141-146) 
(e) Boarding Vessels Before 
Inspection 
(46 App. 
U.5.C. 
163) 
(£) Limitation of Vessel owner’s Liability 
Title 46 App., Chapter 8 (46 App. U.S.C. 
181-196) 
Comment: 
The enactment of Subtitle II of Title 46 ("Vessels and 
Seamen") 
into positive law (Memorandum No. 46-1) resulted in 
the repeal or elimination for other reasons of almost all laws 
codified 
in the first portion of the “old" Title 
46. 
But 
because of their subject matter, some sections of statutes and 
some whole chapters in the first portion of the “old" Title 46 
remain. 
An examination of these sections 
and chapters does 
not 
reveal 
any 
that 
appear 
to 
create 
problems 
for 
the 
territories, 
and 
indeed, 
most 
of 
them 
are 
of 
no 
interest 
whatsoever 
to the territories. 
No recommendation 
for change 
is offered here. 
But in the interest of completeness, 
these 
loose-end laws are discussed below. 
Discussion: 
(a) A 1792 law requires 
an oath of ownership when 
a 
vessel of the United States engages in “entry 
. 
. 
. 
from any 
foreign port," to assure that “no foreign subject or citizen” 
has acquired an interest 
in the vessel 
(46 App. 
".5.C. 
42). 
There is nothing within the few lines of this little law to 
suggest whether vessels entering ports 
of the insular areas 
are 
or are not covered 
by it. 
It seems 
unlikely 
to matter, 
either way. 
{b) The clearance and entry laws 
(46 App. U.S.C. 
91- 
113), 
some of which date 
from the 18th Century and others of 
which were 
amended 
as recently 
as 
1980, 
in general 
do not 
1266 
277 
Memorandum No. 46-3 
apply 
to the insular 
areas. 
The Customs 
Service 
is charged 
with their administration 
(see, 
for example, 
46 App. 
U.S.C. 
93, 
104), 
and 
because 
the 
territories 
here 
involved 
are 
outside 
the U.S. 
customs 
area, 
the Customs 
Service does 
not 
function 
in them, except for the Virgin Islands where it has 
special responsibilities under 48 U.S.C. 
1406i. 
An early law, formerly appearing at 46 U.S.C. 
92, 
had required the delivery of a cargo manifest 
to the customs 
collector 
in order 
for a vessel bound for a foreign port to 
achieve clearance to depart. 
(That manifest requirement has 
been modernized, 
and 
it now appears 
at 46 App. 
U.S.C. 
93.) 
That 
early 
law 
was 
extended 
to 
"trade 
between 
the 
United 
States 
and 
Puerto 
Rico, 
Guam, 
and 
its 
other 
noncontiguous 
territory” by a law enacted in 1902 (formerly 46 U.S.C. 
95), 
but that 1902 law was repealed in 1962 (by Public Law 87-826), 
so the manifest requirement quite clearly does not now apply 
to trade between the States of the U.S. and the insular areas. 
(c) Tonnage duties (46 App. 
U.S.C. 
121-135), 
which 
derive from a 1790 statute, are assessed upon vessels entering 
“the United 
States" 
(undefined) 
from foreign points 
if the 
vessels 
are 
not 
vessels 
of 
the 
United 
States 
(i.e., 
not 
documented under 
U.S. 
law). 
The level of the duty depends 
upon whether the vessel was built within the United States, 
is 
owned by foreign subjects, or has an officer who is not a U.S. 
citizen 
(46 App. 
U.S.C. 
121). 
Tonnage 
duties 
are 
not 
now 
assessed 
against 
the vessels 
of 
a foreign country 
that has 
abolished them with respect to vessels of the U.S. 
A further 
duty applicable to foreign vessels 
is termed 
a “light money" 
duty (46 App. U.S.C. 
128). 
It is clear by statute that tonnage duties do not 
apply to vessels arriving in the Virgin Islands from foreign 
points, 
because 
the 
1936 
Organic 
Act 
exempts 
the 
Virgin 
Islands from these duties (48 U.S.C. 1405c(c)). 
The Treasury 
Department 
reports 
that 
it 
has, 
by regulation, 
in effect 
provided that Guam and Samoa 
(and by extension, 
the Northern 
Marianas) are not part of "the United States" far tonnage duty 
purposes 
{19 CFR 4.21(b){15)). 
That result seems desirable. 
Among other things, 
there are no Customs Service personnel in 
those areas 
to collect tonnage duties. 
1267 
273 
Memorandum No. 
46-3 
It might be noted, however, that a contrary result 
could be reached by reasoning that the Virgin Islands and Guam 
occupy 
the 
same 
status, 
as 
organized, 
unincorporated 
territories; 
but for its 1936 statutory exemption, 
the Virgin 
Islands 
would 
be 
an 
area 
where 
tonnage 
duties 
would 
be 
collectible 
(because otherwise 
it would not have needed the 
exemption); 
because 
it has no such statutory exemption, 
Guam 
is 
an 
area 
where 
tonnage 
duties 
would 
apply--as 
are 
the 
Northern Mariana and Samoa, 
which seem for purposes of these 
laws, to occupy a status comparable to Guam’s. 
This reasoning 
leads to an inconvenient result, but it would seem to have as 
much logic 
to support it as the contrary conclusion. 
Inasmuch as the issue has not been raised 
in any 
substantial 
way, 
however, 
the 
problem 
does 
not 
appear 
to 
require further attention. 
It is the kind of issue which, 
if 
legislation 
could 
be 
achieved 
at 
little 
cost 
in 
time 
or 
energy, 
might 
reasonably 
be 
resolved 
by 
clarifying 
legislation. 
But because legislation does entail costs, 
and 
because 
this 
problem 
is not pressing 
and 
is 
not 
likely 
to 
become 
so, 
it seems soundest to pass it by. 
(d) A "discriminating duty" (46 App. U.S.C. 
141-146), 
which is "in addition to the duties imposed by law," applies 
to goods, 
wares, 
and merchandise 
imported 
into ports of the 
U.S. 
by vessels 
that 
are 
not 
vessels 
of 
the 
U.S. 
(46 
App. 
U.S.C. 
146). 
Although 
the 
key 
sections 
contain 
no 
clear 
geographical limitation, 
they do contain language that quite 
clearly limits these laws to the U.S. customs territory--thus 
excluding 
the Virgin Islands, 
Guam, 
American 
Samoa, 
and the 
Northern Marianas from their application. 
The term "port of 
the United States" 
is sometimes a term of art, denoting a port 
within the U.S. customs area; 
and the reference 
to a duty on 
"goods" 
that 
is 
"in addition 
to 
the duties" 
on 
such 
goods 
otherwise imposed by Federal law, almost certainly refers to 
a duty 
in addition 
to whatever duty is imposed by the basic 
U.S. 
tariff statute. 
Because 
the basic tariff statute does 
not apply to the territories, 
it is reasonable to suppose that 
the duties here 
in question also do not do so. 
1268 
ND Bea ce 
Memorandum No. 
46-3 
(e) A 
law 
concerning 
boarding 
vessels 
before 
inspection (46 App. U.S.C. 
163) authorizes the Commissioner of 
Customs 
to issue 
regulations 
governing 
this activity 
as 
to 
vessels 
"arriving 
at 
the 
seaports 
of 
the 
United 
States." 
Because ports in the insular areas are generally not regarded 
as 
ports 
of 
the United 
States 
for customs 
purposes, 
it 
is 
likely that 
this authority does not extend 
to insular ports. 
(£) The 
laws permitting 
the limitation 
of 
a vessel 
Qwner’s 
liability 
(46 
App. 
U.S.C. 
181-192)--which 
were 
designed 
to 
encourage 
the 
maritime 
shipping 
industry 
by 
reducing 
the 
financial 
responsibility 
of 
the 
ship owner 
in 
various ways--contain no provisions that pose problems 
to the 
territories. 
The laws are broadly applicable (46 App. U.S.C. 
188). 
One reference to "district court of the United States" 
(46 App. U.S.C. 
185) might require a vessel owner in Samoa to 
use 
a 
court 
in 
Hawaii, 
but 
no 
other 
words 
of 
limitation 
appear. 
Conclusion: 
The 
assorted 
sections 
and chapters 
discussed 
above 
require no modification to meet the needs of the territories. 
Federal 
agency comments: 
Comments were invited 
in 1982 from the 
Departments 
of Justice, 
Transportation, 
and the Treasury 
on 
memoranda 
dealing 
with 
the 
above 
provisions. 
Because 
of 
changes in the Title since them, some of the above paragraphs 
have been rewritten 
in 1992--but 
in a manner consistent with 
all comments 
received 
in 
1982. 
parts 
(c), 
(d), 
and 
(f£), 
however, 
have 
not 
required 
revision, 
and 
they 
appear 
substantially as they did before and after the 1982 comments. 
Subject: 
Purpose: 
foreign fishing vessels. 
Recommendation: 
The 
nonapplication 
of 
the 
Nicholson 
Act 
to 
American 
Samoa, 
Guam, 
the Northern Marianas, 
and 
the Trust 
Territory, 
and 
its 
partial 
nonapplication 
to 
the 
Virgin 
Islands, 
should not be modified. 
Territorial application: 
Except for the Virgin Islands, which are 
partly 
exempt, 
the Nicholson 
Act 
is not 
applicable 
to the 
territories or the Trust Territory. 
No. 
124 of June 
12, 
1953 
(issued 
by the Bureau 
of Customs, 
Treasury Department), on the ground that it is an unorganized, 
unincorporated territory of the United States, 
and thus that 
neither Samoa nor any port therein constitute 
a "port of the 
United States" for purposes of the Nicholson Act. 
The Bureau 
of Customs stated that its conclusion would be to the contrary 
if 
it appeared 
that 
"Congress 
intended otherwise," 
but 
the 
Bureau concluded that it did not appear that Congress had so 
intended. 
on the ground that the Nicholson Act was approved on 
a date 
V his memorandum 
was reviewed 
in September 
1992, 
by which 
time 
one 
amendment 
had been 
enacted 
to 
46 App. 
U.S.C. 
251 
that 
post-dated composition 
of the memorandum 
in October 
1981. 
That 
amendment, 
enacted 
in 1988, 
permits 
the Secretary 
of Commerce 
to 
obtain certain fisheries information 
(46 App. U.S.C. 
251(a)), 
and 
it is irrelevant for current purposes. 
The information contained 
in this memorandum as to the statute thus remains accurate 
as of 
The memorandum has, 
therefore, 
not 
been revised 
since 
its 
original date of October 
1981. 
1992. 
Memorandum No. 
October 1981!/ 
The Nicholson Act 
Act of September 2, 1950, 
as amended 
46 App. U.S.C. 
251 
To 
prohibit 
the 
landing 
of 
fish 
in 
U.S. 
ports 
from 
American Samoa was held to be exempt by Marine Circular 
Guam was held to be exempt 
in the same Marine Circular, 
1270 
ORG 
Memorandum No. 46-4 
(September 
2, 1950) subsequent to the date of the Guam Organic 
Act 
(August 1, 
1950), 
and 
that 
the latter statute 
provided 
that subsequently enacted laws would not apply to Guam unless 
Guam 
is 
referred 
to 
by 
name 
or 
by explicit 
reference 
to 
"possessions." 
The Northern Marianas are excluded under section 503(b) 
of the Northern Marianas Covenant (set out following 48 U.S.C. 
1681), 
which 
states 
that 
unless 
the 
Congress 
otherwise 
provides 
by 
law 
following 
trusteeship 
termination, 
"any 
prohibition in the laws of the United States against foreign 
vessels 
landing 
fish 
. 
. 
." will not apply 
to the Northern 
Marianas. 
The exclusion will, 
clearly, 
survive 
trusteeship 
termination, 
absent further Congressional action. 
The Virgin Islands, 
while not generally exempt from the 
Nicholson Act, are partially exempt under a 1961 amendment (46 
App. U.S.C. 
251(b)), which permits the landing in the Virgin 
Islands, 
from a foreign-flag vessel 
that is not more than 50 
feet long, 
of fresh fish for immediate consumption. 
The Trust Territory is exempt because its ports could not 
be construed as "ports of the United States." 
The language of 
section 503 of the Northern Marianas Covenant, which states in 
effect that the Nicholson 
Act 
is "presently inapplicable 
to 
the Trust Territory," makes clear that this exclusion was the 
Congress’ intent 
.2 
Discussion: 
The 
Nicholson 
Act, 
designed 
to 
protect 
American 
ishermen, 
prohibits 
the landing by a foreign flag vessel 
in 
"a port of the United States" of fish taken aboard it on the 
high seas. 
?/ As used in section 503 of the Covenant, 
it seems reasonable 
to 
suppose 
that 
"presently" 
is 
intended 
to 
mean 
"currently." 
Language purists understand 
the term to mean not "currently" but 
“soon"--with 
the 
latter 
being 
a 
troublesome 
result 
in 
this 
instance. 
But 
in context, 
and given 
the frequent 
misuse 
of 
the 
term, 
in statutes 
and elsewhere, 
it should 
doubtless 
be read 
as 
meaning 
"now" 
or "currently." 
1271 
“ x te 
Memorandum No. 
46-4 
The nonapplication of the Act to Samoa is important to 
the American Samoan fish canning industry, 
currently Samoa’s 
most 
significant 
private 
economic 
endeavor. 
There 
was 
no 
Samoan fish canning industry until after the Bureau of Customs 
issued 
Marine 
Circular 
No. 
124 
in 
1953, 
at which 
time 
it 
became possible for foreign fishing vessels (Japanese, Korean, 
Taiwanese) 
to 
land 
fish 
there, 
to 
be 
canned 
by 
American 
companies. 
The American companies contract now, 
as they have 
done since the 1950's, 
to purchase fish from foreign fishing 
fleets. 
The companies have also, 
lately, 
begun 
to buy fish 
from American fishing vessels, which have recently commenced 
fishing 
in 
Samoan 
waters. 
Notwithstanding 
considerable 
efforts 
to 
inspire 
the 
Samoans 
themselves 
to 
fish 
commercially, 
they remain 
largely uninterested 
in doing 
so, 
and 
the 
cannery 
operation 
is, 
therefore, 
heavily dependent 
upon 
the Nicholson Act exemption. 
Although 
a 
cannirg 
industry, 
based 
upon 
foreign 
fishing fleets, 
has not similarly developed in Guam, interest 
has been displayed from time to time in such an industry or in 
the 
use 
of 
Guam 
as 
a 
transshipment 
point 
for 
tuna. 
The 
continuous nonapplication of the Nicholson Act to Guam would 
be 
essential 
to 
a 
successful 
canning 
or 
transshipment 
enterprise 
there, 
if 
it were 
based 
upon 
a 
foreign 
fishing 
fleet. 
The same 
is true of the Northern Marianas. 
The partial exemption 
for the Virgin Islands appears 
sufficient at this time. 
Under it, small fishing boats from 
neighboring Caribbean islands can continue to supply fish to 
the Virgin Islands’ 
local market, 
where it is clearly welcome. 
A Samoan-type industry, 
with foreign fleets supplying the raw 
material 
for 
island-based 
cannery 
operations, 
has 
not 
been 
proposed 
for 
the 
Virgin 
Islands 
and 
is 
presumably 
not 
economically attractive, 
so a larger exemption for the Virgin 
Islands currently appears unnecessary. 
Although 
there 
is no landing of fish 
in substantial 
quantities 
by 
non-U.S. 
vessels 
in 
Micronesia--except 
for 
Palau, 
where 
a 
Van 
Camp 
freezing 
facility 
has 
been 
in 
operation 
since 
the 
1960’s--the 
fishery 
resource 
represents 
Micronesia’s 
principal 
economic 
asset, 
and freedom 
from 
the 
1272 
£2 3 
Memorandum No. 
46-4 
restrictions of the Nicholson Act is important to it, for both 
economic 
and 
political 
reasons. 
The 
Compact 
of 
Free 
Association 
(November 
1980 version) 
would make no change 
on 
this point. 
Conclusion: 
The current nonapplication of the Nicholson Act to the 
offshore 
areas should, 
as 
a matter of policy, 
be preserved. 
Inasmuch as Samoa’s exclusion from it is of key importance to 
economic 
activity 
in 
Samoa, 
but 
rests 
on 
a 
rather 
thin 
administrative 
(instead 
of 
statutory) 
reed, 
the 
question 
arises as to whether Samoa’s exemption should be fortified by 
an Act of Congress. 
The same question 
arises 
in connection 
with Guam and the Northern Marianas, 
but is less pressing as 
to 
them 
because 
of 
their 
current 
lack 
of 
a 
fish 
canning 
industry, 
based on a foreign fishing fleet. 
Knowledgeable observers 
tend 
to 
the 
view 
that 
such 
an 
amendment 
would 
be 
difficult 
to 
achieve 
as 
a 
practical 
political 
matter. 
Domestic 
fishing 
interests, 
which 
can 
display 
great 
strength, 
have occasionally 
viewed 
the 
Samoa 
cannery 
operation 
as 
hurtful 
to 
them, 
and 
they 
could 
be 
expected 
to oppose legislation supportive 
of 
it. 
Because 
a 
legislative 
effort, 
assessed 
in 
a worst-case 
manner, 
could 
even result 
in reversing 
the current 
favorable treatment 
of 
Samoa 
(and other Pacific areas), 
the wisest course appears to 
be to take 
no action at all, 
thereby perpetuating the status 
quo as to the law. 
Note 
should 
be taken of a 1975 Congressional Committee 
comment, 
which 
supports 
the Treasury 
ruling 
and 
thus 
gives 
comfort 
to 
those 
who 
seek 
to 
continue 
the 
Samoan 
cannery 
operation. 
In its report on the legislation 
that became 
the 
Fishery Conservation and Management Act, 
the House Committee 
on 
Merchant 
Marine 
and 
Fisheries 
referred 
to 
the 
administrative exclusion of Samoa and Guam from the Nicholson 
Act, 
and stated: 
The 
Committee 
would 
like 
to 
make 
it 
clear 
that 
nothing 
in 
this 
(Fishery 
Conservation and Management} 
Act would, 
or 
is 
intended 
to, 
affect 
that 
1273 
Memorandum No. 
46-4 
{Nicholson] 
Act, and in particular, 
the 
Treasury Department's interpretation of 
that Act. 
(H. Rept. 94-445, 
p. 49). 
Federal agency comments: 
Comments on this memorandum were invited 
from 
the 
Departments 
of 
Commerce, 
Treasury, 
Justice, 
and 
Transportation. 
All comments 
received 
have been 
reflected 
above. 
1274 
Memorandum No. 
46-5 
November 
1981 
Revised June 1982 
Revised September 1992/ 
Subject: 
The Coastwise Laws (including the Jones Act) 
46 App. 
U.S.C. 
289, 
292, 
316, 
877, 
883, 
883-1, 
883a, 
1156, 
1175(a), 
and 1223(a) 
Purpose: 
To 
require 
the 
use 
of 
U.S. 
flag 
vessels 
in 
the 
transportation of passengers and cargo between two points 
in 
the United States. 
Territorial application: 
The coastwise laws apply to Guam. 
They 
do not apply to American Samoa or the Virgin Islands, 
and they 
largely do not apply to the Northern Marianas. 
They also do 
not apply to the Trust Territory. 
Recommendation: 
None 
is offered 
here. 
The Government 
of Guam, 
however, strongly recommends that Guam be made exempt from the 
coastwise 
laws, 
and thus placed 
in the same position 
as 
the 
other territories. 
Y The 1992 revision of this memorandum has resulted 
in only 
modest 
changes 
from 
the version 
that was 
the subject 
of Federal 
agency 
comment 
in 1981-82: 
(1) The 
1991 
Guam data, 
reflected 
in 
footnote 6 below, 
has been added. 
(2) Citations have been changed 
to reflect the inclusion now of the sections 
that are the subject 
of this memorandum in 46 "Appendix" U.S. Code. 
An examination of 
the post-1981 
amendments 
to such sections reveals 
that, 
although 
several have been amended, 
sometimes more 
than once, 
none of the 
amendments affects the substance of the section for purposes of the 
discussion contained 
in this memorandum. 
Attention 
is, however, 
invited 
to newly codified 
46 U.S.C. 
3704, 
which 
is also termed 
a 
“coastwise" law (and is discussed in Memorandum No. 46-1), but that 
section 
could 
not 
be 
objectionable 
from 
the 
territories 
standpoint. 
Attention 
is also invited 
to a 1984 law, codified 
at 
46 App. 
U.S.C. 
289c, 
that pexmits 
use 
of foreign vessels 
in the 
transportation of passengers between ports in Puerto Rico and the 
United 
States. 
Under 
that 
law 
the coastwise 
exemption 
can 
be 
lifted, 
and 
it 
can 
then 
also 
be 
reinstated, 
by administrative 
action. 
(3) Explanatory footnote 
3 has been added. 
1275 
Bo 
Memorandum No. 
46-5 
Discussion: 
Definition of coastwise 
laws: 
The term “coastwise 
laws" does not appear to be a term of art. 
There 
is, 
in any 
event, 
no 
established 
understanding 
as 
to 
precisely 
what 
Federal 
statutes 
are 
embraced 
by the 
term, 
or 
by 
the 
term 
"coasting" laws--the latter being an earlier usage that is now 
viewed as synonymous with "coastwise" laws. 
This memorandum includes in its discussion all of the 
Federal 
statutes 
that 
contain 
coastwise-type 
restrictions, 
even 
though 
some 
such 
statutes 
are 
of 
little 
moment 
for 
immediate purposes. 
The two major coastwise laws, 
and those 
that 
constitute 
the 
greatest 
problem 
in 
the 
only 
U.S. 
territory now fully embraced by the coastwise laws (Guam), are 
these: 
46 App. U.S.C. 289, an 1886 statute that bars the use 
of foreign vessels in the transportation of passengers between 
“ports or places" 
in the United States; 
and 
46 App. 
U.S.C. 
883, 
derived 
from section 
27 of the 
Merchant Marine Act of 1920, commonly called the “Jones Act," 
that bars the use of foreign vessels in the transportation of 
merchandise 
between 
“points” 
in 
the 
United 
States, 
its 
Territories 
and 
possessions. 
Such 
transportation 
must 
be 
performed only by "a vessel built 
in and documented under the 
laws 
of 
the 
United 
States 
and 
owned 
by persons 
who 
are 
citizens 
of 
the United 
States." 
A 1960 
amendment 
to this 
section 
adds 
a 
proviso 
concerning 
repair: 
any 
vessel 
in 
excess 
of 
500 
tons, 
lawfully 
entitled 
to 
engage 
in 
the 
coastwise 
trade, 
which 
is 
later 
rebuilt, 
cannot 
thereafter 
engage 
in the coastwise 
trade 
“unless 
the entire 
rebuilding 
em 
is effected within 
the United 
States, 
its Territories 
(not including trust territories), 
or its possessions 
. 
ars 
Another 
provision 
permits 
sale 
to an 
alien 
in whole 
or 
in 
part, 
or 
foreign 
registry, 
without 
loss 
of 
coastwise 
privileges. 
Particular coastwise laws: 
In addition to the major 
coastwise 
laws 
referred 
to above, 
and codified 
at 
46 App. 
1276 
gai 
Memorandum No. 
46-5 
U.S.C., 
sections 
289 
and 
883, 
the 
following 
also 
contain 
restrictions 
of 
a sort 
that 
permit 
them 
to be regarded 
as 
coastwise laws: 
46 App. U.S.C. 
292 bars the use of a “foreign-built 
dredge 
. 
. 
. in the United States," unless the dredge is among 
those few permitted by a 1906 law to be documented as a vessel 
of the United States. 
46 App. U.S.C. 
316, 
in subsection 
(a), bars the use 
of any vessel not U.S.-owned and U.S.-documented 
or numbered 
from towing U.S. vessels "from any port or place in the United 
States, 
its Territories 
or possessions, 
embraced within 
the 
coastwise laws" to any other such place, 
or within the harbor 
of such 
a place; 
and 
in subsection 
(da), 
a foreign vessel 
is 
barred from salvaging operations "on the Atlantic or Pacific 
Coast of the United States, 
in any portion of the Great Lakes 
+: 
+, 
Ox in territorial waters of the United States on the 
Gulf 
of Mexico 
.. 
."--but 
this prohibition appears 
not 
to 
apply 
to 
Guam, 
given 
the 
statutory 
language 
which 
slants 
toward the continental U.S. 
only. 
46 App. U.S.C. 877 extends the coastwise laws "to the 
island 
Territories 
and 
possessions 
of 
the 
United 
States," 
effective 
February 
1, 
1922, 
and 
directs 
the 
Secretary 
of 
Commerce (changed by P.L. 97-31, August 
6, 1981, to “Secretary 
of 
Transportation") 
by 
that 
date 
to 
establish 
adequate 
steamship services at reasonable rates, with the proviso that 
if adequate shipping is not provided by February 
1, 1922, 
the 
President can extend the effective date as long as necessary 
to do 
so. 
The 
1981 
amendment 
is curious, 
inasmuch 
as 
the 
Secretary of Transportation obviously did not exist 
in 1922, 
and no Presidential 
action pursuant 
to the proviso was ever 
taken. 
This 
section 
is 
of 
further 
interest 
because 
it 
provides 
that "the coastwise laws of the United States shall 
not extend 
to 
the Virgin 
Islands 
... 
until 
the President 
. 
- shall, by proclamation, declare that such coastwise laws 
shall extend to the Virgin Islands. 
." 
There has been no 
Presidential 
action 
under 
this 
provision 
either--a 
matter 
discussed further below. 
Memorandum No. 
46-5 
46 App. 
U.S.C. 
883-1 
permits 
a 
U.S. 
corporation, 
engaged “in a manufacturing or mineral industry 
in the United 
States,” 
to document 
its vessels 
under 
U.S. 
law, 
but such 
vessel cannot engage 
in the coastwise trade or 
the fisheries 
except as a service to a parent or subsidiary corporation. 
46 
App. 
U.S.C. 
883a 
requires 
a 
report 
to 
the 
appropriate 
Federal 
authority 
whenever 
a 
U.S. 
documented 
vessel 
of over 
500 tons 
is rebuilt, 
or major components are 
constructed, outside “the United States, 
its Territories (not 
including trust territories), 
or its possessions." 
46 App. 
U.S.C. 
1156, 
from 
the Merchant Marine 
Act, 
1936, provides that a construction-differential subsidy is to 
be paid only with respect to vessels 
in the foreign trade, 
but 
several 
exceptions 
are 
stated, 
one 
of which 
permits 
such 
a 
subsidized vessel 
“on 
a voyage 
in 
foreign 
trade 
.. 
. 
[to] 
stop at. 
. 
. 
an island possession or island territory of the 
United States," 
but 
the revenue thereby gained results 
in 
a 
proportionate reduction of the construction subsidy. 
Cc. 1175(a), also from the Merchant Marine 
Act, 
1936, 
bars an operating-differential 
subsidy 
for vessels 
in 
the 
coastwise 
trade, 
but 
several 
exceptions 
again 
are 
stated, 
including "a voyage 
in the foreign trade on which the 
vessel 
may 
stop 
at 
.. 
. 
an 
island 
possession 
or 
island 
territory of the United States," but the vessel loses 
4 part 
of its subsidy as a result, 
the loss being measured by what is 
gained by the coastwise visit. 
46 App. U.S.C. 
1223(a), 
from the Merchant Marine Act, 
1936, 
prohibits 
the award 
of 
a subsidy 
or 
the charter 
of a 
vessel by the Secretary of Commerce 
to a contractor having an 
interest 
in companies involved 
in coastwise trade. 
Territorial 
application: 
American 
Samoa 
and 
the 
Virgin 
Islands 
are, 
by statute, 
exempt 
from 
the 
coastwise 
laws, 
and 
foreign 
vessels 
may 
thus 
carry 
passengers 
and 
merchandise 
to them 
from U.S. 
ports, 
and 
from 
them 
to 
y.S. 
ports. 
1278 
Or 
Memorandum No. 
46-5 
The exemption 
for American Samoa, 
derived 
from 
the 
Act 
of 
June 14, 
1934 
(48 
U.S.C. 
1664), 
states 
that 
the 
“provisions of law of the United States restricting to vessels 
of 
the 
United 
States 
the 
transportation 
of passengers 
and 
merchandise 
.. 
. 
from 
any 
port 
of 
the 
United 
States 
to 
another port of the United States shall not be applicable to 
the islands of American Samoa... 
." 
The Virgin Islands exemption derives, 
first, from 46 
App. U.S.C. 877, discussed above, and from section 4(d) of the 
1936 
Organic 
Act 
(48 
U.S.C. 
1405c(d)), 
which 
provides 
in 
pertinent part that-- 
the President shall have power to make 
applicable to the Virgin Islands such 
of the navigation, 
vessel inspection, 
and 
coastwise 
laws 
of 
the 
United 
States 
as 
he may find and declare 
to 
be necessary 
in the public 
interest, 
second, 
from 
the World 
War 
II 
Executive 
Order 
(No. 
9170, 
May 21, 
1942) 
by which 
the President 
did make applicable 
to 
the 
Virgin 
Islards 
“all 
of 
the 
navigation 
and 
vessel 
inspection 
laws," 
with 
certain 
exceptions, 
and 
one 
such 
exception 
is the “coastwise laws of the United States;" 
and 
finally, 
from section 8(c) of the 1954 Organic Act (48 U.S.C. 
1574(c)), which provides 
in pertinent part that the-- 
laws 
of the United States 
applicable 
to 
the 
Virgin 
Islands 
on 
July 22, 
1954, 
including those made applicable 
to the Virgin Islands 
by or pursuant 
to the 
provisions 
of 
[among 
others, 
section 
4(d) 
of 
the 
1936 
ect 
above 
quoted] 
. 
. 
. 
shall 
. 
. 
. 
continue 
in 
force 
and 
effect 
until 
otherwise 
provided by the Congress. 
Memorandum No. 
46-5 
The Attorney General 
of the United States 
stated 
in a 1963 
opinion that the effect of the 1954 law is to eliminate 
the 
President’s 
authority 
under 
the 
1936 
Act 
to 
change 
the 
application of the navigation and coastwise laws to the Virgin 
Islands (42 Op. Atty. Gen. 
189). 
Only the Congress can now do 
that. 
(That 1963 Opinion of the Attorney General held that 
the foreign dredging statute, 
codified at 46 U.S.C. 
292 and 
discussed above, 
is both a navigation and coastwise law, and 
that, 
owing 
to 
the 
Virgin 
Islands’ 
exemption 
from 
the 
coastwise laws, the foreign dredging statute does not apply to 
the 
Virgin 
Islands). 
It 
may 
be, 
however, 
that 
the 
1954 
termination 
of 
the 
President's 
authority 
to 
extend 
the 
coastwise 
laws 
to 
the 
Virgin 
Islands 
by proclamation 
is 
arguable. 
Several commentators have suggested that even 
if 
then terminated, 
the authority may have been revived by the 
1981 
amendment 
to 46 App. 
U.S.C. 
877. 
As noted above, 
that 
1981 amendment (Public Law 93-71, 95 Stat. 151, 157, August 6, 
1981) 
substituted 
"Secretary 
of 
Transportation" 
for 
the 
reference 
to “Secretary of Commerce." 
The section 
was 
not 
reenacted at length, but perhaps it may be possible to impute 
to the Congress approval of those portions of the section that 
were not changed. 
It is clear, 
in any event, 
that the Virgin Islands 
believes 
that 
its 
exemption 
from 
the 
coastwise 
laws 
is 
valuable to it. 
This was made evident in 1979, following the 
President’s transmittal on July 20, 1979, of a message to the 
Chairman of the House Merchant Marine and Fisheries Committee, 
stating in part that-- 
+ 
. 
. 
provisions 
in 
existing 
laws 
calling 
for substantial 
or exclusive 
use of American flag vessels should be 
7 re may also be that Public Law 97-357 
(1982) 
could affect 
the President’s 
authority 
to extend 
the coastwise 
laws 
to 
the 
Virgin Islands by proclamation. 
That law, designed essentially to 
amend the laws pertaining to the Virgin Islands judiciary, contains 
an amendment to 48 U.S.C. 1405c(d). 
While the amendment would not 
modify 
the language pertaining 
to the President’s 
authority, 
it 
might 
be argued 
that 
any amendment 
to that section 
revives 
the 
authority contained in it. 
1280 
291 
Memorandum No. 
46-5 
vigorously pursued, 
and exemptions in 
these laws should be reexamined. 
Soon thereafter both the President and the Secretary of the 
Interior 
received 
cabled protests 
from 
the Governor of the 
Virgin Islands and the President of the Gift Shop Association, 
stating that if the coastwise laws applied the Virgin Islands, 
transportation and freight charges would rise and the Virgin 
Islands’ 
ability 
to 
compete 
as 
a 
tourist 
area 
would 
be 
destroyed. 
(It appears that no further action has been taken 
concerning the Virgin Islands’ 
exemption). 
Unlike 
Samoa 
and the Virgin Islands, 
the Northern 
Marianas are not entirely exempt from the coastwise laws. 
The 
Northern Marianas Covenant 
(set out 
in a note 
following 
48 
U.S.C. 
1681), 
provides 
in section 503: 
The 
following 
laws 
of 
the 
United 
States, 
presently inapplicable to the 
Trust 
Territory 
of 
the 
Pacific 
Islands, 
will 
not 
apply 
to 
the 
Northern Mariana Islands 
. 
. 
.. 
(b) except 
as 
otherwise 
provided 
in 
subsection 
(b) 
of 
Section 
502, 
the 
coastwise 
laws 
of 
the 
United 
States 
Subsection 
(b) of Section 502 in turn states that-- 
The 
laws 
of 
the 
United 
States 
regarding 
coastal 
shipments 
and 
the 
conditions 
of 
employment, 
including 
the wages and hours of employees, will 
apply to the activities of the United 
States Government and its contractors 
in the Northern Mariana Islands. 
Memorandum No. 
46-5 
In early 
1981, 
the U.S. 
Customs 
Service 
held 
that 
these 
provisions 
mean what 
they say. 
In 
an opinion dated 
February 18, 
1981 
(104942 
MKT), 
the 
Director, 
Carriers, 
Drawback 
and 
Bonds 
Division, 
Customs 
Service, 
advised 
the 
Agriculture 
Department's 
Agricultural 
Stabilization 
and 
Conservation 
Service 
that 
a 
Federal 
agency 
must 
employ 
"“coastwise-qualified 
vessels 
to transport 
food 
commodities 
from the West Coast 
to the Northern Mariana Islands. 
g 
The Agricultural 
Stabilization 
and Conservation 
Service, 
in 
shipping food to the Northern Marianas under a program of the 
Food and Nutrition Service of the Agriculture Department, had 
utilized 
a foreign vessel because 
"it found 
the service on 
United States-flag vessels to be unacceptable." 
(Interior's 
files contain 
a letter from the American President Lines to 
the Secretary of Agriculture, 
in June 1980, protesting the use 
of 
a 
foreign-flag 
carrier 
to 
the 
Northern 
Marianas 
and 
presenting 
figures showing 
that 
the pertinent rates 
of 
the 
foreign carrier 
in question substantially exceeded those of 
APL). 
The effect of the 1981 Customs ruling was 
to say that 
the Agriculture Department practice of using a foreign flag 
vessel must stop. 
The 
Trust 
Territory 
is exempt 
from 
the 
coastwise 
laws. 
Its ports could not be regarded as ports of the United 
States. 
The Congress, 
in effect, 
so stated in section 503 of 
the Northern Marianas Covenant, 
quoted above. 
Guam, 
alone 
among 
the 
offshore 
areas 
herein 
considered, 
is embraced by the coastwise laws. 
Guam’s_ inclusion 
- 
a statutory conflict: 
Those who 
deal 
with 
the vessel 
documentation 
laws, 
particularly 
the 
Customs Bureau and the Coast Guard, 
have, 
they report, 
long 
been plagued by the difficulty 
involved 
in reconciling 
the 
coastwise laws as they apply to Guam (46 App. U.S.C. 877, 883) 
with 
the special provision 
of the vessel documentation 
laws 
that applies to Guam (46 U.S.C. 
11).3 
3 phe law that appeared at 46 U.S.C. 
11, which later became 
46 U.S.C. 
65h, 
has been replaced 
in the new codification 
by 46 
(continued...) 
1282 
293 
Memorandum No. 46-5 
~-Under 
46 App. 
U.S.C. 
883, 
foreign-built 
vessels 
cannot engage in the ccastwise trade; 
--Under 
46 
App. 
U.S.c. 
877, 
the 
Territories 
and 
possessions are included in the coastwise trade; 
but 
--Under 46 App. U.S.C. 
11 , such foreign-built vessels 
may be documented under U.S. law if they are to engage only in 
trade with Guam, Tutuila, Wake, Midway, and Kingman Reef; but 
also 
--Such 
a 
foreign-built 
vessel, 
authorized 
to 
be 
employed in trade with Guam and the other four named islands, 
cannot be employed in the coastwise trade. 
Customs and the Coast Guard have proceeded to read 46 
U.S.C. 
11 as carving out an exception to the coastwise laws, 
so that foreign-built, U.S.-documented vessels May engage in 
the coastwise trade between the States and Guam. 
They have 
ee 
¥(...continued) 
U.S.C. 
12105(b). 
That 
section 
is discussed 
in some 
detail 
in 
Memorandum No. 
46-1. 
It provides in full: 
A vessel 
for which a registry endorsement 
is 
issued 
may 
be employed 
in foreign 
trade 
or 
trade with Guam, American Samoa, Wake, Midway, 
or Kingman Reef. 
The earlier section 
11 
(and 65h) contained substantially the same 
provision. 
Accordingly, 
the conundrum 
above 
discussed 
probably 
continues, 
but "46 U.S.C. 
11" should, 
now be read as 
"46 U.S.C. 
12105(b)." 
¥ The former 46 U.S.C. 
11 explicitly so provided. 
Currently 
46 U.S.C. 
12105(b) and 12106(b) 
together have that effect. 
1283 
9a4 
Memorandum No. 46-5 
also 
concluded 
that 
the 
exception 
permits 
foreign-built, 
U.S.-documented 
vessels 
to be used 
in service 
between 
two 
points 
in Guam, 
and between 
a point in Guam on a "voyage 
to 
nowhere'' and back to the same point. 
(Coast Guard memoranda 
of January 27, 
1982, 
16215, 
and March 23, 
1982, 
16214). 
There 
is, 
however, 
sentiment 
for 
statutory 
clarification of these matters. 
Guam’s 
inclusion 
- 
the 
poJ.icy 
question: 
In 
the 
belief 
that 
the 
application 
of 
the 
coastwise 
laws 
causes 
increased 
costs 
in 
Guam--a 
proposition 
not 
universally 
accepted (see below)--spokesmen for Guam for many decades have 
urged that Guam be made exempt from the coastwise laws. 
The 
1950-51 Commission of the Application of Federal Laws to Guam 
so recommended 
(H. Doc. 
212, 
82d Congress, 
p. 
11, 
item 13), 
but when the Interior Department later initiated legislation 
to implement 
that Commission’s recommendations, 
it excluded 
the coastwise 
laws. 
(See P.L. 
896, 
84th Congress, 
70 Stat. 
908, 
and 
its legislative history.) 
Interior did so on 
the 
ground 
that 
the 
issue 
of 
the 
coastwise 
laws 
was 
so 
controversial that a proposal on the subject would jeopardize 
enactment of the other, 
desirable implementing legislation. 
Requests 
from 
Guam 
for 
exemption 
have 
grown 
more 
strident 
in 
recent 
years, 
the 
contention 
being 
that 
the 
continued 
application 
to 
Guam 
of 
the 
coastwise 
laws 
constitutes 
a 
"Federal 
constraint" 
to 
Guam’s 
economic 
development. 
Some Guam spokesmen have argued that the current 
state 
of 
affairs 
represents 
a conscious 
Federal 
policy 
to 
restrain Guam’s economic progress. 
In 
a letter 
dated 
June 1, 
1979, 
to Interior, 
the 
Acting Governor of Guam argued: 
--that Guam pays "probably the highest cargo rates in the 
world for surface shipping," owing to the application of 
the coastwise laws; 
1284 
9a5 
Memorandum No. 
46-5 
--that by way of comparisons in the costs of some goods, 
U.S. 
Guam 
Douglas fir lumber 
$ 0.35 per board ft 
$ 
0.54 
Bathtub 
$89.00 
$133.00 
Lettuce 
$ 0.32 
$ 
0.60 
Potatoes 
$ 0.16 
$ 
0.27 
--U.S. 
shipping 
strikes 
have resulted 
in Guam’s 
being 
deprived of cargo service 
for periods up to 60 days, 
a 
condition that would not exist 
if foreign vessels could 
serve it from U.S. ports.?/ 
On 
the other 
hand, 
in 
a July 
1980 
report 
by the 
Division of Marine Plans, Office of Policy and Plans, Federal 
Maritime Administration 
(then of the Department of Commerce, 
now of the Department 
of Transportation), 
the conclusion 
is 
reached that if Guam were made exempt from the coastwise laws, 
"foreign flag rates in the U.S.-Guam trade would probably not 
be lower than for U.S.-flag carriers." 
The Maritime study, 
entitled 
"Impact 
of 
Excluding 
Guam 
from 
U.S. 
Cabotage 
Requirements," states in part: 
~-The bar to the transportation of passengers on foreign 
vessels 
is of only slight 
importance 
to Guam, 
because 
only 
3% 
of 
Guam’s 
tourists 
arrive 
by 
ship; 
even 
if 
exemption 
from the coastwise 
laws were 
to encourage 
a 
cruise 
trade 
for 
Guam, 
this 
would 
be largely Japanese 
traffic 
and 
the 
economic 
return 
would 
go 
largely 
to 
Japan, 
not Guam. 
--Apart from the coastwise laws, the Cargo Preference Act 
of 1904 
(10 U.S.C. 
2631) requires that all supplies for 
¥ The Maritime Administration points out informally that this 
argument has had no validity 
in recent years. 
Since about 
1968 
there have been 
no maritime disputes 
that could have interfered 
with the delivery of good to Guam. 
1285 
9938 
CC ee 
Memorandum No. 
46-5 
the U.S. 
Armed Services be carried on vessels owned by 
the 
U.S. 
or 
documented 
under 
U.S. 
law, 
and 
because 
one-half 
of 
Guam’s 
outgoing 
cargo 
is 
military, 
and 
one-third 
of 
its 
incoming 
is military, 
the 
amount 
of 
cargo 
that 
could 
benefit 
from 
an 
exemption 
is 
substantially reduced. 
-~-In peacetime, the military relies largely on commercial 
vessels to carry military cargo, and given the amount of 
military 
traffic 
to Guam, 
plus 
the fact that domestic 
carriers provide service to Guam as part of their service 
to the Far East, an exemption for Guam from the coastwise 
laws would be unlikely 
to result 
in reduced service by 
U.S. vessels to Guam, 
or in a different rate structure. 
~-Because service to American Samoa (which is exempt from 
the coastwise laws) by foreign flag vessels is "compara- 
ble" to service to Guam, rates for foreign-flag service 
from the 
U.S. 
West Coast 
to Samoa, 
and for U.S. 
flag 
service from the U.S. West Coast to Guam, are compared, 
viz, 
Guam 
Samoa 
Rice 
$62-$74 per ton bag 
$ 75.00 
Motor vehicles 
$ 78.80-$ 86.95 per ton 
$109.00 
Cargo NOS 
$110.50-$121.95 per ton 
$109.00 
Meat and 
$272.90 per ton meat 
$190.00 (chilled) 
Vegetables 
$152.45 per ton 
vegetables 
$218.00 (frozen) 
Notwithstanding 
these 
figures, 
the 
Maritime 
Administrative report stated that they show that “foreign flag 
rates 
to Guam 
from 
the U.S. 
would probably 
be higher than 
current 
U.S.-flag 
rates 
even 
if cabotage 
restrictions 
were 
lifted." 
The report states that foreign carriers might offer 
low 
rates 
initially 
"to 
lure 
business 
away 
from 
U.S. 
operators," but they would probably later raise them to become 
"compensatory." 
The report further states that "it is clear 
that U.S.-flag rates are now very competitive, and it does not 
1286 
2a? 
Memorandum No. 
46-5 
seem 
likely 
that 
Guam 
would 
benefit 
from 
lower 
rates 
if 
cabotage restrictions were removed." 
Finally, 
a 
later 
report 
by private 
consultants, 
engaged by the Guam Port Authority, reaches the same ultimate 
conclusion, but for somewhat different reasons. 
In April 1982 
the firm of Simat, Helliesen & Eichner recommended against any 
effort 
to amend 
the Jones Act to exclude Guam. 
Its report 
states 
that 
the present arrangements 
"have given Guam both 
excellent service and reasonable rates." 
A revision of the 
Jones Act, so as to permit foreign competition, could possibly 
result in the best of all worlds, with frequent and reliable 
service accompanied by low rates, but the consultants think it 
more likely that the action-- 
{1) would probably in fact entice foreign competition 
into the Guam service; 
(2) might or might not result in reduced service by 
U.S. 
carriers, 
because on 
the one hand the Military Sealift 
Command would continue to have transportation requirements for 
which 
it is required by law to pay commercial rates, 
but on 
the other hand either or both of the current 
U.S. 
carriers 
might 
"drop 
out 
of 
the 
trade” 
in 
the 
face 
of 
foreign 
competition; 
(3) would probably not result in lower rates to Guam, 
(a) because current rates to Guam are reasonable, owing to the 
current state of the law which requires that military cargoes 
Pay 
their own way, 
thereby precluding the subsidization 
of 
military 
cargoes 
by commercial 
cargoes; 
and 
(b) because 
a 
comparison of current rates from the States to Guam with those 
from 
the 
States 
to various 
foreign 
points 
where 
there 
is 
foreign-flag 
competition 
(i.e., 
Yokohama, 
Manila, 
Okinawa) 
shows the former to be for the most part substantially lower, 
so there is no reason to suppose that foreign-flag competition 
to Guam would result in reduced rates. 
In sum, 
the report concludes that the "risks of revising the 
Jones 
Act 
would 
appear 
to 
be 
more 
formidable 
than 
the 
1287 
993 
Memorandum No. 
46-5 
potential 
benefits." 
The 
report 
also 
states 
that 
the 
legislation 
would 
be 
extremely 
difficult 
to 
achieve: 
the 
political opposition from maritime 
labor, 
the ship building 
industry, 
and 
domestic 
carriers 
would 
be 
"vigorous 
and 
effective." 
Moreover, 
the President committed himself during 
the 1980 campaign to "preserving the integrity of the Jones 
Act. 
In 
its 
comments 
on 
this 
subject, 
the 
Navy 
has 
predicted that if Guam were exempt from the Jones Act, service 
by U.S. 
vessels would probably continue approximately 
as at 
present, but reduced rates would be unlikely. 
Even if reduced 
rates were likely to result, however, the Navy speculates that 
it would probably oppose Guam’s exemption, on the ground that 
a strong 
U.S merchant marine 
is important 
to the national 
defense, and legislation to exempt Guam would be perceived as 
a lessening of support for the U.S-flag merchant fleet. 
In 
briefing 
papers 
prepared 
by 
a 
group 
of 
Guam 
businessmen 
for 
a White House conference 
in April 1982, 
the 
businessmen concluded that Guam should not seek an exemption 
from 
the 
Jones 
Act. 
Their reasoning 
was 
similar 
to 
that 
contained 
in the consultants’ 
report, 
summarized above. 
The 
businessmen stated that Guam could "stand to lose more than it 
gains 
in blindly demanding relief from this alleged Federal 
constraint 
."&/ 
§ As of September 1992, the position of the Government of Guam 
had become 
clear: 
It supported 
Guam’s 
full 
exemption 
from 
the 
coastwise 
laws. 
The proposed Guam Commonwealth 
Act 
(H.R. 
98), 
which was endorsed by a popular referendum 
in Guam, 
contains only 
a partial exemption 
(i.e., 
for 
"fish 
and 
fish products" 
only). 
Nevertheless, 
in formal discussions with Federal representatives on 
the content of the Commonwealth proposal, 
the Guam Commission on 
Self-Determination 
has 
supported 
a full exemption. 
In a strong 
statement 
by the Governor 
of Guam, 
presented 
at a session 
with 
Federal 
representatives 
in San Francisco 
on April 25, 
1991, 
the 
Governor stated in part: 
(continued...) 
1288 
90g 
Memorandum No. 46-5 
Conclusion: 
No 
useful 
purpose 
would 
be 
served 
by offering 
a 
recommendation here as to whether Guam should be accorded an 
exemption 
from the coastwise 
laws, 
either 
total 
(as 
in the 
case of the Virgin Islands and Samoa) 
or partial 
(as in the 
case of the Northern Marianas). 
Obviously arguments 
for an 
exemption, 
based 
upon 
both economics 
and 
fairness, 
can 
be 
made. 
But the Federal Executive Branch has been unable 
to 
support that result in recent years 
(as it was also unable to 
do in the early 1950's, as stated above). 
It is conventional 
wisdom that the Congress views the coastwise laws as close to 
Sacrosanct. 
The problem is, thus, 
at least intractable. 
Federal 
nc 
8: 
Comments 
were 
invited 
from 
the Depart 
ments of Commerce, 
Defense, 
Justice, 
State, 
Transportation, 
and the Treasury. 
All comments received have been reflected 
above. 
re 
W.. - continued) 
A comparison of certain shipping rates between 
the U.S West Coast 
and Guam with rates 
for 
identical 
cargoes 
from 
the 
West 
Coast 
to 
points 
beyond 
Guam, 
can 
be 
very 
revealing. 
For example, 
in the category of plastic pipes 
and fittings, 
the rate to Guam is $5,258 for a 
forty-foot 
container 
while 
the rate 
for 
the 
same 
cargo 
to 
Taiwan 
on 
a 
ship 
that 
first 
stops in Guam--is only $1,949.60. 
In the area 
of 
office 
supplies, 
the 
rate 
for 
Guam 
is 
$3,817 
for a twenty-foot container, 
but only 
$889 
for 
the 
same container 
to Japan. 
For 
furniture, 
the 
tariff 
for 
a 
twenty-foot 
container to Guam is $4,400, but the same load 
sent 
to Taiwan, 
1,500 miles beyond Guam, 
and 
once again sent on the same ship that stops at 
Guam, 
will only cost you $2,447.40 
from 
the 
West Coast. 
Since we are 
talking about ocean 
shipping, 
I 
almost hesitate to say this, 
but something is 
fishy here. 
1289 
i) 
Subject: 
(a) 
(b) 
(c) 
(d) 
(e) 
(£) 
(g) 
(h) 
Y ghe 1992 revision of material appearing in this memorandum 
has been largely confined to the deletion of material now contained 
in the portion of Title 46 that has been enacted into positive law, 
and in the addition of the discussion of the 1989 Misch decision in 
(e). 
Accordingly, this material is in large measure in the form it 
appeared when the pertinent Departments were asked to comment on it 
in 1982. 
Memorandum No. 46-6 
January 1982 
Revised June 1982 
Revised September 1992” 
Regulation of Vessels 
in Domestic Commerce 
Title 46 Appendix, Chapter 12 (46 App. U.S.C. 
306- 
336) 
Passports 
and Papers of Vessels Engaged in Foreign 
Commerce 
Title 
46 Appendix, 
Chapter 
13 
(46 App. U.S.C. 
354- 
355) 
Inspection of Steam Vessels 
Title 
46 Appendix, 
Chapter 
14 
(46 App. U.S.C. 
441- 
444, 446-446(c) 
Transportation 
of 
Passengers 
and 
Merchandise 
by 
Steam Vessels 
Title 46 Appendix, Chapter 
15 (46 App. 
U.S.C. 
466c) 
Merchant Seamen 
Title 
46 Appendix, 
Chapter 
18 
(46 App. U.S.C. 
674- 
677, 
688) 
Wrecks and Salvage 
Title 46 Appendix, 
Chapter 
19 (46 App. U.S.C. 
721- 
738d) 
Admiralty and Maritime Jurisdiction 
Title 46 Appendix, Chapter 19A (46 App. U.S.C. 
740) 
Suits in Admiralty 
Title 
46 Appendix, 
Chapter 
20 
(46 App. 
U.S.C. 
741- 
752) 
1290 
:301 
po 
es 
Memorandum No. 
46-6 
(i) Death on the High Seas 
Title 46 Appendix, Chapter 21 
(46 App. U.S.C. 
761- 
767) 
(j) Suits in Admiralty against the u.s. 
Title 
46 Appendix, 
Chapter 
22 
(46 App. 
U.S.C. 
781- 
790) 
Comments: 
Many 
of 
the 
laws 
considered 
in 
this 
memorandum 
are 
either 
of little importance 
to the territories, 
or pose 
no 
Problems 
to 
them. 
But 
several 
that 
involve 
admiralty 
at (e), 
(g), 
(h), and {i)--ought to be amended to provide for 
jurisdiction in american Samoa. 
Discussion: 
(a) Much of the chapter entitled Requlation of Vessels 
in Domestic Commerce (46 App. U.S.C. 251 et seq.) was repealed 
in connection with the Title 46 codification (Memorandum No. 
46-1), or earlier, but two important sections are discussed at 
some 
length 
in 
other 
memoranda 
(46 
App. 
U.S.C. 
251 
in 
Memorandum 
No. 
46-4, 
316 
in No. 
46-5). 
The 
sections 
that 
remain (including 46 App. U.S.c. 
306-315, 
319-324, 
327) are 
for 
the most part either obsolete 
(having 
been enacted 
in 
1793) or irrelevant (because they relate solely to Alaska, or 
to "inland transportation," or the like). 
In any event, none 
appear 
to 
require 
modification 
to 
meet 
the 
needs 
of 
the 
territories. 
(b) The statutes pertaining to the delivery to U.S. 
consular officers 
of 
pas 
and_ 
papers 
of U.S. 
vessels 
arriving 
in 
foreiqn ports 
(46 
App. 
U.S.C. 
354-355) 
are 
irrelevant to the territories. 
{c) The once substantial chapter entitled Inspection 
of Steam Vessels has almost wholly been repealed (and enacted 
into positive law), with only 46 App. U.S.C. 
441-444 and 446- 
446c remaining. 
The first of these provides exemptions from 
certain 
Federal 
statutory 
requirements 
to 
oceanographic 
research 
vessels 
and their scientific 
personnel, 
while 
the 
latter sections provide similar exemptions to sailing school 
vessels, 
their instructors and students. 
It seems probable 
1291 
202 
Memorandum No. 
46-6 
that either kind of vessel in the watere of a territory would 
qualify 
for 
such 
exemptions. 
No 
explicit 
geographic 
limitations appear in the cited sections. 
(d) The 
only 
section 
remaining 
of 
Chapter 
15 
on 
Transportation of Passengers and 
Merchandise by Steam Vessels 
(46 App. U.S.C. 
466c) bars the export of a horse "by sea from 
the United States, 
or any of its territories or possessions" 
unless 
a 
waiver 
has 
been 
granted 
by 
the 
Secretaries 
of 
Commerce 
and Agriculture. 
(The purpose 
of 
the 
law 
is 
to 
prevent the exportation of horses "for purposes of slaughter" 
(46 App. U.S.C. 
466c(b)). 
Obviously the shipment of a horse 
from a territory to a foreign country would be subject to the 
bar in question. 
(e) A 
few 
sections 
pertaining 
to 
Merchant 
Seamen 
remain (46 App. U.S.C. 
674-677), mostly dating from the early 
years 
of 
the 
19th 
century, 
with 
all dealing 
with 
lists 
of 
crewmen on vessels sailing to or from foreign ports and the 
customs collector’s duties concerning them. 
It is probable 
that these laws do not apply to voyages from territorial ports 
to foreign points. 
A law concerning seaman recovery for injury or death 
(46 App. U.S.C. 
688) 
is of substantial importance, 
has given 
rise 
to mountains 
of litigation, 
and has 
lately 
been held 
applicable 
to the Northern Mariana--on which basis it can be 
viewed as clearly applicable 
as well to the Virgin Islands, 
Guam, 
and Samoa. 
This 
is as it should be. 
The law in question, 
enacted in 1915 and amended 
as 
recently 
as 
1982, 
is part of yet another 
law known 
as 
the 
Jones 
Act. 
It permits 
a seaman 
who has suffered personal 
injury in his employment to obtain damages ina jury trial, on 
the same basis as railway employees under Federal law; and it 
permits his personal representative 
to do so in the case of 
the death of a seaman. 
Jurisdiction 
is in the court of the 
district in which the defendant employer resides, or where his 
priicipal office is located 
(46 App. U.S.C. 
688(a)). 
1292 
£43 
Memorandum No. 46-6 
Apparently 
the only case to arise under this law in 
any of the areas that are the Subject of this study is Misch 
Federal 
law 
pertaining 
to 
railway 
employees, 
which 
is 
incorporated 
by reference 
in 
46 
App. 
U.S.C. 
688, 
itself 
applies 
to 
"Territories" 
and 
"possessions 
of 
the 
United 
States" 
(45 U.S.c. 
52); 
(2) such railway law applies to Guam, 
as 
the 
1950 
Guam 
Commission 
concluded 
(citing 
research 
Prepared 
for 
it 
and 
Published 
in 
1952 
as 
a Congressional 
Committee Print), and as did researchers for the 1985 Northern 
Marianas 
Federal Laws Commission, 2/ and, 
therefore, 
the law 
applies 
to 
the Northern Marianas, 
by operation 
of section 
502(a)(2) 
of the Covenant; 
and 
(3) as amended, 
the section 
itself refers to “territories, or possessions" (46 App. U.S.C. 
688(b)(1)(B))--this in the context of the continental shelf-- 
which 
shows 
a 
legislative 
awareness 
of 
these 
areas. 
In 
2 tt is gratifying to a governmen* lawyer, 
particularly one 
engaged in research concerning the application of Federal laws to 
insular areas, 
to note the deference 
the Court of Appeals paid in 
the Misch decision, 
at Page 630, 
to unpublished research by the 
staff of the Northern Marianas Commission. 
The Northern Marianas 
Commission 
came 
to 
a 
sudden 
end, 
one 
not 
anticipated 
by most 
associated with it, when its funding expired and was not renewed in 
1985. 
The Commission's 
staff 
had completed 
considerable 
iegal 
research which it had recorded in a series of memoranda, 
but those 
memoranda had not been Presented to the Commission, 
had of course 
not 
been 
acted 
upon 
by the 
Commission, 
and 
were 
not 
entirely 
finished 
products, 
having 
not 
been 
reviewed 
in 
the 
standard 
bureaucratic manner. 
When the Commission went out of business, 
these memoranda 
were 
collected, 
reproduced, 
and 
bound 
in three 
loose-leaf 
notebooks, 
a 
few sets 
of which 
were 
distributed 
to 
persons who might find them of value. 
One set obviously came to 
the attention 
of the Ninth Circuit, 
to its benefit. 
The court 
cites this work, in connection with 46 App. U.S.C. 688, as "3 Legal 
Analysis of Selected Titles of the United States Code: 
Research by 
the Staff of the Northern Mariana 
Islands Commission 
on Federal 
Laws 74 (1985)" (a correct citation). 
It is encouraging that this 
work lives on, 
for it was skillfully executed. 
It is often cited 
as 
"unpublished 
research 
by the 
staff 
of 
the Northern 
Marianas 
Commission" in this study. 
1293 
2204 
ee 
ee 
eo 
Memorandum No. 46-6 
response 
to the argument 
that 
because 
the Commonwealth 
of 
Puerto Rico had been held beyond the reach of this section of 
the Jones Act, so too should the Commonwealth of the Northern 
Marianas, 
the Misch 
court point out that 
the Puerto Rican 
result was based 
on 
a particular Federal 
law applicable 
to 
Puerto 
Rico 
only 
(48 
U.S.C. 
749), 
and 
that 
because 
the 
Northern 
Marianas 
was 
not 
the 
subject 
of 
any 
similar 
treatment, 
the result was different as to it. 
The 
decision 
seems 
unarguab:y 
correct, 
and 
its 
language would comprehend Guam, the Virgin Islands, 
and Samoa 
| 
as well. 
(It should 
be noted 
that 
the Commission 
on 
the 
Application of Federal Laws to the Virgin Islands concluded, 
in its 1956 report, 
that 46 U.S.C. 
688 applied to the Virgin 
Islands 
(Committee Print 
No. 
7, 84th Cong., 
p. 
23).) 
The 
court jurisdiction provision, however, would not extend 
to a 
vessel 
owner living 
in or having his office 
in Samoa, 
so a 
Samoan 
seaman 
employed 
on 
such 
a _ vessel 
would 
be 
disadvantaged. 
It would be well if the language at 46 App. 
688(a) were expanded to remedy this deficiency. 
{f) The laws concerning Wrecks and Salvage 
(45 App. 
U.S.C. 
721-738d)--designed 
to encourage voluntary action 
to 
assist vessels in peril on the sea--are without geographical 
limitations, except to the extent that the waters off Florida 
and iceberg areas 
of the North Atlantic 
are 
the subject of 
special legislation. 
(g) The 
statute 
concerning 
admiralty 
and 
maritime 
jurisdiction 
for damage caused 
by a vessel 
that results 
in 
injury 
on land 
(46 App. 
U.S.C. 
740) 
affects 
the admiralty 
jurisdiction of the district courts of the U.S., and thus the 
jurisdiction 
of the District Courts 
in the Virgin Islands, 
Guam, 
and the Northern Marianas. 
It could appropriately be 
modified to accommodate American Samoa. 
(h) The statute concerning suits in admiralty by or 
against 
vessels 
or 
cargoes 
of 
the 
United 
States 
(46 App. 
U.S.C. 741-752) also affects the admiralty jurisdiction of the 
district courts, and thus of the District Courts in the Virgin 
Islands, 
Guam, 
and the Northern Marianas. 
These laws waive 
1294 
295 
Memorandum No. 
46-6 
sovereign immunity and thus expand the courts’ 
jurisdiction. 
It, 
too, 
could 
appropriately 
be 
modified 
to 
accommodate 
American Samoa. 
(i) The 
seaman’s 
wrongful 
death 
statute, 
entitled 
Death 
on the High Seas by Wrongful Act (46 App. U.S.C. 
761- 
767) 
permits 
suits 
in 
admiralty 
in 
the 
Federal 
District 
courts. 
Inasmuch 
as 
aliens 
can 
benefit 
from 
this 
law, 
noncitizen nationals of Samoa can also expect to be able to do 
so, 
but 
the 
absence 
of 
a 
Federal 
district 
court 
with 
jurisdiction in Samoa could clearly inhibit their benefitting 
from this 
law. 
The problem of court 
jurisdiction 
in Samoa 
should be corrected. 
(3) The law concerning suits in admiralty against the 
United 
States 
for damages caused by public 
vessels 
or 
for 
win 
ir 
lv: 
servi 
(46 
App. 
U.S.C. 
781-790) 
also 
involves a waiver of sovereign immunity and an expansion of 
the admiralty jurisdiction of the district courts, 
including 
those in the Virgin Islands, Guam, and the Northern Marianas. 
The U.S. District Courts would be available to the people of 
Samoa 
(46 App. U.S.C. 
782). 
Conclusion: 
Most of the laws discussed above require no modifica 
tion to accommodate the territories, 
but those considered at 
(e), (g), (h), and (i) ought to be modified to provide a forum 
in American Samoa. 
Each of these now restricts jurisdiction 
to the district courts of the United States. 
leral 
mn 
comments: 
Comments were invited 
in 1982 
from the 
Departments 
of 
Justice, 
Labor, 
Transportation, 
and 
the 
Treasury 
on 
the 
above 
portions 
of 
Title 
46. 
Because 
of 
changes 
in the title since 
then, 
much of the foregoing has 
been 
rewritten, 
but 
in 
a manner 
consistent 
with 
comments 
received in 1982. 
1295 
Memorandum No. 
46-7 
December 1981 
Revised June 1982 
Revised September 1992 
Subject: 
The Shipping Act, 1916 
Title 46, Chapter 23 (46 App. U.S.C. 
801-842) 
The Intercoastal Shipping Act, 
1933 
Title 46, Chapter 23A (46 App. U.S.C. 843-848) 
Purpose: 
To provide for the regulation of the rates and practices 
of common carriers by water in interstate commerce. 
Territorial 
application: 
The 
Shipping 
Act, 
1916, 
and 
the 
Intercoastal 
Shipping 
Act, 
1933, 
apply 
to American 
Samoa, 
Guam, the Northern Marianas, 
and the Virgin Islands. 
Neither 
statute applies 
to the Trust Territory. 
Recommendation: 
These laws require no change, but see the Conclu- 
sion below for a suggested improvement. 
Discussion: 
Substance of the statutes: 
The Shipping Act, 1916, vests in the Federal Maritime 
Commission and the Secretary of Transportation 
a variety of 
powers 
concerning 
transportation 
in interstate 
commerce 
by 
common carriers by water. 
Principally, 
the statute bars in 
interstate commerce certain rebates, unfair or discriminatory 
practices 
(46 
App. 
U.S.C. 
812), 
and 
discriminatory 
or 
prejudicial rates (46 App. U.S.C. 816); it requires the filing 
with the Commission of contracts between carriers concerning 
Y the December 
1992 
revision 
has 
involved 
the 
updating 
of 
citations, and the elimination of references to the jurisdiction of 
the Maritime Commission over transportation by water between 
the 
United States (including its territories) and foreign ports. 
That 
jurisdiction 
was terminated 
by Public 
Laws 98-237 and 98-595 
in 
1984, 
1296 
:297 
Memorandum No. 46-7 
rates 
or concerning 
any other "exclusive, 
preferential, 
or 
cooperative 
working 
arrangement," 
and 
authorizes 
the 
Commission 
to disapprove, 
cancel, 
or modify such agreements 
(46 App. U.S.c. 
814); 
and it requires interstate carriers to 
establish just and reasonable rates and to file them with the 
Commission, 
and 
it authorizes 
the Commission 
to determine 
whether they are 
just and reasonable 
and to modify them 
as 
necessary 
(46 App. U.S.C. 817(a)). 
The 
Shipping 
Act 
also 
requires 
the 
Secretary 
of 
Transportation 
(and 
the 
Maritime 
Administration 
of 
that 
Department) to investigate the relative costs of constructing 
merchant 
vessels 
in the U.S. 
and 
in 
foreign countries, 
to 
examine 
the 
navigation 
laws 
of 
the 
U.S. 
and 
make 
recommendations to the Congress for their improvement, 
and to 
report annually 
to the Congress 
on these and other subjects 
(46 App. U.S.C. 
811). 
The Intercoastal Shipping Act, 
1933, requires every 
“common carrier by water in intercoastal commerce” to file its 
rates 
with 
the 
Commission 
(46 
App. 
U.S.C. 
844), 
and 
the 
Commission 
is 
empowered 
to 
Suspend 
rates 
that 
it 
finds 
unlawful and to fix just and reasonable rates (46 App. U.S.C. 
845a). 
Both of the shipping acts were in part superseded in 
1940 by the enactment of Part III of the Interstate Commerce 
Act, 
which 
vests 
in 
the 
Interstate 
Commerce 
Commission 
regulatory authority over transportation performed by certain 
water carriers. 
(See Memorandum No. 49-2). 
The complexities 
of 
the 
division 
of 
jurisdiction 
between 
the 
Maritime 
Commission 
and 
the 
ICC 
with 
respect 
to 
the 
regulation 
of 
common 
carriers 
by 
water 
are 
beyond 
the 
scope 
of 
this 
memorandum, and in any event they present no unusual problems 
to the territories. 
Geographical application: 
The 
explicit 
language 
of 
the 
Shipping 
Act, 
1916, 
makes 
clear 
its 
application 
to 
the 
territories, 
and 
its 
1297 
2893 
Memorandum No. 
46-7 
nonapplication to the Trust Territory. 
The statute applies to 
common 
carriers 
by water 
in interstate 
commerce, 
and 
this 
phrase means common carrier transportation on regular routes-- 
--from port 
to port between 
one 
State, 
Territory, 
District, 
or possession 
of 
the 
U.S., 
and 
any 
other 
State, 
Territory, 
District, 
or possession of the U.S.; and 
--between places in the same Territory, District, or 
possession (46 App. U.S.C. 
801). 
Many Federal regulatory statutes, 
in addition to the 
Shipping Act, 1916, grant to the regulating agency authority 
to regulate within a territory, as well as between a State and 
a territory. 
Federal 
regulation 
within 
a State 
would 
be 
barred 
by 
the 
Commerce 
Clause 
of 
the Constitution. 
The 
language 
just 
referred 
to 
gives 
to 
the 
Federal 
Maritime 
Commission 
authority 
to 
regulate 
intraterritorial 
water 
transportation 
in 
the 
Virgin 
Islands, 
Guam, 
and 
American 
Samoa, 
but 
it does 
not 
have 
that 
effect 
in 
the Northern 
Mariana 
Islands. 
By operation 
of section 
502(a)(2) 
of the 
Covenant, 
the 
Shipping Act, 
1916, 
applies 
to the Northern 
Marianas, but given the language of that section, 
it does so 
ne cae same 
manner 
as 
it 
is 
“applicable 
to 
the 
several 
States. 
Elsewhere 
in the Shipping Act, 
1916, 
and the later 
additions 
to it, 
there 
is continued evidence 
of the careful 
drafting that makes clear the full application of the Act to 
the current 
territories. 
For example, 
46 App. U.S.C. 815 contains language, added in 1961, 
that 
permits 
the 
filing 
with 
the 
Maritime 
Commission 
of 
complaints 
of unjust discrimination by "the Governor of any 
State, Commonwealth, 
or possession of the United States." 
46 App. U.S.C. 817e(b), added in 1966, provides that 
if 
a bond 
is to be filed with 
the Commission, 
the bonding 
company 
must 
be authorized 
to do business 
in, 
among other 
1298 
289g 
Memorandum No. 
40-7 
areas, "the Commonwealth of Puerto Rico, the Virgin Islands or 
any territory or possession of the United States." 
46 
A 
-S.€. 
819, which dates from 1916, pertains 
to the disclosure of information "to any officer or agent of 
the 
Government 
of 
the 
United 
states, 
or 
of 
any 
State, 
Territory, 
District, 
or possession thereof .. 
.". 
46 
App. 
U.S.C 
829, 
also 
from 
1916, 
concerns 
enforcement and refers to courts of general jurisdiction in "a 
State, 
Territory, 
District, 
or 
possession 
of 
the 
United 
States." 
All of the quoted phrases, 
and others like them elsewhere in 
Chapter 23 of Title 46, Appendix, 
are sufficient to comprehend 
the four current territories.2/ 
The 
Intercoastal 
Shipping 
Act, 
1933, 
presents 
a 
different situation, 
but the 
same result occurs. 
That Act 
provides for the regulation of every "common carrier by water 
in intercoastal commerce," a term defined when the statute was 
enacted 
in 1933 
to mean common 
and contract carriers 
that 
transport passengers 
or property "between 
one State 
of the 
United States and any other State of the United States by way 
of 
the 
Panama 
Canai" 
(46 
App. 
U.S.C. 
843(1)). 
The 
term 
2/ & further section of the Shipping Act, 
46 App. U.S.C. 
834, 
permits the Secretary of the Treasury to deny clearance to a vessel 
that has refused to accept cargo tendered by a U.S. citizen. 
The 
Northern Mariana Islands Commission on Federal Laws in its January 
1982 report to the Congress recommended that legislation be enacted 
to provide that for purposes of that section (then 46 U.S.C. 834), 
citizens of the Northern Marianas be deemed to be citizens of the 
United States. 
That recommendation has become moot in light of the 
termination of the Trusteeship Agreement and the effectiveness of 
the citizenship provisions of the Covenant. 
The term would as well 
exclude noncitizen nationals 
in American Samoa. 
If a need for a 
change in the law to include them were made known, then that should 
be done, 
but 
in its 
absence, 
it is perhaps 
enough 
to state 
the 
point and pass it by. 
1299 
RL 
Memorandum No. 
46-7 
"State" was and is undefined. 
But a later section, 
added in 
1938, 
extends 
the 
Intercoastal 
Shipping 
Act 
to all 
common 
carriers 
by water 
in interstate commerce, 
as defined 
in the 
Shipping Act, 1916 (46 App. U.S.C. 
845b), and as shown above, 
the 
current 
territories 
are 
clearly 
included 
in 
that 
definition. 
The United States District Court in Puerto Rico 
explicitly so held with respect to traffic between the States 
and Puerto Rico 
(Federal Insurance Co. 
v. Transconex, 
Inc., 
430 F. Supp. 
290, at 296 (1976)), and the United States Court 
of Appeals 
for 
the District 
of Columbia 
has 
also done 
so 
{Commonwealth 
of Puer'! 
Ri 
v. 
Fed. 
Maritime Comm., 
468 F.2d 
872, 
at 
873 
(1972)). 
The territories 
and 
Puerto 
Rico 
are 
given 
the 
same 
treatment 
by 
these 
two 
statutes, 
so 
the 
coverage of the territories is beyond argument. 
Further support for this conclusion, as it applies to 
one 
area, 
appears 
in 
a 1978 
letter 
in Interior 
Department 
files 
from 
the 
General 
Counsel 
of 
the 
Federal 
Maritime 
Commission, 
stating his opinion that the Shipping Act, 
1916, 
applies to the Northern Marianas. 
(Letter of October 3, 1978, 
to Interior’s Assistant 
Solicitor 
for Territories.) 
He so 
concluded on the basis of section 502(a)(2) 
of the Northern 
Marianas Covenant. 
The Assistant Solicitor 
for Territories 
subsequently (October 20, 1978) advised that the Intercoastal 
Shipping Act, 
1933, 
also applies 
to the Northern Marianas. 
Lest the application to the territories of these two 
statutes be thought 
to be affected by the coastwise laws, 
it 
should be noted that they are quite separate. 
The application 
of 
the 
shipping 
acts 
does 
not 
turn 
on 
the 
application 
or 
inapplication 
of 
the 
coastwise 
laws. 
In 
1978, 
in 
Senate 
Report No. 95-1240, the Senate Committee on Commerce, Science, 
and Industry stated the following in connection with a bill to 
amend the Intercoastal Shipping Act, 
1933: 
Undec the 1933 act, 
the FMC is authorized 
to regulate 
the rate 
assessed 
by oceangoing 
common carriers between 
the noncontiguous 
or 
domestic 
offshore 
areas 
and 
the continental 
United States and between any two or more of 
these noncontiguous areas to insure that such 
rates 
are 
just and reasonable. 
These areas 
1300 
Memorandum No. 46-7 
are: 
Alaska, Hawaii, Puerto Rico, U.S. Virgin 
Islands, 
Guam, 
American 
Samoa, 
Wake 
Island, 
Midway Island, Northern Marianas, and Johnston 
Island. 
(p. 2.) 
Of 
the 
10 
domestic 
offshore 
areas 
mentioned earlier, 
three are exempt from U.3S. 
cabotage 
[i.e., 
coastwise] 
laws so that they 
may 
be 
served 
with 
foreign 
vessels. 
These 
three 
are 
the U.S. 
Virgin 
Islands, 
American 
Samoa, 
and 
the 
Commonwealth 
of 
Northern 
Marianas. 
(p. 3.) 
Finally, 
Interior’s 
files also contain a memorandum 
dated July 2, 
1981, 
to the Acting Deputy High Commissioner 
from 
an Assistant 
Attorney General 
of the Trust Territory. 
The memorandum, which concerns service to the Trust Territory 
by a Japanese shipping company, 
states 
in part that 
it is 
"settled 
that 
the 
u.s. 
law 
does 
not 
apply 
to 
the 
Trust 
Territory unless 
the U.S. 
statute specifically embodies 
the 
TT," but the memorandum 
further states 
that 
"there 
is some 
question whether the Shipping Act of 1916 has international 
application" 
and 
thus 
that 
it apparently, 
in 
the 
author’s 
view, may apply at least in part to the Trust Territory. 
The 
question 
is not 
further discussed 
nor 
is any 
rationale 
or 
other support 
provided, 
so 
it seems 
correct 
to reject 
the 
suggestion that the Shipping Act, 
1916, May now apply to the 
Trust 
Territory. 
The 
author 
may 
have 
had 
in 
mind 
the 
authority of the Federal Maritime Commission to affect foreign 
carriers serving the United States, such as the authority then 
contained 
in 46 U.S.C. 
813 
(but 
repealed 
in 
1984). 
That 
authority 
would 
seem 
to 
involve 
a kind 
of 
“international 
application," but it would not make the Shipping Act, 
1916, 
applicable to the Trust Territory. 
1301 
1242 
Memorandum No. 
46-7 
R 
lation of intraterritorial 
shipping: 
Full Federal 
regulation 
on 
intraterritorial 
water 
carriers is provided by these statutes, but apparently it is 
not 
provided 
in 
fact. 
Informal 
advice 
from 
the 
Federel 
Maritime 
Commission 
suggests 
that 
some 
intraterritoriai 
carriers 
do file tariffs, 
but there 
seems 
to be no way of 
knowing 
whether 
all 
or 
even 
most 
who 
are 
subject 
to 
the 
shipping acts do so. 
In any event, 
the Commission concedes 
that there 
is no “active enforcement" 
of the shipping acts 
with respect to intraterritorial traffic. 
The most that could 
be 
expected 
to occur 
is 
Commission 
action 
arising 
from 
a 
complaint 
filed, 
most 
likely 
by 
someone 
in 
one 
of 
the 
territories who is adversely affected 
by the carrier action 
complained of. 
Small carriers providing service from St. Thomas to 
St. Croix, 
or from Tutuila to Manua, are fully subject to the 
Commission’s authority outlined above. 
It seems probable that 
most such carriers do not know that, or if they do, that they 
are unaffected 
by the knowledge. 
As also explained 
above, 
transportation within points in the Northern Marianas--from, 
say, 
Saipan 
to 
Tinian--would 
not 
be 
subject 
to 
the 
Commission’s authority, 
in light of the language of section 
502(a)(2) of the Covenant. 
Conclusion: 
It would seem appropriate to eliminate that portion of 
the Federal Maritime Commission’s regulatory jurisdiction that 
pertains 
to 
transportation 
"between 
places 
in 
the 
same 
Territory, 
District, 
or 
possession" 
(46 
App. 
U.S.C. 
801). 
Such an amendment would probably be consistent with reality, 
consistent 
with 
self-government 
in 
the 
territories, 
and 
welcomed by the territories. 
The territcies would thereafter 
be free to provide such regulation of intraterritorial traffic 
as they chose. 
{The question 
of the Federal 
regulation of 
traffic 
between 
points 
in 
Fuerto 
Rico 
would 
require 
investigation, 
since that regulation too would be eliminated 
by such amendment. 
Such Federal regulation may or may not be 
desirable in Puerto Rico, but that question is not intended to 
be answered here). 
Otherwise the continued application of the 
Shipping Act, 
1916, and the Intercoastal Shipping Act, 
1933, 
to the territories, 
in a manner no less fully than they apply 
1302 
6343 
Memorandum No. 
46-7 
to the States, should not be disturbed. 
Nor is there reason 
to modify 
the nonapplicability 
of 
the 
two statutes 
to the 
Trust Territory. 
Federal agency comments: 
Comments were invited in 1982 
from the 
Departments of Justice, Transportation, and the Treasury, 
and 
from the Federal Maritime Commission. 
All comments received 
have been reflected above. 
1303 
Memorandum No. 
46-8 
December 1981 
Revised October 1992 
Subject: 
(a) The Merchant Marine 
Act, 
1920 
(sometime 
called 
the 
"Jones Act") 
Title 
46 Appendix, 
Chapter 
24 
(46 App. 
U.S.C. 
861- 
889) 
Note: 
Sections 
of 
this 
Chapter 
that 
constitute 
“coastwise 
laws," 
i.e., 
sections 
877, 
883, 
883-1, 
and 883a, 
are discussed 
in Memorandum No. 
46-5 on 
that subject. 
(b) The Merchant Marine Act, 
1928 
Title 46 Appendix, Chapter 24A (46 App. U.S.C. 
891- 
891x) 
Comment: 
The statutes 
considered 
herein present 
no problems 
of 
consequence to the territories or the Trust Territory. 
Discussion: 
(a) The Merchant Marine Act, 1920, sometime called the 
Jones Act, contains the most important of the coastwise laws 
(46 
App. 
U.S.C. 
883, 
which 
bars 
the 
transportation 
of 
merchandise between U.S. 
ports in other than vessels of the 
United States--a matter discussed in Memorandum 46-5), but it 
contains 
no 
other 
provisions 
of 
unusual 
interest 
to 
the 
territories 
or 
the 
Trust 
Territory 
today. 
Most 
of 
the 
Merchant Marine 
Act, 
1920, 
that 
has 
not 
been 
repealed 
has 
grown obsolete. 
The statute’s purpose 
is to encourage 
the 
development of an efficient merchant marine, "ultimately to be 
owned and operated privately by citizens of the United States" 
(46 App. U.S.C. 
861), 
and to that end it vested authority in 
the 
Secretary 
of 
Commerce 
(now 
the 
Secretary 
of 
Transportation) 
to dispose 
of vessels 
acquired 
during 
the 
World 
War 
I 
emergency 
to 
U.S. 
citizens, 
and 
in 
certain 
circumstances, 
to aliens 
(46 App. 
U.S.C. 
865). 
Many of the 
statutes 
codified 
in 
this 
chapter 
of 
Title 
46 
Appendix, 
prescribe procedures for the disposal of U.S.-owned vessels. 
Most such statutes 
are now obsolete, 
but 
in any event none 
would 
result 
in 
unequal 
treatment 
of 
citizens 
in 
the 
territories. 
Because noncitizen nationals in Samoa are not, 
realistically, likely to be buyers of Federal merchant vessels 
in the early future, 
the citizenship requirement 
appears 
to 
pose no practical problem. 
1304 
Memorandum No. 
46-8 
Section 7 of the 1920 act (46 App. U.S.C. 
866) 
is one 
of historic 
interest 
to the 
territories. 
It directs 
the 
Secretary of Commerce, 
now Transportation, 
to determine what 
steamship lines are needed to serve U.S. domestic and foreign 
commerce 
requirements--including 
service 
between 
the 
continental U.S. and the territories; 
to dispose of vessels to 
U.S. citizens who agree to provide the needed service; and, in 
the absence 
of citizens willing 
to supply 
such service, 
to 
operate the vessels himself "under government administration." 
Although 
section 
7 
has 
not 
been 
repealed, 
the 
Maritime 
Administration informally advises that it is not regarded as 
"active" today, nor has it been for several decades. 
Efforts 
to learn 
what action 
the Secretary 
of Commerce might have 
taken pursuant to this section “promptly 
. 
. 
. after June 5, 
1920, and from time to time thereafter" 
(46 App. U.S.C. 
866) 
have been unavailing. 
(b) The Merchant Marine Act, 1928, 
has been largely 
repealed. 
The sections that remain grant to the Secretary of 
Transportation authority 
to remodel and improve Government-- 
owned vessels for the foreign trade, and to replace them when 
necessary with vessels "built in the United States" (46 App. 
U.S.C. 
891c). 
(For 
a 
discussion 
of 
this 
often-repeated 
geographic 
restriction, 
see 
Memorandum 
No. 
46-9 
on 
the 
Merchant Marine Act, 
1936). 
Conclusion: 
None 
of 
the 
statutes 
discussed 
above 
requires 
modification 
to accommodate 
the 
territories 
or 
the 
Trust 
Territory. 
Federal agency comments: 
Comments were invited in 1982 from the 
Departments 
of 
Justice 
and 
Transportation. 
All 
comments 
received have been reflected above. 
1305 
Memorandum No. 
46-9 
December 1981 
Revised June 1982 
Revised October 1992 
Subject: 
The Merchant Marine Act, 
1936 
Title 46, Chapter 27 (46 App. U.S.C. 
1101-1295g) 
Note: 
Sections 
of 
this 
Chapter 
that 
pertain 
to 
the 
coastwise 
laws 
(46 
App. 
U.S.C. 
1156, 
1175(a), 
and 
1223(a)), are discussed in Memorandum No. 46-5. 
Purpose: 
To encourage development of the U.S. merchant fleet by, 
among other 
things, 
providing financial 
assistance 
for 
the 
construction 
and 
operation 
of 
U.S. 
merchant 
vessels, 
authorizing Federal acquisition and construction of merchant 
vessels, and providing for the training of officers and crews. 
Territorial application: 
The application of the Merchant Marine 
Act, 1936, 
to the territories is uneven. 
Ina few relatively 
minor particulars, all "Territories and possessions" are fully 
covered. 
But to the extent that some of the Act's benefits 
run 
to "citizens" 
of the United States only, 
the people of 
Samoa are not now eligible. 
And to the extent that vessel 
construction 
and repair must occur 
in the States 
or Puerto 
Rico, 
all of the current territories 
suffer discrimination. 
The 
educational 
program 
provided 
at 
the 
Merchant 
Marine 
Academy at Kings Point, however, is currently available to the 
people 
of 
all 
of 
the 
territories, 
as 
well 
at 
the 
Trust 
Territory. 
No other 
part 
of 
the 
Act 
touches 
the 
Trust 
Territory. 
The 
Ship 
Mortgage 
Insurance 
program 
is 
also 
available to all of the territories. 
Recommendation: 
Although the territories and their people are, 
in 
various particulars described below, accorded treatment under 
the Merchant Marine Act, 
1936, 
that 
is less favorable 
than 
that accorded 
to the States 
and 
their 
citizens, 
it seems 
likely that the problem is more theoretical than real: 
that 
is, the territories and their people have probably not been in 
a position, 
as a matter of practical economics, 
nor are they 
now, 
to derive benefits 
from the provisions of the statute 
that do not now apply to them. 
If that is true, and assuming 
that 
the Congress 
should not be asked 
to correct statutory 
deficiencies 
unless 
practical 
benefits 
will 
follow, 
then 
1306 
| 
Memorandum No. 46-9 
amendments to the Merchant Marine Act, 1936, are not required 
at this time. 
Discussion: 
Substance of the statute: 
The Merchant Marine Act, 1936, is a long, complicated, 
and very live statute. 
Its purpose, as stated by the Congress 
in 1936 and as often reaffirmed by it since, 
is to foster a 
merchant marine that is (a) sufficient to carry all the U.S.'s 
domestic, water-borne commerce and a "substantial portion" of 
its foreign commerce, 
(b) capable of serving as an auxiliary 
in time of war, 
(c) operated by U.S. 
citizens and under the 
U.S. 
flag, 
(d) composed of the best vessels, 
constructed 
in 
U.S. 
shipyards, 
and manned 
by U.S. 
citizen 
personnel, 
and 
(e) supplemented 
by 
efficient 
shipbuilding 
and 
repair 
facilities 
(46 App. U.S.c. 
1101). 
To this end, 
the Act-- 
--creates governmental machinery to assist and oversee 
maritime 
activities, 
consisting 
today 
of 
the 
Maritime 
Administration, 
an 
agency 
(since 
August 
1981) 
of 
the 
Department 
of 
Transportation 
(and 
before 
that, 
of 
the 
Department of Commerce), and the Federal Maritime Commission, 
an independent, regulatory agency; 
--authorizes the Maritime Administration to acquire, 
construct, and reconstruct vessels (46 App. U.S.C. 1119, 1125, 
1192)~-but 
such vessels must 
be "constructed 
in the United 
States" (46 App. U.S.C. 1125), or ina "shipyard of the United 
States," defined to mean only the States and Puerto Rico (46 
App. U.S.C. 1155), or "in shipyards in the continental United 
States" 
(46 App. 
U.S.C. 
1192)--and 
to sell or charter 
such 
vessels 
to citizens 
of 
the 
United 
States 
for 
use 
in 
the 
foreign trade (46 App. U.S.C. 
1195); 
1307 
1213 
Memorandum No. 46-9 
--directs 
the 
Secretary 
of 
Transportation 
to 
investigate 
and establish the ocean transportation services 
that 
are 
needed 
for 
trade 
between 
the United 
States, 
its 
territories 
and 
possessions, 
and 
‘foreign 
points, 
and 
the 
relative 
costs of constructing and operating vessels in the 
U.S. 
and in foreign countries 
(46 App. U.S.C. 
1121); 
--authorizes the payment of construction differential 
subsidies, 
to equalize the cost of ship construction 
in the 
U.S. as compared to the cost of foreign construction, but such 
domestic 
ship construction must be performed in one of the 
States 
or 
Puerto 
Rico 
(46 
App. 
U.S.C. 
1155), 
and_ 
the 
beneficiary must be a U.S. citizen or a shipyard in one of the 
States or Puerto Rico (46 App. U.S.C. 
1151); 
--authorizes 
the payment 
of operating 
differential 
subsidies to citizens of the U.S. 
for operations 
in foreign 
commerce, when such aid is necessary to place the operations 
"on 
a parity 
with 
those 
of foreign competitors" 
(46 App. 
U.S.C. 
1171); 
--requires vessel operators who receive an operating 
differential subsidy to buy "whenever practicable" subsistence 
items 
that 
are 
locally 
grown or produced 
in the States 
or 
Puerto Rico,/ and to have vessel repairs effected 
in one of 
YV phat 46 App. U.S.C. 1176 restricts subsistence purchases to 
the U.S. and Puerto Rico is clear from the fact that that section 
refers 
for its definition of "United States" 
to 46 App. U.S.C. 
1155. 
That 
section, 
in 
turn, 
refers 
to 
the 
definition 
in 
“paragraph 
K of section 
1401 
of Title 
19." 
There 
is 
no such 
paragraph. 
Although the current paragraph 
(k) of 19 U.S.C. 
1401 
does 
not 
define 
"United 
States" 
(it defines 
instead 
“hovering 
vessel"), 
both the current definition of "United States" 
in 
19 
U.S.C. 1401, paragraph (h), and that contained for several decades 
in 19 U.S.C. 
1401, 
paragraph 
(k), 
expressly excludes 
the Virgin 
Islands, 
Guam, and American Samoa. 
"Territories and possessions" 
are 
not excluded, 
so upon trusteeship termination, 
the Northern 
Marianas 
would 
probably 
qualify 
as 
a 
site 
for 
subsistence 
purchases. 
1308 
1atg 
a 
a 
Memorandum No. 
46-9 
the States or Puerto Rico "except in an emergency" 
(46 App. 
U.S.C. 
1176); 
--creates 
a 
capital 
construction 
fund 
for 
the 
construction and reconstruction of vessels in the foreign or 
noncontiguous 
domestic 
trade, 
"or 
in the fisheries 
of 
the 
United States" 
(defined to include fishing vessels that are 
U.S.-built and U.S-documented and are of two to five tons (46 
App. 
U.S.C. 
1177-1)), 
with 
the 
fund 
consisting 
of 
contributions made to it, with attendant Federal income tax 
advantages, 
by citizens who own or lease vessels constructed 
in the U.S. 
and documented 
under 
U.S. 
law 
(46 App. 
U.S.C. 
1177); 
--provides 
that 
in 
the 
chartering 
or 
sale 
of 
U.S.-owned 
vessels, 
and 
in 
the 
award 
of construction 
and 
operating 
subsidies, 
the 
Secretary 
of Transportation 
will 
arrange 
"to 
equitably 
serve 
... 
the 
foreign-trade 
requirements of the Atlantic, 
Gulf, Great Lakes, 
and Pacific 
ports of the United States" (46 App. U.S.C. 
1213); 
--creates 
a 
program 
of 
Federal 
Ship 
Mortgage 
Insurance, available to citizens and nationals of the U.S. and 
to 
citizens 
of 
the 
Northern 
Marianas, 
to 
facilitate 
the 
financing of the construction, repair, or purchase of fishing 
vessels 
(46 
App. 
U.S.C. 
1274(a)(2)),2% 
and 
an 
insurance 
program 
available 
to 
citizens 
for 
the 
financing 
of 
"a 
commercial 
demonstration 
ocean 
thermal 
energy 
conversion 
facility" (46 App. u.S.c. 
1279c); 
--provides for the admission to the Merchant Marine 
Academy 
at 
Kings 
Point, 
New 
York, 
of 
U.S. 
citizens 
or 
nationals from American Samoa, Guam, 
the Virgin Islands, 
and 
ee 
eee 
Y ~ 1980 amendment to what is now 46 App. U.S.C. 1274, as well 
as 
to 
46 App. 
U.S.C. 
1271(k), 
provides 
for express 
mention 
of 
citizens 
of 
the Northern 
Mariana 
Islands 
because 
in 
1980 
the 
Trusteeship 
Agreement 
remained 
in 
effect 
and 
the 
citizenship 
provisions 
of the Northern Marianas Covenant 
had not 
yet become 
effective. 
Such express references are no longer required. 
1309 
Memorandum No. 
46-9 
the Northern Marianas 
(46 App. U.S.C. 1295b(b)(1)(B)), 
and of 
students 
from 
the 
Trust 
Territory 
(46 
App. 
U.S.C. 
1295b(b)(4)(A)); 
and 
--directs the Secretary of Transportation to cooperate 
with maritime academies established by State or territorial 
governments, 
by providing financial support and vessels 
for 
instruction 
(46 App. U.S.C. 
1295c). 
In 1980, the Merchant Marine Act, 1936, was amended by 
Public Law 96-453 to add a definition of "United States" that 
explicitly 
includes 
the 
Northern 
Marianas, 
Guam, 
American 
Samoa, 
and 
the 
Virgin 
Islands 
(46 
App. 
U.S.C. 
1244(g)). 
Although 
the 
definition 
purports 
to apply 
throughout 
the 
Merchant Marine Act, 1936, 
it is doubtful whether it replaces 
the more 
specific 
and more 
limited definitions referred 
to 
above 
that, 
for example, 
require 
ship construction 
in 
the 
States 
or 
Puerto 
Rico 
(46 
App. 
U.S.C. 
1125, 
1155, 
1192). 
Although the 1980 definition is later in time than the earlier 
geographic limitations, 
it is probable that the usual rule of 
the specific taking precedence over the general would apply. 
Matters of particular interest to the territories: 
The pattern of territorial application of the Merchant 
Marine Act, 1936, suggests that (1) the original drafters were 
mindful 
of the 
fact 
that 
the U.S. 
had offshore 
areas, 
as 
evidenced 
by 
numerous 
references 
to 
the 
Territories 
and 
possessions 
of the 
U.S. 
(e.g., 
46 App. 
U.S.C. 
1121, 
1124, 
1204); 
(2) consistent 
with 
the documentation 
laws 
and 
the 
manning laws, benefits of the statutes were and are largely 
confined 
to 
U.S. 
citizens; 
(3) subsequent 
amendments 
recognized that Alaska and Hawaii had achieved Statehood, 
and 
occasionally they have referred explicitly to Puerto Rico, but 
such 
amendments 
have 
continued 
to restrict 
many 
benefits, 
particularly for shipbuilders, 
to the States and Puerto Rico; 
(4) beginning 
in the late 
1950's, 
explicit recognition 
was 
given 
to the current 
territories, 
and 
later 
to the 
Trust 
Territory, 
in connection with maritime training; 
and (5) the 
Congress 
has 
displayed 
an 
awareness 
of 
the 
current 
territories, 
most recently in its amendments that expand the 
1310 
5224 
Memorandum No. 46-9 
Ship 
Mortgage 
‘Insurance 
program 
to 
cover 
both 
Samoa 
and 
Northern 
Marianas. 
Because 
maritime 
education 
and 
ship 
mortgages 
are two areas of clear territorial 
interest, 
and 
likely 
immediate 
benefits, 
one 
can 
infer 
a Congressional 
willingness 
to broaden 
the Merchant 
Marine 
Act, 
1936, 
to 
include the territories when useful results are likely quickly 
to follow. 
The following subjects of territorial interest deserve 
discussion: 
Coastwise laws. 
A few sections of the Merchant Marine 
Act, 
1936, 
constitute 
minor 
coastwise 
laws. 
These 
are 
discussed in Memorandum No. 46-5, where it is concluded that 
the territories 
are 
now largely exempt 
from 
the coastwise 
laws, except for Guam. 
Guam currently seeks exemption. 
hi 
mstruction si 
- 
A vessel constructed in any 
of 
the 
current 
territories 
could 
not 
benefit 
from 
the 
construction subsidy program. 
An informed commentator states 
that 
the reason 
for the original, 
1936 exclusion cannot 
be 
established, because of a lack of legislative records, but he 
surmises that "this was simply a Protective measure for the 
benefit of U.S. 
shipbuiiders" 
(Leibowitz, 
"The Applicability 
of Federal Law to Guam," 
16 Va. Journal of International Law 
45 (1975)). 
When the key section 
(46 App. U.S.C. 
1155) was 
expanded to include Puerto Rico 
in 1970, 
no explanation was 
offered in the Congressional Committee Reports (1970 U.S. Code 
Cong. 
and Adm. News 4188), 
but the following paragraph in a 
letter of April 15, 1970, from the Federal Maritime Commission 
to the pertinent Senate Committee is of interest: 
Continental limits of the United States 
is defined in Titles V and VI of the Merchant 
Marine Act, 
1936, 
as including the States of 
Alaska and Hawaii, 
but does not include 
the 
territories 
or 
possessions 
of 
the 
United 
States. 
Consequently, 
a shipyard 
in any of 
the territories 
or Possessions 
would 
not 
be 
eligible 
for 
a _ construction 
subsidy 
under 
Title V, nor would an operator who receives a 
1311 
+292 
Memorandum No. 46-9 
subsidy 
with 
respect 
to 
repairs 
under 
the 
provisions 
of section 603(b) 
(Sec. 
14(4) 
of 
the 
Bill) 
[46 U.S.C. 
1173] 
be permitted 
to 
perform maintenance and repairs at a shipyard 
located 
in such territories and possessions. 
(1970 
U.S. 
Code Cong. 
and Admin. 
News 
4188, 
4251). 
The Maritime Commission letter did not offer or recommend any 
amendment to correct this condition. 
But it may be that, 
in 
the face of this information, 
the Congress was moved to add 
Puerto Rico. 
If a shipbuilding industry, constructing vessels for 
the 
foreign 
trade, 
were 
a likely 
prospect 
in any 
of 
the 
territories, 
then 
the 
geographical 
limitation 
should 
be 
expanded. 
But given 
the monumental 
investment 
needed 
for 
shipbuilding 
facilities, 
and 
the 
absence 
to 
date 
of 
any 
suggestion that any of the territories is a likely site, 
the 
modification of this section would be without real effect. 
Moreover, 
because shipbuilding facilities 
in the States 
are 
now under-utilized, 
with significant unemployment resulting, 
the Congress might be expected to be unwilling to expand the 
shipbuilding benefits to the territories. 
(But query: 
Would it be useful to the territories if 
operators 
of 
vessels 
in 
the 
foreign 
trade, 
who 
receive 
operating differential subsidies, were permitted to buy in the 
territories locally-grown or produced subsistence items, or to 
have 
vessel 
repairs 
effected 
in 
the 
territories 
in 
nonemergency situations? 
An amendment to 46 App. U.S.C. 1176 
would be necessary to achieve either of these results. 
Samoa 
has a small ship repair facility. 
So far as is known, Guam 
does not, apart from Navy facilities. 
Each would have some 
subsistence items of local growth or production for sale, but 
the quantity would be limited, 
and probably unpredictable. 
Informal advice from the Maritime Administration suggests that 
ship operators would be unlikely to rely upon the availability 
of subsistence items in the territories. 
They would normally 
purchase what they need at one time for the entire voyage, 
at 
the commencement of the voyage. 
Such an amendment would be 
likely, 
thus, 
to have only a slight effect, 
if any, 
in the 
1312 
5993 
Memorandum No. 
46-9 
territories, 
and 
would 
be 
predictably 
hard 
to 
achieve 
politically). 
itizenghip 
requirements. 
Construction and operating 
subsidies 
are 
available 
only 
to 
"citizens" 
of 
the 
United 
States, 
and Federally-owned vessels may be sold or chartered 
only 
to 
citizens. 
American 
Samoans 
who 
are 
noncitizen 
nationals 
are 
thus not now eligible. 
Given, 
however, 
the 
magnitude of the basic investment 
that would 
be needed 
for 
these benefits 
to be of actual 
value, 
it 
is unlikely 
that 
persons or corporations from Samoa would realistically qualify 
in the early future. 
It 
its report 
to the Congress 
of January 
1982, 
the 
Northern Marianas Commission on Federal Laws recommended that 
legislation 
be enacted 
to provide 
that 
for purposes 
of 
a 
number 
of sections 
of 
the Merchant 
Marine 
Act, 
1936, 
and 
related statutes, citizens of the Northern Marianas should be 
deemed 
to be citizens 
of the United 
States. 
Because 
the 
citizenship provisions of the Northern Marianas Covenant have 
since become effective, 
this recommendation is moot. 
Merchant marine training. 
The 
laws 
concerning 
admission 
to 
the 
Merchant 
Marine 
Academy, 
and 
aid 
to 
territorial 
maritime 
academies, 
are 
sufficient 
to 
meet 
off-shore needs 
at this time. 
The Delegate 
from Samoa may 
nominate noncitizen nationals 
from Samoa to Kings Point 
(46 
App. 
U.S.C. 
1295b(b)(1)(B)). 
Residents 
of 
the 
Northern 
Marianas are to be nominated by the Governor. 
If the current 
position of Resident Representative to the United States from 
the Northern Marianas, 
created by the Covenant, 
is converted 
into the position of Delegate, it would then be appropriate if 
the appointing authority were conferred upon the Delegate--but 
that change may be viewed as premature until such a conversion 
is made. 
Individuals from the Trust Territory, 
four at a time, 
may receive instruction at the Acadeny, 
upon designation by 
the Secretary of the Interior 
(46 App. 
U.S.C. 
1295b(b)(4)), 
but unlike citizens of the U.S. appointed to the Academy, they 
are not entitled to a license authorizing them to serve on a 
1313 
[994 
~~. 
Memorandum No. 
46-9 
U.S. merchant vessel by reason of their graduation from the 
Academy 
(46 App. 
U.S.C. 
1295b(b)(7)). 
Students 
from 
the 
Freely Associated States remain eligible, pursuant to section 
342(b) of the Compact of Free Association. 
So far as can be 
established, no one from the Trust Territory, past or present, 
has yet entered Kings Point. 
Conclusion: 
In the absence of a practical need, 
it appears that 
those sections of the Merchant Marine Act, 
1936, 
that do not 
now 
apply 
to 
the 
territories 
or 
their 
people 
need 
not 
be 
amended to do so. 
Federal 
agency 
comments: 
Comments 
were 
invited 
from 
the 
Departments 
of 
Justice 
and 
Transportation 
and 
from 
the 
Maritime 
Commission. 
All 
comments 
received 
have 
been 
reflected above. 
1314 
Memorandum No. 46-10 
February 1982 
Expanded October 1992 
Subject: 
(a) Carriage of Goods by Sea 
Title 46 Appendix, Chapter 28 (46 App. U.S.C. 
1300- 
1315) 
(b) Safe Containers for International Cargo 
Title 46 Appendix, Chapter 34 (46 App. U.S.C. 
1501- 
1507) 
(c) Maritime Administration 
Title 46 Appendix, Chapter 35 (46 App. U.S.C. 
1601- 
1610) 
(d) International Ocean commerce Transportation 
Title 46 Appendix, Chapter 36 (46 App. U.S.C. 
1701- 
1721) 
(e) International Maritime and Port Security 
Title 46 Appendix, Chapter 37 (46 App. U.S.C. 
1801- 
1809) 
(£) Maritime Drug Law Enforcement 
Title 46 Appendix, Chapter 38 (46 App. U.S.C. 
1901- 
1904) 
(g) Merchant Marine Decorations and Medals 
Title 46 Appendix, Chapter 39 (46 App. U.S.C. 
2001- 
2007) 
Comment: 
The statutes appearing in these chapters of the Appendix 
to 
Title 
46 
present 
no 
Problems 
of 
consequence 
to 
the 
territories, 
except 
that three 
of them are deficient 
as 
to 
court jurisdiction in American Samoa. 
These--pertaining 
to 
safe containers 
(b), 
the regulation 
of international 
ocean 
commerce transportation (d), and drug law enforcement (£)--do 
not appear to require attention urgently, 
but amendment when 
convenient would be desirable. 
Discussion: 
(a) The Gfarriage of Goods 
by Sea Act (46 App. U.S.C. 
1300-1315) 
deals 
with 
bills 
of lading 
for 
the carriage 
of 
goods 
on 
the ocean 
from ports 
of the United 
States 
in the 
foreign 
trade, 
with 
the 
term 
"United 
States" 
defined 
to 
include 
expressly 
the territories 
and possessions 
(46 App. 
1315 
+296 
PTE 
E= 
i Oe 
Memorandum No. 
46-10 
U.S.C. 
1312). 
The four territories are thus comprehended and 
there is no warrant for any change. 
The Act specifies certain 
responsibilities, as well as certain rights and immunities, of 
carrier owners and ships. 
{(b) The 
International 
Safe 
Container 
Act 
(46 
App. 
U.S.C. 
1501-1507) applies to containers used in transporting 
cargo 
from 
a place 
in 
the 
United 
States 
to 
a place 
in 
a 
foreign country, 
from a place in a foreign country to a place 
in the U.S., and between two places outside the United States 
by U.S. carriers. 
The "United States" is defined to include 
expressly 
Guam, 
Samoa, 
the 
Virgin 
Islands, 
and 
the Trust 
Territory 
(46 App. 
U.S.C. 
1501(e)), 
and because the law was 
enacted in December 1977, 
it applies to the Northern Marianas 
by operation of section 502(a)(2) 
of the Covenant. 
The Act implements an international convention on 
that subject, 
signed at Geneva 
in 1972, 
that 
is designed to 
create 
international 
standards 
for cargo 
containers. 
The 
Secretary of Transportation is charged with enforcement of the 
standards, 
and 
with 
testing, 
inspection, 
and 
approval 
of 
containers. 
A container owner who is domiciled 
in the U.S. 
and has his principal office in the U.S. 
(defined to include 
the territories and the Trust Territory) 
is responsible 
for 
obtaining approval. 
Penalties are imposed for violations of 
the Act, 
and a failure 
to pay 
a penalty could result in an 
action "in any district court of the United States" 
(46 App. 
U.S.C. 1505{(b)). 
The statute thus shows a conscious effort to 
cause 
it to apply 
to all U.S. 
areas, 
but 
it also 
shows 
a 
failure to cause it to do so effectively, inasmuch as there is 
no "district court of the United States" in Samoa. 
(There is 
none in the Trust Territory either, 
but Palau’s status as a 
Trust 
Territory 
is probably 
so short-lived 
(as of October 
1992), 
that that matter need not give pause.) 
The problem is relatively minor, 
and there may be 
no indigenous cargo container owners 
now in Samoa. 
Yet the 
application 
of this statute 
to Samoa may have some positive 
effect, and it is hard to imagine how it could have a negative 
one. 
When 
a convenient 
legislative 
vehicle 
is 
at 
hand, 
therefore, 
the defect 
as 
to court jurisdiction 
in American 
Samoa should be corrected. 
1316 
1297 
Memorandum No. 
46-10 
(c) The chapter concerning the Maritime Administration 
(46 
App. U.S.C. 1601-1610) provides for its transfer from the 
Department of Commerce to the Department of Transportation (in 
1981). 
It concerns housekeeping only, and holds no matters of 
special interest to the territories. 
(d) International Ocean Commerce Transportation 
(46 
App. U.S.C. 
1701-1721) contains the Shipping Act of 1984, 
as 
amended. 
This is a regulatory statute, 
“he purposes of which 
are 
to 
establish 
a 
regulatory 
process 
for 
U.S. 
foreign 
commerce 
"with 
a 
minimum 
of 
government 
intervention 
and 
regulatory 
costs," 
to provide 
for 
a system 
for 
U.S. 
ocean 
commerce 
that 
is 
in 
harmony 
with 
international 
shipping 
practices, 
and to encourage 
a U.S. 
fleet that 
is capable of 
meeting national security needs 
(46 App. 
U.S.C. 
1701). 
For 
purposes of the Act, 
the "United States” includes expressly 
the Northern Marianas "and all other United States territories 
and possessions" 
(46 App. 
U.S.C. 
1702(27)). 
(The express 
reference 
to the Northern Marianas is helpful, 
but it is no 
longer essential. 
Inasmuch 
as 
the law was enacted 
in 1984, 
after the Covenant was approved and partially in effect, 
but 
before trusteeship termination, the reference had value in the 
period 1984-1986.) 
The 
Act 
requires 
the 
filing 
with 
the 
Federal 
Maritime Commission of a variety of agreements made by ocean 
carriers 
in the foreign trade 
(46 App. 
U.S.C. 
1703, 
1704)-- 
some of which are given an exemption from the anti-trust laws 
(46 App. U.S.C. 1706)--and of tariffs (46 App. U.S.C. 1707). 
Jurisdiction 
in 
connection 
with 
enforcement 
is 
given 
to 
district courts of the United States 
(46 App. U.S.C. 
1710h, 
1712, 1713(d)). 
While the matter would not seem to be urgent, 
it would be appropriate to make provision for jurisdiction in 
American Samoa 
(which has no Federal District Court), 
given 
Samoa’s unusual dependency on ocean transportation. 
(e) International Maritime and Port Security (46 App. 
U.S.C. 1801-1809) contains the 1986 Act of that name, which is 
directed to the problem of acts of terrorism against passenger 
vessels. 
The Act requires the Secretary of Transportation to 
assess 
the 
effectiveness 
of 
security 
measures 
in 
foreign 
1317 
1293 
Memorandum No. 46-10 
ports, 
and 
to arrange 
for 
the notification 
of 
the foreign 
government of defects (46 App. U.S.C. 
1803); the Secretary of 
State is required to issue a "travel advisory" with respect to 
a foreign port that does not maintain effective security (46 
App. 
U.S.C. 
1804); 
and 
the 
President 
is 
authorized 
to 
terminate passenger service with a foreign country that aids 
terrorists (46 App. U.S.C. 1805). 
The definitions provided of 
“common 
carrier" 
and 
"passenger 
vessel" 
{incorporated 
by 
reference at 46 App. U.S.C. 
1807) make clear that ports in the 
territories are not foreign ports for purposes of this law. 
Ports in the territories are treated here in the same manner 
as ports in the States. 
(£) Maritime 
Drug _ 
Law Enforcement 
(46 App. 
U.S.C. 
1901-1904) contains the 1980 Act of that name, which makes it 
unlawful for any person aboard a vessel of the United States 
to manufacture, distribute, or possess a controlled substance. 
The 
frequent 
references 
to 
"territory, 
commonwealth, 
or 
possession 
of 
the 
United 
States" 
(e.g., 
46 
App. 
U.S.C. 
1903(b)), 
the reference 
to 
a "citizen 
or national 
of 
the 
United States" (in the same subsection), and the incorporation 
by reference 
of 
the broad definitions 
in the Comprehensive 
Drug 
Abuse 
Prevention 
and 
Control 
Act 
(46 
App. 
U.S.C. 
1903(i)), 
make clear 
that 
the Act applies 
as 
fully 
to the 
offshore areas and their people as it does to the States and 
theirs. 
The provision on jurisdiction and venue would permit 
a person charged 
with 
a violation 
in Samoa to be tried 
in 
either the U.S. District Court in Hawaii or in the District of 
Columbia (46 App. U.S.C. 
1903(f)), but it would obviously be 
more efficient to do so in American Samoa, 
so the problem of 
court jurisdiction there might well be corrected. 
(g) The chapter entitled Merchant Marine Decorations 
and 
Medals 
(46 
App. 
U.S.C. 
2001-2007) 
provides 
for 
the 
awarding of them 
to appropriate 
individuals. 
There are 
no 
limitations or terms contained in the law that would place the 
territories or their people at a disadvantage. 
Conclusion: 
The laws discussed above require no modification 
to 
meet the needs of the territories, 
except that the matter of 
court 
jurisdiction 
in 
Samoa, 
as 
it 
appears 
in 
the 
laws 
1318 
2299 
Memorandum No. 
46-10 
discussed 
above 
at 
(b), 
(d), 
and 
(£), 
shoula 
be 
given 
attention. 
Federal 
n 
comments: 
Comments were invited from the Depart- 
ments of Justice and Transportation in 1982 with respect to 
the laws discussed 
at 
(a) and 
(b) above, 
and all comments 
received have been reflected. 
The laws discussed at (c) through (g) were later enacted 
and have not been the subject of Federal agency comment. 
1319 
7339 
Title 
47 
- 
ICATI 
- 
Contains nothing of substantial interest to the territories or 
the Trust Territory. 
* 
Contains matters of particular interest to the territories and 
the Trust Territory, 
but no legislative recommendations. 
** Contains recommendations for changes in the law. 
Memorandum 
Number 
Subject 
Prefatory Comment 
- 
47-1 
(a) Telegraphs 
9-17 
(b) Submarine Cables 
21-39 
** 47-2 
The Communications Act of 1934 
151-613 
* 
47-3 
The Communications Satellite Act 
of 1962 
701-757 
1320 
June 1993 
Prefatory Comment 
- Title 47 
The Memoranda that follow on Title 47 were first written 
in 1982, 
They have been updated and modestly 
revised 
in 1993. 
Memorandum No. 47-1 concerns laws that have not been amended in the 
last decade, 
so it has not been substantially changed. 
But 
the 
Communications 
Act of 1934 
(Memorandum No. 
47-2) 
has often been 
amended during that period, 
and other developments have affected 
the Communications Satellite Act of 1962 (Memorandum No. 
47-3). 
Because 
Memoranda 
Nos. 
47-2 
and 
47-3 
were 
carefully 
reviewed in 1982 by the interested Federal agencies, particularly 
the Federal Communications Commission, 
the 1993 revision has been 
limited so as not to suffer 
the loss of that earlier review and 
comment, and revisions have largely been confined to new footnotes 
and an addendum. 
Because of the importance of the subject in the 
territories, 
however, 
comments 
as 
to accuracy 
have 
again 
been 
sought 
in 
1993 
from 
the 
FCC, 
and 
all 
comments 
received 
are 
reflected in the Memoranda that follow. 
1321 
Memorandum No. 47-1 
November 1992 
Revised June 1993 
Subject: 
(a) Telegraphs 
Title 47, Chapter 
1 (47 U.S.C. 
9-17) 
(b) Submarine Cables 
Title 47, Chapter 2 (47 U.S.C. 
21-39) 
Comment: 
The statutes considered herein present no problems of 
consequence 
to the territories or the Trust Territory. 
Discussion: 
{a) The Federal laws concerning telegraphs that appear 
at the beginning of this title of the Code 
(47 U.S.C. 
9-17) 
are 
of no concern 
to the current 
territories 
or the Trust 
Territory. 
They are 
about 
a century old 
(1888), 
and 
they 
concern 
telegraph 
facilities 
constructed 
and 
operated 
in 
conjunction with railroads. 
.b) The laws concerning submarine cables 
(47 U.S.C. 
21-39) 
relate, 
first, 
to injuries inflicted upon underwater 
communication 
cables, 
with 
penalties 
imposed 
upon 
those 
committing 
such 
injuries, 
and, 
second, 
to 
procedures 
for 
lawfully connecting 
a part of the United States to a foreign 
point, 
or 
a part of the continental 
United 
States 
with 
an 
offshore U.S. point, by submarine cable. 
Of the areas subject 
to this 
study, 
only Guam 
and 
the Virgin Islands 
are, 
as 
a 
matter of fact, served by underwater communication cable, and 
nothing in the laws concerning injuries to cable 
(47 U.S.C. 
21-33) 
is likely to be troublesome to them.’ 
The law on the 
second 
subject 
(47 
U.S.C. 
34-39) 
is 
of 
at 
least 
academic 
interest 
to all the territories and the Trust Territory, 
for 
it applies "to all territory continental or insular, subject 
to the jurisdiction 
of 
the United 
States 
of America" 
(47 
U.S.C. 
38)--and hence 
it applies 
to all of them. 
But this 
law, which requires a license from the Federal Communication 
Commission if cable is to be landed in the U.S., should not be 
objectionable to the territories or the Trust Territory, 
for 
Federal 
regulation 
of 
so 
important 
an 
activity 
seems 
Yin addition, 
in 1993 the Federal Communications Commission 
granted authority for the construction and operation of a submarine 
cable between and among Guam, Samoa, Tinian, 
and Rota. 
1322 
1323 
Memorandum No. 47-1 
unarguably appropriate. 
This law would cease to apply to the 
Trust Territory, 
in the absence of special arrangements not 
currently 
contemplated, 
at 
such 
time 
as 
the 
Trusteeship 
Agreement is terminated. 
Conclusion: 
These laws require no change to accommodate the terri- 
tories or the Trust Territory. 
Federal agency comments: 
Comments were requested from the Federal 
Communications Commission. 
All comments received have been 
reflected herein. 
1323 
Memorandum No. 47-2 
July 1982 
Revised November 1982 
Revised June 1993 
ubject: 
The Communications Act of 1934 
Title 
47, Chapter 5 (47 U.S.C. 
151-613) 
Purpose: 
To create the Federal Communications Commission and to 
provide 
for 
the regulation by it of telephone, 
telegraph, 
radio, 
and television services. 
Territorial application: 
The Communications Act applies as fully 
to the territories 
as to the States, 
--but 
it permits slightly greater regulation 
by 
the 
Federal 
Communications 
Commission 
within the Virgin Islands, 
Guam, 
and American 
Samoa 
(but not the Northern Marianas) 
than is 
permissible within the States, 
and 
--because of distances that were reflected in 
the long-standing practices of communications 
carriers 
(and 
later 
codified 
in 
a_ 
former 
section 
of 
the 
Act, 
47 
U.S.C. 
222), 
and 
because 
of 
the 
technology 
associated 
with 
modern communications satellites, 
some of the 
territories 
are 
treated 
as 
international 
instead 
of domestic 
areas, 
thereby resulting 
in 
substantially 
higher 
rates 
for 
communications services to and from them. 
The 
Federal 
Communications 
Commission 
considers 
the 
Communications Act applicable, at least in part, to the Trust 
Territory. 
Difficulties that arose because of the nationality 
status 
of 
the 
people 
of 
the 
Northern 
Marianas 
have 
been 
overcome by trusteeship termination, 
and there do not appear 
to be comparable problems elsewhere in the territories. 
Y Note added in 1993: 
This is less true in 1993 than in 1982. 
See "Addendum, June 1993" at the end of this memorandum. 
1324 
1835 
Memorandum No. 47-2 
in. 
£ 
the 
statute: 
The Communications 
Act 
of 
1934 
creates the Federal Communications Commission (FCC) and vests 
in 
it 
the 
authority 
to 
regulate 
certain 
interstate 
communications, 
and certain 
foreign communications 
if they 
originate in or are received in the United States. 
The kinds 
of 
communications 
involved 
include 
those 
by 
radio 
and 
television 
broadcasting, 
telephone 
and 
telegraph, 
and 
satellite communication. 
Rates are subject to FCC regulation 
(47 U.S.C. 
201 et seq.), and radio and television stations and 
Seg tore 
are 
subject 
to Fcc 
licensing 
(47 U.S.C. 
301 
et 
Seq.). 
The 
statute’s 
definitions 
make 
clear 
its 
wide 
application: 
--"United 
States" 
includes 
the 
"Territories" 
and 
"possessions" of the United States 
(47 U.S.c. 
153(g)); 
--"State" includes the "Territories and possessions" 
(47 U.S.C. 
153(v)); and 
--radio "station operators" may be licensed if they 
“are found 
to be qualified by the Commission and... 
. 
1325 
1838 
Memorandum No. 
47-2 
are legally eligible for employment in the United States. 
. 
. 
o" (47 U.S.C. 303(1)(1)).% 
Notwithstanding 
the foregoing definitions, 
however, 
the FCC has not accorded to all of the territories 
the same 
treatment 
as the States. 
This was originally the result of 
the long-standing practice of communications carriers, which 
charged higher rates to the far Pacific territories because of 
their distance, 
and whose practice in doing so was in effect 
ratified and codified 
in a statute enacted 
in 1943--former 
section 222 of the Communications Act, formerly codified at 47 
U.S.C. 222. 
That section provided for different treatment of 
"domestic" and "international" areas. 
It defined "domestic 
telegraph operations” to include the continental United States 
and other specified points in North America 
(i.e., 
“Alaska, 
Canada, 
Saint Pierre-Miquelon, 
Mexico, 
and Newfoundland") ,7/ 
and "international operations" to mean messages between those 
North American points and ones outside. 
Even after Statehood, 
Hawaii 
was 
excluded 
from 
the 
definition 
of 
"domestic" 
telegraph operations, 
this 
by express 
amendment 
enacted 
in 
1960 
(P.L. 
86-624), 
thereby 
making 
clear 
that 
"domestic" 
treatment 
was 
a matter 
of geography, 
not political 
status 
(1960 U.S. Code Cong. and Admin. 
News 
2963, 
2979-80). 
This 
remains so today. 
With the introduction of communications satellites in 
the 1970's, however, the FCC by administrative action .egan to 
accord to Hawaii, Puerto Rico, and the Virgin Islands--because 
2 the 
original 
U.S. 
citizenship 
requirement 
for 
radio 
operators foreclosed the licensing of most Samoans, 
so the Act was 
amended in 1962 to permit the licensing of "nationals"; but it then 
continued to create a problem for residents of the Trust Territory, 
so the Act was amended in 1964 to permit licensing of them. 
The 
language 
quoted 
above 
was 
enacted 
in 
1982, 
and 
it 
should 
be 
sufficiently flexible to last forever. 
¥ saint 
Pierre 
and 
Miquelon 
are 
islands 
lying 
south 
of 
Newfoundland that constitute an overseas territory of France. 
They 
are, according to the Encyclopedia Americana, 
"all that remains of 
the old French colonial empire in northern North America." 
1326 
“29 2 
Memorandum No. 47-2 
of geography--what amounted to "domestic" rate treatment. 
It 
could do so because domestic commercial satellites were able 
to serve such areas, 
in addition to their primary targets. 
A 
revision of 47 U.S.C. 
222 in 1981, by P.L. 97-130 (the Record 
Carrier Competition Act of 1981) eliminates the definitions of 
"domestic" 
and "international" operations, 
but 
the new law 
does not eliminate the different rate treatment accorded to 
distant Pacific territories because that treatment is a result 
of the coverage of, and thus the technological limitations of, 
domestic commercial communications satellites, not of language 
of 
the 
statute. 
(For updated 
information, 
see 
Point 
1, 
“Guam’s complaints," below, and the "Addendum, June 1993" at 
the end of this memorandum. ) 
The 
FCC 
does 
not 
have 
intrastate 
(and 
thus 
not 
intraterritorial) 
jurisdiction with respect to telephone and 
telegraph carriers 
"if such communication is regulated by a 
State commission" 
(47 u.S.c. 
153(e)). 
It appears, 
however, 
that the FCC has not consistently regulated intraterritorial 
service, 
even if there is no territorial utility commission. 
The statute also gives the FCC authority to license radio and 
telephone 
operations 
from 
point 
to point 
within 
the 
same 
territory 
(47 
U.S.C. 
301(a)), 
and 
the 
Fcc 
has 
reportedly 
exercised that authority within the Virgin Islands and Guam. 
The 
statute 
also 
permits 
the 
Commission 
to 
regulate 
the 
capacity of television receivers moving 
in intraterritorial 
commerce in the "possessions" 
(47 U.S.C. 330), but it has not 
acted 
to 
regulate 
that 
traffic 
as 
such. 
Inasmuch 
as 
television 
receivers 
are 
not 
manufactured 
in 
any 
of 
the 
territories, however, those sold there in effect are regulated 
by the FCC under its authority with respect to interstate or 
foreign commerce. 
The 
intraterritorial 
jurisdiction 
of 
the 
Fcc, 
it 
should 
be noted, 
applies 
to the 
territories 
of the Virgin 
Islands, 
Guam, 
and Samoa, 
but not to the Northern Marianas. 
This is because the Communications Act of 1934 applies to the 
Northern Marianas by operation of section 502(a)(2) 
of the 
Covenant, which extends to the Northern Marianas Federal laws 
that are applicable to Guam and generally to the States, 
but 
on 
the Same basis 
"as 
they are 
applicable 
to 
the 
several 
States. 
1327 
7233 
Memorandum No. 47-2 
The 
Commission 
also 
has 
particular 
authority 
in 
connection 
with 
radio 
station 
licenses 
for 
commercial 
communications "between the United States or any Territory or 
possession 
. 
. 
. 
subject to the jurisdiction of the United 
States, 
and any foreign country" 
(47 U.S.C. 
308(c)). 
(The 
phrase "subject to the jurisdiction of the United States" is 
commonly construed to comprehend the Trust Territory. 
It does 
not appear elsewhere 
in the Communications Act.) 
There 
are 
stringent 
citizenship 
requirements 
in 
connection 
with 
the 
ownership 
of 
radio 
and 
television 
stations. 
Barred from being licensed are foreign governments, 
aliens, and corporations with alien officers and directors or 
with other one-fifth alien ownership 
(47 U.S.C. 
310(b)). 
As 
discussed below (Point 3), this provision posed a problem in 
the 
Northern 
Marianas, 
but 
that 
problem 
has 
now 
been 
eliminated. 
An unusual provision permits the FCC to designate an 
employee of another Federal agency to perform services for the 
FCC 
in 
connection 
with 
the 
administration 
of 
the 
Communications Act "in any Territory or possession" (47 U.S.C. 
329). 
So far as can be established, 
this authority has not 
been used in any of the current territories. 
The 
Communications 
Act 
also 
now 
contains 
a 
later 
addition 
to it--the law creating in 1962 the Corporation for 
Public 
Broadcasting, 
and 
providing 
a 
grant 
program, 
administered 
by 
the 
Secretary 
of Commerce, 
to 
aid 
public 
telecommunications 
in the States, 
"the Virgin Islands, 
Guam, 
American Samoa, 
the Northern Mariana Islands, 
and the Trust 
Territory of the Pacific Islands" 
(47 U.S.C. 
397(16)). 
The 
statutory requirements for these grants, which are designed to 
extend public telecommunications to "as many citizens of the 
United States as possible” 
(47 U.S.C. 
390), 
are not easy to 
meet. 
Among many other things, 
the applicant must engage in 
comprehensive 
planning, 
including 
an 
"evaluation 
of 
alternative 
technologies" 
(47 
U.S.C. 
392(a)(5)), 
and 
the 
applicant 
must 
be prepared 
to supply 
at 
least 
25% 
of 
the 
project cost (47 U.S.C. 
392(b)). 
1328 
1839 
Memorandum No, 
47-2 
Finally, the Communications Act now contains the Cable 
Act, 
added 
in 
1984, 
Communications 
by cable may not 
hold 
great 
interest 
to the 
territories, 
but 
the Cable 
Act 
does 
apply to them. 
At first blush it appears not to do so, given 
the definition of "State" at 47 U.S.C. 522(15) to include only 
the States and their agencies and political subdivisions, but 
the broad definition of the term (to include Territories and 
possessions) 
at 47 U.S.C. 
153(g) applies 
to the entire Act. 
The 
Cable 
Act, 
enacted 
50 
years 
after 
the 
original 
Communications Act, 
took the form of an amendment 
to it. 
In 
at least one case, 
the Court of Appeals for the Third Circuit 
had no difficulty 
in viewing the Cable Act as applicable to 
Puerto Rico, 
and Puerto Rico 
is not subject 
to any unusual 
treatment 
in the Act (Playboy Enterprises v 
Public Service 
Commission, 
906 F.2d 
25 (1990)). 
Hence the Cable Act quite 
clearly applies to the smaller territories as well. 
Matters of territorial interest: 
1. 
Guam’s complaints. 
In April 1982, 
in connection 
with 
a 
White 
House-Interior 
conference 
on 
Guam 
business 
problems, 
a group 
of Guam businessmen 
stated 
the 
following 
complaints 
with 
respect 
to 
Guam‘s 
treatment 
under 
the 
Communications Act: 
(1) Guam 
is treated 
as an international, 
not 
a 
domestic, 
area.¥/ 
{2) As a result, communication rates between Guam 
and the U.S. mainland are higher than they would otherwise be. 
(3) Communications carriers cannot now compete to 
provide services in Guam, but they should be permitted by the 
FCC to do so. 
en 
¥ Note added in 1993: 
This statement is no longer true. 
See 
the "Addendum, June 1993” at the end of this memorandum. 
Guam is 
now regarded as a "domestic" area. 
1329 
5249 
Memorandum No. 47-2 
In later years, from 1989 to the present (June 1993), Guam has 
formalized its complaint on the first two points by including 
in its bill 
to create 
a Commonwealth 
of Guam 
(H.R. 
98 
in 
recent Congresses) 
a requirement that the FCC treat Guam as 
"domestic" 
instead 
of 
"international" 
for 
rate-setting 
purposes. 
The 
first 
two 
numbered 
points 
are 
correct. 
Domestic rates are much lower than international rates, 
and 
sometimes 
less than half 
as much. 
As stated above, 
the FCC 
treats 
Guam 
(and 
Samoa 
and 
the 
Northern 
Marianas) 
as 
"international" points, owing originally to carrier practice 
and to former section 222 to the Communications 
Act. 
This 
section 
dealt 
with 
record 
(i.e., 
telegraph 
and 
telex) 
communications. 
Although the section was materially amended 
in 1981, 
the domestic-international 
distinction 
so 
far 
as 
rates 
are 
concerned 
survives, 
because 
of 
the realities 
of 
current 
satellite 
communications. 
That 
is, 
there 
are 
no 
domestic satellites that are placed to serve Samoa, Guam, and 
the Northern Marianas. 
These three areas are served instead 
by 
international 
satellites. 
Domestic 
communications 
companies 
do not 
"integrate" 
their international 
satellite 
costs with their domestic costs 
so as to equalize rates 
for 
services 
and 
so 
as, 
in 
effect, 
to 
reduce 
rates 
to 
the 
“international” 
points 
of Guam, 
the Northern Marianas, 
and 
Samoa. 
The effect 
of this nonintegration 
is substantially 
higher 
communications 
costs 
to 
Guam 
(and 
Samoa 
and 
the 
Northern Marianas) than to other U.S. "domestic" areas. 
The 
cause, however, has nothing to do with the territorial status 
of these 
areas, 
nor with any defects 
in the statute. 
The 
cause is technological, 
arising from the service limitations 
of 
domestic 
commercial 
satellites, 
which 
preclude 
their 
serving the areas they are primarily intended to serve, 
plus 
these distant territorial points, 
as well. 
§/ Note added in 1993: 
The points were correct 
in 1982, 
but 
are not in 1993. 
That is true also of the paragraph of the text in 
which 
the 
number 
of 
this 
footnote 
appears. 
For 
an 
updated 
statement, 
see 
the 
"Addendum, 
June 
1993" 
at 
the 
end 
of 
this 
memorandum. 
1330 
-841 
Memorandum No. 
47-2 
As 
for 
the 
th rd 
complaint, 
i.e., 
the 
lack 
of 
competition among communicetions common carriers in Guam, 
in 
fact the FCC has not imposed an RCA monopoly upon Guam. 
There 
was 
a 
time 
when 
the 
Fcc 
discouraged 
competition 
among 
carriers, 
but 
its 
policy 
is 
now 
the 
reverse. 
The 
Guam 
problem, however, results from the fact that there can be no 
competition unless there are those who seek to compete, 
and 
few have sought to compete with RCA in Guam. 
In one recent 
instance, 
however, 
applicants sought to provide competition 
and the FCC sanctioned it. 
The Guam Telephone Authority and 
the Hawaiian Telephone Company applied to the FCC in 1981 
to 
provide data communications services between Hawaii and Guan, 
in 
competition 
with 
RCA. 
In 
an 
opinion 
released 
on 
February 5, 
1982, 
the 
FCC 
stated 
that 
in 
that 
case 
“competition is reasonably feasible" and the added competition 
“is in the public interest" {I-T-C-81-028, 
p. 5). 
—— 
&/ Note added in June 1993: 
Competition in Guam has continued 
and increased. 
In June 1993 comments on this memorandum, 
the FCC 
has observed: 
Interexchange 
competition 
to 
and 
from 
Guam 
exists, 
and 
is accelerating. 
At least three 
IxCs 
[interexchange carriers, 
providing long 
distance 
service] 
serve 
Guam, 
and 
two more 
have 
expressed 
interest 
in 
serving 
that 
Territory 
as 
of May, 
1993. 
Ixc rates 
have 
been 
dropping 
in 
response 
to 
competitive 
pressures. 
The Guam Telephone Authority (GTA) 
has 
filed 
exchange 
access 
tariffs 
with 
the 
Federal Communications Commission and proposed 
to 
file 
tariffs 
that 
will 
more 
closely 
approximate 
the costs 
of providing exchange 
access services on Guam. 
Since existing GTA 
access tariff rates exceed costs, GTA tariffs 
that are based upon actual costs should reduce 
the 
expenses 
of 
Providing 
long 
distance 
communications 
to and 
from Guam, 
and 
a more 
competitive 
interexchange marketplace 
should 
result 
in 
the 
enjoyment 
of 
those 
cost 
reductions by ratepayers calling to, and from, 
the Territory of Guam. 
13391 
942 
Memorandum No. 
47-2 
2. 
Northern Marianas 
- jurisdiction. 
On January 9, 
1978, 
pursuant 
to 
the 
Northern 
Marianas 
Covenant 
and 
Presidential Proclamation No. 
4534, 
the Commonwealth of the 
Northern Marianas 
came 
into being, 
and certain Federal laws 
then became applicable to the Northern Marianas. 
Among them 
were 
(and 
are) 
the 
Communications 
Act 
of 
1934 
and 
the 
Communications Satellite Act of 1962 
(Memorandum 
No. 
47-3). 
In anticipation 
of 
that 
event, 
in 
the 
fall 
of 
1977, 
the 
private company operating communications 
facilities 
in the 
Northern Marianas urged the Secretary of the Interior to take 
the necessary steps to cause the application of such laws to 
the 
Northern 
Marianas 
to 
be 
postponed 
until 
trusteeship 
termination--an action the President could have taken under 
section 
1004(a) 
of 
the 
Northern 
Marianas 
Covenant. 
The 
company 
argued 
essentially 
that 
its 
plans 
to 
modernize 
communications 
in 
the Northern 
Marianas 
would 
be seriously 
delayed 
if FCC approval were 
to be required, 
and that 
the 
service would be more costly if COMSAT were involved. 
The question was resolved by not seeking 
a delay 
in 
the application of the two Acts. 
Department of the Interior 
files show that the matter was discussed with officers of both 
the FCC and COMSAT, 
following which Interior concluded 
that 
the company’s 
arguments 
were without merit. 
Interior also 
concluded 
that 
communications 
services 
in 
the 
Northern 
Marianas should be subject to some regulation, and that they 
would 
almost 
certainly 
not 
be 
if 
the 
application 
of 
the 
Communications 
Act 
were 
postponed. 
The 
Secretary 
of 
the 
Interior concurred in these conclusions in November 1977. 
fhe 
application 
of 
the 
Communications 
Act 
to 
the 
Northern Marianas was 
in effect confirmed in June 1980, when 
the FCC authorized COMSAT to construct an earth station there 
(FCC File Nos. 
489-CSC-P-80, 
I-P-C-89, Mimeo No. 
32379). 
3. 
Northern Marianas 
- citizenship. 
The application 
to the Northern Marianas of the Communications 
Act of 1934 
did, however, 
create a difficulty: 
citizens of the Northr7n 
Marianas, 
who have 
since 
generally 
become 
citizens 
of the 
United States upon trusteeship termination, did not have that 
status when the Covenant became in part effective 
in January 
1978, and they then could not be granted licenses for radio or 
1332 
R43 
Memorandum No. 
47-2 
television 
broadcasting. 
Some 
Federal 
agencies 
found 
it 
possible, by administrative action, to treat Northern Marianas 
citizens 
as 
though they were 
already citizens 
of the U.S. 
after January 1978, but the Fcc seems to have felt unable 
to 
do 
that. 
To 
overcome 
this 
problem, 
the 
President, 
by 
Proclamation 
No. 
4938 
of 
May 3, 
1982, 
suspended 
until 
trusteeship termination 
any provision 
of the Communications 
Act of 1934--particularly citing the sections at 47 U.S.C. 303 
and 
310, 
referred 
to above--under 
which 
"citizens 
of 
the 
Northern Mariana Islands would be considered as aliens." 
That 
action was taken under section 1004(a) of the Covenant, on the 
ground that the continued application to the Northern Marianas 
of the pertinent provisions of the Communications Act would be 
inconsistent with the Trusteeship Agreement. 
The 
Northern 
Marianas 
Federal 
Laws 
Commission 
recommended 
in January 
1982 
that 
for 
the period 
prior 
to 
trusteeship 
termination, 
legislation 
be 
enacted 
to 
cause 
citizens of the Northern Marianas to be considered "citizens 
of 
the 
United 
States" 
for purposes 
of 
47 U.S.C. 
303 
and 
310(b). 
Trusteeship 
termination 
in 
1986, 
and 
with 
it 
citizenship for the people of the Northern Mariana, made such 
legislation unnecessary. 
4. 
American Samoa. 
Except 
for 
enforcement, 
there 
does not appear to be any statutory problem in connection with 
FCC jurisdiction in Samoa. 
In January 1979, 
the FCC granted 
authority to COMSAT to construct an earth station in Samoa and 
to provide commercial satellite communication services for the 
territory (FCC File Nos. 325-CSG-P-78, I-P-C-7352-14). 
About 
10 months later, service was inaugurated. 
There 
is, 
however, 
the 
not 
unusual 
problem 
of 
an 
absence 
of 
a 
means 
for 
enforcement 
of 
the 
Federal 
Communications 
Act 
in American Samoa--where 
neither 
a U.S. 
Attorney nor 
a Federal District Court exists. 
The central 
section that requires attention appears at 47 U.S.C. 
401, but 
other affected sections include 
47 U.S.C. 
277(£), 
402, 
407, 
503(b)(3), 
504, 
510, and 555, 
1333 
B44 
Memorandum No. 
47-2 
5. 
Trust Territory jurisdiction. 
The FCC has reached 
the same jurisdictional result in the case of the Micronesian 
entities, but it has encountered and overcome some hurdles in 
the process. 
In the case, 
first, 
of Palau, 
the Commission 
concluded 
that 
it had jurisdiction 
to authorize 
a proposed 
COMSAT earth station there, notwithstanding Palau’s status as 
part of the Trust Territory, and notwithstanding its possible 
future political status of free association with the United 
States. 
In its File Nos. CSG-81-001-P, I-P-C-81-019, released 
duly 10, 
1981, 
the 
FCC 
stated 
in 
part 
that 
its 
"general 
jurisdiction 
over 
‘territories’ 
and 
‘possessions’ 
includes 
unincorporated territorial possessions” (citing its 1979 Samoa 
decision, 
referred 
to above), 
“and trust territories" 
(FCC 
decision, 
p. 
4). 
While it cited no authority 
then for the 
"trust territories" 
inclusion, 
the FCC might have cited its 
own earlier decision with respect to Kwajalein (Communications 
Satellite Corp., 56 FCC 2d 1101 
(1975)), because Kwajalein and 
Palau occupied then the same fundamental political status--a 
point made in the pleadings in the proceeding, 
in correspond- 
ence 
to 
the 
FCC 
from 
the 
Interior 
Department, 
and 
in 
the 
Commission’s order on reconsideration in the Palau case. 
The 
Commission might also have cited Vermilya-Brown 
v. 
Connell, 
335 U.S. 
377 (1948), 
as support. 
The 
FCC 
did 
conclude, 
however, 
that 
because 
Palau 
might soon achieve a new and more independent status--"outside 
the boundaries 
of U.S. 
jurisdiction" 
(FCC decision, 
p. 
4), 
COMSAT must 
keep separate 
books 
so 
as 
to 
be able 
then 
to 
exclude Palau costs from its domestic rate base. 
Further, the 
FCC reserved the right to require COMSAT, 
if Palau achieved a 
new status warranting it, to divest itself of its investment 
in the Palau station at not less than net book value. 
Having reached these results in the case of Palau, the 
FCC 
easily 
did 
the 
same 
in 
the case 
of the 
remaining 
two 
political 
entities 
of 
the 
Trust 
Territory--the 
Federated 
States of Micronesia (FSM) and the Marshalis. 
COMSAT proposed 
a total 
of six earth 
stations 
for them, 
and 
in 
a decision 
released April 
2, 1982, the FCC authorized such stations (File 
Nos. 
CSG-82-005-P, 
et al., 
I-P-C-82-011, 
et al.). 
The same 
conditions were imposed, 
i.e., 
that COMSAT maintain separate 
books for its facilities in the FSM and the Marshalls, 
so as 
to be able to exclude them from COMSAT’s U.S. 
rate base; and 
1334 
TRANG 
Memorandum No. 47-2 
that the FCC retains the right to order COMSAT to terminate 
its investments 
in the FSM and the Marshalls, 
should 
their 
future political status warrant. 
A question 
that arose 
in connection 
with 
the Trust 
Territory status negotiations was whether provision should be 
made so as to permit COMSAT to continue its operations in the 
Micronesian 
entities 
in 
the 
same 
manner 
after 
trusteeship 
termination as before. 
The negotiating governments agreed to 
do 
so, 
in 
section 
131(a)(2) 
of 
the 
Compact 
of 
Free 
Association, discussed further in Memorandum No. 
47-3. 
6. 
Public telecommunications grants. 
Although it is 
not easy 
to qualify 
for these Federal grants, 
three of the 
off-shore 
areas 
had, 
as 
of 1982, 
done 
so: 
American 
Samoa 
received one grant, 
this 
in the early 1970's, 
for $164,000; 
Guam, 
one 
grant, 
in 
1978-80 
for $117,000; 
and 
the 
Virgin 
Islands, 
four grants in the 1970's and early 80's, 
totaling 
approximately 
$870,000. 
All grants under 
this 
program 
are 
Project grants. 
It does not appear that any of these areas 
received grants in later years. 
Reports to the Department of 
the Interior show no grants to any of the insular areas 
for 
public 
telecommunications. 
It 
may 
be 
that 
the 
25% 
local 
contribution has deterred them. 
Additionally, while each area 
has 
some 
radio 
television 
broadcasting, 
they 
rely 
almost 
entirely upon mainland program sources, and, therefore, 
it is 
Possible 
that 
they 
lack 
resources 
to 
put 
Federal 
public 
telecommunications 
grants 
to use. 
The application 
of 
the 
program to them, 
thus, 
is probably without value, 
but 
it is 
also without harm. 
Conclusion: 
Although, 
as 
the foregoing discussion demonstrates, 
the Communications Act has presented the territories with a 
number of problems, 
those problems have either been overcome 
or they are 
not susceptible 
to statutory solutions, 
except 
that the matter of court jurisdiction for enforcement of the 
Act in Samoa should be attended to. 
Federal agency comments: 
Comments were invited 
in 1982 
from the 
Department 
of Commerce, 
the Department 
of Justice, 
and 
the 
Federal Communications Commission. 
All comments received have 
1335 
(AAG 
Memorandum No. 
47-2 
been reflected above. 
The revised version was reviewed by the 
Federal Communications Commission 
in 1993, 
and all comments 
received have been reflected above. 
Addendum, 
June 1993: 
As 
the 
FCC 
explained 
in 
comments 
in 
June 
1993 
on 
this 
Memorandum 47-2, on the matter of treatment of Guam and other 
Pacific areas 
as "international" points, 
Guam, 
together 
with 
American 
Samoa, 
the 
Commonwealth of the Northern Marianas and the 
Pacific 
Trust 
Territories, 
present 
a unique 
situation. 
As set forth 
in Memorandum 
47-2, 
with the advent of domestic satellite systems 
in 
the 
1970's, 
the 
Commission 
required 
the 
rates 
for the offshore points 
to which those 
satellite 
systems 
were 
capable 
of 
serving 
(Hawaii, 
Puerto 
Rico 
and 
the 
U.S. 
Virgin 
Islands) 
to be integrated with the rates for 
the continental 
U.S. 
Because 
the domestic 
satellite systems were not technically capable 
of 
serving 
Guam, 
American 
Samoa, 
the 
new 
Commonwealth of the Northern Marianas and the 
Pacific 
Trust 
Territories, 
these 
point 
were 
not 
included 
in 
the 
rate 
integration 
proceeding. 
However, after the original Section 222 of the 
Communications Act of 1934 was replaced by the 
new 
Section 
222 
(the 
Record 
Carrier 
Competition 
Act 
of 
1981), 
the 
Commission 
declared 
the off-shore 
points 
to be domestic 
points. 
But, 
since 
points 
such 
as 
Guam, 
American 
Samoa, 
the 
Commonwealth 
of 
the 
Northern 
Marianas 
and 
the 
Pacific 
Trust 
Territories 
are served only by international 
transmission 
facilities 
that provide service 
Primarily 
between 
the 
U.S. 
mainland 
and 
foreign 
points, 
authorization 
of 
those 
facilities are processed by the Commission’s 
1336 
SAG 
Memorandum No. 
47-2 
International 
Facilities 
Division 
of 
the 
Common Carrier Bureau.' 
In early 
1993, 
the 
Commission authorized Columbia Communications 
Corporation, 
a 
U.S. 
private 
international 
satellite system provider, to provide domestic 
services between the Pacific offshore points 
and the U.S. mainland. 
This provides some of 
these offshore points such as American Samoa 
and the Pacific Trust Territories with their 
first alternative facilities 
to the INTELSAT 
facilities provided by Comsat. 
SS, 
1 Facilities 
serving 
the 
Commonwealth 
of 
Puerto Rico and the U.S. 
Virgin Islands 
are 
processed by both the International Facilities 
Division 
(for 
Facilities 
which 
also 
serve 
foreign 
points) 
and 
the Domestic 
Facilities 
Division 
(for 
facilities 
which 
serve 
other 
domestic points) . 
1337 
Memorandum No. 47-3 
July 1982 
Revised November 1992 
Subject: 
The Communications Satellite Act of 1962 
Title 47, Chapter 6 (47 U.S.C. 
701-757) 
Purpose: 
To create 
the Communications 
Satellite 
Corporation, 
and 
through 
it, 
to 
provide 
for 
U.S. 
participation 
in 
commercial satellite communications on a global scale. 
Territorial 
application: 
The 
statute 
contains 
no 
geographical 
limitations that would adversely affect the territories or the 
Trust Territory. 
Recommendation: 
The 
Communications 
Satellite 
Act 
requires 
no 
modifications to accommodate the needs of the territories and 
the Trust Territory. 
Discussion: 
Substance of the statute: 
The Communications Satellite Act of 
1962 creates the Communication Satellite Corporation (COMSAT), 
a 
private 
corporation 
"for 
profit," 
that 
is 
"subject 
to 
appropriate governmental regulation" (47 U.S.C. 
731, 701(c)). 
COMSAT is not a Federal agency. 
It is authorized to own and 
operate 
a 
commercial 
communications 
satellite 
system, 
to 
furnish channels of communication to U.S communications common 
carriers, 
and to own and operate satellite terminal stations 
(47 U.S.C. 735(a)). 
COMSAT is managed by a board of directors 
and by officers who must be U.S. citizens 
(47 U.S.C. 733(a)), 
and its activities are subject to regulation by the FCC 
(47 
U.S.C. 
721(c)). 
A 1978 addition to the Communications Satellite Act is 
the International Maritime Satellite Telecommunications 
Act 
(47 U.S.C. 
751-757), 
which 
provides 
for U.S. 
participation 
though COMSAT in a global satellite telecommunications system 
designed to serve maritime commercial and safety needs. 
The 
statute defines 
"State" 
for purposes 
of maritime 
satellite 
communications, 
so as to include 
"Guam, 
the Virgin Islands, 
the 
Trust 
Territory 
of the 
Pacific 
Islands, 
and 
any 
other 
1338 
DRAQ 
Memorandum No. 47-3 
territory 
or 
possession 
of 
the United 
States" 
(47 U.S.C. 
75(4)). 
Matters 
of 
territorial 
interest: 
As 
is 
discussed 
in 
Memorandum 
No. 
47-2, 
COMSAT 
can 
and 
does 
carry 
out 
its 
activities 
through-out 
the 
territories 
and 
the 
Trust 
Territory. 
The FCC has approved its constructing and owning 
earth stations in the territories of American Samoa, Guam, and 
the Northern Marianas (and unquestionably it could as a matter 
of law do so in the case of the Virgin Islands as well), and 
in all three Political entities of the Trust Territory. 
ee 
Y Footnote added in 1992: 
On this point, the Compact of Free 
Association for the Federated States of Micronesia and the Marshall 
Islands, 
as contained in the Compact of Free Association Act (Pub. 
L. 
99-239), 
provides 
in 
section 
131(a)(2) 
that 
the 
FCC 
has 
jurisdiction 
under 
the 
Communications 
Act 
of 
1934 
and 
the 
Communications Satellite Act of 1962 
over 
all domestic and foreign communications 
Services furnished by means of earth terminal 
stations 
where 
such 
stations 
are 
owned 
or 
Operated by the United States common carriers 
and are located in the Marshall Islands or the 
Federated States of Micronesia. 
The subsidiary agreement under section 
131, executed in 1982 and 
1983, contains no provisions pertinent to section 131(a)(2), being 
confined 
to 
U.S. 
responsibilities 
under 
section 
131(a)(1) 
pertaining to international communications matters. 
The agreement 
does, however, contain the following Agreed Minute: 
The Signatory Governments [of the U.S. and the 
Freely Associated States} agree that in order 
to 
facilitate 
common 
carrier, 
including 
satellite, 
telecommunications 
in the 
(Freely 
Associated States] 
. 
. 
. 
this Agreement shall 
be amended as to the matter of United States 
Federal 
Communications 
Commission 
(Fcc) 
(continued...) 
1339 
[A350 
Memorandum No. 47-3 
The requirement of the Communications Satellite Act, 
that its directors 
and officers by U.S. citizens, 
obviously 
bars Samoans who are 
U.S. 
nationals, 
as it formerly did for 
Northern Marianas 
citizens. 
The Northern Marianas 
Federal 
Laws Commission did not propose to remedy this situation with 
respect 
to 
its 
area 
of 
concern, 
probably 
on 
the 
sensible 
ground that 
the Northern Marianas was not known 
to hold any 
likely COMSAT 
board 
or officer candidates.2/ 
The same 
is 
probably true of Samoa. 
As 
noted, 
the 
term 
"State" 
is generously 
defined 
for 
purposes of international maritime satellite telecommunica- 
tions. 
While that term is used only once in the statute--in 
47 
U.S.C. 
752(h), 
which 
permits 
COMSAT 
to 
function 
in 
an 
emergency situation notwithstanding 
"any provision of State 
law" 
to the contrary--the presence 
of the defisition makes 
clear that COMSAT has authority to provide maritime satellite 
telecommunications services throughout the territories and the 
Trust Territory.» 
V(...continued) 
jurisdiction 
in the Marshall Islands 
and the 
Federated States of Micronesia. 
There 
has 
been 
no 
such 
amendment, 
and 
none 
appears 
currently 
(November 1992) 
to be contemplated. 
2/ In its 1985 Report to the Congress, 
the Northern Marianas 
Commission referred to other sections 
of Title 47 that presented 
problems of citizenship to the 
people of the Northern Marianas, 
who were not then U.S. citizens (Report, pp. 524-525), but it iden- 
tified no other problems for the Northern Marianas within Title 47. 
The citizenship 
issues 
were all eliminated 
when 
the Trusteeship 
Agreement came 
to an end and the people of the Northern Marianas 
became U.S. citizens under the Covenant. 
2 The application 
of 
the 
International 
Maritime 
Satellite 
Telecommunications 
Act to the Northern Marianas deserves further 
(continued...) 
1340 
7851 
Memorandum No. 
47-3 
Conclusion: 
The Communications Satellite Act requires no modifica- 
tion to accommodate the needs of the territories and the Trust 
Territory. 
Federal agency comments: 
Comments were invited from the Department 
of Justice 
and the Federal Communications Commission. 
All 
comments received have been reflected above. 
ae 
a 
3/(...continued) 
comment. 
There are probably several theories that would permit the 
conclusion 
that the Act applies 
to the Northern Mariana, 
but the 
simplest may be by operation of section 502(a)(2) of the Covenant. 
Section 502(a)(2) 
extends to the Northern Mariana those "laws of 
the 
United 
States 
in existence" 
on 
the 
effective 
date 
of 
the 
section (which date was January 9, 1978) "and subsequent amendments 
to such laws"--if the law in question applies both to Guam and to 
the 
States. 
The 
International 
Maritime 
Satellite 
Telecommunications Act applies to both. 
Although it was enacted on 
November 
1, 1978, and thus after the effective date of section 502, 
the 
enactment 
took 
the 
form 
of 
an 
amendment 
to 
the 
1962 
Communications Satellite Act (92 Stat. 2392), so 502(a)(2) applies. 
1341 
2 i we 
Title 48 
- TERRITORIES AND INSULAR POSSESSIONS 
Contains matters of particular interest to the territories, but 
na legislative recommendations. 
** Contains recommendations for changes in the law. 
Memorandum 
(a) Puerto Rico 
(b) The Virgin Islands 
(c) Guano Islands 
1421-1428e 
ee 
* Territorial Provisions of a 
General Nature 
Alien Owners of Land 
The virgin Islands 
Eastern (American) Samoa 
Trust Territory of the 
Pacific Islands 
+ 
Conveyance of Submerged Lands 
to the Territories 
Delegates to Congress 
48 U.S.C. 
sections 
731-916 
1392-1408e 
1411-1419 
(a) 1451-1452 
(with 
comments 
on 
other 
sec- 
tions 
recently 
repealed) 
(b) 
1469a 
through 1470a 
(cc) 
1489, 
1491-1492 
1501-1512 
1541-1645 
1661-1669 
1681-1695 
1704-1708 
1711-1735 
Memorandum No. 
48-1 
July 1983 
Subject: 
(a) Puerto Rico 
Title 48, Chapter 4 (48 U.S.C. 
731-916) 
(b) The Virgin Islands 
Title 48, Chapter 7 (48 U.S.c. 
1392-1408e) 
{c) Guano Islands 
Title 48, Chapter 8 (48 U.S.C. 
1411-1419) 
(a) Guam 
Title 48, Chapter 8A (48 U.S.C. 
1421-1428e) 
Comment: 
The statutes considered herein, because they are all by 
definition 
applicable 
to 
particular 
offshore 
areas 
only, 
require no sustained attention for Purposes of this study. 
Discussion: 
(a) Chapter 
4 of Title 
48, which pertains 
to Puerto 
Rico 
(48 U.S.c. 
731-916), 
derives 
in substantial 
part 
from 
Puerto 
Rico’s 
1917 
Ocganic 
Act, 
now 
termed 
the 
Federal 
Relations 
Act. 
At 
1east 
some 
sections 
that 
remain 
have 
probably been overtakh=n by the creation of the Commonwealth in 
1952, 
but the codifiers 
have presumably 
chosen 
not 
to omit 
such sections because of the uncertainty, sometimes verging on 
mystery, 
that surrounds Puerto Rico’s status. 
The sections, 
however, 
are of application peculiarly to Puerto Rico alone, 
and were enacted with that Purpose only in mind, 
so they need 
not be further analyzed for purposes of the instant inquiry. 
(Reference might be made, however, for the benefit of students 
of government organization, 
to 48 U.S.c. 
794, 
a section from 
the 1917 Organic Act. 
In entirety it reads: 
All reports required by law to be made by the 
governor 
or 
heads 
of 
departments 
to 
any 
official of the United States shall be made to 
an executive department of the Government 
of 
the 
United 
States 
to 
be designated 
by 
the 
President, 
and the President is authorized to 
place all matters pertaining to the government 
of Puerto 
Rico 
in 
the 
jurisdiction 
of 
such 
departments. 
1343 
Pe 
Memorandum No. 
46-1 
An Executive 
Order 
was 
issued 
pursuant 
to that 
section 
in 
1943, 
placing the Secretary 
of the Interior 
in charge 
(see 
note following 
48 U.S.C. 
794)--as he already was because of 
earlier 
(1934) 
Presidential 
action--but 
that 
was 
almost 
certainly repealed by implication in 1952 with the creation of 
the Commonwealth. 
In any event 
it was surely terminated by 
President Kennedy’s "Memorandum" of July 25, 
1961, 
when he 
named “the Office of the President" as the contact point for 
matters 
touching 
Puerto 
Rico’s 
relationship 
to 
the 
United 
States. 
Puerto Rico has been regarded since 1952 as having no 
"home" 
within 
the Executive 
Branch, 
a situation 
which some 
observers 
find hurtful 
to Puerto Rico, 
and which almost all 
regard as regrettable from the standpoint of good governmental 
order. 
Whether 48 U.S.C. 794 permits an easy remedy, however, 
is 
not 
certain. 
Of 
course 
no 
remedy 
could 
be 
"easy" 
politically, 
because 
a 
new 
form 
of bureaucratic 
oversight 
would be viewed by some 
as a new form of colonialism. 
But 
with respect to the legal question solely, conventional wisdom 
in 
the 
Interior 
Department 
has 
been 
that 
there 
are 
no 
"reports" 
of 
the 
sort described 
in the first 
part of 
the 
section, 
and indeed 
none has come 
to light. 
The statutory 
language would seem to permit placing jurisdiction over Puerto 
Rican affairs only in the U.S. 
official designated to receive 
such 
"reports 
required 
by 
law", 
and 
if 
no 
such 
official 
exists, 
it probably 
follows 
that 
the President 
is without 
authority to act under this section.) 
(b) Similarly, 
the remaining 
sections 
of Chapter 
7 
pertaining to the Virgin Islands 
(48 U.S.C. 
1392-1408e) 
are 
derived largely from the transition provisions enacted at the 
time 
of purchase 
(1917), 
and from 
the Virgin Islands’ 
1936 
Organic Act. 
The chapter was tidied up in 1982, when much of 
it 
was 
repealed: 
provisions 
of 
the 
1936 
Act 
that 
were 
superseded by the 
1954 Revised Organic Act 
(referred 
to in 
Memorandum 
No. 
48-3); 
the 
charter 
of 
the 
Virgin 
Islands 
Corporation, 
which 
was 
terminated 
in the 
1960's; 
the 
1944 
Public Works Program, which was completed in the 1950’s. 
The 
remaining 
provisions 
are 
all 
of application 
to the Virgin 
Islands peculiarly, and thus require no further consideration 
here. 
1344 
a) 
i 
Memorandum No. 48-1 
(c) The 
19th 
century Guano Islands provisions 
(48 
U.S.C. 
1411-1419), 
may have served 
their purpose, 
assuming 
that every "island, rock, or key" in the world has by now been 
discovered, whether or not it holds "a deposit of Guano." 
In 
any 
event, 
these 
laws, 
rather 
regrettably, 
need 
no 
consideration for purposes of the current study. 
(d) The 
laws 
here 
codified 
pertaining 
to Guam 
(48 
U.S.C. 
1421-1428e) apply to it alone. 
They include the 1950 
Organic Act, and the Guam Development Fund Act of 1968. 
Most 
are very much alive, but given their content, they require no 
further consideration 
for immediate purposes. 
Conclusion: 
None of the statutes discussed herein require further 
attention for purposes of this study. 
Federal agency comments: 
Comments were invited from the Department 
of the Interior and the Department of Justice. 
All comments 
received have been reflected herein. 
1345 
Memorandum No. 
48-2 
July 1983 
Revised March 1984 
Subject: 
Territorial Provisions of a General Nature 
Title 48, Chapter 10 
{a) 48 U.S.C. 1451-1452 (with comments on other sections 
recently repealed). 
(b) 48 U.S.C. 
1469a through 1470a 
(c) 48 U.S.C. 
1489, 1491-1492 
Comment: 
Most of the laws that remain in Chapter 10 are very much 
alive and of current 
importance. 
No legislative 
change 
is 
needed. 
Discussion: 
(a) The 
laws 
appearing 
at 48 U.S.C. 
1451 
and 
1452 
pertain to "Indians" in any "Territory" of the United States, 
and in 19€3 they were amended 
(by section 
15 of Public Law 
98-213, 
approved December 8, 1983) 
to state that "Territory" 
as used therein does not include 
the Virgin Islands, 
Puerto 
Rico, American Samoa, Guam, or the Northern Marianas. 
Those 
two 
laws 
may 
be 
obsolete, 
but 
the 
Interior 
Department 
recommended to the Congress, and the Congress agreed, 
that in 
the interests of caution 
the laws ought not 
to be repealed, 
lest 
repeal 
adversely 
affect 
any 
Indian 
rights 
that 
might 
remain. 
But to be certain 
that 
the laws were confined 
to 
native American Indians, 
as originally contemplated 
in these 
19th century laws, Interior further recommended that they be 
made expressly inapplicable to the territories, 
and the 1983 
law explicitly does that. 
In the same Public Law 98-213, 
the bulk of the laws formerly 
appearing 
in Chapter 
10 were also repealed. 
By section 
16, 
there were 
repealed 
the 
laws 
that 
had been codified 
at 48 
U.S.C. 
1453-1469-1, 
1470, 1471-1479, 
1481-85, 1487, and 1488. 
(Those codified at 48 U.S.C. 1469a-1470a were not repealed and 
are considered below.) 
It was reasoned that those laws were, 
for 
the 
most 
part, 
derived 
from 
organic 
acts 
for 
the 
incorporated territories of the continental United States, and 
as such they were not enacted with the Virgin Islands, 
Guan, 
and American Samoa in mind. 
Because the current territories 
differ markedly from 
the 
former Territories 
of 
the Western 
1346 
Memorandum No. 48-2 
United 
States 
in 
terms 
of 
size, 
location, 
governmental 
structure, and other considerations, 
the old laws in question 
were regarded as of arguable appropriateness if applied to the 
current 
territories. 
Their 
repeal 
was 
recommended 
by the 
Interior 
Department 
so 
as 
to 
eliminate 
ambiguity, 
reduce 
redundancy, 
and remove the potential for surprise. 
As to the element of ambiguity, it was argued that if strictly 
construed, 
most of the provisions of Chapter 10 proposed for 
repeal 
would 
probably 
be 
found 
applicable 
to incorporated 
Territories only--i.e., 
to Territories to which the Congress 
expressly 
extended 
the 
u.s. 
Constitution--and 
not 
to 
the 
current territories, all of which are unincorporated. 
But it 
is always possible, 
following the instruction of Puerto Rico 
v. 
Shell 
Co. 
(302 
U.S. 
253 
(1937)), 
to conclude 
that 
the 
Congress would have made the law applicable to unincorporated 
territories had it anticipated their later acquisition. 
So 
repeal was recommended in order to eliminate any uncertainty 
concerning their application 
to the current territories. 
It was also argued that most of the subjects with which the 
laws in question deal are ones 
that are covered by existing 
organic acts (in the case of the Virgin Islands and Guam), the 
Covenant 
(in the case of the Northern Marianas), 
or a local 
constitution 
(in the case of American Samoa and the Northern 
Marianas), 
so they are no longer needed in them. 
Finally, 
it was argued that so long as these laws remain on 
the books, 
they constitute 
a potential 
for surprise, 
and in 
some cases 
a potential hazard, 
in the territories. 
For that 
reasons, 
among others, 
in 1978 the Congress repealed the laws 
formerly codified at 48 U.S.C. 
1480, 
1480a, and 1480b, which 
had restricted 
the ability of religious institutions 
to own 
property in "any Territory" of the United States (P.L. 95-584, 
approved November 2, 1978). 
The Department of the Interior’s 
Assistant Solicitor for Territories had earlier concluded that 
the 
laws 
in question were 
obsolete, 
and 
that 
they were 
of 
dubious 
constitutionality, 
but 
that 
they 
might 
be 
found 
applicable to Samoa and other unincorporated territories. 
(S. 
Rept. 
No. 95-1275, 
95th Cong., 
pp. 
5-8). 
1347 
Memorandum No. 48-2 
In January 1984, almost immediately following the repeal that 
was effected by section 16 of Public Law 98-213, a controversy 
arose 
pertaining 
to one 
statute 
that 
had 
been 
repealed. 
Section 
16(w) 
repealed 
an 1886 law (formerly codified at 48 
U.S.C. 1471) that barred the legislatures of "the Territories" 
from enacting local 
or special 
laws, 
and a controversy 
had 
arisen in the Virgin Islands in connection with the provision 
that barred the granting "to any corporation 
. 
. 
. any special 
or exclusive privilege, 
immunity, or franchise whatever." 
It 
was reported that some had proposed to rely upon that section 
in an argument opposing a recent action by the Government of 
the Virgin Islands. 
While 
48 U.S.C. 
1471 
had been held to 
apply to the Virgin Islands (Smith v. Government of the Virgin 
Islands, 
375 F.2d 714 (1967)), 
it was later held (in Thomas v. 
Government 
of the Virgin 
Islands, 
333 
F. 
Supp. 
961 
(1971)) 
that special legislation 
is barred 
in the Virgin Islands by 
the equal 
protection 
clause 
that 
expressly 
applies 
to 
the 
Virgin Islands under 
its Organic Act 
(48 U.S.C. 
1561). 
The 
repeal 
of 
48 U.S.C. 
1471, 
thus, 
effected 
no 
change 
in 
the 
state of the law in the Virgin Islands. 
(b) Within Chapter 10 there remain other provisions 
that are both live and important: 
48 U.S.C. 
1469a, 
part of 
the 
1977 Territories 
Omnibus 
Act, 
permits 
block grants 
to the territories 
and the Trust 
Territory 
and requires 
the waiving 
of matching 
in certain 
circumstances. 
The 
statute 
has 
been 
less 
used 
than 
was 
anticipated 
upon 
its 
enactment, 
but 
it 
has _ continuing, 
potential value. 
In light of the amendment in 1980 carried in 
Public Law 96-205 
(see note following 
48 U.S.C. 
1469a), 
the 
effect of the section is to require the Interior Department to 
waive all matching requirements for its programs in all of the 
territories and the Trust Territory, 
while other departments 
and agencies have discretion to do so. 
The limited waiver of 
matching that is provided for is clearly of continuing value 
to American Samoa and the Northern Marianas. 
By section 6 of 
Public Law 98-213, 
requirements 
for matching up to $200,000 
must be waived for each of them, 
by all agencies. 
48 U.S.C. 1469b requires audits by the General Accounting 
Office 
of 
the 
territorial 
governments. 
The 
language 
1348 
Po 
ee 
ee 
Memorandum No. 48-2 
frequently appears in Interior Department appropriation acts 
and it cannot but be continued, 
although its relationship to 
the work performed 
by the Interior Department’s 
Inspector 
General 
is uncertain. 
To avoid duplication, 
GAO in recent 
years has mostly audited the territorial comptrollers, not the 
territorial governments. 
48 _ U.S.C. 
_1469¢ 
permits 
any 
Federal 
agency, 
with 
reimbursement, to make its services and equipment available to 
the territories and the Trust Territory. 
It applies to all 
areas here involved and should be continued. 
48 
U.S.C. 
_1469d{a) 
is 
a 
companion 
1980 
technical 
assistance 
provision, 
giving 
the Secretary 
of 
the Interior 
authority 
to 
arrange 
for 
expert 
help--usually 
with 
reimbursement, at least from Interior to the donor agency, but 
not 
necessarily 
from 
the 
territorial 
or 
Trust 
Territory 
recipient. 
48 
U.S.C. 
_1469d(b) 
requires 
the 
Department 
of 
the 
Interior to provide Special help to the people of Bikini and 
Enewetak 
as 
long 
as 
necessary, 
even 
after 
trusteeship 
termination. 
Whether this Provision will survive trusteeship 
termination is arguable (see the discussion in Memorandum No. 
48-3 concerning 48 U.S.C. 
1695), inasmuch as the basis for its 
enactment 
is 
very 
likely 
the 
Trusteeship 
Agreement, 
and 
section 171 of the Compact provides that such laws cease to be 
effective with the Compact’s approval. 
48 U.S.C. 
1469d(c) permits the Secretary of Agriculture 
in his discretion to extend Agriculture Department programs to 
the 
territories 
and 
the 
Trust 
Territory, 
and 
to 
modify 
statutory 
requirements 
as 
necessary 
to 
make 
the 
programs 
effective there. 
This Provision is discussed at length ina 
Prefatory Comment following the Table of contents to Title 16 
of this Study. 
4 
:S.C. 1470a authorizes the Secretary of the Interior 
to buy or charter boats if needed in the territories 
or the 
Trust 
Territory 
(see 
48 
U.S.C. 
1687) 
for 
official 
or 
1349 
Memorandum No. 
48-2 
commercial purposes. 
Neither Interior nor the Trust Territory 
Government 
has 
operated 
shipping 
services 
in 
the 
Trust 
Territory for many years, 
and not within living memory in any 
of the territories, 
so the provision may have no continuing, 
direct 
value. 
But 
the Trust Territory authority 
(48 U.S.C. 
1687) was used by the High Commissioner in the early 1980’s in 
order 
to persuade 
the 
several 
subordinate 
Trust 
Territory 
jurisdictions 
to permit 
shipping companies, 
under contract 
with one such jurisdiction, 
to enter the ports of all of them. 
(c) A diverse assortment of statutes brings chapter 10 
to a close: 
48 U.S.C. 
1489 provides that the United States may not 
lose its title 
to land 
in any territory 
or area under U.S. 
jurisdiction by adverse possession or its equivalent. 
This is 
a 1934 law, clearly of continuing value to the U.S. 
48 U.S.C. 
1491 requires the Secretary of the Interior to 
report to Congress upon any proposed license to transport or 
store 
spent 
nuclear 
fuel 
in 
a 
territory 
or 
the 
Trust 
Territory, and to refrain from granting such a license unless 
expressly authorized by the Congress. 
The section was enacted 
in 1980, 
following Congressional surprise upon learning that 
certain Pacific Islands were being investigated as sites for 
nuclear waste storage. 
48 
U.S.C. 
1492 
requires 
the 
Secretary 
of 
Energy 
to 
prepare comprehensive energy plans for the territories and the 
Trust 
Territory. 
The 
deadline 
for 
the 
plans 
has 
passed 
(12/24/82), but section 7 of Public Law 98-213 amends the law 
to 
permit 
the 
Secretary 
of 
Energy 
to 
implement 
any 
recommendations 
in the plans. 
Conclusion: 
The bulk of the provisions of Chapter 10 have recently 
been repealed. 
Those that remain, 
all of which are identified 
above, 
require no immediate legislative attention. 
1350 
TARE 
a 
ee 
Memorandum No. 
48-2 
Federal agency comments: 
Comments were invited from the Department 
of the Interior and the Department of Justice. 
All comments 
received have been reflected herein. 
1351 
Memorandum No. 48-3 
July 1983 
Revised March 1984 
Subject: 
(a) Alien Owners of Land 
Title 
48, Chapter 
11 
(48 U.S.C. 
1501-1512) 
(b) The Virgin Islands 
Title 48, Chapter 12 (48 U.S.C. 
1541-1645) 
(c) Eastern (American) Samoa 
Title 48, Chapter 13 (48 U.S.C. 
1661-1669) 
(d) Trust Territory of the Pacific Islands 
Title 48, Chapter 14 (48 U.S.C. 
1681-1695) 
Comment: 
Except for Chapter 11 (Alien Owners of Land), which ought 
to be repealed 
as 
archaic 
and possibly mischiefmaking, 
the 
statutes considered herein, 
owing to the fact that they are 
all 
by definition 
applicable 
to particular 
offshore 
areas 
only, 
require 
no sustained 
attention 
for 
purposes 
of 
this 
study. 
Discussion: 
(a) The sections concerning Alien Owners of Land (48 
U.S.C. 1501-1512) come largely from an 1887 law providing that 
one who is not a U.S. citizen cannot "acquire title to or own 
any land in any of the Territories of the United States" 
(48 
U.S.C. 
1501). 
A number of exceptions follow (rights derived 
from 
treaties 
or 
from 
inheritance, 
a standard 
grandfather 
clause, 
and 
others), 
but 
they 
are 
not 
broad 
enough 
to 
countenance current practices in some of the territories, were 
this law to be applied to them today. 
The law was certainly 
not directed 
at the current territories, 
given the date 
of 
enactment; by its terms it applies to incorporated territories 
only; but to avoid uncertainty, 
it should be repealed. 
Before 
that is done, however, 
it will be necessary to establish that 
there would be no unintended consequences in the District of 
Columbia 
(48 U.S.C. 
1508, 
see codification note following 48 
U.S.C. 
1501) 
and Hawaii 
(48 U.S.C. 
1509-1512). 
In its report to the Senate Committee 
on Energy 
and Natural 
Resources on the bill that became the Territories Omnibus Act 
for 
1983 
(P.L. 
98-213, 
approved 
December 8, 
1983), 
the 
Interior Department recommended that Chapter 11 be repealed, 
but noted that because both the District of Columbia and the 
1352 
wD Pr) WwW 
Memorandum No. 48-3 
State of Hawaii are also affected by Chapter 11, their formal 
concurrence 
in the recommendation would be required. 
(Each 
had expressed informal concurrence 
to the Department of the 
Interior.) 
But the repeal of Chapter 11 was not contained in 
the Senate 
bill 
(S. 589, 
98th Congress), 
for the following 
reasons, 
as stated on the Senate floor: 
The administration also feels that chapter 11 
dealing 
with 
alien 
ownership 
of 
land 
is 
archaic and should be repealed. 
Portions of 
that chapter have been extended to Hawaii and 
the 
District 
of 
Columbia. 
Recent 
conver- 
sations 
with 
the attorney general 
of Hawaii 
indicate 
that Hawaii concurs but we have not 
received a formal comment from the Corporation 
Counsel 
for 
the 
District 
of 
Columbia 
and, 
therefore, 
are 
deferring 
consideration 
of 
chapter 
11 
at 
this 
time. 
(Cong. 
Rec., 
Nov. 
17, 1983, 
p. S 16483, daily Pagination. ) 
{b) Chapter 
12 
(48 
U.S.C, 
1541-1645) 
contains 
the 
Revised Organic Act of the Virgin Islands, 
a statute very much 
alive 
and 
in 
force, 
but 
of 
course 
limited 
to 
the Virgin 
Islands in its application. 
It does not require analysis for 
current purposes. 
(c) The sections Concerning Eastern (i.e., American), 
Samoa 
(4& U.S.C. 
1661-1669) 
represent 
a miscellany 
of laws 
enacted for Samoa from 1906 to the present, 
e.g., 
~~Samoa’s 
"temporary 
organic 
act" 
of 
1929 
(so 
described by Senior Judge Albert 
B. Maris of the Third 
Circuit), 
consisting 
of 
one 
subsection 
by which 
the 
President 
is 
authorized 
to 
determine 
who 
has 
administrative authority in Samoa 
(48 U.S.C. 
1661(c)); 
--Samoa’s valuable exemption from the coastwise laws 
(48 U.S.C. 
1664 
(see Memoranda No. 46-5)); 
1353 
43 Fo be 
Memorandum Ho. 
48-3 
--A law passed in 1906 (almost immediately after the 
cessions, 
and the only law passed by Congress for Samoa 
until 
1925 
when 
sovereignty 
was 
extended 
over 
Swains 
Island 
(48 U.S.C. 
1662)), 
describing how deeds 
to real 
property 
in 
the 
District 
of 
Columbia 
and 
in 
the 
Territories might be acknowledged 
in Samoa 
(48 U.S.C. 
1663); and 
--The 
1962 
technical 
assistance 
act 
for 
Samoa 
(48 
U.S.C. 
1666), 
of interest now larg=ly because it is so 
modest 
when 
contrasted 
with 
\ter-day 
technical 
assistance provisions 
(see Memorana 
n No. 48-2(b)). 
None of these statutes 
for Samoa requires further attention 
for purposes of this study. 
(d) The Trust Territory sections (48 U.S.C. 1681-1695) 
are similarly miscellaneous, 
but they of course arise from a 
much shorter period, e.g., 
--Another 
"temporary 
organic 
act" 
(see above) 
(48 
U.S.C. 
1681(a)); 
--Another modest 
technical 
assistance authorization 
(48 U.S.C. 
1681(b); 
cf. 
48 U.S.C. 
1469c); 
~-Provisions repeated annually in Interior Department 
Appropriations Acts 
(48 U.S.C. 
1682, 
1683, 
1687); 
--The authorization for the Trust Territory’s Economic 
Development Loan Fund (48 U.S.C. 
1688-1693); 
--Provisions 
concerning 
the 
District 
Court 
of 
the 
Northern Marianas 
(48 U.S.C. 
1694-1694e); 
and 
Memorandum No. 
48-3 
--An 
unusual 
Provision, 
destined 
to 
give 
rise 
to 
arguments 
for years 
to come, 
purporting 
to perpetuate 
Federal 
health 
and 
education 
programs 
in 
the 
Trust 
Territory 
even 
after 
trusteeship 
termination, 
absent 
express 
approval 
by 
the 
Congress 
(48 
U.S.C. 
1695). 
Because those laws apply to the Trust Territory by virtue 
of the Trusteeship Agreement, 
the weight of Washington 
opinion 
seems 
to 
be 
that 
the 
statutes 
fall 
when 
the 
trusteeship ends--but it can be expected that that view 
will not be universally accepted. 
Conclusion: 
None of the statutes discussed herein requires further 
attention for purposes of this study. 
Federal 
lency 
comments: 
Comments were invited from the Department 
of the Interior and the Department of Justice. 
All comments 
received have been incorporated herein. 
1355 
Memorandum No. 
48-4 
July 1983 
: 
Conveyance of Submerged Lands to the Territories 
(The Territorial Submerged Lands Act) 
Title 
48, Chapter 15 (48 U.S.C. 
1704-1708) 
Purpese: 
To convey title to the Governments of the Virgin Islands, 
Guam, 
and American Samoa of the tidelands, 
submerged lands, 
and filled lands that surround them. 
Territorial 
application: 
The 
Territorial 
Submerged 
Lands 
Act 
applies to the three territories named therein, 
but probably 
not 
to the Northern Marianas, 
and clearly not to the Trust 
Territory. 
Recommendation: 
The Territorial Submerged Lands Act should be made 
expressly applicable to the Northern Marianas, effective upon 
trusteeship termination. 
Discussion: 
The Solicitor of the Interior Department held in 1958 
that the United States, 
as an incident of sovereignty, 
owned 
the tidelands, 
submerged lands, 
and filled lands in Guam from 
the line of mean high tide seaward for three miles 
(65 I.D. 
193). 
As 
a consequence, 
the Interior Department 
initiated 
legislation, 
resulting 
in Public Law 88-183 
(77 
Stat. 
338, 
approved January 20, 
1963), 
that permitted 
the Secretary of 
the Interior to convey particular tracts of such land to the 
three 
territorial 
governments, 
following 
a procedure 
that 
included Congressional committee 
review. 
The procedure was 
cumbersome and time-consuming. 
In 1974, in order to equalize the treatment of the territories 
and the States--because the latter had been donees under the 
Submerged Lands Act of 1953 (43 U.S.C. 1301)--and in order to 
vest further incidents of self-government in the territories, 
the Congress enacted 
P.L. 
93-435 
(48 U.S.C. 
1705-1708). 
By 
that statute the title of the United States to lands between 
the 
line 
of 
mean 
high 
tide 
and 
three 
miles 
distant 
was 
transferred 
to the territories of the Virgin Islands, 
Guam, 
and American Samoa. 
Certain exceptions are stated, 
but they 
can for the most part be overcome 
(48 U.S.C. 
1705(b)). 
1356 
| 
Memorandum No. 
48-4 
Because the United States has never claimed sovereignty in the 
Trust Territory, 
and because in any event the Trust Territory 
is en route to an even more distant relationship to the United 
States, 
there is no basis for making this law applicable 
to 
the Trust Territory. 
But there is Probably good reason to do 
so in the case of the Northern Marianas, 
at such time as the 
trusteeship terminates and the Northern Marianas become fully 
a commonwealth 
(or "territory") of the United States. 
The submerged lands and tidelands 
of the Northern Marianas 
will probably then become the property of the United States, 
given the reasoning in the Solicitor’s 1958 decision and the 
absence of language in the Northern Marianas Covenant dealing 
differently 
with 
such 
lands. 
(It will 
be remembered 
that 
section 
502(a)(2) 
of 
the Covenant 
extends 
to the Northern 
Marianas 
those Federal 
laws that apply to Guam only if they 
are 
of 
general 
application 
to 
the 
several 
States. 
The 
Territorial Submerged Lanas Act would thus not automatically 
extend 
to 
the 
Northern 
Marianas. ) 
Upon 
trusteeship 
termination, 
the Northern Marianas should be treated no less 
generously under Federal 
law 
than the other territories, 
so 
the 
Territorial 
Submerged 
Lands 
Act 
should 
then 
be 
appropriately expanded. 
Conclusion: 
Upon trusteeship termination, 
the rights granted the 
territories 
of the Virgin Islands, 
Guam, 
and American 
Samoa 
under the Territorial Submerged Lands Act should be extended 
to the Northern Marianas. 
Federal agency comments: ° Comments were invited from the Department 
of the Interior and the Department of Justice. 
All comments 
received have been reflected herein. 
a 
ee 
ee 
Y note added in 1993: 
The recommendation of the 1985 report 
of the Northern Marianas Commission on Federal Laws coincides with 
this conclusion. 
The issue is discussed in careful detail in the 
report at pages 172-188. 
1357 
Memorandum No. 48-5 
duly 1983 
Revised March 1984 
Subject: 
Delegates to Congress 
Title 48, Chapter 16 (48 U.S.C. 
1711-1735) 
Comment: 
The Virgin Islands, 
Guam, 
and American Samoa all have 
nonvoting 
representatives 
in 
the 
Congress. 
The 
Northern 
Marianas does not, and some there would welcome it. 
Given the 
nature of this question, however, 
no useful purpose would be 
served by offering here a recommendation, 
either way, on the 
Northern Marianas representation issue. 
Discussion: 
Since 1972, the Virgin Islands and Guam have elected 
nonvoting delegates to the House of Representatives (48 U.S.C. 
1711-1715), 
as Alaska and Hawaii did before them. 
Puerto Rico 
is somewhat similarly represented by the Resident Commissioner 
from 
Puerto 
Rico 
(48 U.S.C. 
891-894). 
In 
1978, 
Congress 
provided for a Delegate from American Samoa, 
who need not be 
a 
U.S. 
citizen 
but 
must 
be 
a 
U.S. 
national 
(48 
U.S.C. 
1733(b)). 
Thus, the Northern Marianas alone are not now so represented. 
Their elected "Resident Representative" in Washington does not 
sit 
in 
the 
Congress, 
and 
as 
defined 
in 
the 
Covenant 
is 
a 
representative to the Executive Branch of the U.S. Government. 
Whether his mission should be broadened is a question that was 
debated in connection with the negotiation and approval of the 
Covenant, ith the answer being, 
for then, negative. 
Reasons for providing for such representation are manifold and 
manifest--most particularly including the 200-year tradition 
of representative 
government 
in America. 
But 
so 
are 
the 
reasons 
for not providing 
it, particularly considering 
the 
small population that would be given a voice, even if no vote. 
(The 
Northern 
Marianas’ 
population 
is 
about 
17,000, 
as 
contrasted with 
the average Congressional district 
of about 
half a million.) 
The Northern Marianas Federal Laws Commission has recommended 
that the Resident Representative be made a nonvoting delegate 
to the Congress. 
The staff Recommendation 
to the Commission 
1358 
1363 
Memorandum No. 48-5 
on the subject, prepared in March 1983, explores the issue at 
some length and supports that result. 
In 
any 
case, 
action 
on 
the subject 
can, 
probably 
in good 
| 
conscience be deferred until the trusteeship is terminated and 
the people 
of the Northern Marianas become citizens of the 
United 
States. 
They 
do 
not 
now, 
strictly 
speaking, 
owe 
allegiance to the United States, and their representation in 
the Congress may seem inappropriate until that status changes. 
Conclusion: 
These laws require no change at this time. 
Federal 
Set 
mments: 
Comments were invited from the Department 
of the Interior and the Department of Justice. 
All comments 
received have been reflected herein. 
Title 
49 
- 
7! 
PORTAT IO) 
Contains nothing of substantial interest 
to the territories. 
Contains matters of particular interest 
tu the territories, 
but no legislative recommendations. 
Contains recommendations for changes in the law. 
Contains recommendations for changes in the law, but the need 
for them is not urgent. 
Memorandum 
49 U.S.C. 
Number 
Subject 
sections 
Prefatory Comment 
(a) Department cf Transportation 
101-526 
(b) Motor Carrier Safety 
3101-3104 
Interstate Commerce 
10101-11917 
49 App. U.S.C 
sections 
__ 
{a) Bills of Lading 
81-124 
(b) Inland Waterways Transportation 
142 
(c) Air Commerce 
211-213, 
231 
(d) Contraband Seizure 
781-789 
(e) International Aviation 
Facilities 
1151-1160 
(f£) Medals of Honor 
1201-1203 
Federal Aviation Program 
1301-1557 
Urban Mass Transportation 
1601-1621 
(a) Department of Transportation 
1652£-1659 
(b) Natural Gas Pipeline Safety 
1671-1687 
(c) Aviation Facilities 
Expansion and Improvement 
1704-1743 
(d) Hazardous Materials Trans- 
portation 
1801-1819 
en 
a 
Title 49 
Contents 
* 
(e) National Transportation 
Safety Board 
1901-1907 
- 
(£) Hazardous Liquid Pipeline 
Safety 
2001-2015 
* 
(g) Abatement of Aviation Noise 
2101-2125 
* 
(h) Aviation Noise Policy 
2151-2158 
49-7 
* 
Airport and Airway Improvement 
2201-2227 
49-8 
* 
(a) Commercial Motor Vehicles 
2301-2316 
- 
(b) Public Airports 
2401-2461 
* 
(c) Motor Carrier Safety 
2501-2521 
* 
(d) Commercial Space Launch 
2601-2623 
* 
(e) Commercial Motor Vehicle 
Safety 
2701-2716 
(**) 
(£) Sanitary Food Transportation 
2801-2812 
dune 1991 
Prefatory Comment 
- Title 49 
Portions of Title 49, Transportation, 
have been enacted into 
positive law. 
Public Law 95-473 
(1978) enacted into positive law 
the Interstate Commerce Act, which is discussed below in Memorandum 
No. 
49-2; 
and Public Law 97-449 
(1983) enacted into positive law 
Subtitle 
I concerning the Department of Transportation, 
discussed 
below 
in Memorandum 
No. 
49-1(a), 
and 
Chapter 
31 
of 
Part 
C 
of 
Subtitle 
II, concerning Motor Carrier Safety, 
discussed below 
in 
Memorandum 
No. 
49-1(b). 
The 
foregoing 
are 
cited 
as 
49 
U.S.C, 
followed by appropriate section references. 
The 
remainder 
of Title 
49 
has 
not 
yet 
been 
enacted 
into 
positive law, although that is foreseen. 
The remainder continue to 
carry 
the same section numbers 
as before enactment 
of the Public 
Laws 
cited 
above, 
but 
they 
are 
now 
cited 
as 
49 
App. 
U.S.C., 
followed 
by the appropriate 
section references. 
These 
laws 
are 
discussed below in Memoranda Nos. 
49-3 through 49-8. 
Except 
for 
Memorandum 
No. 
49-7 
(on 
Airport 
and 
Airway 
Improvement), 
part 
(h) 
of Memorandum 
No. 
49-6 
(Aviation 
Noise 
Policy), 
and Memorandum No. 
49-8 
(on miscellaneous transportation 
subjects)--all of which are of relatively recent enactment--all of 
the memoranda that follow were originally drafted in 1982 and then 
circulated for comment among the pertinent Federal agencies. 
When 
such agency comments were incorporated in revised memoranda, 
the 
Title 
49 memoranda were then transmitted to the Governors of the 
Virgin Islands, Guam, American Samoa, and the Northern Marianas for 
their 
comment. 
Because 
of 
organization 
changes 
in 
the 
Code 
resulting from 
the codification referred 
to above, 
all Title 
49 
memoranda 
have 
been reexamined 
in 
1991 
and modified 
to reflect 
those organizational changes, and also to reflect recent additions 
and substantive changes 
(if pertinent) 
in the laws that appear in 
that Title. 
Those substantive changes have not been of material 
effect 
so 
far as 
the territories 
are 
concerned, 
but some 
of the 
recent additions are of possible interest. 
The revised memoranda 
have not been recirculated to Federal agencies or to the Governors 
for comment, 
nor have those cited above 
as exceptions 
to the 1982 
comment process been circulated at all. 
Time has foreclosed 
the 
comment process as to those late entries. 
1362 
7273 
Memorandum No. 
49-1 
May 1991 
Subject: 
(a) Department of Transportation 
Title 49, Subtitle 
I (49 U.S.c. 
101-526) 
(b) Motor Carrier Safety 
Title 49, Subtitle II, Part C, Chapter 31 (49 u.s.c. 
3101-3104) 
Comment: 
Neither 
of 
the portions 
of Title 
49 discussed 
herein 
contain any provisions that create significant difficulties in 
or for the territories. 
Discussion: 
(a) Subtitle 
I contains organic legislation 
for the 
Department 
of 
Transportation 
(49 
U.S.C. 
101-526). 
Its 
provisions concerning the organization of the Department 
(49 
U.S.C. 
101-110) 
pertain to housekeeping matters 
and are not 
directly relevant to the territories. 
(A reference to "State" 
governments, in 49 U.S.C. 101(b) (3), pertaining to the purpose 
of 
the 
Department, 
can 
be 
viewed 
as 
illustrative 
and 
not 
confining.) 
Sections pertaining to general powers 
(49 U.S.C. 
301-336) 
similarly 
contain 
no 
provisions 
presenting 
difficulties 
to the territories. 
("State" references 
in 49 
U.S.C. 301(7) and in 303(b) and {c) again do not appear to be 
confining, 
although 
an elaboration of the term in 49 U.S.C. 
303, 
which pertains 
to transportation policy 
as 
it affects 
parks, 
refuges, 
and historic sites, 
so as to be clearer that 
the 
territories 
are 
comprehended, 
would 
give 
comfort.) 
References 
to "territorial" 
agencies 
and 
to "territory, 
or 
possession" 
in 
49 
U.S.C. 
322(c)(3) 
and 
329(c)(1), 
respectively, pertaining to intergovernmental cooperation and 
studies, clearly comprehend 
the insular areas here involved. 
Use of Federal district courts for the enforcement of civil 
penalties 
pertaining 
to the Maritime Administration 
or 
the 
Cvast Guard (49 U.S.C. 336(c)), raises the familiar problem of 
Samoa, where there is no Federal district court. 
But in this 
context 
no 
difficulty 
is 
known 
to 
exist, 
so 
legislative 
correction appears not urgently required. 
The remaining sections of the Subtitle concern special 
authority 
in the Secretary of Transportation 
in relation 
to 
motor carriers 
(49 11.5.c. 
501-526). 
These sections 
do not 
apply to the territories because the territories are excluded 
under 49 U.S.C. 
10102(24) 
and (27), which are definitions 
in 
1363 
Memorandum No. 
49-1 
the interstate commerce laws (Memorandum No. 49-2), 
and such 
definitions 
are 
incorporated 
by reference 
for 
purposes 
of 
these sections on the special authority of the Secretary 
(49 
U.S.C. 
501{a)(1)). 
Inasmuch as the interstate commerce laws 
generally do not apply to the territories, this result appears 
to be appropriate. 
(b) The provisions entitled Motor Carrier Safety (49 
U.S.C. 
3101-3104) 
are derived 
from 
the 
interstate 
commerce 
laws, 
and they confer upon 
the Secretary 
of Transportation 
certain regulatory authority respecting motor carriers 
that 
was 
formerly 
vested 
in 
the 
Interstate 
Commerce 
Commission. 
The definition of "United States" for purposes of these motor 
carrier safety laws is the same as that contained in the motor 
safety 
section 
of 
the 
interstate 
commerce 
laws 
(49 
U.S.C. 
3101(2), 
10102(27)), 
and 
that 
definition 
excludes 
the 
territories. 
Accordingly, these motor carrier safety laws are 
not applicable 
to the territories. 
Conclusion: 
The provisions of Title 49 discussed above require no 
modification 
to 
meet 
the 
needs 
of 
the 
territories, 
but 
a 
clarification of the application to them of the provisions of 
49 U.S.C. 
303 could have value, 
as would the expansion of the 
reference 
to "district 
court 
of 
the United 
States" 
at 
49 
U.S.C. 
336(c) 
to accommodate American Samoa. 
Federal 
agency 
comments: 
Earlier 
versions 
of 
the 
memoranda 
discussing the foregoing provisions were submitted for comment 
in 1982 to the Departments of Justice and Transportation and 
the 
Interstate 
Commerce 
Commission. 
All 
comments 
received 
have been reflected above. 
Memorandum No. 
49-2 
May 1982 
Revised May 1991 
Subject: 
Interstate Commerce 
Title 
49, Subtitle 
Iv (49 U.S.c. 
10101-11917) 
Purpose: 
To 
provide 
for 
the 
Federal 
regulation 
of 
interstate 
commerce 
and certain intraterritorial 
commerce 
by railroad, 
jointly 
by 
rail 
and 
water 
carrier, 
and 
by 
certain 
motor 
carriers, 
water carriers, 
and freight forwarders. 
Territorial application: 
The statutes pertaining tn the regulation 
of interstate commerce have 
no practical application 
to the 
territories. 
It 
is 
possible 
that 
they 
have 
theoretical 
application, but even that is very limited and in any event of 
no current relevance. 
Recommendation: 
The interstate commerce 
laws pose no problem 
to 
the territories 
and 
require 
no modification 
to accommodate 
them. 
Discussion: 
The statutes pertaining to the Federal regulation of 
interstate commerce 
by the Interstate Commerce Commission-- 
formerly chapters 
1, 
1A, 
8, 
12, 
and 
13 of Title 49--were 
in 
1978 enacted 
into positive 
law 
(P.L. 
95-473), 
and 
they now 
constitute Subtitle IV of Title 49. 
ICC Jurisdiction: 
For 
current 
purposes, 
four 
sections 
of 
Title 
49 
pertaining 
to 
the 
jurisdiction 
of 
the 
Interstate 
Commerce 
Commission 
(ICC), 
plus 
two 
general 
definitions, 
are 
of 
Principal 
interest. 
The definitions provide that: 
~7the 
“United 
States" 
means 
the 
States 
and 
the 
District of Columbia 
(49 U.S.C. 
10102(27)). 
--a "State" means one of the States or the District 
of Columbia 
(49 U.S.C. 
10102(24)). 
1365 
oR ys 
CEE: 
ee 
Memorandum No. 
49-2 
Of 
the 
four 
jurisdictional 
sections, 
each of which 
is 
discussed below, three make clear that Federal regulation does 
not touch the territories 
(49 U.S.C. 10521, 10541, 
10561), but 
the fourth 
(49 U.S.C. 
10501) 
is of less certain effect. 
--Section 
10501 
sets forth the jurisdiction of the ICC 
with respect to transportation by railroad, 
express carrier, 
sleeping 
car 
carrier, 
water 
common 
carrier, 
and 
pipeline 
carrier. 
Owing 
to 
geography, 
and 
to 
the 
absence 
in 
the 
territories of railroads and pipelines, 
the regulation of all 
of 
these 
forms 
of 
transportation 
is 
irrelevant 
to 
the 
territories, 
with 
one 
exception: 
joint 
rail-water 
transportation, 
i.e., 
transportation "by railroad and water, 
when the transportation is under common control, management or 
arrangement for a continuous carriage or shipment" (49 U.S.C. 
10501(a)(1)(B)). 
Such 
transportation 
is 
within 
the 
ICC’s 
jurisdiction if it occurs between 
a State and a territory or 
possession 
(49 U.S.C. 
10501(a)(2)(C)), 
or within 
a territory 
or possession 
(49 U.S.C. 
10501(a)(2)(E)). 
Hence, transportation between an inland continental U.S. 
point and a territory, 
if such transportation 
is provided on 
a 
through 
fare 
basis 
using 
a 
railroad 
in 
the 
continental 
United States and a water carrier to the territory, 
is subject 
to 
ICC 
jurisdiction. 
Trailer 
Marine 
Transport 
Corp. 
v. 
Federal Maritime Commission 
(602 F.2d 379 
(1979)), 
so held, 
with respect to precisely that kind of transportation from the 
States to Puerto Rico. 
(The ICC does not, however, any longer 
exercise 
such 
jurisdiction 
between 
the 
continental 
United 
States 
and 
a territory 
with 
regard 
to containerized 
goods 
(American Trucking Associations v. ICC, 656 F.2d 1115 (1981)). 
It is improbable, 
however, 
that such through fares exist 
for 
transportation to such distant territories as American Samoa, 
Guam, 
and the Northern Marianas, 
nor 
to the Virgin 
Islands. 
For that reason, 
the ICC’s jurisdiction touching 
the current 
territories 
under 
such 
through 
tariffs 
is 
almost 
certainly 
only theoretical. 
IcC jurisdiction within 
the territories with respect 
to 
the transportation described above 
(rail, 
rail and water, 
and 
pipeline) 
also 
theoretically 
exists. 
As 
noted 
above, 
49 
1366 
1377 
Memorandum No. 49-2 
U.S.C. 
10501(a)(2)(E) 
refers 
to 
transportation 
within 
a 
territory or possession. 
Puerto Rico has been held to be a 
"territory" 
for 
purposes 
of 
the 
interstate 
commerce 
laws 
(Trailer Marine Transport, supra, note 26 at p. 385). 
Puerto 
Rico’s 
1917 
organic 
act 
exempts 
it 
from 
the 
"Interstate 
Commerce Act and the several amendments made or to be made 
thereto" 
(48 U.S.C. 
751), 
but that section has been held to 
exempt Puerto Rico only from Icc regulation 
of intra-Puerto 
Rican 
transportation 
(Benedicto _v. 
West India 
& 
Panama 
Telegraph Co., 
256 F. 
417, 
420-421 
(1919)). 
It follows that, 
in the absence of a provision similar to 
that contained 
in Puerto 
Rico’s 
1917 organic 
act--and 
such 
Provisions are absent 
so far as American Samoa, Guam, and the 
Virgin 
Islands 
are 
concerned--there 
is 
inchoate 
Icc 
jurisdiction 
over 
certain, 
very 
limited 
forms 
of 
transportation within each of these 
territories. 
But since 
none of these forms of transportation involved (rail, 
rail and 
water, 
and pipeline) 
now occurs 
in any of these 
areas, 
the 
Federal 
regulation 
does 
not 
and 
could 
not 
occur. 
Ice 
regulation of these forms of intraterritorial transportation 
could 
not, 
in 
any 
event, 
occur 
in 
the 
Northern 
Marianas. 
While 
section 
502(a)(2) 
of 
the Northern 
Marianas 
Covenant 
would cause the interstate commerce laws to apply generally to 
the Northern Marianas if they apply to Guam, 
they would under 
that 
section 
apply 
only 
on 
the 
terms 
on 
which 
"they 
are 
applicable to the several States." 
The ICC’s authority within 
the territories under 49 U.S.C. 10501(a) 
(2)(E) is confined to 
"a territory or possession," and, therefore, would not extend 
to the Northern Marianas. 
Section 
10521 
sets 
forth 
the 
IcC’s 
jurisdiction 
over 
motor 
carriers. 
That 
jurisdiction 
is 
limited 
to 
transportation in the States and the District of Columbia; 
to 
transportation, 
in 
the 
case 
of 
joint 
motor-water 
through 
tariffs, 
to (but not within) 
the territories and possessions; 
and 
to transportation 
"in a reservation under 
the exclusive 
jurisdiction of the United States or on a public highway." 
As 
to the 
joint motor/water 
tariff 
jurisdiction, 
the Court 
of 
Appeals for the District of Columbia Circuit held in 1981 that 
the 
ICC 
has 
jurisdiction 
of 
such 
tariffs 
between 
the 
continental 
United 
States 
and 
Puerto 
Rico. 
Puerto 
Rico 
Maritime Shipping Authority v. Interstate Commerce Commission, 
1367 
IBD 
Memorandum No. 
49-2 
645 
F.2d 
1102. 
If 
any 
such 
joint 
fares 
exist 
to 
the 
territories, 
the ICC by analogy would have jurisdiction over 
them. 
It is stated above in connection with joint rail/water 
fares 
that there 
are probably 
no such fares 
to the Pacific 
territories 
or 
to the Virgin 
Islands. 
The 
same 
is almost 
certainly true in the case of joint motor/water fares. 
As to 
"reservations" under exclusive Federal jurisdiction, there are 
no 
such 
reservations 
in 
the 
territories. 
And 
the 
"public 
highway" provision, given the statute from which it is derived 
(formerly 
49 
U.S.C. 
303(c)), 
seems 
clearly 
limited 
to 
the 
States and the District of Columbia. 
--Section 10541 provides for the ICC’s jurisdiction over 
water carriers serving places in the States. 
The territories 
are clearly excluded. 
--Section 
10561 
concerns 
jurisdiction 
over 
household 
goods freight 
forwarders 
who provide 
transportation between 
places in States, and this jurisdiction has no application to 
the territories. 
References 
to territories: 
Subtitle Iv of Title 49 contains references from time to 
time 
to 
the 
"territories 
and 
possessions" 
of 
the 
United 
States. 
Except for the reference in section 10501, discussed 
above, these references have no effect so far as the extent of 
ICC regulatory jurisdiction is concerned. 
They appear in fact 
to represent 
an 
effort 
to update 
territorial 
nomenclature. 
While 
the motive 
is commendable, 
the result 
may 
as 
a legal 
matter give rise 
to uncertainty--but 
it is minimal. 
For example, the original Interstate Commerce Act of 1887 
referred, 
as 
statutes 
of 
that 
era 
generally 
did, 
to 
the 
"States and Territories." 
That reference meant incorporated 
territories (for at that time the U.S. had none that were not 
incorporated). 
The recent 
law revisers have turned 
the 1887 
"Territories" 
into 
"territories 
and 
possessions," 
thereby 
picking up the unincorporated territories of Guam, Samoa, 
the 
Virgin Islands, 
and possibly 
(but not certainly) 
the Northern 
1368 
TR 
Memorandum No. 
49-2 
Marianas. 
And this may not be what the Congress intended, 
or 
indeed what the law revisers intended. 
(See, for example, 
49 
U.S.C. 
10746, 
10781, 
11507, 
and their predecessors, 
formerly 
49 U.S.C. 
1(8), 
19a(c), 
60, 
respectively.) 
But 
the matter 
requires no correction, 
for the sections are immaterial so far 
as 
the 
insular 
areas 
are 
concerned. 
The 
49 U.S.C. 
10746 
reference 
is to rail Carriers; 
49 U.S.C. 
10781 refers to the 
carriers discussed above under Section 10501, which are rail, 
rail and water, and Pipeline; and 49 U.S.C. 11507 provides for 
State 
(or 
territorial) 
jurisdiction 
over 
most 
prison-made 
goods. 
There are no problems presented by these. 
Similarly, 
a 1950 statute that referred, 
as statutes of 
that era generally did, 
to the “Territories and possessions" 
of the United States (formerly 49 U.S.C. 
306(a)(2)) has been 
changed by the law revisers 
to “territories and possessions" 
(49 U.S.C. 
10932(a)). 
The usage 
is more modern, 
and unlike 
the ether modifications referred to above, 
it clearly effects 
no change in the law. 
Conclusion: 
The 
interstate 
commerce 
laws 
present 
no 
practical 
problem 
to the territories. 
It is unlikely that 
they ever 
will. 
But 
if 
transportation 
techniques 
in 
or 
to 
the 
territories 
develop 
in 
such 
a 
way 
as 
to 
invite 
icc 
jurisdiction, 
then it would be wise to reexamine the question 
of the application of these laws and their actual effects 
in 
the territories. 
Federal 
agency comments: 
Comments were 
invited 
in 1982 
from the 
Department of Justice and the Interstate Commerce Commission, 
All comments received have been reflected above. 
1369 
Memorandum No. 
49-3 
May 1982 
Revised May 1991 
Subject: 
Chapters 
1-19 of Title 
49 Appendix, 
Transportation 
(49 
App. U.S.C. 
1-1203), 
including: 
(a) Bills of Lading 
Title 49 App., Chapter 4 (49 App. U.S.C. 
81-124) 
(b) Inland Waterways Transportation 
Title 49 App., Chapter 
5 (49 App. U.S.C. 
142) 
(c) Air Commerce 
Title 
49 App., 
Chapter 
6 (49 App. 
U.S.C. 
211-213, 
231) 
(d) Contraband Seizure 
Title 
49 App., Chapter 
11 
(49 App. 
U.S.C. 
781-789) 
(e) International Aviation Facilities 
Title 49 App., Chapter 15 (49 App. U.S.C. 
1151-1160) 
(£) Medals of Honor 
Title 49 App., Chapter 17 (49 App. U.S.C. 
1201-1203) 
Comment: 
The 
statutes 
considered 
herein 
present 
no problems 
of 
known consequence to the territories, but consideration should 
be given to expanding the enforcement provision contained in 
the 
contraband 
seizure 
laws 
(discussed 
at 
(d) 
below) 
to 
include Samoa and the Northern Marianas. 
Discussion: 
Of the first 19 chapters of Title 49 and its Appendix, 
13 have been repealed 
or transferred 
to other parts of the 
Code, 
and they are thus not discussed here. 
The six chapters 
that remain 
in whole 
or 
in part are discussed below. 
Among 
the chapters that have been repealed are those pertaining to 
interstate commerce and its regulation, matters now dealt with 
in Subtitle 
IV of Title 
49, which was enacted into positive 
law 
in 1978. 
Those 
laws 
are considered 
in Memorandum 
No. 
49-2. 
(a) The 1916 statute pertaining to Bills of Lading (49 
App. 
U.S.C. 
81-124) 
applies 
to and within 
the territories. 
The statute is designed to cause bills of lading to be treated 
1370 
TAR 
Memorandum No. 
49-3 
as fully negotiable instruments, 
and to that end it specifies 
the 
rights 
of 
the 
carrier, 
the 
consignor, 
the 
consignee, 
purchasers, 
creditors, 
and other relevant parties. 
The law 
applies to the territories, given the definition of "State" to 
include "any 
. 
. 
. insular possession" 
(49 App. U.S.C. 
122), 
and 
it 
applies 
also 
to 
transportation 
between 
States 
and 
territories and within a "territory" (49 App. U.S.C. 
81). 
To 
reach 
the 
latter 
conclusion 
one 
need 
only 
construe 
a 
“Territory” 
to include 
a “territory," 
which 
is easily done 
under Puerto Rico v. Shell 0il Co., 302 U.S. 
253 (1937). 
The 
law did apply to transactions within incorporated territories 
("Territories"), 
and 
it applies 
to transactions within 
the 
District 
of Columbia 
(49 App. 
U.S.C. 
81, 
122), 
so the same 
treatment 
would 
occur 
with 
respect 
to transactions 
within 
unincorporated 
territories--though 
not 
within 
the 
Northern 
Marianas, because they are entitled to "State"-like treatment 
under section 502(a)(2) of the Covenant. 
Probably few goods 
are carried within 
the present territories 
on the basis of 
negotiable 
bills 
of 
lading, 
but 
for 
such 
goods 
as 
are 
so 
carried, 
this 
1916 act is probably useful, 
containing 
as 
it 
does rather ordinary rules of commercial transactions. 
Two sections, 
each 
of 
very 
limited 
importance, 
provide treatment 
for the territories that differs from the 
treatment of the States: 
49 App. U.S.C. 
84 and 85 concerning 
carrier liability apply only 
to transportation on the North 
American Continent. 
The relative age of the sections (1916), 
plus 
the 
absence 
of 
reported 
decisions 
concerning 
them, 
suggest that these sections are unlikely to be of substantial 
interest in the territories. 
(b) Only one section remains 
in the chapter entitled 
Inland Waterways Transportation 
(49 App. U.S.C. 
142), and it 
charges the Secretary of Transportation with promoting "inland 
waterway 
transportation 
facilities 
in 
connection 
with 
the 
commerce 
of 
the United 
States." 
The 
territories 
have 
no 
“inland 
waterways" 
of 
significance 
to 
intraterritorial 
transportation, 
(c) A very few sections of Chapter 6 on Air Commerce 
remain live, but they are of no interest 
to the territories. 
That is, the law that permits the Secretary of the Interior to 
1371 
TAQ? 
Memorandum No. 
49-3 
lease public lands for airports 
(49 App. U.S.C. 
211-213) 
is 
irrelevant, for there are in the territories no "public lands" 
as that term is used in Federal law. 
The 1931 
law permitting 
participation 
in 
the 
International 
Technical 
Committee 
of 
Aerial Legal Experts is probably obsolete, but in any event it 
contains no troublesome geographic limitations (49 App. U.S.C. 
231). 
(d) The 1939 statute providing for contraband seizure 
(49 App. U.S.C. 781-789) permits the seizure and forfeiture of 
any 
vessel, 
vehicle, 
or 
aircraft 
that 
is 
used 
for 
the 
transportation of articles of contraband. 
Contraband articles 
consist of-- 
(1) certain 
narcotics, 
possessed 
or 
handled 
in 
violation 
of 
U.S. 
law 
or 
transported 
"within 
any 
Territory 
[or] 
possession" 
or 
between 
States, 
Territories, 
and possessions;~ 
(2) firearms 
that 
involve 
a 
violation 
of 
the 
National Firearms Act; 
(3) certain counterfeit coins; 
and 
(4) certain cigarettes with respect, to which State 
taxes have not been paid 
(49 U.S.C. 
781 ye 
¥ transportation "within" the Northern Marianas would not be 
covered, because the Northern Marianas is entitled to "State'-like 
treatment under section 502(a)(2) of the Covenant. 
2/ The application to the territories of the Federal statutes 
on 
these 
subjects 
is considered 
in connection 
with 
each 
of 
the 
pertinent 
laws: 
narcotics 
laws 
(Memorandum 
No. 
21-6); 
firearms 
(Memorandum 
No. 
26-4); 
coins 
(Memorandum No. 
31-1); 
and nontaxed 
cigarettes 
(Memorandum 
No. 
18-1). 
Their 
application 
to 
the 
territories should not be assumed from internal references 
in the 
contraband seizure statute here considered. 
1372 
TARS 
Memorandum No. 
49-3 
Enforcement 
is the responsibility of the Customs 
Service, 
but 
that 
agency 
has 
no 
agents 
stationed 
in 
the 
territories, except for the Virgin Islands. 
In light of that 
fact, 
the 
Congress 
in 
1956, 
in 
the 
Guam 
Omnibus 
Act 
that 
implemented 
recommendations 
of 
the 
Commission 
on 
the 
Application 
of Federal 
Laws 
to Guam, 
provided 
that 
in Guam 
enforcement and administration of the contraband seizure act 
would be the responsibility of the Governor of Guam and his 
subordinates 
(49 
App. 
U.S.C. 
789). 
The 
authority 
earlier 
vested in the Secretary of the Treasury to designate officers 
to assist in enforcement (49 App. U.S.C. 
783) was regarded as 
insufficient to permit him to arrange 
for enforcement 
in the 
territories by territorial governments. 
It 
may 
be 
that 
the 
Guam 
Provision 
should 
be 
expanded to include Samoa and the Northern Marianas, given the 
concern with drug trafficking in all the insular areas. 
Since 
territorial 
governors 
are 
now 
uniformly 
elected, 
such 
a 
provision 
(and 
the 
existing 
49 
App. 
U.S.C. 
789) 
could 
be 
vulnerable 
to Constitutional 
attack 
under 
the Appointments 
Clause, 
but 
that 
problem 
could 
probably 
be 
overcome 
by 
authorizing the head of the agency to appoint the Governor as 
his enforcement agent. 
(e) A 
1948 
statute 
pertaining 
to 
International 
Aviation 
Facilities 
(49 
App. 
U.S.C. 
1151-1160) 
applies 
in 
small part to the territories, but the matter appears to be of 
little consequence, 
and no legislation modification is neces- 
sary. 
The statute relates to airports in foreign territory--a 
term defined so as to include the Trust Territory (but not the 
territories), 
because 
it includes 
". 
. 
. 
any 
area 
of land 
rn 
+ 
administered 
by 
the 
United 
States 
+. 
. 
under 
any 
international 
agreement" 
(49 
App. 
U.S.C. 
1151(3))--and 
it 
Permits 
the construction by the U.S. 
of airports 
in foreign 
territory. 
The 
statute 
also 
authorizes 
the 
training 
of 
foreign nationals in aeronautics, 
the acceptance of funds from 
foreign governments 
or international organizations 
for U.S. 
services, 
and the transfer of airport property of the Defense 
Department 
to 
the 
Secretary 
of Transportatioi 
this 
if 
the 
Property 
is located outside 
the "continental" 
United States 
(49 App. U.S.C. 
1157, 
1159). 
Because for this purpose Alaska 
is "outside" the U.S. 
(along with Hawaii and the territories), 
1373 
SRY 
Memorandum No. 
49-3 
the 
territories 
are 
not 
receiving 
adverse 
discriminatory 
treatment 
based 
upon 
their 
political 
status, 
so 
these 
provisions are unobjectionable. 
(£) Medals of Honor (49 App. U.S.C. 
1201-1203) may be 
awarded 
for acts of heroism pertaining 
to a railroad within 
the United 
States 
and 
to “any motor vehicle 
on 
the public 
highways, 
roads, 
or streets 
of the United 
States" 
(49 App. 
U.S.C. 
1201). 
Although 
the “United States" 
is not defined, 
the legislative 
history 
suggests 
that 
one 
who performs 
an 
heroic act on a territorial highway, 
etc., 
would probably be 
eligible. 
This 
seems 
so 
because, 
while 
the 
original 
legislation 
was 
confined 
to 
vehicles 
regulated 
by 
the 
Interstate 
Commerce 
Commission, 
the 
Congress 
took pleasure 
before the legislative process was completed 
in eliminating 
that limitation 
and thus expanding 
the eligible areas 
(1957 
U.S. Code Cong. 
and Admin. 
News 1204-1205). 
None 
of 
the 
statutes 
discussed 
above 
requires 
modification 
to 
accommodate 
the 
territories, 
excepting 
the 
enforcement provisions for contraband seizure 
(49 App. U.S.C. 
789) which 
might usefully 
extend 
to Samoa 
and 
the Northern 
Marianas. 
Federal__agency 
comments: 
Comments 
were 
invited 
from 
the 
Departments 
of 
Defense, 
Justice, 
Transportation, 
and 
the 
Treasury, and all comments received have been reflected above. 
1374 
w pe) [ar 
Memorandum No. 
49-4 
April 1982 
Revised November 1962 
Revised May 1991 
Subjec:: 
Federal Aviation Program 
Title 49 Appendix, Chapter 20 (49 App. U.S.C. 1301-1557), 
including-- 
The Federal Aviation Act of 1958 
The Airline Deregulation Act of 1978 
Note: 
This 
memorandum, 
drafted 
and 
revised 
in 
1982, 
has 
been 
modestly revised in May 1991--but only to reflect new U.S Code 
references, 
to add footnotes to provide some updating, 
and to 
change 
verb 
tenses. 
Much 
of 
what 
is 
stated 
below, 
particularly with respect 
to the Trust Territory, 
is now of 
historic 
interest 
only, 
but 
it has been 
retained 
for 
that 
reason, 
Purpose: 
To regulate 
air transportation services 
to, 
from, 
and 
within 
the 
United 
States, 
and 
to 
encourage 
safe 
air 
transportation services. 
Territorial application: 
The Federal Aviation Act and the related 
statutes considered herein apply fully to the virgin Islands, 
Guam, 
American 
Samoa, 
and 
the 
Northern 
Mariana. 
The 
application of the Federal Aviation Act to the Trust Territory 
was 
formerly 
in dispute, 
with 
the 
two 
principal 
agencies 
concerned with its administration holding opposite opinions. 
Recommendation: 
Aithough 
the 
Federal 
Aviation 
Act 
has 
been 
the 
source 
of 
a 
number 
of 
problems 
in 
the 
territories, 
and 
particularly 
in the Trust Territory--as described below--the 
amendment 
of 
it or 
of 
related 
statutes 
in 
this 
chapter 
of 
Title 
49 
is 
not 
necessary. 
Trusteeship 
termination 
and 
airline deregulation have resolved most of the serious issues. 
1375 
49-4 
Memorandum No. 
Substance of the Chapter: 
The Federal Aviation Act of 1958 defines the "United 
States" 
for purposes of the Act 
to include the States, 
the 
Territories, 
and the possessions 
(49 App. 
U.S.C. 
1301(41)); 
and it defines “possessions” to include the Canal Zone, 
"all 
other 
possessions 
of 
the 
United 
States," 
and--if 
not 
“manifestly 
incompatible"--Puerto 
Rico 
(49 
App. 
U.S.C. 
1301(34)). 
The term 
“interstate air commerce'and "interstate 
air transportation" 
include 
carriage 
between places 
in the 
same 
possession 
(49 
App. 
U.S.C. 
1301(23)(a), 
(24)(a)). 
“Overseas 
air 
transportation" 
means 
transportation 
from 
a 
State 
or 
the 
District 
of 
Columbia 
to 
a 
Territory 
or 
possession, 
or 
between 
one 
Territory 
or 
possession 
and 
another, 
or 
between 
places 
within 
the 
same 
Territory 
or 
possession 
(49 App. U.S.C. 
1301(24)). 
The 1958 Act sets forth the functions of the former 
Civil Aeronautics Board (CAB) and the Federal Aviation Agency 
(FAA), 
vesting 
in 
the 
former 
extensive 
economic 
regulatory 
powers 
and 
in the FAA, 
numerous 
functions 
pertaining 
to the 
safe operation 
of aircraft. 
The CAB was 
authorized, 
among 
other things, 
to 
--grant 
to air 
carriers 
certificates 
of public 
convenience and necessity, 
without which lawful operation of 
civil aircraft 
in the U.S was 
not possible 
(49 App. 
U.S.C. 
1371); 
--determine the justness and reasonableness of air 
carrier rates, and to fix just and reasonable rates 
in certain 
circumstances--subject 
to significant 
limitations 
(49 
App. 
U.S.C. 
1373, 1482(d)); 
--issue permits to foreign air carriers seeking to 
provide service 
to and from the U.S. 
(49 App. U.S.C. 
1372); 
1376 
Memorandum No. 
49-4 
--fix mail rates 
(49 App. 
U.S.C. 
1375); 
-~approve consolidations and mergers of airlines 
(49 App. U.S.C. 
1378); 
and 
--pay 
subsidies 
to 
air 
carriers 
if 
that 
is 
necessary in order to provide essential 
air service 
(49 App. 
U.S.C. 
1389). 
Among the functions of the FAA 
(or the Secretary of 
Transportation) are: 
--the 
registration 
of 
aircraft, 
to 
show 
nationality 
(49 App. U.S.c. 
1401); 
-cthe certification 
of U.S. 
registered aircraft 
(49 App. U.S.C. 
1423); 
--regulating 
the 
inspection, 
servicing, 
and 
overhaul of aircraft 
(49 App. U.S.C. 
1421); 
~7issuing airman certificates to persons who are 
Properly qualified 
(49 App. U.S.C. 
1422); 
and 
~-providing for the safe operation of airports (49 
App. U.S.C. 
1348, 
1432). 
Under 
the terms of the Airline Deregulation 
Act of 
1978, 
the functions 
of 
the 
FAA, 
which 
is 
an agency 
of the 
Department of Transportation, continue. 
Those of the CAB, on 
the other hand, have terminated no later than January 1, 1985, 
on which date the CAB itself ceased to exist, 
or have been 
dispersed to other Federal agencies: 
the CAB’s authority over 
foreign 
air 
transportation, 
over 
"essential 
air 
trans- 
portation," 
and 
over 
payment 
of subsidies 
to support 
such 
essential 
transportation, 
have passed 
to the Department 
of 
1377 
TRR3 
FO 
CS _—C Oe 
Memorandum No. 
49-4 
Transportation; 
authority over the inter-carrier mergers has 
gone to the Department of Justice; 
and authority to set mail 
rates has gone 
to the Postal Service 
(49 App. U.S.C. 
1551). 
CAB functions under 49 App. U.S.C. 
1371 and 1373, referred to 
above, 
have largely terminated. 
Matters of particular territorial interest: 
(1) CAB-FAA jurisdiction in the Trust Territory. 
For 
many years the two Federal agencies most concerned with the 
administration 
of 
the 
Federal 
Aviation 
Act 
of 
1958 
held 
conflicting views as to the jurisdiction of the U.S. under the 
Act in the Trust Territory. 
The CAB took the position that it 
had 
full 
jurisdiction 
there, 
on 
the ground 
that 
the Trust 
Territory is a "possession" for purposes of the Act (49 App. 
U.S.C. 
1301(34)). 
The CAB thus certificated Continental/Air 
Micronesia 
for 
Tru-+ 
Territory 
service 
and 
it 
otherwise 
regulated that carrier’s Trust Territory activities. 
The FAA, 
on the other hand, believed that the Trust Territory is not a 
"possession" for purposes of the Act; and such functions 
as 
the FAA has performed there--such as air traffic control--have 
been performed pursuant to an Executive Order issued under the 
Act that has the effect, 
in the FAA’s view, 
of making part of 
the Act applicable to the Trust Territory. 
That is, section 
1110 
of 
the 
1958 
Act 
(49 
App. 
U.S.C. 
1510) 
permits 
the 
President 
to extend 
the Act 
to "any areas 
of land or water 
outside of the United States" 
if by treaty or otherwise 
the 
United States "has the necessary legal authority to take such 
action." 
(The United States has indisputable authority under 
the 
Trusteeship 
Agreement 
to 
legislate 
for 
the 
Trust 
Territory.) 
Pursuant to that section, President Eisenhower in 
1959 
signed 
Executive 
Order 
No. 
10854 
(set 
out 
as 
a note 
following 49 App. 
U.S.C. 
1510), 
which extends Titles 
III and 
XII of the Federal Aviation 
Act of 1958 
(pertaining 
to air 
safety 
and national 
security) 
to such 
areas, 
i.e., 
"areas 
+ 
+ 
. outside the United States" where the U.S. has authority 
to take such action. 
Assuming it was not already comprehended 
as a "possession," then the Trust Territory, although unnamed, 
was unquestionably comprehended by the Executive Order. 
In reaching its legal conclusion, 
the CAB relied 
upon 
the 
Supreme 
court’s 
decision 
in 
Vermilya-Brown 
v. 
1378 
2a89 
Memorandum No. 49-4 
Connell, 
335 U.S. 
377 (1948), which held that an area of the 
British Crown Colony of Bermuda that was under a 99-year lease 
from 
Britain 
to 
the 
U.S, 
could 
be 
regarded 
as 
a 
U.S. 
"possession" for purposes of the Fair Labor Standards Act (29 
U.S.C. 
201 
et seg., Memorandum No. 
29-5). 
The term should, 
the Court held, be defined in light of the Congress’ purpose. 
The FAA, on the other hand, has applied the more conventional 
construction, regarding "possession" as denoting an area over 
which the U.S. exercises sovereignty. 
(The FAA view is here 
described 
as "more conventional” because the Vermilya-Brown 
result seemed surprising when announced, 
and it has not had 
wide 
application 
since.) 
The U.S. 
does 
not claim and has 
never claimed sovereignty 
in the Trust Territory. 
The FAA 
thus considers 
that its jurisdiction 
in the Trust Territory 
derives from section 1110 of the Act and Executive Order No. 
10854, 
on 
the ground 
that 
the Trust Territory 
is 
an 
area 
"outside the United States" where the U.S. 
is authorized to 
legislate. 
No useful purpose would be served by a judgment here 
as 
to which 
legal 
position 
is 
the 
better 
one. 
There 
is 
clearly 
a respectable foundation 
for each conclusion. 
If the conflict were likely to create difficulties for 
many years 
to come, 
then it ought to be resolved. 
This could 
be achieved by a further Executive Order, 
issued pursuant to 
section 1110 of Act (49 App. U.S.C. 1510). 
Of course it could 
also be resolved through Congressional action, inasmuch as the 
fundamental 
question 
is one 
of 
the Congress’ 
intent. 
The 
conflict, 
however, 
will 
disappear 
upon 
trusteeship 
termination, 
and 
because 
that 
event 
is 
expected 
to occur 
soon,’ the President 
or the Congress ought not to be asked 
to act--unless 
new and more compelling circumstances arise. 
In addition, 
the problem would be materially reduced 
in any 
event as of January 1, 1985, because of Airline deregulation, 
eee 
yv Trusteeship termination 
as 
to the Northern Marianas, 
the 
Federated States of Micronesia, 
and the Marshalls occurred in 1986 
pursuant 
to Presidential 
Proclamation 
5564 
of November 3, 
1986. 
The Security Council of the United Nations agreed with that result 
in December 1990, 
The trusteeship continues (as of May 1991) with 
respect to Palau. 
1379 
B90 
Memorandum No. 
49-4 
but it is reasonable to suppose that trusteeship termination 
will precede that date. 
The Compact of Free Association, signed in 1982 by the 
United States and the three Trust Territory entities, provides 
that both the CAB and the FAA would have certain jurisdiction 
in post-trusteeship Micronesia.” 
As detailed 
in a separate 
Federal Programs and Services Agreement, 
--the 
FAA 
would 
provide 
to 
the Marshalls 
and 
the 
Federated 
States 
certain 
aviation 
safety 
services 
"at 
the 
levels equivalent to those available to the Trust Territory of 
the Pacific 
Islands during 
the year prior 
to the effective 
date of this Compact" (section 221(a) of the Compact, Article 
VIII 
of the Agreement), 
and 
it would -also provide 
certain 
technical assistance; 
and 
--the CAB or 
its 
successors 
would provide economic 
services and related programs, including subsidy compensation, 
4f necessary to support essential air transportation services 
between 
the 
U.S. 
and 
the Marshalls 
and 
the 
U.S. 
and 
the 
Federated States, 
to U.S. carriers and in some circumstances 
to carriers of either the Marshalls or the Federated States. 
The 
Marshalls 
and 
the 
Federated 
States 
would 
assume 
responsibility for their own air services, 
but U.S. carriers 
would be assured of unrestricted access to these states. 
The 
CAB would have authority to grant authorization to carriers of 
the Marshalls 
and 
the Federated 
States 
to provide services 
between Guam, the Northern Marianas, and Honolulu, and within 
the Northern Marianas--in 
effect 
a potential exemption 
from 
the 
cabotage 
rules 
for 
these 
Micronesian 
carriers. 
In 
addition, 
the 
CAB 
would 
also, 
if 
requested, 
"process" 
applications pertaining to air service 
to, 
from, 
and within 
the Marshalls and the Federated States, but the disposition of 
2/ The 
Compact 
of 
Free 
Association 
is 
in 
effect 
in 
the 
Federated States of Micronesia and the Marshalls, 
pursuant to the 
Compact 
of Free Association 
Act 
(P.L. 
99-239) 
and Presidential 
Proclamation 5564 of November 3, 1986. 
It is not in effect as of 
May 
1991 
in 
Palau, 
nor 
is 
the 
Federal 
Programs 
and 
Services 
Agreement. 
Palau remains 
a trust territory. 
1380 
7395 
Memorandum No. 
49-4 
the applications would 
be the responsibility 
of 
the Freely 
Associated State. 
(Article IX, Federal Programs and Services 
Agreement). 
In 
sum, 
although 
the 
CAB-FAA 
disharmony 
has 
been 
inconvenient and untidy, 
and expensive 
in the sense 
that it 
has 
consumed 
countless 
governmental 
working 
hours, 
either 
administrative 
or 
legislative 
action 
to 
resolve 
it 
is 
unnecessary. 
Legislative 
action 
in 
Particular 
is 
also 
expensive 
and 
should 
not 
be 
sought 
if 
the 
problem 
will 
otherwise go away. 
This one will. 
(2) FAA 
and 
the Marshalls. 
Beginning 
in 
1980, 
the 
Marshall 
Islands government 
commenced 
its own 
air service, 
using two NOMAD aircraft purchased in Australia. 
The question 
soon arose 
as 
to the safety inspection and certification 
of 
such 
aircraft, 
with 
the 
FAA 
stating 
that 
it 
was 
without 
authority to perform that function owing to its basic legal 
Position described above. 
(Executive Order No. 10854 aid not 
authorize 
the FAA 
to perform 
the air safety 
functions 
here 
involved.) 
In that state of affairs, 
it was generally agreed 
that the problem could have been resolved through either of 
two routes: 
a further Executive Order, 
pursuant to 49 App. 
U.S.C. 1510, expanding the FAA’s jurisdiction, or the transfer 
of the NOMADS 
to U.S. 
citizen ownership. 
Another possible 
solution might have involved the promulgation by Interior of 
aviation 
rules, 
with 
FAA 
help 
in administering 
them 
on 
a 
reimbursable basis. 
Although Marshall Islands representatives 
from time to time were receptive to some of these approaches, 
their views shifted before either result 
was accomplished. 
Finally, 
in early 1982, 
the FAA inspected the aircraft under 
an agreement with 
the Interior Department 
and reported 
the 
results, 
which 
were 
satisfactory 
as 
to 
safety. 
The 
key 
parties, 
for 
now, 
find 
this 
an acceptable 
solution. 
This 
legal problem, 
too, will cease upon trusteeship termination. 
(3) Citizenship. 
It should be noted in Passing that 
a problem 
the territories 
Probably 
do not 
have 
under 
the 
Federal Aviation Act is the problem of citizenship. 
While 
Federal statutes often define "citizen of the United States" 
to mean precisely that and no more, the Federal Aviation Act's 
definition is unusual: 
It defines the term to include as well 
1381 
PRQ2 
Memorandum No. 49-4 
"an individual 
who 
is a citizen 
of one of 
its 
[the United 
States] 
possessions" 
(49 
App. 
U.S.C. 
1301(16)). 
Thus, 
citizens of American Samoa who are noncitizen nationals of the 
U.S., 
and citizens of the Northern Marianas who will be but 
are not yet US. 
citizens, 
appear 
to be included 
in the term 
and entitled to all the benefits conferred by the statute on 
U.S. 
citizens.’ 
Given 
the 
CAB’s 
view 
that 
the 
Trust 
Territory 
is 
a 
"possession," 
Micronesians 
could 
also 
constitute "citizens of the United States" for those parts of 
the Act that are administered by the CAB. 
(4) Cabotage laws. 
The cabotage laws (49 App. U.S.C. 
1372, 1508(b)), 
are the air equivalent of the coastwise laws. 
In pertinent part 49 App. U.S.C. 
1508(b) 
provides that-- 
Foreign civil aircraft 
. 
. 
. 
shall 
not 
take 
on 
at any point within 
the United 
States, 
persons, 
property, 
or 
mail 
carried 
for 
compensation 
or 
hire 
and 
3/ phe Northern Mariana Islands Commission on Federal Laws, in 
its 
January 
1982 
report 
to 
the 
Congress, 
recommended 
that 
legislation be enacted 
to make explicit 
that this definition 
(49 
App. U.S.C. 
1301(16)) includes citizens of the Northern Marianas. 
It offered similar recommendations 
with respect 
to the aviation 
laws 
appearing 
at 
49 App. 
U.S.C. 
1304, 
1371(d)(4), 
1388, 
1401, 
1422, 
and 
1533. 
While 
further 
legislation 
would 
obviously 
eliminate any question, 
it does appear that the same result should 
be reached without it: 
The Northern Marianas are now, 
as a matter 
of 
law, 
an unincorporated 
territory 
(i.e., 
"territory") 
of 
the 
U.S. 
an 
unincorporated 
territory 
is 
synonymous 
with 
a 
"possession;" and citizens of possessions are citizens of the U.S. 
for purposes 
of the Federal Aviation Act of 1958. 
Furthermore, 
under section 
502(a)(2) 
of 
the Northern 
Marianas 
Covenant, 
the 
Northern Marianas should receive the same treatment as Guam under 
the Federal Aviation Act. 
(Note added in May 1991: 
The people of 
the Northern Marianas have for the most part become citizens of the 
United States, under Article III of the Northern Marianas Covenant, 
which became effective with the termination of the trusteeship as 
to 
the 
Northern 
Marianas 
by Presidential 
Proclamation 
5564 
of 
November 3, 1986.) 
1382 
Memorandum No. 
49-4 
destined 
for another 
point 
within 
the 
United States. 
. 
. 
. 
Two 
exceptions 
follow, 
both 
so 
narrow 
as 
to 
confirm 
the 
vigidity and relative sanctity of the cabotage restrictions: 
30 day emergency exemptions may be granted to a foreign air 
carrier, 
if 
certain 
findings 
are 
made 
(49 
App. 
U.S.C. 
1386(b)(7)); 
and 
U.S. 
air 
carriers 
may 
in 
certain 
circumstances 
use 
leased 
foreign 
aircraft 
(49 
App. 
U.S.C. 
1508(b)). 
The 
cabotage 
laws 
are 
scheduled 
to 
survive 
deregulation. 
Complaints concerning the cabotage laws and requests 
for exemption from them have been heard from time to time from 
both Guam and the Northern Marianas. 
The cabotage laws would 
not apply to the Trust Territory entities under the Compact. 
At that point, Trust Territory sites would be foreign, and the 
U.S. cabotage rules would not affect the Carriage of persons 
or property between two points within Micronesia 
or between 
Micronesia and the U.S. 
With 
trusteeship 
termination, 
and 
the 
status 
of 
Micronesian airports 
as 
foreign, 
Guam’s 
interest 
in relief 
from 
the 
cabotage 
laws 
so 
far 
as Micronesia 
is concerned 
should also cease. 
Guam has been interested in the carriage 
of 
persons 
and 
property 
between 
Guam 
and 
Trust 
Territory 
points 
by foreign carriers--something 
that, 
as matters 
now 
stand, will not be barred when the trusteeship is terminated. 
As for service between Guam and Hawaii and the U.S. mainland, 
Guam would welcome more service, but Guam has not lately asked 
for an exemption from the cabotage laws for this purpose, 
and 
given the air service that it now has available, coupled with 
the political difficulty involved 
in achieving 
an exemption 
form the cabotage laws, 
it is unlikely that such 
a request 
would be successful. 
It appears, 
therefore, 
that a cabotage 
exemption for Guam need not now be sought. 
The former Governor of the Northern Marianas stated 
that the cabotage laws create an inhibition to the development 
of the tourist industry there: 
1383 
7293 
Memorandum No. 
49-4 
The interpretation of the so-called 
cabotage laws considers the Saipan/Guam 
leg to be domestic, therefore, Japan Air 
Lines and other fereign carriers cannot 
pick up passengers who go to Suam 
and 
vice versa. 
This inhibits tourists from 
utilizing the circle-tour concept, where 
they would visit Saipan and Guam at the 
same 
time 
as 
no 
common 
fare 
can 
be 
published. 
In this day and age of high 
energy costs, 
it is wasteful. 
(Letter 
from Governor 
Comacho 
to 
the Interior 
Department, 
November 10, 
1981.) 
The FAA states informally that circle traffic, serving 
both Saipan 
and Guam 
from Japan, 
is now possible. 
Beyond 
that, the possible advantage that the Northern Marianas might 
gain from the general exemption the former Governor outlined 
above 
would 
seem 
to be relatively 
minor, 
in 
terms 
of 
the 
likely 
cost 
to the current 
U.S. 
carrier 
serving 
the Trust 
Territory, 
and to the United States. 
The Guam-Saipan leg or 
the service provided in the Trust Territory by Continental/Air 
Micronesia is unusuaily lucrative; Continental/Air Micronesia 
argue, 
and statistics appear to support the argument, 
that a 
diminution 
of revenues 
from 
this 
leg could 
jeopardize 
its 
Trust Territory service; reduction in service could force the 
U.S. 
either 
to provide 
a contract 
service 
or 
a subsidy, 
so 
that essential air transportation could continue--and either 
way, this would constitute a substantial cost to the U.S. 
On 
a 
cost-effective 
basis, 
therefore, 
an 
exemption 
for 
the 
Northern 
Marianas 
from 
the 
cabotage 
laws 
appears 
to 
be 
unjustified. 
In June 1982 the staff of the Northern Mariana Islands 
Commission on Federal Laws circulated a draft recommendation 
that the cabotage laws be amended to lift restrictions to the 
extent necessary 
to permit foreign air carriers to transport 
passengers between the Northern Marianas and Guam. 
The staff 
recommendation states that tourism is the Northern Marianas 
principal industry; 
that the greater availability of service 
between the Northern Marianas and Guam would be attractive to 
tourists; 
that the service now provided between these points 
by the U.S. domestic carrier (Continental/Air Micronesia) 
is 
1384 
TARAS 
Memorandum No. 49-4 
incidental 
to its Guam-Japanese 
service; 
and 
that 
even 
if 
Continental/Air Micronesia were to suffer a short term loss on 
this leg because of foreign competition, 
that loss should be 
offset in the long run by a larger tourist pool, 
That recommendation 
is not seconded here because of 
the potential cost to the United States, described above. 
In 
addition, 
a cabotage exemption for the Northern Marianas would 
almost certainly precipitate requests for the same exemption 
from other territories, 
and fairness would require that they 
all receive the same treatment. 
But the possible economic 
injury to U.S. carriers would then grow substantially, and the 
potential costs to the United States would also grow, thereby 
making 
the 
proposal 
even 
less 
attractive 
from 
the 
Federal 
Government's standpoint. 
(5) Intra-territorial 
requlation. 
The 
Act’s 
definition 
of 
"interstate 
air 
commerce" 
includes 
air 
transportation 
"between 
places 
in 
the 
same 
Territory 
or 
possession of the United States" (49 App. U.S.C. 1301(23)(a)). 
The 
CAB’s 
regulatory 
authority, 
thus, 
extended 
to 
intraterritorial air transportation, 
and this means that air 
service between 
two points in the Virgin Islands, 
or Samoa, 
was 
subject 
to CAB regulation--whereas 
service 
exclusively 
between 
two points 
in a State would not be 
so subject and 
could 
not 
be, 
given 
the 
U.S. 
Constitution. 
Air 
service 
between points in the Northern Marianas, however, could not be 
the subject of regulation, 
because the Northern Marianas 
is 
entitled to "State"-like treatment under section 502(a)(2) of 
the Covenant. 
In this state of affairs, which is not unusual in the 
Federal regulatory framework, 
a recommendation that the law be 
amended so as to accord to the territories the same treatment 
as the States is often appropriate. 
Such a recommendation is 
not made here, however, first, because the offshore areas have 
not 
been 
heard 
to 
complain 
of 
the 
Federal 
regulatory 
authority, 
perhaps 
because 
it 
relieves 
the 
territorial 
governments of the need to perform it; and secondly, because 
with the demise of the CAB on January 
1, 1985, 
the problem 
will disappear anyway. In fact, most intraterritorial carriers 
Probably 
provide service outside 
the territory 
as well, 
so 
1385 
“BAG 
Memorandum No. 49-4 
that they are routinely 
subject 
to CAB regulation 
for that 
reason. 
(6) Presidential approval. 
Except for its provisions 
concerning 
the 
regulation 
of 
intraterritorial 
air 
transportation, 
described 
immediately 
above, 
the 
Federal 
Aviation 
Act 
now 
contains 
no 
provisions 
by 
which 
the 
territories 
are 
treated 
in 
a 
way 
that 
differs 
from 
the 
States ./ 
That 
has 
only 
recently, 
however, 
become 
true. 
Until 1978 any CAB certificate concerning “overseas or foreign 
air transportation” was subject to the President's approval-- 
without limitation as to the bases for his disapproval. 
That 
occasionally gave rise to territorial complaints, 
based on a 
second-class-treatment 
argument. 
But 
the Deregulation 
Act 
eliminated 
"overseas," 
the 
term 
that 
had 
picked 
up 
the 
territories; 
and it now limits the President's disapproval to 
reasons 
of foreign 
relations 
or national 
defense 
(49 App. 
U.S.C. 
1461). 
So 
the 
territories 
now 
experience 
the 
same 
treatment as the States. 
(7) Current 
Guam 
concerns. 
In 
preparation 
for 
a 
conference 
held 
in Washington, 
D.C., 
in April 
1982 
on 
the 
subject 
of Federal 
constraints 
to economic 
development 
in 
Guam, 
Guam 
business 
spokesmen 
identified 
four 
problems 
associated 
with 
air transportation. 
It seems 
relevant 
to 
advert 
to them here, 
but 
to point out 
that 
none 
of these 
problems 
would 
be 
ameliorated 
or 
resolved 
by legislation 
amending the Federal aviation statutes now under consideration 
(Chapter 20 of Title 49, App. U.S.C.): 
4/ Interestingly, 
in the Senate version of the legislation that 
became the Airline Deregulation Act of 1978, 
there: is displayed an 
anxiety 
to 
give 
Puerto 
Rico 
and 
the 
Virgin 
Islands 
special 
attention, 
and 
to 
treat 
them 
as 
well 
as 
the 
States, 
but, 
by 
silence, 
to do less well by the Pacific territories and the Trust 
Territory. 
Puerto Rico and the Virgin Islands were singled out in 
several instances for special mention in the Senate bill (see 1978 
U.S. Code Cong. and Admin. News 3779, 
3781, 
3794, 
3796). 
But the 
legislation ultimately enacted accorded equal treatment to all of 
the territories. 
1386 
Memorandum No. 49-4 
1. 
Guam 
spokesmen 
argue 
that 
they 
need 
more air service to Hawaii, 
a matter that was 
at 
issue 
in 
the 
Guam 
Essential 
Air 
Transportation Proceeding before the CAB, but 
that Proceeding has recently been terminated 
for technical reasons, with no decision on the 
merits. 
That problem of Hawaii-Guam service, 
however, concerns CAB policy, not basic legal 
authority. 
The latter is now no less complete 
for Guam than for any other part of the U.s. 
2. 
They also argue 
that 
foreign carriers 
are 
discouraged 
from 
serving 
Guam, 
notwithstanding 
the 
fact 
that 
bilateral 
air 
service 
agreements 
generally 
name 
Guam 
as 
a 
permitted 
stop, 
because by stopping 
at Guam 
the foreign carriers forfeit the right to stop 
at a mainland city--this because the bilateral 
agreements 
provide 
for 
a maximum 
number 
of 
U.S. 
stops. 
Apart 
from 
the 
fact 
that 
the 
matter is one of policy, 
not legislation, 
an 
informal 
check 
with 
the 
CAB 
indicates 
that 
this is not in fact a problem. 
The relevant 
bilateral agreements generally permit stops at 
a maximum number of U.S. points, plus Guam. 
3. 
%It is argued that joint use of Guam’s 
International 
Airport 
by the Navy 
and 
civil 
air carriers 
discourages 
the development 
of 
general aviation 
in Guam. 
This matter could 
be dealt with administratively. 
4. 
 Guam’s 
spokesmen believe 
that Customs 
pre-clearance 
in Guam would make Guam a more 
attractive place 
to visit 
for both 
tourists 
and 
airlines. 
This 
matter, 
too, 
is 
an 
administrative 
one, 
and 
in any 
case 
outside 
the scope of air transportation legislation. 
Conclusion: 
The problems outlined above have largely disappeared, 
either 
because 
of 
trusteeship 
termination 
of 
because 
of 
1387 
7293 
Memorandum No. 
49-4 
airline deregulation. 
Accordingly, 
there is no need to seek 
amendments 
to the Federal Aviation Act of 
1958 
and related 
statutes in order to accommodate the territories. 
Federal agency comments: 
Comments were invited 
in 1982 from the 
Departments of Defense, Justice, State, and Transportation and 
from the Civil Aeronautics Board. 
All comments received have 
been reflected above. 
1388 
.299 
Memorandum No. 49-5 
May 1982 
Revised May 1991 
Subject: 
Urban Mass Transportation 
Title 49, Chapter 21 
(49 App. U.S.C. 1601-1621) 
Purpose: 
To provide Federal loans and grants to public bodies for 
planning, constructing, operating, and extending mass transit 
systems. 
Territorial application: 
The Urban Mass Transportation Act applies 
to the territories. 
Recommendation: 
The 
statute 
requires 
no 
change 
in 
order 
to 
accommodate the needs of the territories. 
Discussion: 
Substance of the statute: 
The Urban Mass Transportation 
Act 
provides 
Federal 
assistance 
for 
the 
creation 
and 
improvement of transportation systems that move people to and 
from metropolitan areas. 
It is concerned fundamentally with 
aiding bus and rail systems, 
"fixed guideway systems" 
(e.g., 
Subways 
and trolleys), 
and related 
transportation projects 
(e.g., 
walkways, 
transit 
malls, 
and open 
space) 
(49 
App. 
U.S.C. 
1602(a)(1)). 
In 
addition, 
however, 
the 
statute 
Provides 
for 
formula 
grants 
for 
nonurban 
areas, 
"for 
expenditure 
for 
public 
transportation 
projects" 
(49 
App. 
U.S.C. 
1614); and it also authorizes grants for projects "to 
meet the special needs of elderly and handicapped persons" (49 
App. U.S.C. 
1612(b)). 
The 
Federal 
aid 
provided 
under 
the 
law 
need 
not 
be 
directed 
solely 
to publicly-owned 
transportation 
systems, 
Private providers of public transportation also qualify (e.g., 
49 App. U.S.C. 
1614(c)). 
The 
statute 
imposes 
a 
number 
of 
requirements 
upon 
grantees: 
payment of Davis-Bacon Act wages 
(49 App. U.S.C. 
1609); environmental protection (49 App. U.S.C. 
1610); use of 
a uniform 
system 
of accounts 
and 
records 
(49 
App. 
U.S.C. 
1389 
400 
Memorandum No. 49-5 
1611); 
deference 
to the needs 
of 
the handicapped 
(49 App. 
U.S.C. 
1612); 
and nondiscrimination 
in employment 
(49 App. 
U.S.C. 
1615). 
Value _to the territories: 
Although 
a 
first 
glance 
suggests 
that 
the 
subject 
matter 
of 
the 
Urban 
Mass 
Transportation 
Act 
(UMTA) 
would 
have 
little 
to 
offer 
the 
territories, 
a 
second 
glance 
suggests 
the 
contrary: 
the 
Virgin Islands and Guam have each expressed the need over the 
years 
for 
improved 
public 
transportation 
services. 
While 
obviously 
neither 
territory 
requires 
subways, 
each 
could 
profit from additional and predictable bus service. 
Samoa and 
the 
Northern 
Marianas 
have 
similar, 
if 
lesser, 
needs. 
Further, 
the two small programs described 
above 
(grants 
for 
nonurban areas, 
and for meeting the needs of the elderly and 
handicapped) could have a value to the territories. 
In fact, however, 
the territories have used the statute 
only slightly. 
Reports 
on Federal grants 
for fiscal years 
1979 and 1980 show that no territory received assistance under 
UMTA for fiscal year 1979, but the Virgin Islands received a 
capital improvement grant in fiscal year 1980.4 
Territorial 
application: 
The 
original 
Urban 
Mass 
Transportation Act, enacted in 1964, applied in general to the 
territories. 
It defined "States" to include "the possessions 
of the United States.” 
(F.L. 88-365, 
Sec. 9(d)(1), 
78 Stat. 
302, 306). 
The readily available legislative history does not 
reveal any rationale for this geographical application (1964 
U.S. Code Cong. and Admin. News 2569, 2588). 
A key section, 
however, 
one 
enacted 
in 
1974 
that 
provides 
grants 
for 
“urbanized areas," could be carried out only in the States and 
Y Note added in May 1991: 
Reports 
to the Department of the 
Interior 
show 
that 
all 
of 
the 
territories 
have 
received 
UMTA 
assistance in recent years. 
In the late 1980's and early 1990's, 
all 
four 
received 
Federal 
funds 
for 
public 
transportation 
in 
nonurban areas 
(49 App. U.S.C. 
1614; CFDA 20.509); and the Virgin 
Islands, Guam, and Samoa have received assistance for programs for 
the anes and 
the handicapped 
(49 App. 
U.S.C. 
1612(b); 
CFDA 
20.513). 
1390 
[49] 
Memorandum No. 49-5 
Puerto 
Rico 
(P.L. 
93-503, 
sec. 
103, 
88 Stat. 
1565, 
1567). 
Again, the legislative history does not reveal why. 
But that 
section 
has 
since 
been 
substantially 
amended, 
and 
the 
particular reference 
to the States and Puerto Rico no longer 
exists 
(49 
App. 
U.S.C. 
1604). 
No 
other 
geographical 
limitation that would adversely affect the territories remains 
in the law. 
(Added in May 1991: 
The term "State: 
is now defined to 
include, 
by name, 
the Virgin Islands, 
Guam, 
Samoa, 
and 
the 
Northern Marianas 
(49 App. U.S.C. 
1608(c)(9)).) 
Sonclusion: 
The Urban Mass Transportation 
Act does 
not require 
change in order to accommodate the territories. 
Federal 
agency 
comments: 
Comments 
were 
invited 
from 
the 
Departments 
of 
Justice 
and 
Transportation. 
All 
comments 
received have been reflected above. 
1391 
Memorandum No. 
49-6 
May 1982 
Revised May 1991 
Subject: 
(a) Department of Transportation 
Title 
49 
Appendix, 
Chapter 
23 
(49 
App. 
U.S.C. 
1652£-1659) 
(b) Natural Gas Pipeline Safety 
Title 
49 
Appendix, 
Chapter 
24 
(49 
App. 
U.S.C. 
1671-1687) 
(c) Aviation Facilities Expansion and Improvement 
Title 
49 
Appendix, 
Chapter 
25 
(49 
App. 
U.S.C. 
1704-1743) 
(da) Hazardous Materials Transportation 
Title 
49 
Appendix, 
Chapter 
27 
(49 
App. 
U.S.C. 
1801-1819) 
(e) National Transportation Safety Board 
Title 
49 
Appendix, 
Chapter 
28 
(49 
App. 
U.S.C. 
1901-1907) 
(£) Hazardous Liquid Pipeline Safety 
Title 
49 
Appendix, 
Chapter 
29 
(49 
App. 
U.S.C. 
2001-2015) 
(g) Abatement of Aviation Noise 
Title 
49 
Appendix, 
Chapter 
30 
(49 
App. 
U.S.C. 
2101-2125) 
(h) Aviation Noise Policy 
Title 
49 
Appendix, 
Chapter 
30A 
(49 
App. 
U.S.C. 
2151-2158) 
Comment: 
The statutes considered herein present no problems to the 
territories and do not require legislative modification. 
Discussion: 
(a) Much 
of 
Chapter 
23, 
entitled 
Department 
of 
Transportation (49 App. U.S.C. 1652f-1659), 
has been moved to 
the codified Subtitle I of Title 49 (Memorandum No. 49-1(a)), 
and 
the 
sections 
that 
remain 
are 
irrelevant 
to 
the 
territories. 
The remaining sections concern such matters as 
the conversion of railroad terminals, 
and Federal grants to 
"States" (defined to exclude the territories at 49 App. U.S.C. 
1392 
(493 
Memorandum No. 49-6 
1654(p) 
and 49 U.S.C. 
10501, Memorandum No. 
49-2) 
for "local 
rail freight assistance." 
This is a kind of assistance that 
the territories could not use. 
(b) Inasmuch 
as 
natural 
gas 
is 
not 
gathered, 
transmitted, or distributed in the territories, 
the fact that 
the Natural Gas Pipeline Safety Act of 1968 
(49 App. U.S.C. 
1671-1687) 
does 
not 
apply 
to them--being 
confined 
to 
the 
States, 
the District 
of Columbia, 
and Puerto Rico 
(49 App. 
U.S.C. 1671(5)--is precisely as it should be. 
(c) Much of the chapter entitled Aviation Facilities 
Expansion and Improvement (49 App. U.S.C. 1704-1743) which had 
contained the Airport and Airway Development Act of 1970, was 
repealed in 1982 with the enactment of the Airport and Airway 
Improvement 
Act 
of 
1982 
(Memorandum 
No. 
49-7). 
The 
few 
sections 
of the chapter 
that 
remain 
(49 
App. 
U.S.C. 
1704, 
1713a, 
1731, 
1741, 
and 
1743) 
create 
no 
problems 
for 
the 
territories. 
(d) This 
chapter, 
which 
constitutes 
the 
Hazardous 
Materials Transportation Act, enacted in 1975 (49 App. U.S.C. 
1601-1819), 
empowers 
the 
Secretary 
of 
Transportation, 
to 
regulate 
the transportation, 
by air, 
sea, 
or 
land, 
between 
"States" of hazardous materials--such as radioactive material’, 
explosives, 
flammable 
or combustible liquids or solids, 
and 
others 
(49 App. U.S.C. 
1803). 
The term "State" includes the 
Virgin Islands, 
Guam, 
Samoa, 
and 
the Northern 
Marianas 
(49 
App. U.S.C. 
1802(14)). 
Certain transportation is exempt from 
regulation, 
including that to which the Secretary provides a 
waiver because 
it meets 
certain safety 
and public interest 
standards 
(49 App. U.S.C. 1806(a)), 
and that which is already 
regulated under the Ports and Waterways Safety Act of 1972 (33 
U.S.C. 
1221, 
see Memorandum No. 
33-5(d)). 
Inasmuch as that 
1972 
statute 
is 
fully 
applicable 
to 
the 
territories, 
it 
follows that transportation to them of hazardous materials is 
Susceptible to regulation in the territories as in the States, 
under a combination of the Hazardous Materials Transportation 
Act and the Ports and Waterways 
Safety Act. 
This 
is as 
it 
should be. 
1393 
Memorandum No. 
49-6 
(e) The 
ional Transportation 
Saf 
Board 
(49 App. 
U.S.C. 1901-1907), an unusually independent Federal agency, is 
charged with 
investigating transportation 
accidents 
in the 
air, 
on land 
or 
sea, 
in pipelines, 
or on railroads. 
The 
geographical limits on its authority are nowhere spelt out in 
its authorizing legislation, but it seems clear that the Board 
has authority to investigate air accidents in the territories, 
because its authority to do so derives from that of the Civil 
Aeronautics Board under the Federal Aviation Act of 1958 (49 
App. 
U.S.C. 
1903(a)(1)(A}}, 
an 
Act 
that 
applied 
to 
all 
"Territories and possessions" 
(see Memorandum No. 
49-4). 
It 
has 
authority 
in connection 
with 
marine 
accidents 
in 
the 
territories, 
because 
that 
authority 
extends 
to 
the 
“territorial 
seas 
of 
the 
United 
States" 
(49 
App. 
U.S.C. 
1903(a)(1)(E)), 
and 
the 
territorial 
sea, 
as 
defined 
in 
Presidential Proclamation 5928 of December 
27, 1988, expressly 
includes 
the waters 
surrounding 
the Virgin 
Islands, 
Guam, 
Samoa, 
and the Northern Marianas. 
The Board's 
jurisdiction 
with respect 
to accidents 
on highways 
is uncertain 
but 
in 
doubt, 
because 
the highway authority 
is to be exercised "in 
cooperation with the States" (49 App. U.S.C. 1903(a)(1)(B) and 
"State" is undefined. 
The Board has investigated air crashes 
in 
the 
territories, 
but 
it 
reports 
informally 
that 
the 
question of its authority to investigate other transportation 
accidents has not arisen. 
The matter of investigating highway 
accidents 
does 
not 
seem 
sufficiently 
material 
to 
warrant 
legislative correction. 
(£) Because the Hazardous Liquid Pipeline Safety Act 
of 
1979 
(49 App. 
U.S.C. 
2001-2015) 
is directed 
toward 
a 
problem that does 
not exist 
in the territories 
(i.e., 
the 
transportation 
of liquids by pipeline), 
it is untroublesome 
that the statute may apply only to the States, the District of 
Columbia, 
and Puerto Rico 
(49 App. U.S.C. 
2001(8)). 
The Act 
does 
not expressly 
limit 
the Secretary 
of Transportation’s 
authority to those areas, 
but because the issue is currently 
academic and likely to remain so, 
the point does not require 
resolution. 
{g) The chapter entitled Abatement of Aviation Noise 
(49 App. U.S.C. 2101-2125), which contains the Aviation Safety 
and Noise Abatement Act of 1979, 
provides for discretionary 
grants by the Secretary of Transportation for noise abatement 
1394 
(ANS 
Memorandum No. 49-6 
projects 
at 
public 
use 
airports. 
Such 
airports 
in 
the 
territories 
would 
be covered 
(49 App. 
U.S.C. 
2101(1), 
and 
2202(18), Memorandum No. 49-7). 
(h) Aviation 
(49 App. U.S.C. 
2151-2158) 
contains the Airport Noise and Capacity Act of 1990. 
That Act 
directs the Secretary of Transportation to issue regulations 
by July 1, 1991, outlining a national aviation noise policy-- 
many of the details of which are specified in the Act--and to 
report 
to 
the 
Congress 
by 
that 
date 
xecommendations 
for 
additional 
legislation 
and 
for 
appropriate 
relationships 
between Federal and "State"programs on this subject 
(49 App. 
U.S.C. 2152(a), 
(c)). 
The term "State" is undefined, but that 
seems not a serious shortcoming, 
inasmuch as legislation and 
recommendations to follow can be expected to take account of 
territorial 
interests. 
In due course, 
however, 
compliance 
with certain 
noise 
level 
restrictions 
will 
be required 
in 
order 
to qualify 
for grants 
under 
the Airport 
and 
Airway 
improvement Act, 
an important Act that 
is applicable to the 
territories 
(see Memorandum 
No. 
49-7). 
After December 21, 
1999, large aircraft (i.e., "civil subsonic turbojet aircraft" 
weighing over 75,000 pounds, 49 App. U.S.C. 2157(a)) cannot be 
operated to or from "an airport in the United States" unless 
there 
is 
compliance 
with 
the 
Secretary’s 
noise 
level 
requirements, but that prohibition would not apply to aircraft 
used 
"solely 
to Provide 
air transportation 
outside 
the 
48 
contiguous States" 
(49 App. U.S.C. 
21 57(d)). 
So much of this 
law is prospective 
in effect that 
it is not now possible 
to 
conclude 
whether 
its 
treatment 
of 
the 
territories 
is 
appropriate. 
It would appear, however, 
that noise abatement 
in the insular areas is no less desirable than in the States. 
This Act is directed to that end. 
Conclusion; 
None 
of 
the 
statutes 
considered 
above 
requires 
modification to accommodate the territories. 
Federal agency comments: 
Except for 
(h) (Aviation Noise Policy), 
all of the comments on the above statutes were shared in 1982 
with the Departments of Justice and Transportation, 
and all 
comments received 
are reflected above. 
The Aviation Noise 
Policy law was enacted in 1990, and was, therefore, not a part 
of the 1982 comment process. 
1395 
LANG 
ee 
e—s—s—s—‘“_s—sN 
ee ee tee 
Memorandum No. 
49-7 
October 1982 
Revised June 1991 
Subject: 
Airport and Airway Improvement 
Title 49 Appendix, Chapter 31 (49 App. U.S.C. 2201-2227) 
Purpose: 
To 
provide 
Federal 
financial 
assistance 
for 
the 
improvement of airports. 
Territorial application: 
Chapter 31, which contains 
the Airport 
and Airway Improvement Act of 1982, 
as amended, applies fully 
to the Virgin Islands, Guam, American Samoa, 
and the Northern 
Mariana Islands. 
Recommendation: 
The Act requires no change to meet the particular 
needs of the territories. 
Discussion: 
The 
Airport 
and 
Airway 
Improvement 
Act 
of 
1982 
replaced 
the 
1970 
Airport 
and 
Airway 
Development 
Act 
(Memorandum No. 49-6(c)), and is a marked improvement over it 
from the standpoint of the territor:es. 
The 1970 Act was of 
uneven application to the territories, suggesting that no very 
focussed or informed attention had been given to them by the 
draftsmen. 
The 1982 Act, approved in September 1982, applies 
fully, 
although 
it is interesting 
to note 
that 
as 
late 
as 
August 
1982 
it would 
have 
applied 
to none 
of 
them, 
being 
restricted to the States, the District of Columbia, and Puerto 
Rico 
(1982 U.S. 
Code Cong. 
and Admin. 
News 781, 
1463). 
As 
enacted, 
however, 
the 
term 
"State" 
was 
defined 
to include 
expressly 
the Virgin 
Islands, 
Guam, 
Samoa 
and 
the Northern 
Marianas 
(49 App. U.S.C. 
2202(23)). 
The 1982 Act was enacted as Title V of the Tax Equity 
and 
Fiscal 
Responsibility 
Act 
of 
1982, 
although 
its 
own 
legislative history much precedes 
that 
tax law. 
Among the 
major provisions of the Airport and Airway Improvement Act of 
1982 are authorizations to the Secretary of Transportation to 
make 
project 
grants 
for 
airport 
development 
and 
airport 
Planning, 
and for noise abatement 
projects 
(49 App. 
U.S.C. 
2204); grants for airway improvement, including air navigation 
facilities 
(49 App. U.S.C. 
2205(a)); 
and grants for research 
and development and for demonstration projects (49 App. U.S.C. 
1396 
(ANF 
Memorandum No. 
49-7 
2205(b)). 
The apportionment scheme Places some discretion in 
the Secretary 
of Transportation 
(see, 
for example, 
49 App. 
U.S.C. 
2205(a)(2)), 
but grants for primary airports 
(defined 
at 49 App. 
U.S.C. 
2202(12) 
as those having more than 10,000 
persons enplaning annually), are based on number of passengers 
enplaning. 
The most 
important consideration, 
however, 
for 
immediate 
purposes 
is 
that 
the 
Act 
accords 
"State-like” 
treatment to all of the territories in all particulars--except 
for one particular 
in which they receive 
far more generous 
treatment. 
Under 
49 App. 
U.S.C. 
2206(a)(3), 
12% of the amount 
made 
available 
annually 
from 
the 
"Trust 
fund 
for airport 
development and airport planning" (49 App. U.S.C. 2204(a)) is 
to be made 
available 
to all 
of 
the 
States 
(including 
the 
Virgin Islands, 
Guam, 
Samoa, 
the Northern Marianas, 
and the 
Trust Territory), 
with 99% of such sum going to the Sates as 
such, the District of Columbia and Puerto Rico and distributed 
among them on the basis of population and area. 
The remaining 
1% is directed to the "insular areas" of the Virgin Islands, 
Guam, 
Samoa, 
the Northern Marianas, 
and the Trust Territory 
(49 App. U.S.C. 2206(a) (3)(A))--an amount that on a population 
and/or area basis 
is high 
in relation 
to the 99% otherwise 
directed. 
(Alaska 
and Puerto 
Rico 
are 
given more 
lenient 
treatment 
than other jurisdictions 
in that 99% category 
(49 
App. U.S.C. 
2206(b)(6)), 
but that merely reduces limitations 
placed by the law on jurisdictions 
in that 99% category, 
and 
the "insular areas" are not subject to those limitations. 
In 
sum, Alaska and Puerto Rico receive preferential treatment in 
relation 
to 
the 
States, 
but 
not 
in 
relation 
to 
the 
territories.) 
In general, 
for projects that are approved under the 
Act the U.S. share is 90% (49 App. U.S.C. 
2209(a)). 
Conclusion: 
The 
Airport 
and 
Airway 
Improvement 
Act 
of 
1982 
requires 
no modification 
to accommodate 
the 
needs 
of 
the 
territories. 
Federal agency comments: 
The Airport and Airway Improvement Act of 
1982 was enacted too late to be among the subjects on which 
1397 
2AN8 
Memorandum No. 49-7 
comments were sought from the Department of Transportation in 
1982, 
and 
time 
has 
not permitted 
the comment 
process 
with 
respect to this revised memorandum in 1991. 
1398 
Memorandum No. 49-8 
June 1997 
Subject: 
(a) Commercial Motor Vehicles 
Title 49 App., Chapter 32 (49 App. U.S.C. 2301-2316) 
(b) Public Airports 
Title 49 App., Chapter 33 (49 App. U.S.C. 2401-2461) 
(c) Motor Carrier Safety 
Title 49 App., Chapter 34 (49 App. U.S.C. 2501-2521) 
(d) Commercial Space Launch 
Title 49 App., Chapter 35 (49 App. U.S.C. 2601-2623) 
(e) Commercial Motor Vehicle Safety 
Title 49 App., Chapter 36 (49 App. U.S.C. 2701-2716) 
(£) Sanitary Food Transportation 
Title 49 App., Chapter 37 (49 App. U.S.C. 2801-2812) 
Comment: 
The 
transportation 
laws 
considered 
below, 
all 
of 
relatively 
recent enactment, 
apply 
to the territories 
when 
their subject matter warrants, 
and many are of some interest 
to the territories. 
None appears 
to xeguire amendment now, 
except 
that 
the 
Sanitary 
Food 
Transportation 
Act 
of 
1990, 
considered below at 
(f£), should be amended to make provision 
for enforcement in Samoa. 
Discussion: 
(a) Commercial Motor Vehicles 
(49 App. U.S.C. 
2301- 
2316) refers to the program of Federal grants to the States--a 
term defined to include expressly 
the Virgin Islands, 
Guam, 
Samoa, and the Northern Marianas (49 App. U.S.C. 2301(6))--for 
the 
development 
and 
implementation 
of 
programs 
for 
the 
enforcement of Federal rules and "compatible" State rules for 
vehicular 
safety. 
The vehicles 
in question are those 
of a 
certain size, capacity, or function that transport passengers 
or cargo "in commerce" (49 App. U.S.C. 
2301(1)). 
While many 
commercial 
vehicles 
in 
the 
territories 
may 
be 
exempt, 
as 
engaged only in intraterritorial commerce, many others doubt- 
less are not, 
including 
such obvious examples as vans 
that 
carry passengers between airports and hotels, and trucks that 
transport cargo between docks and commercial establishments. 
The statute, 
which 
is sometimes referred 
to as the Surface 
Transportation Assistance Act, thus has realistic application 
to the territories, 
and 
in recent 
years, 
according 
to the 
1399 
,AL0 
FS —*:ISSSS |= 
| 
Memorandum No. 
49-8 
Catalog of Federal domestic Assistance, 
both Samoa and Guam 
have received grants 
(CFDA No. 
20.218). 
The Virgin Islands 
and the Northern Marianas 
have not. 
The Federal share 
for 
assisted programs is 80% (49 App. U.S.C. 
2303). 
The statute also imposes certain requirements 
as 
to 
length 
and 
width 
limitations 
and 
splash 
and 
spray 
suppressants. 
Interestingly, 
the State of Hawaii 
is by law 
exempt 
from 
the 
vehicle 
width 
limitation 
of 
102 
inches 
(whether to permit an increase or decrease in the figure does 
not appear 
in the law, 
49 App. 
U.S.C. 
2316{a)), 
suggesting 
that if a territory were 
to find the limitations onerous, 
a 
statutory 
=xclusion would not be without precedent. 
But no 
such problem has been made known, so the current treatment of 
the territories by this law is apparently appropriate. 
{b) Public Airports (49 App. U.S.C. 2401-2461) refers 
to certain 
airports 
in the Washington, 
D.C., 
metropolitan 
area, and to their operation. 
It is irrelevant to the current 
study. 
(c) The chapter entitled Motor Carrier Safety (49 App. 
U.S.C. 
2501-2521) 
contains 
the Motor Carrier Safety Act of 
1984. 
That Act is a near relative of the Surface Transporta- 
tion 
Assistance 
Act 
of 
1983, 
considered 
above 
at 
(a)--as 
shown, for example, by the similarity of their definitions of 
"commercial motor vehicle" (49 App. U.S.C. 2301(1), 2503(1)). 
As stated above, 
the 1983 Act applies to the territories; but 
the Motor Carrier 
Safety 
Act of 1984 does not. 
The terms 
"State" and "United States" are defined to exclude them (49 
App. U.S.C. 2503(10), 
(13)). 
This apparent inconsistency can 
be explained, 
however, 
by the 
fact that the 1983 
law is 
in 
considerable measure one that provides for a Federal financial 
assistance 
program, 
and 
it 
is 
a 
program 
from 
which 
the 
territories 
can and do in fact benefit. 
The Motor Carrier 
Safety Act of 1984 
is a regulatory statute, 
one intended 
to 
impose safety requirements upon large trucks traveling Federal 
highways (1984 U.S. Code Cong. 
and Admin. 
News 
4769). 
While 
there 
are 
large 
trucks 
in 
the 
territories, 
as 
well 
as 
federally-aided roads, the problem lacks the dimensions there 
that 
it surely has 
in the States. 
Additionally, 
both 
the 
readily available legislative history 
(1984 U.S. 
Code Cong. 
1400 
/AtL 
Memorandum No. 
49-8 
and Adm:n. News 4769) and the law itself (49 App. u.s.c. 2512) 
indicate 
that 
motor 
carriers 
subject 
to 
the 
Interstate 
Commerce 
Act 
are 
the 
ones 
intended 
to 
be 
covered 
by the 
regulatory authority of the Motor Carrier Safety Act. 
The 
Interstate 
Commerce 
Act 
is, 
as 
a 
practical 
matter, 
inapplicable to the territories (see Memorandum No. 49-2). 
In 
the circumstances, 
the inapplicability of the Motor Carrier 
Safety Act of 1984 
to the territories 
appears 
to be wholly 
appropriate. 
(d) The chapter entitled Commercial Space Launch (49 
App. U.S.C. 
2601-2623) 
contains 
the Commercial 
Space Launch 
Act, 
enacted 
in 1984. 
Its declared purpose is to encourage 
space 
launches 
by 
the 
private 
sector, 
and 
to 
provide 
a 
licensing program 
(but 
“only 
to the extent 
necessary 
[to] 
regulate 
such launches"), 
administered 
by the Secretary 
of 
Transportation 
(49 App. U.S.c. 
2601, 
2602). 
(The licensing 
requirements set forth in the statute are indeed modest, given 
the 
cosmic 
purpose 
involved 
and 
the 
current 
practice 
of 
detailed legislating.) 
The law applies to launches by persons 
in the "United States," a term defined to include expressly 
the 
Virgin 
Islands, 
Guam, 
and 
Samoa, 
as 
well 
any 
other 
commonwealth, 
territory, 
or possession of the United States" 
(49 App. U.S.C. 2603(10)). 
The language was probably intended 
to 
comprehend 
the 
Northern 
Marianas, 
but 
it 
does 
not 
unarguably do so, given the requirement of section 105 of the 
Northern Marianas Covenant that 
a Federal law enacted after 
January 1978 applies to the Northern Marianas only if it is 
“specifically named therein." 
(So, it would appear that one 
would not violate this 1984 act by perpetrating an unlicensed, 
private sector space launch 
from an island of the Northern 
Marianas.) 
A further shortcoming appears in the definition of 
“United 
States 
citizen," 
a 
term 
defined 
to 
exclude 
a 
noncitizen 
U.S. 
national 
(49 App. .S.C, 
2603(12)). 
(That 
would seem 
to mean 
that 
a noncitizen 
national 
in American 
Samoa could, 
with impunity, 
launch 
a space vehicle 
"outside 
the United States" (49 App. U.S.C. 2605(a)(3)(A)), even though 
a U.S. 
citizen 
could 
not 
do so.) 
Before 
any reliance 
is 
Placed 
on 
these 
perhaps 
strained 
constructions, 
the 
definitions 
in 
the Commercial 
Space 
Launch 
Act 
should 
be 
tidied up--if there is any potential whatsoever for private 
sector activities concerning space in the territories. 
Very 
likely, 
there is not. 
1401 
jAt2 
Memorandum No. 
49-8 
{e) The 
chapter 
entitled 
Commercial 
Motor 
Vehicle 
Safety 
(49 App. 
U.S.C. 
2701-2716), 
enacted 
as part of the 
Anti-Drug Abuse Act of 1986 
(Public Law 99-570), 
does 
not 
apply to the territories. 
It applies only to the States and 
the District of Columbia (49 App. U.S.C. 2716(14), 
(15)). 
The 
Act 
represents 
a forceful 
Federal 
effort 
to regulate 
the 
operators of commercial vehicles, among other things requiring 
operators 
to advise 
their 
licensing 
States 
of 
violations 
committed in other States (49 App. U.S.C. 
2702); prohibiting 
employers 
from permitting drivers with suspended or revoked 
licenses by any State from operating a commercial vehicle (49 
App. 
U.S.C. 
2703); 
imposing 
Federal 
standards 
for 
testing 
commercial vehicle operators and for licensing them (49 App. 
U.S.C. 
2704, 
2705); stipulating grounds for disqualification 
for licenses, 
including drunk driving offenses, 
controlled 
substance felonies, 
and serious traffic violations 
(49 App. 
U.S.C. 2707); and establishing an information system as a tool 
of enforcement (49 App. U.S.C. 2706). 
Grants are provided to 
assist the States 
(49 App. U.S.C. 
2704(c), 
2709), and States 
that do not comply with the law’s requirements are subject to 
withholding of a portion of their Federal highway funds 
(49 
App. U.S.C. 
2710). 
The problem to which the Act is directed--i.e., 
the safe operation of commercial motor vehicles--obviously is 
of concern in the territories as well as in the States. 
Their 
island status does not foreclose 
it. 
(There 
is no readily 
available 
legislative 
history 
to explain 
the 
territories’ 
exclusion (1986 U.S. Code Cong. and Admin. 
News 5393).) 
But 
the scheme presented by this 1986 law would be difficult to 
adapt to territorial needs: 
Not only is there no serious need 
for 
interjurisdictional 
cooperation 
(for 
the 
territories’ 
problem is internal as to each), but various other provisions 
would 
need 
considerable 
special 
tailoring 
to 
fit 
the 
territories’ 
situation. 
Minimum grants, 
for example, 
would 
require reduction in the interest of equity; and their special 
treatment 
under 
the 
Federal 
highway 
laws 
would 
require 
attention for enforcement purposes. 
Hence, 
while the issue 
should not be dismissed as irrelevant, 
it appears that if the 
territories have a sufficient concern about this subject to 
warrant 
Federal 
regulation 
and assistance, 
a separate 
law 
crafted 
for 
them 
alone 
would 
be 
the 
better 
vehicle 
for 
providing it. 
1402 
fo 
eS 
Memorandum No. 
49-8 
(£) The chapter entitled 
Sanitary 
F. 
Tran; 
Ea 
ion 
(49 App. 
U.S.C. 
2801-2812) 
contains 
the Act 
of 
that name, 
enacted 
in November 
1990. 
It requires 
the 
Secretary 
of 
Transportation 
to 
issue 
regulations 
pertaining 
to 
the 
transportation of food in tank trucks or motor vehicle cargo 
tanks, so as to prevent their use in carrying food if they are 
also 
used 
to 
transport 
refuse--or 
if 
they 
are 
used 
to 
transport food along with drugs, or after transporting drugs, 
So as 
to render the food unsafe to the health of humans or 
animals (49 App. U.S.C. 2803). 
The Act applies by name to the 
Virgin Islands, Guam, Samoa, and the Northern Marianas, all of 
which are defined as "States" (49 App. U.S.C. 2802(5)), and it 
defines "transportation" to mean "any movement. of property in 
commerce (including intrastate commerce) by motor vehicle or 
rail vehicle" 
(49 App. u.s.c. 
2802(6)). 
Civil and criminal 
penalties 
attach 
for 
a 
violation 
of 
the 
Secretary's 
regulations. 
The act applies fully to the areas subject to 
this study, without regard to the inter- or intra-territorial 
nature of the transportation involved, 
but it will again be 
noted that there 
is no mechanism 
for enforcement 
in Samoa, 
which 
lacks 
a 
District 
Court 
(49 
App. 
U.S.C. 
2810, 
1809(a)(2)). 
This void ought to be filled. 
Conclusion: 
The foregoing transportation laws, enacted within the 
last decade, accommodate the territories adequately when the 
subject matter is suitable for them--except that the absence 
of 
a Federal 
District 
Court 
in Samoa 
poses 
a problem 
of 
enforcement 
for 
the 
Sanitary 
Food 
Transportation 
Act 
(considered at (f£) above). 
Federal 
ni 
mments: 
Because this menorandum was composed late 
in the process of Preparing this study, its contents have not 
been the subject of comments from interested agencies. 
Title 50 - WAR AND NATIONAL DEFENSE 
Contains nothing of substantial interest to the territories. 
Contains matters of particular interest 
to the territories, 
but no legislative recommendations. 
(**) Contains recommendations for changes in the law, but the need 
for them 
Memorandum 
Number 
50-1 
(**) 
(t) 
is not urgent. 
Subject 
Council of National Defense 
Alien Enemies 
Atomic Weapons and Special 
Nuclear Materials Information 
Rewards 
Arsenals, 
Armories, 
Arms, 
and 
War Material Generally 
Helium Gas 
Vessels 
in Territorial Waters 
of the United States 
Insurrection 
National Security 
National Industrial Reserves 
Air-Warning Screen 
Guided Missiles 
Wind Tunnels 
Internal Security 
Gifts for Defense Purposes 
National Defense Contracts 
Chemical and Biological 
Warfare Program 
War Powers Resolution 
National Emergencies 
International Emergency 
Economic Powers 
Foreign Intelligence Surveil-— 
lance 
50 U.S.C. 
sections 
1-6 
21-24 
ATa-47£ 
82, 98-100a 
167-167n 
191-198 
205-226 
401-432 
451-455 
491 
§01-504 
511-524 
781-858 
1151-1156 
1431-1435 
1511-1521 
1541-1548 
1601-1651 
1701-1706 
1801-1811 
50-2 
(**) 
(a) 
(b) 
(c) 
(da) 
(e) 
(£) 
(g) 
(h) 
Trading With the Enemy Act of 
1917 
Office of Selective Service 
Records 
Military Selective Service Act 
Soldiers’ 
and Sailors’ Civil 
Relief Act of 1940 
National Emergency and War 
Shipping Acts 
Surplus Property Act of 1944 
Sale of Surplus War-Built 
Vessels 
Stabilization of Economy and 
Commodity Prices 
Disposal of Government-Owned 
Rubber-Producing Facilities 
American-Japanese Evacuation 
Claims 
War Claims 
Defense Production Act 
Domestic Minerals Program 
Extension 
Civil Defense 
World War II License 
Agreements 
Export Regulation 
1405 
Title 50 
Contents 
50 U.S.C App. 
1-44 
321-330 
451-473 
501-591 
1291-1294 
1622-1622c 
1735-1745 
1911-1919 
1941-1941u 
1981-1987 
2001-2017p 
2061-2169 
2181-2183 
2251-2303 
2371 
2401-2420 
Memorandum No. 
50-1 
April 1987 
Subject: 
Title 50, War and National Defense 
(a) 
(b) 
{c) 
(a) 
(e) 
(£) 
(g) 
(h) 
(i) 
(3) 
(k) 
(m) 
(n) 
Council of National Defense 
Title 50, Chapter 1 (50 U.S.C. 
1-6) 
Alien Enemies 
Title 50, Chapter 3 (50 U.S.C. 
21-24) 
Atomic 
Weapons 
and 
Special 
Nuclear 
Materials 
Information Rewards 
Title 
50, Chapter 4C (50 U.S.C. 
47a-47£) 
Arsenals, Armories, Arms, 
and War Material Generally 
Title 50, Chapter 5 (50 U.S.C. 
82, 98-100a) 
Helium Gas 
Title 50, Chapter 10 (50 U.S.C. 
167-167n) 
Vessels in Territorial Waters of the United States 
Title 50, Chapter 12 (50 U.S.C. 
191-198) 
Insurrection 
Title 50, Chapter 13 (50 U.S.C. 
205-226) 
National Security 
Title 
50, Chapter 15 (50 U.S.C. 
401-432) 
National Industrial Reserves 
Title 50, Chapter 16 (50 U.S.C. 
451-455) 
Air-Warning Screen 
Title 50, Chapter 18 (50 U.S.C. 
491) 
Guided Missiles 
Title 50, Chapter 19 (50 U.S.C. 
501-504) 
Wind Tunnels 
Title 50, Chapter 20 (50 U.S.C. 511-524) 
Internal Security 
Title 50, Chapter 23 (50 U.S.C. 781-858) 
Gifts for Defense Purposes 
Title 50, Chapter 26 (50 U.S.C. 
1151-1156) 
1406 
SAN? 
Memorandum No. 
50-1 
(o) National Defense Contracts 
Title 50, Chapter 29 (U.S.C. 1431-1435) 
(p) Chemical and Biological Warfare Program 
Title 50, Chapter 32 (50 U.S.C. 
1511-1521) 
(q) War Powers Resolution 
Title 50, Chapter 33 (50 U.S.c. 
1541-1548) 
(x) National Emergencies 
Title 50, Chapter 34 (50 U.S.C. 
1601-1651) 
(s) International Emergency Economic Powers 
Title 50, Chapter 35 (50 U.S.C. 
1701-1706) 
(t) Foreign Intelligence Surveillance 
Title 50, Chapter 36 (50 U.S.C. 1801-1811) 
Comment: 
Title 50, excluding its Appendix, contains about twenty 
active chapters, 
all of which relate to the national defense 
and national security. 
Many of these laws concern 
Federal 
officers 
and 
agencies 
and 
their 
authority, 
and 
they 
thus 
relate to matters internal to the U.S. Government. 
(Such laws 
are sometimes said below to relate to "administration", a term 
that 
usually 
does 
not 
do justice 
to their 
importance, 
but 
which is used as a convenient shorthand.) 
As such, 
many of 
them contain no provisions as to their geographic reach, but 
given the subject matter, 
none is needed. 
In two instances, 
however (items (h) and (t) below), the status of most Samoans 
as noncitizen nationals ought to be recognized. 
Otherwise, 
Title 
50 
appears 
to 
contain 
no 
deficiencies 
as 
to 
its 
treatment of the territories. 
Discussion: 
(a) The Council 
of National Defense (50 U.S.C. 
1-6) 
created in 1916, 
is composed of certain Cabinet officers and 
exists "for the coordination of industries and resources for 
the 
national 
security 
and 
welfare" 
(50 
U.S.C. 
1). 
The 
subject, 
therefore, 
relates 
to 
administration, 
and 
no 
geographic limitations are imposed or needed. 
(b) Alien Enemies (50 U.S.C. 21-24) derives from 18th 
century laws that permit the removal from "the territory of 
1407 
7493 
Memorandum No. 
50-1 
the United States" 
of "all natives, 
citizens, 
denizens, 
or 
subjects of the hostile nation" with which the U.S. is at war, 
or which threatens the invasion of U.S. territory 
(50 U.S.C. 
21). 
The geographic references appear sufficient for purposes 
of the territories, 
although the provision giving to "courts 
ef 
the 
United 
States" 
jurisdiction 
over 
deportation 
proceedings 
(50 U.S.C. 
23) may raise a question for American 
Samoa, 
which does not have 
a Federal District Court. 
It is 
likely, however, 
that 
if a case were to arise there--itself 
not a likely event--the High Court of American Samoa would be 
viewed 
as 
having 
jurisdiction, 
in 
light 
of 
Meaamaile 
v. 
American Samoa, 
550 F. Supp. 
1227 (1982). 
(c) Atomic 
Weapons 
and Special 
Nuclear 
Materials 
Information Rewards (50 U.S.C. 47a-47£) provides for monetary 
rewards to persons (who need not be U.S. citizens) who provide 
information 
about 
the 
illegal 
introduction, 
manufacture, 
acquisition, 
or 
export, 
to 
or 
from 
or 
within 
the 
United 
States, of nuclear material or an atomic weapon. 
The “United 
States. includes the Territories and possessions 
(50 U.S.C. 
T£(d)). 
(d) The chapter entitled Arsenals, Armories, Arms, and 
War Material Generally (50 U.S.C. 82, 98-100a) now consists of 
one 
section 
dating 
from 
1917 
(50 
U.S.C. 
82), 
plus 
the 
Strategic and Critical Materials Stock Piling Act, originally 
enacted 
in 1939. 
The 
first gives 
to the President 
broad 
procurement powers 
in "time of war", 
including the right to 
commandeer factories; 
the second permits 
the stockpiling of 
strategic and critical materials needed for national defense. 
The "United States" is defined to incluze "all territory and 
waters, continental and insular" for purposes of the first (50 
U.S.C. 
82(a)), 
but it is not defined in the stockpiling act. 
Given 
its purposes, 
however, 
to meet "needs 
of the United 
States 
for 
national 
defense" 
(50 
U.S.C. 
98a(a)), 
the 
stockpiling act unquestionably also includes the territories. 
(e) The 
Helium 
Gas 
chapter 
(50 
U.S.C. 
167-167n) 
authorizes 
the Secretary 
of the Interior 
to acquire helium 
gas-producing 
lands 
and 
to 
engage 
in 
its 
production 
and 
disposal 
for defense needs. 
The law contains no geographic 
limitations (except for a reference to a "State" at 50 U.S.C. 
1408 
7A'9 
Memorandum No. 
50-1 
167(2)), 
but because 
helium 
is not 
known 
to exist 
in 
the 
territories, 
it matters not. 
(£) The 
chapter 
on 
the 
subject 
of 
Vessels 
in 
Territorial 
Waters of United States 
(50 
U.S.C. 
191-198) 
permits, during periods of national emergency, 
the regulation 
of the anchorage and movement 
of all 
vessels, 
foreign 
and 
domestic, 
and the taking of "full possession and control" of 
any such vessel 
to prevent damage 
(50 U.S.C. 
191)--if 
the 
vessel 
is 
in 
the 
"territory" 
or 
waters, 
continental 
or 
insular, 
"subject to the jurisdiction of the United States" 
(50 U.S.C. 
195). 
The territories are all comprehended. 
(g) The 
laws 
contained 
in 
the 
chapter 
entitled 
Insurrection (50 U.S.C. 
205-226) date from the Civil War, and 
are commonly 
known 
as 
the Non-Intercourse 
Acts. 
They make 
criminal any "commercial intercourse" between "the inhabitants 
of any State or part thereof 
. 
. 
. in insurrection against the 
United States" and "the citizens of the rest of the United 
States" 
(50 U.S.C. 
205). 
Given 
the frequent reference 
to 
"States"--and often to "insurrectionary States"--in most of 
the sections that remain in this chapter (50 U.S.C. 
205, 206, 
207, 208, 210, 211, and 223), and given the historic situation 
that gave rise to these laws, 
it is probable that they apply 
to the States alone. 
Yet at least three (50 U.S.C. 212, 
21 6, 
and 224) are without geographic limitations, 
and they would 
appear 
to be available 
in 
the 
event 
of 
insurrection 
in 
a 
territory 
against 
the authority of the United States: 
50 
U.S.C. 212, which permits the confiscation of property used to 
aid 
an 
insurrection; 
50 
U.S.C. 
216, 
which 
permits 
the 
Secretary of the Treasury 
to prohibit the transportation by 
water 
of goods destined 
for insurgents; 
and 
50 U.S.C. 
224, 
which 
permits 
the 
Secretary 
of 
the 
Treasury 
to 
refuse 
clearance to a vessel when he believes 
it is intended 
for a 
Port under the control 
of insurgents, 
"whatever may be its 
ostensible 
destination". 
We 
may 
suppose 
that 
these 
authorities are sufficient. 
It would, surely, be unseemly to 
suggest a sufficient likelihood of territorial insurrection to 
warrant 
expanding now 
those 
laws 
of 1861, 
and thereabouts, 
that are designed to deal with that subject. 
Memorandum No. 
50-1 
(h) The chapter entitled National Security (50 U.S.C. 
401-432) contains 
the National Security Act of 1947 and its 
amendments. 
That Act creates 
the National Security Council 
and the Central Intelligence Agency, 
and as such relates to 
administration. 
Geographical provisions are neither present 
generally 
nor 
are 
they 
necessary. 
In 
two 
particulars, 
however, recognition is given the territories. 
At 50 U.S.C. 
403e special leave benefits are provided for CIA officers and 
employees 
who 
are 
assigned 
to 
duty 
stations 
outside 
the 
original 48 States and the District of Columbia; and leave may 
be provided for such persons 
in their State, 
“territory or 
possession", 
of 
residence 
at 
the 
time 
of recruitment 
(50 
U.S.C. 
403e(a)(3)(A)). 
And 
in connection 
with provisions 
designed 
to 
protect 
covert 
agents 
(50 
U.S.C. 
421-426), 
a 
definition of the "United States" 
is provided--meaning "all 
areas under the territorial sovereignty of the United States" 
(50 U.S.C. 
426(9)). 
That definition has meaning in relation 
to 
the 
section 
on 
extraterritorial 
jurisdiction, 
which 
provides 
for 
jurisdiction 
over 
the 
unlawful 
disclosure 
of 
information identifying a covert agent 
committed 
outside 
the 
United 
States 
if 
the 
individual committing the offense is a citizen 
of 
the 
United 
States 
or 
an 
alien 
lawfully 
admitted 
to the 
United 
States 
for permanent 
residence. 
(50 U.S.C. 
424) 
Samoans who are noncitizens nationals of the U.S. 
(and who, as 
such, 
cannot 
be 
"aliens 
lawfully 
admitted 
to 
the 
United 
States" 
(see Memorandum 
No. 
10-3)), 
are not covered 
by the 
provision--a statutory deficiency 
that should be corrected, 
given 
the 
apparent 
intent 
of 
the 
provision 
to 
be 
comprehensive, although it is not likely to be of moment as a 
practical matter. 
In comments dated September 24, 
1987, 
the 
Office 
of General 
Counsel, 
Department 
of Defense, 
endorses 
this recommendation. 
(i) Under National Industrial Reserves (50 U.S.C. 451- 
455), 
the 
Secretary 
of Defense 
is 
authorized 
to designate 
industrial 
plants, 
machine 
tools, 
and 
other 
industrial 
manufacturing equipment as a defense industrial reserve "for 
the future safety and for the defense of the United States" 
1410 
7491 
Memorandum No. 
50-1 
(50 
U.S.C. 
451). 
No provisions defining geographic scope 
appear, 
but the territories can be Presumed to be included, 
inasmuch as the United States is responsible for the defense 
of them all. 
(3) Under 
Air-warning 
Screen 
(50 
U.S.C. 
491), 
the 
Secretary 
of 
the 
Air 
Force 
is authorized 
to establish 
a 
land-based 
early 
warning 
system, 
"within 
and 
without 
the 
continental limits of the United States". 
The territories are 
obviously included, and they ought to be. 
(k) In the chapter entitled Guided Missiles (50 U.S.c. 
501-504), 
the Secretary 
of 
the Air 
Force 
is permitted 
to 
establish a long-range proving ground for guided missiles and 
other weapons--again "within or without the continental limits 
of the United states" (50 U.S.C. 501). 
Although the inclusion 
of the territories 
may not be welcomed 
by them, 
it is not 
inappropriate that they too be candidates. 
(L) Wind Tunnels (50 U.S.C. 511-524) are authorized to 
be developed 
jointly 
by the Administrator 
of the National 
Aeronautics 
and 
Space Administration 
and 
the 
Secretary 
of 
Defense, 
to 
meet 
research, 
developmental, 
and 
evaluation 
Problems 
in aeronautics. 
Facilities may be constructed 
"at 
educational institutions within the continental limits of the 
United States" 
(50 U.S.C. 
511), 
a phrase 
that excludes 
the 
territories. 
None, however, has now, nor is likely to have in 
the early future, 
an institution of sufficient expertise 
on 
the subject to warrant the expansion of the statutory language 
to include them. 
(m) Internal Security 50 U.S.C. 781-858) contains the 
Internal Security Act of 1950, 
as amended and supplemented-- 
popularly known as the Smith Act. 
It contains no provisions 
concerning 
geographic 
applicability 
that 
apply 
to 
all 
components of the Act as Supplemented, 
so it is necessary to 
consider the components separately: 
-- Title 
I, 
entitled 
"Control 
of 
Subversive 
Activities", applies in general throughout the Territories and 
1411 
Memorandum No. 50-1 
possessions 
(50 U.S.C. 
782(9)), 
and 
thus 
to 
all 
of 
the 
territories 
that 
are 
the subjects 
of this study. 
The 
term 
“interstate 
or 
foreign 
commerce", 
however, 
is defined 
to 
include both commerce between 
a Territory or possession and 
any place outside, and also commerce "within any Territory or 
possession" 
(50 
U.S.C. 
782(10)). 
This 
definition 
again 
includes 
the territories, 
except that commerce "within" the 
Northern Marianas would not be comprehended, 
in light of the 
application to the Northern Marianas of the Act pursuant 
to 
section 502(a)(2) 
of the Covenant, 
which requires 
that 
it 
apply there 
in the same manner as it is "applicable 
to the 
several 
States". 
Title 
I makes 
it 
a criminal 
offense 
to 
conspire to establish a totalitarian dictatorship "within the 
United States"; 
for a Federal officer or employee to transmit 
classified 
information 
to 
a 
foreign 
government 
or 
to 
a 
Communist organization; 
or 
for 
a foreign 
government 
or 
a 
Communist organization to receive such classified information 
(50 U.S.C. 
783). 
Also barred are the use of the mails by a 
Communist organization to disseminate information or to raise 
funds, 
unless 
the 
envelope 
states 
clearly 
the 
Communist- 
organization-source; 
and the use of the airways, 
by radio or 
television, 
unless the source 
is made clear 
(50 U.S.C. 
789). 
As noted, 
mail between 
two points in the Northern Marianas 
would 
not be covered, 
in light of the language 
of section 
502(a)(2) of the Covenant. 
-- Title 
III 
(Title 
II 
having 
been 
repealed) 
concerns security procedures for the National Security Agency, 
and 
as 
such relates 
to administration. 
No provisions 
nor 
limitations concerning geographic scope appear. 
-- The Communist Control Act of 1954 
(50 U.S.C. 
841-844) 
"proscribes", 
and in effect, outlaws, 
the Communist 
Party, 
or any successor to it whose purpose 
is "to overthrow 
the Government of the United States, or the government of any 
State, 
Territory, 
District, 
or possession thereof 
.. 
. 
by 
force and violence 
. 
. 
." (50 U.S.C. 
842). 
The territories 
are 
all 
comprehended 
by 
this 
language. 
The 
succeeding 
section, however, makes it a criminal offense to be a member 
of the Communist Party or of any other organization that has 
as its purpose the “overthrow of the Government of the United 
States, 
or 
the 
government 
of 
any 
State 
or 
political 
subdivision 
thereof 
by the 
use 
of 
force 
or violence" 
(50 
1412 
7493 
Se a 
ee 
Memorandum No. 50-1 
U.S.C. 
843(a)--and 
there 
is no mention of the Territories, 
territories, 
or possessions--nor is "State" anywhere defined 
to 
include 
them. 
It 
seems 
probable, 
however, 
that 
that 
section, like its predecessor, would be held applicable to the 
territories, 
in 
light 
of 
the 
sweeping 
declaration 
of 
the 
legislative purpose (50 U.S.C. 
841) and the specific mention 
of them 
in the key (and just preceding) 
section 
(50 U.S.C. 
842). 
The deficiency would be likely to be ascribed, almost 
surely accurately, 
merely to imprecise legislative drafting. 
-- 
‘the last component concerns 
the registration 
with 
the 
Attorney 
General 
of 
persons 
who 
have 
"received 
unstruction" in espionage or sabotage from a foreign country 
or a foreign political party (50 U.S.C. 851-858). 
Among those 
exempt from registration are persons who obtained instruction 
“by reason of civilian, military, 
or police service" with the 
United States Government or the governments of the States, the 
District, 
"the Territories, 
or 
the Canal 
Zone" 
(50 U.S.C. 
852). 
The questions arises as to whether "the Territories", 
in this 1956 enactment 
(when the incorporated Territories of 
Alaska and Hawaii still existed) includes the "territories" 
{unincorporated) 
with which 
this 
study 
is concerned. 
The 
answer is almost certainly that it does, 
in light of Puerto 
Rico 
_v. 
Shell 
Co. 
(302 
U.S. 
253 
(1937)) 
and 
its 
progeny, 
holding 
that 
"Territory" 
may 
include 
an 
unincorporated 
territory if the legislative Purpose warrants. 
It would seem 
clearly to do so in this instance. 
The express mention of the 
Canal Zone, and the extension of the registration 
law to it 
in 1962 by an amendment for that purpose 
(50 U.S.C. 
858), do 
not 
cast 
doubt 
upon 
the 
foregoing 
conclusion 
as 
to 
the 
territories. 
The 
Canal 
Zone 
was 
not 
then, 
or 
ever, 
a 
"territory" of the United States in the Constitutional sense, 
although 
it was 
sometimes defined 
as such 
as 
a legislative 
shortcut. 
In sum, although the internal security laws contained in this 
portion of Title 50 are uneven in their statutory references 
to geographic reach, 
the pertinent provisions comprehend the 
territories--except for the Northern Marianas’ exclusion from 
certain labeling requirements on intra-Commonwealth mail. 
The 
exclusion appears minor enough to ignore. 
1413 
Memorandum No. 50-1 
(n) Gifts for Defense Purposes (50 U.S.C. 1151-1156) 
permits the Secretary of the Treasury to accept gifts of money 
or other intangible personal project, and the Administrator of 
General Services 
to accept other property, 
real or personal, 
on the condition 
that 
it be used 
for 
a particular defense 
purpose. 
No geographic 
limitations 
appear, 
so gifts 
from 
territorial donors would appear to be welcome. 
{o) The chapter entitled National Defense Contracts 
(50 U.S.C. 
1431-1435) provides special procurement authority 
during a national emergency when the President determines that 
it is needed to "facilitate the national defense" 
(50 U.3.C. 
1431). 
The law pertains 
to administration. 
It contains no 
provision limiting its geographic scope. 
(p) The Chemical and Biological Warfare Program 
(50 
U.S.C. 1511-1521) circumscribes the transportation, 
testing, 
and disposal of "any lethal chemical or any biological warfare 
agent" in the "the United States" 
(50 U.S.C. 
1512), with the 
United States defined, unless otherwise indicated, to include 
the territories and possessions (£0 U.S.C. 
1514). 
The term is 
otherwise defined 
for purposes 
of 50 U.S.C. 
1513, 
where 
it 
includes only the States and the District of Columbia, 
but by 
that section even stricter procedures and controls are imposed 
upon the deployment, storage, 
or disposal of lethal chemical 
and biological agents "outside the United States". 
In effect, 
thus, 
the territories are more 
fully protected than are the 
States--an 
unusual 
but 
welcome 
result, 
given 
the 
subject 
matter involved. 
(q) The War Powers Resolution (50 U.S.C. 1541-1548) is 
designed to limit the introduction of U.S. Armed Forces into 
hostilities by the President, 
and states that that may occur 
only pursuant to a declaration of war, or a specific statutory 
authorization, or as a result of a national emergency "created 
by 
attack 
upon 
the 
United 
States, 
its 
territories 
or 
possessions" 
(50 
U.S.C. 
1541(c)). 
For 
purposes 
of 
the 
Resolution, 
the 
"United 
States" 
consistently 
includes 
the 
territories (e.g., 
50 U.S.C. 
1544(c), 
1546a)), 
and that is as 
it should be. 
1414 
Memorandum No. 50-1 
(x) The National 
Emergencies 
Act 
(50 
U.S.C. 
1601- 
1651), enacted in 1976, terminated the national emergency then 
in effect 
as a result of the Vietnam War and prescribes the 
manner in which future national emergencies may be declared 
and terminated. 
The subject relates to administration, 
and 
the law contains no Provisions as to geographic scope. 
(s) The International Energency Economic 
Powers Act 
(50 
U.S.C. 
1701-1706), 
enacted 
in 
1977, 
authorizes 
the 
President 
to impose 
economic 
sanctions 
"to deal 
with 
any 
unusual and extraordinary threat, which has its source... 
outside 
the United States, 
to the national security, 
foreign 
policy, or economy of the United States" (50 U.S.C. 1701(a)). 
The sanctions apply to "any person, 
or with respect to any 
property, 
subject to the jurisdiction of the United States" 
(50 U.S.C. 
1702(a)--so the territories 
and their people are 
all comprehended. 
(t) The Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801-1811) prescribes in great detail the procedure 
for 
obtaining 
electronic 
surveillance 
to 
acquire 
foreign 
intelligence information. 
That procedure applies throughout 
the United States 
(defined at 50 U.S.C. 
1801(3) 
to include 
"all areas under the territorial sovereignty of the united 
States"); 
and the use 
of the information 
in "State" 
court 
proceedings 
(a term defined at 50 U.S.C. 
1801(0) 
to include 
the territories and possessions) 
is circumscribed 
(50 U.S.C. 
1806). 
The territories, 
thus, 
are fully covered by the Act. 
But the Act is also intended to protect United States persons 
from the misuse of information about them that is obtained in 
the course of acquiring foreign intelligence (e.g., 50 U.S.C. 
1804(b), 
1805(a), 
and 1806(a)), 
and although "United States 
person" is elaborately defined (to include citizens and aliens 
admitted for permanent residence (50 U.S.C. 1801 (i)), the term 
does 
not 
include 
poncitizen 
nationals. 
It should 
do 
so, 
because 
nationals 
in 
Samoa 
are 
no 
less 
entitled 
to 
such 
Protection 
than 
are 
citizens 
in 
the 
States 
and 
other 
territories. 
An amendment 
to expand 
the definition 
is in 
order. 
The Department of Defense has stated that it agrees. 
Conclusion: 
The laws contained 
in Title 50, with two relatively 
minor 
exceptions, 
either 
contain 
appropriate 
geographic 
1415 
7A? 
Memorandum No. 
50-1 
references 
that include 
the territories, 
or owing 
to their 
subject matter, 
need none. 
The two exceptions both concern 
the status of American Samoans 
as noncitizen nationals: 
A 
section 
of 
the 
National 
Security 
Act 
pertaining 
to 
the 
unlawful disclosure of information concerning covert agents 
{in (h) above), 
is for the benefit of the United States; 
the 
second, 
concerning 
protections 
afforded 
individuals 
in 
connection with the gathering of foreign 
intelligence (in (t) 
above) 
is for the benefit of private parties. 
In both cases 
the terms should be expanded to include noncitizen nationals, 
but there is no known urgency in doing so. 
Federal agency 
comments: 
Comments 
were 
requested 
from 
the 
Department 
of Justice 
and 
the Department 
of Defense. 
The 
latter, 
in comments dated September 24, 1987, stated that it 
agrees 
that 
U.S. 
nationals 
should 
be included 
in pertinent 
provisions 
of 
the National 
Security Act 
(discussed 
at 
(h) 
above) 
and 
the 
Foreign 
Intelligence 
Surveillance 
Act 
(discussed at (t) above). 
Memorandum No. 50-2 
April 1987 
Subject: 
Title 50, Appendix 
~ War and National Defense 
(a) 
(b) 
(c) 
(da) 
(e) 
(£) 
(g) 
(h) 
(i) 
(3) 
(m) 
(n) 
Trading with the Enemy Act of 1917 
(50 U.S.C. App. 
1-44) 
Office of Selective Service Records 
(50 U.S.C. App. 321-330) 
Military Selective Service Act 
(50 U.S.C. 
App. 451-473) 
Soldiers’ 
and Sailors’ Civil Relief Act of 1940 
(50 U.S.C. 
App. 501-591) 
National Emergency and War Shipping Acts 
(50 U.S.C. 
App. 1291-1294) 
Surplus Property Act of 1944 
(50 U.S.C. 
App. 
1622-1622c) 
Sale of Surplus War-Built vessels 
(50 U.S.C. App. 1735-1745) 
Stabilization of Economy and Commodity Prices 
(50 U.S.C. App. 
1911-1919) 
Disposal 
of 
Government-Owned 
Rubber-Producing 
Facilities 
(50 U.S.c. App. 
1941-1941u) 
American-Japanese Evacuation Claims 
(50 U.S.C. App. 1981-1987) 
War Claims 
(50 U.S.C. App. 2001-2017p) 
Defense Production Act 
(50 U.S.C. App. 2061-2069) 
Domestic Minerals Program Extension 
(50 U.S.C. App. 2181-2183) 
Civil Defense 
(50 U.S.C. App. 2251-2303) 
1417 
Memorandum No. 
50-2 
(o) World War II License Agreements 
(50 U.S.C. App. 
2371) 
(p) Export Regulation 
(50 U.S.C. App. 2401-2420 
Comment: 
The laws appearing in the Appendix to Title 50, dealing 
with emergency and post-war subjects, 
are for the most part 
not of indefinite duration, although some appear to constitute 
permanent 
legislation. 
Few 
hold 
significance 
for 
the 
territories today, but exceptions of possible interest include 
the 
Selective 
Service 
Act 
((c) 
below), 
the 
Soldiers’ 
and 
Sailors’ Civil Relief Act ((d) below), the Defense Production 
Act ((1) below), 
the Civil Defense Act 
((n) below), 
and the 
Export Administration Act ((p) below). 
None of these require 
modification to meet territorial needs. 
The Trading With the 
Enemy Act ((a) below) applies to the territories, but contains 
deficiencies with respect to American Samoa. 
There is no need 
for haste 
in correcting those deficiencies, 
but 
it would be 
desirable to effect corrections whenever it is convenient to 
do so. 
Discussion: 
(a) The Trading With the Enemy Act of 1917 (50 U.S.C. 
App. 
1-44) 
represents 
important 
World 
War 
I legislation, 
amended at the outset of World War II and from time to time 
since. 
In major particulars, 
it makes unlawful commercial 
transactions between "any person in the United States” and a 
person who is a citizen or a subject of an enemy nation with 
which the United States 
is at war; 
it permits the seizure by 
the Alien Property Custodian of property held in the United 
States 
by persons 
owing 
allegiance 
to 
the 
enemy; 
and 
it 
authorizes the President to prohibit imports "into the United 
States" when the public safety requires. 
Notwithstanding 
its considerable 
age, 
the Trading 
With 
the 
Enemy Act uses language that comprehends the territories quite 
fully. 
The term “United States" means "all land and water, 
continental or insular, 
in any way within the jurisdiction of 
the 
United 
States" 
(50 U.S.C. 
App. 
2). 
And because 
the 
prohibitions largely run to "any person in the United States” 
(e.g., 
50 U.S.C. App. 
3, 5), persons in the territories are 
1418 
5423 
Memorandum No. 50-2 
included. 
Ina few instances, there are express references to 
the Territories and possessions (S50 U.S.C. App. 32(a), 34(h)). 
There 
are, 
however, 
also 
references 
from 
time 
to 
time 
to 
United 
States 
citizens, 
a 
term 
not 
defined 
to 
include 
noncitizen nationals (i.e., 50 U.S.C. App. 8(b), 9(b), 
10, 12, 
21, 32, and 34). 
These Provisions for the most part relate to 
filed 
with 
the Alien 
Property Custodian. 
Additionally, 
a 
particular provision concerning the jurisdiction under the Act 
in 
Samoa 
would 
be without 
jurisdiction. 
Should 
external 
circumstances 
give new 
life 
to the Act, 
these deficiencies 
with respect 
to American Samoa ought to be corrected. 
The 
matter 
is 
happily 
untimely, 
and 
additionally, 
noncitizen 
nationals 
in Samoa 
are 
not currently given 
to substantial 
foreign 
commercial 
transactions--so 
their 
potential 
deprivation 
of 
rights 
under 
the 
Act 
is 
not 
now 
of great 
significance. 
But if this venerable law is updated, 
so that 
@ convenient legislative vehicle 
is at hand, 
it ought to be 
amended 
to take account 
of these two deficiencies 
touching 
Samoa. 
(b) The Office of Selective Service Records (50 U.S.C. 
App. 321-330), created in 1947, was charged with liquidating 
the World War II Selective Service System but has a continuing 
responsibility 
to maintain 
its records. 
Its 
functions 
are 
housekeeping, 
but 
its authority 
in such 
areas 
as 
property 
disposal and details of personnel includes 
the "Territories 
and possessions" 
(50 U.S.C. App. 324, 326(a)). 
(c) The Military Selective Service Act (50 U.S.C. App. 
451-473), 
enacted 
in 
1948, 
creates 
the 
current 
Selective 
Service System and requires the registration of males aged 18 
to 26 
for 
training 
and 
service 
in 
the 
U.S. 
Armed Forces. 
Registration 
continues 
to 
be 
required; 
but 
induction 
for 
training and service ceased in 1973 
(50 U.S.C. App. 467(c)). 
The Act applies to "every male citizen of the United States, 
and every other male person residing in the United States" 
1419 
7430 
Memorandum No. 
50-2 
{except for nonimmigrant aliens) 
(50 U.S.C. 
App. 
453), 
with 
the 
"United 
States" 
defined 
to 
include 
the 
States, 
the 
District, Puerto Rico, the Virgin Islands, and Guam (50 U.S.C. 
App. 
466(b)). 
Given 
the 
1948 
enactment 
date, 
and 
the 
expansion of the definition of the "United States" in 1951 to 
include 
Guam 
(65 
Stat. 
87), 
the Act 
applies 
also 
to the 
Northern Marianas 
by operation 
of section 
502(a)(2) 
of the 
Covenant. 
In a 1950 case concerning Puerto Rico, 
it was held 
that the Act could constitutionally apply to U.S. citizens in 
the 
territories, 
notwithstanding 
their 
lack 
of 
voting 
representation in the Congress (Ruiz Alicea v. U.S., 180 F.2d 
870). 
But the Act does 
not apply 
to American 
Samoa 
(although 
it 
would apply to Samoans resident in the States, whether they be 
citizens or noncitizen nationals). 
This exclusion may be a 
consequence 
of 
Samoa’s 
exclusion 
from 
the 
application 
in 
general of the Immigration and Nationality Act (Memorandum No. 
8-1), because that Act is often used to determine status under 
the Selective Service 
Act. 
It is so used, 
for example, 
to 
define nonimmigrant aliens who need not register 
(50 U.S.C. 
App. 
453), 
and 
to 
determine 
some 
who 
are 
entitled 
to 
deferments 
or 
exemptions 
from 
induction 
(50 
U.S.C. 
App. 
456(a)(1)). 
Because 
of 
the 
need 
for 
such 
standards 
for 
Selective 
Service 
purposes, 
the extension of 
the Selective 
Service Act to Samoa would therefore require the writing of 
legislation at the Federal level that would approach drafting 
an immigration law for Samoa--a task the Congress has so far 
been willing to leave to lawmakers in Samoa. 
Inasmuch as the 
Samoans display every 
sign of wanting to retain 
this power 
unto themselves, and inasmuch as the United States has clearly 
excluded 
Samoa 
from the Selective Service System, 
it seems 
appropriate to refrain from modifying the current application 
of 
the 
law. 
And 
since 
members 
of 
draft 
boards 
must 
be 
citizens (50 U.S.C. App. 460(b)(3)), of which too few might be 
found in Samoa for that purpose, 
we are spared having to deal 
with that issue. 
The Act contains occasional references to the Territories and 
"possessions", 
a term that is undefined in the Act, and which 
therefore includes Samoa. 
Some such references are harmless—— 
such 
as 
the deferment 
from induction 
of the Governors 
and 
members of the legislatures of the "possessions" 
(50 U.S.C. 
1420 
TAQL 
Memorandum No. 50-2 
App. 
456(f£)); 
but others create 
an internal inconsistency-- 
such 
as 
the requirement 
that 
there 
be 
a Selective 
Service 
headquarters 
in each "possession" 
(thereby including Samoa) 
(50 U.S.C. App. 460(a)(2), and that the President establish a 
local draft board in each "possession" (also including Samoa) 
(50 
U.S.C. 
App. 
460(b)(3)). 
Federal 
authorities 
have 
apparently found it possible to overlook these requirements, 
so the problem need not be further dealt with here. 
One section that appears to be deficient on its face is not. 
At 50 U.S.C. 
App. 
471 reference 
is made to the release 
from 
Federal service of National Guard and Air National Guard units 
and their return to their respective "States, Territories, the 
District of Columbia, and Puerto Rico". 
That phrase should be 
understood 
to include 
the Virgin Islands 
and Guam 
(but not 
Samoa nor the Northern Marianas, which Jo not have National 
Guard 
units 
(see Memorandum 
No. 
32-1)), 
in 
light 
of 
the 
definition in the National Guard laws at 32 U.S.C. 
101(1), and 
its application 
to all Federal 
laws concerning 
the militia 
(see the discussion on this subject in Memorandum No. 10-5). 
(d) The Soldiers’ and Sailors Civil Relief Act of 1940 
(50 U.S.C. 
App. 
501-591) 
remains 
in effect 
(50 U.S.C. 
App. 
464) 
and 
applies 
to 
the 
united 
States 
and 
all 
of 
its 
territories 
(50 U.S.C. App. 512). 
Its purpose is to relieve 
persons 
in 
the 
Armed 
Forces 
from 
a 
variety 
of 
civil 
liabilities, 
so as not to distract them from their military 
duty--or, 
in the words of the statute, 
"in order 
to enable 
such persons 
to devote 
their entire 
energy 
to the defense 
needs 
of 
the 
Nation" 
(50 
U.S.C. 
App. 
510). 
Particular 
Provisions 
of 
the ‘Act 
alter 
the 
effects 
of 
statutes 
of 
limitation as they would apply to persons in the Armed Forces, 
and relieve such persons of the usual consequences of civil 
proceedings 
relating 
to 
eviction, 
divorce 
and 
alimony, 
installment 
contracts, 
mortgages, 
leases, 
life 
insurance 
policies--and many other subjects. 
The Act applies 
to the 
United 
States 
and 
to 
"all 
territory 
subject 
to 
the 
jurisdiction 
of 
the 
United 
States, 
and 
to 
proceedings 
commenced in any court therein" (50 U.S.C. App. 512(1)), so no 
question as to geographic application or of court jurisdiction 
arises. 
Two sections confer benefits upon "citizens of the 
United States" only: 
50 U.S.C. App. 514 and 572 provide that 
some of the benefits of the Act may be conferred upon citizens 
1421 
7AR2 
Memorandum No. 
50-2 
who serve in the forces of a wartime ally. 
Since no Samoan is 
known 
to 
have 
been 
disadvantaged 
by 
the 
exclusion 
of 
noncitizen nationals from these sections, 
the exclusion need 
not be remedied. 
(e) The 
ional Emergen: 
nd War 
Shipping 
Acts (50 
U.S.C. App. 1291-1294) have largely been repealed, except for 
a 
few 
sections 
dating 
from 
1943 
and 
relating 
to persons 
employed 
as 
seamen 
under 
the 
World 
War 
II 
War 
Shipping 
Administration. 
The sections have no current relevance to the 
territories. 
(£) The Surplus Property Act of 1944 
(50 U.S.C. App. 
1622-1622c) 
has expired or been repealed except for sections 
pertaining 
to 
the 
conveyance 
to 
"any 
State, 
political 
subdivision, 
municipality, 
or tax-supported institution" 
of 
surplus 
property 
that 
is suitable 
for 
public airports 
(50 
U.S.C. App. 1622(g)(1))}. 
Only in Guam does the United States 
own property that might be suitable for such use, and although 
it is unnamed 
in the Act, 
Guam would qualify 
as 
a donee-- 
either because it is a "tax-supported institution", or because 
it is a recipient of assistance under the Airport and Airway 
Improvement Act of 1982 
(see Memorandum No. 
49-7), 
which is 
used as a standard in the Surplus Property Act (50 U.S.C. App. 
1622(g)(1)). 
(g) The Sale of Surplus War-Built vessels 
(50 U.S.C. 
App. 1735-1745), although it relates to vessels built during 
World War II, has sufficient continuing life to remain in the 
Code. 
The Act permits the Secretary of Transportation to sell 
or to charter such war-built vessels to United States citizen 
--for 
the purposes 
of fostering 
the 
U.S. 
merchant 
marine. 
Sales 
to noncitizens 
are permitted, 
but citizen-buyers 
are 
preferred 
(50 
U.S.C. 
App. 
1740). 
Samoans 
are 
thereby 
disadvantaged, 
but given 
both 
the 
age 
of 
the 
law and 
the 
probable absence of Samoans buyers, the disadvantage does not 
require correction. 
(h) Stabilization 
of Economy 
and 
Commodity 
Prices 
(50 U.S.C. 
App. 
1911-1919) 
refers 
to 
a 1947 
authorization 
intended to stabilize the U.S. post-war economy by promoting 
1422 
2493 
Memorandum No. 50-2 
the equitable distribution of goods and curbing inflation. 
In 
addition 
to 
authorizing 
the 
President 
to 
carry 
out 
food 
conservation 
programs 
(50 
U.S.C. 
App. 
1918), 
he 
is 
also 
directed to advise the Congress of critical shortages, 
to be 
followed by Congressional 
action as Congress determines 
(50 
U.S.C. App. 1916). 
No provisions of geographic scope appear, 
but that issue could be expected to be met by the implementing 
legislation. 
(i) The Di: 
1 
of 
rnment-Owned 
Rubber-Producin 
Facilities 
(50 U.S.C. 
App. 
1941-1941a) 
has long since been 
effected 
(50 
U.S.C. 
App. 
1941g), 
so 
requires 
no 
further 
attention here. 
(j) American-Japanese 
Evacuation 
Claims 
(50 
U.S.C. 
App. 1981-1987) 
allowed the filing, until 1950, 
of claims by 
internees during World War II. 
It has, as a practical matter, 
expired. 
(k) War Claims (50 U.S.C. App. 2001-2017p) creates the 
agency now termed the Foreign Claims Settlement Commission and 
grants authority 
for 
the settlement 
of claims 
arising from 
World 
War 
II, 
the 
Korean 
War, 
and 
the 
Vietnam 
conflict. 
Claims pertain to detainees, prisoners of war, and others who 
suffered losses. 
Most filing dates have long since passed, 
although deadlines with respect to the Vietnam conflict remain 
open (50 \3.5.C, App. 2004(i)(6)). 
The statute is currently of 
only 
acatumic 
interest 
to 
the 
territories. 
Should 
circumstances result in its revival in the future, however, an 
effort should be made to accommodate noncitizens nationals, 
which the War Claims Act of 1948, as amended, 
sometimes does 
but 
more 
often 
does 
not. 
in 
recognition 
of 
that 
fact, 
particular 
provisions 
were 
enacted 
to 
take 
account 
of 
Guamanians (then nationals but not citizens) interned on Wake 
Island during World War II (50 U.S.C. 
App. 2004(h)). 
(1) The Defense Production Act (50 U.S.C. App. 2061- 
2169), 
first enacted in 1950 and much amended since, has now 
been extended to September 30, 1989. 
The Act provides for a 
program of long-range defense preparedness, 
and permits the 
allocation 
of scarce materials needed 
for national defense, 
1423 
,AAL 
Memorandum No. 
50-2 
the giving of priority to defense and energy contracts, 
loans 
and 
guarantees 
for 
defense 
production, 
and 
a program 
of 
synthetic 
fuel 
production, 
among 
other 
things. 
The 
Act 
applies fully to all of the territories, 
in light of the 1950 
provision making 
it applicable 
to "the United States, 
its 
Territories 
and 
possessions" 
(50 
U.S.C. 
App. 
2163). 
Additionally, 
the synthetic fuel production provisions carry 
their own statement of application, where the Virgin Islands, 
Guam, 
and 
the Northern 
Marianas 
are 
all 
expressly 
named, 
together with "any other territory or possession of the United 
States" 
(50 U.S.C. 
App. 
2098(c)). 
The court 
jurisdiction 
provisions 
also 
appear 
sufficient 
to 
include 
all 
of 
the 
territories, 
inasmuch as jurisdiction is given to the Federal 
district 
courts 
plus 
"the 
United 
States 
courts 
of 
any 
Territory or other place subject to the jurisdiction 
of the 
United States" 
(50 U.S.C. App. 2156(b))--a phrase that would 
almost certainly include Samoa. 
(m) The Domestic Minerals Program Extension (50 U.S.C. 
App. 2181-2183) concerns a program to encourage production and 
acquisition of certain strategic and critical minerals. 
It is 
supplementary to the Defense Production Act, and thus has the 
same geographic reach--thereby including the territories. 
(n) Civil Defense (50 U.S.C. App. 2251-2303) refers to 
the Federal 
Civil 
Defense 
Act 
of 
1950, 
as 
amended, 
and 
is 
intended to lead to a system of civil defense from attack and 
from certain natural disasters. 
The law is administered by 
the 
Federal 
Emergency 
Management 
Agency. 
It 
applies 
throughout the United States, 
including its Territories 
and 
possessions 
(50 U.S.C. App. 2252(g)), 
and it has since 1951, 
so the Northern Marianas as well as the other territories are 
covered by it. 
(o) World War II License Agreements 
(50 U.S.C. 
App. 
2371) 
contains 
a single 
section 
only, 
permitting 
Federal 
agency heads to modify patent agreements entered during World 
War II. 
There is no indication of geographic reach, but given 
the age and narrow focus of the law, that 
is unlikely to be 
troublesome in the territories. 
1424 
Memorandum No. 50-2 
(p) Export 
Requlation 
(50 
U.S.C. 
App. 
2401-2420) 
refers to the Export Administration Act, approved in September 
1979, 
The Act authorizes the imposition of controls and the 
requirement of licenses for certain exports from the "United 
States" to particular foreign countries. 
The "United States" 
includes 
the 
States 
and 
"any 
commonwealth, 
territory, 
dependency, 
or possession 
of the United 
States" 
(50 U.S.C. 
App. 
2415(7)), 
so there 
is no doubt that 
exports 
from 
the 
territories are comprehended by it. 
(The approval date of the 
Act is subsequent to the effective date of section 502(a) (2) 
of the Northern 
Marianas 
Covenant, 
but section 
105 
of the 
Covenant makes the Act applicable there because such Act 
is 
applicable throughout the "several States" as well as to all 
other 
parts 
of 
the 
United 
States.) 
The 
fact 
that 
the 
territories are all outside the United States customs area is 
not relevant for Purposes of the application of this law. 
Its 
Purpose is to serve the national security and foreign policy 
interests of the United States by permitting the control 
of 
exports 
to 
foreign 
countries, 
so 
the 
territories 
are 
logically, 
as well 
as 
by definition, 
a part of the United 
States. 
Additionally, 
certain prohibitions 
run 
to "United 
States persons" (e.g., 50 U.S.C. App. 2407(a)), and that term 
is defined to include U.S. nationals (50 U.S.C. App. 2415(2)), 
so American Samoans are comprehended. 
Conclusion: 
The laws contained 
in the Appendix 
to Title 
50 are 
sufficient 
for 
purposes 
of 
the 
territories, 
except 
for 
nonurgent 
deficiencies 
in the Trading 
With 
the 
Enemy 
Act, 
where provisions concerning citizenship and court jurisdiction 
ought to be corrected for American Samoa. 
Federal 
agency comments: 
Comments 
were 
requested 
from 
the 
Department 
of Defense, 
and the Department of Justice. 
All 
comments received are reflected above. 
1425 
INDEX TO ACTS OF CONGRESS 
4 ye 
We 
ee 
ee 
Administrative Procedure Act 
.........-. 
Adult Education Act ..... 
soe 
ee 
ee 
. 
Age Discrimination Act of i975 
1 
1! 
a 
i 
3 
Agricultural Act of 1949 
...... 
ds 
. 
Agricultural Act of 1956 
......... 
ae 
§ 
Agricultural Adjustment Act of 1933 .... 
s 
& 
Agricultural Adjustment Act of 1938 
. 
e 
2 
o 
Agricultural Fair Practices Act of 1967 fe 
* 
Agricultural Foreign Investment Disclosure Act of 
Agricultural Marketing Act of 1929 
....... 
Agricultural Marketing Act of 1946 
... 
= 
4 
Agricultural Marketing Agreement Act of 1937, 
1 
1: 
Agricultural Trade Development and Assistance Act 
. 
Airline Deregulation Act of 1978 
. 
. 
ow 
Airport and Airway Development Act of 1970" 
a 
He 
Airport and Airway Improvement Act of 1982 
. 
. 
Airport Noise and Capacity Act of 1990 
.. 
Alaska Federal-Civilian Energy Efficiency Swap “act 
Alaska National Interest Lands Conservation Act 
. 
Alaska Omnibus Act 
...... 
oa ee 
a 
Animal Welfare Act 
... 
. 
Anti-Deficiency Acts 
... 
Anti-Drug Abuse Act of 1986 
Anti-Drug Abuse Act of 1988 
Anti-Kickback Act ..... 
. 
. 
Anti-Smuggling Act 
.. 
ee 
ee 
ae 
antitrust Civil Process Act 
- 
Appalachian Regional Development “act” of 1965" 
Archeological Resources Protection Act of 1979 
Atlantic Salmon Convention Act of 1982 
.... 
Atomic Energy Act of 1954 ......+4.2-454 
Automobile Dealers Day in Court Act 
. 
. 
Automotive Propulsion Research and Development “act ° 
Aviation Safety and Noise Abatement Act of 1979 
. 
Bank Conservation Act ..... 
ee 
Bank Holding 
Bank Protection Act of 1968 ...... 
Bank Service 
Bankhead-Jones Act of 1935 
.... 
4.4. 
Bankhead-Jones Farm Tenant Act of 1937 
Banking Act of 1933 ......... 
Bridge Act of 1906 
. 
. 
. 
Buck Act 
. 
Buy American 
Company Act of 1956. 
eo 
val. 
Corporation Act 
.... 
Act... 
1426 
SAR 
£1 1978 
336 
1394 
196 
240 
241 
| 
Caribbean Basin Economic Recovery Act ........ 
. 
550 
Carl D. Perkins Vocational Education Act 
........ 
591 
Carriage of Goods by Sea Act 
.........2....4. 
7315 
Chesapeake Bay Research Coordination Act of 1980 
.... 
+461 
Child Abuse Prevention and Treatment and Adoption 
p 
Reform Act... 
. 
. 
2 
1. 
ee 
ee 
1194 
Child Nutrition Act of 1966. ......0. 
ce 
ew 
EUS. 
China Trade Act. 2... 
ee 
ee 
289 
Chrysler Corporation Loan Guarantee Act of 1979 «sw 
a 
« 
330 
Cigarette Labeling and Advertising Act 
........ 
315 
Civil Rights Act of 1866 
...........0.04. 
1135 
Civil Rights Act of 1960 
..........00.004- 
1130 
Civil Rights Act of 1964 
..............4. 
4 
1138 
Civil Rights of Institutionalized Persons Act 
. 
. 
& 
wow 
1138 
Classification Act 
...........02.00000- 
. 
37 
Classified Information Procedure Act 
.......... 
507 
Clayton Act.. 
be 
ee 
bk 
ee 
ww 
ew 
- 
276 
Clean Air Act... 
2... 
ee 
1996 
Clean Water Act... 
. 
1 
2. 
Cee 
ee 
ee ee 
OM 
Coastal Barrier Resources Act... 
.. 
rr 
1) 
Coastal Zone Management Act of 1972. 
. 
428 
Commercial Fisheries Research and Development Act of 1964 
392 
Commercial Space Launch Act .........4.. 
* 
% 
1401 
Commonwealth Entry and Deportation Act of 1983 
.... 
. 
123 
Communications Act of 1934 
..........2.2.2.2.. 
«1324 
Communications Satellite Act of 1962 
..... 
ca 
1338 
Communist Control Act of 1954...........204 
1412 
Compact of Free Association Act of 1985 
........ 
- 
79 
Competition in Contracting Act 
............ 
1040 
Comprehensive Drug Abuse Prevention and Control Act 
OL 1970 
as 
8 
we 
ke 
ek 
ew 
ew 
68S 
Comprehensive Employment and Training Act of 1973... 
. 
860 
Comprehensive Environmental Response, Compensation, 
and 
Liability Act 
2... 
1... ee 
ee 
ee 
ew 
ee 
1212 
Consolidated Farm and Rural Development Act of 1961... 
. 
89 
Consumer Credit Protection Act 
....... 
“oe 
322 
Consumer Product Safety Act 
......... 
moe 
oe 
Me 
333 
Contract Settlement Act of 1944....... 
Contract Work Hours and Safety Standards Act 
Controlled Substances Act 
. 
. 
oe 
axe 
x 
w 
Controlled Substances Import and Export Act 
. 
° S o 
Cooperative Forestry Assistance Act of 1978... 
.. 
z 
453 
Corporation of Foreign Bondholders Act of 1933 
.. 
o 
283 
Cotton Standards Act 
..........2.-22002,. 
- 
= 
52 
Crime Control Act of 1990............. 
~ 
476 
1427 
Dairy and Tobacco Adjustment Act 
.. 
. 
Davis-Bacon Act... 
s+ 
2 
ss 
se 
ee 
ee 
Declaration of Taking Act... 
. 
Deep Seabed Hard Mineral Resources “act” 
A 
Deepwater Port Act 
. 2... 
+ 
ee 
eee 
Defense Base Act 
. 
~~... 
es 
se 
eee 
Defense Production Act 
. 
. 
— 
Depository Institutions Deregulation “act of 7980 
Pare: 
Developmental Disabilities Assistance and Bill of 
Rights Act 
. 
. 
2h 
Sop Ew 
a 
Re mw S 
eee 
Disaster Relief Act of 1974 
‘ 
ee 
ae 
ee 
Domestic Volunteer Service Act “of 1973" 
a 
ew 
Drug Abuse Prevention, 
Treatment, 
and Rehabilitation Act 
Earthquake Hazards Reduction Act of 1977 
... 
+ 
s+ 
= 
Economic Opportunity Act of 1964 
...--.-..-. 
‘ 
Economic Opportunity Act of 1965 
... 
2. 
+s 
+ 
ee 
ee 
Edge Act... 
ao 
a 
Gap 
ca 
nby 
Cok 
cab. 
tail 
a 
Ged 
Education for Economic Security Act 
en 
ota 
Re 
AO 
ae, 
ep 
=m) 
Wee 
hide: 
Education of the Handicapped Act. 
. 
oa: 
Sw 
Ke 
we 
Educational Agencies Financial Aid Act” eee 
Boe 
Ma 
Egg Products Inspection Act... 
a 
Electric and Hybrid Vehicle Research, Development, “ana 
Demonstration Act 
.... 
1. 
6 
ee 
ee eee 
Electronic Fund Transfer Act 
.. 
. 
re 
Elementary and Secondary Education Act 
32s 
ee 
a 
ew 
Emergency Energy Conservation Act of 1979... 
Emergency Housing Act of 1975 ....-.-+-++ 
+ 
Emergency Loan Guarantee Act 
...- 
+--+ 
++ 
= 
Emergency Petroleum Allocation Act 
. 
, 
Employees Retirement Income Becues ty Act of 1974 
Employment Act of 1946 
... 
SE 
les 
Heit 
ode 
es: 
OL 
Endangered Species Act of 1973. 
aS 
we 
# 
Energy Conservation and Production Act of 1976) 
ea 
8 
Energy Policy and Conservation Act 
.....-. 
we 
Energy Reorganization Act of 1974 .....-.- 
a 
Energy Security Act of 1980. 
. 
# 
avdes 
Osan 
Energy Supply and Environmental Coordination “act 
sa 
Ss 
Equal Credit Opportunity Act 
.. 
fk 
eR 
Sw 
Equal Education Opportunities Act of 1974 eee: 
ee 
Ethics in Government Act 
.. 
.- 
- 
- 
e+e 
2 
eee 
eee 
Export Administration Act... 
a 
ee 
ee ae 
Export Trading Company Act of {982° 
whe 
int 
a 
Fair -Credit Reporting Act... 
Le 
ees 
eS 
ew 
ee 
Fair Debt Collection Practices Act 
ae 
ee 
ee 
Fair Housing Act 
. 
. 
1 
1 
ee 
ee 
ee 
ee ee 
1428 
Fair Labor Standards Act of 1938 
.. 
. 
Fair Packaging and Labeling Act... 
. 
Farm Credit Act of 1971 .....4.0.., 
Farmers Home Administration Act of 1946 
Federal Advisory Committee Act 
.. 
ee 
Federal Aid in Fish Restoration Act 
. 
. 
Federal Aid in Wildlife Restoration Act... 
Federal Alcohol Administration Act 
.. 
. 
Federal Aviation Act of 1958 
...... 
Federal Civil Defense Act of 1950... 
. 
Federal Crop Insurance Act 
....... 
Federal Deposit Insurance Corporation Act 
Federal Election Campaign Act ...... 
Federal Financing Bank Act of 1973... 
Federal Food, Drug, 
and Cosmetic Act 
. 
Federal Home Loan Bank Act 
....... 
Federal Home Loan Mortgage Corporation Act 
. 
Federal Impact Aid Act 
. 
2 
4 
6S 
ee 
ES 
HF 
Federal Insecticide, 
Fungicide, 
and Rodenticide 
Federal Insurance Contributions Act. 
... 
. 
. 
Federal Land Policy and Management Act of 1976 
Federal Noxious Weed Act of 1974 
......., 
Federal Power Act 
. 
. 
Federal Property and Administrative Services Act of 
Federal Regulation of Lobbying Act 
... 
Federal Relations Act. ......... 
Federal Reserve Act of 1913 ....... 
Federal Seed Act 
.......... 
os 
Federal Trade Commission Act of 1914 
._ 
| 
Federal Unemployment Tax Act 
Sy 
Be 
Sere 
a 
Federal Water Pollution Control Act 
. 
es 
Filled Milk Act... 
. 
2... ....,202, 
Financial Regulation Simplification Act of 1980 
Fire Prevention and Control Act... 
... 
ok 
First Morrill Act... 2.2... 
1! 
. 
Fish and Wildlife Act SE T956 
oe 
a 
we 
ew 
Sw 
Fish and Wildlife Conservation Act of 1980. 
Fish and Wildlife Coordination Act 
.... 
Fishermen's Protective Act of 1967 
... 
. 
Fishery Conservation and Management Act 
% 
Flammable Fabrics Act. .........~. 
Flood Control Acts 
te 
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China Trade... 
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Chrysler Corporation Loan Guarantee Act of 1979 
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Cigarette Labeling and Advertising Act 
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Civil Aeronautics Board (CAB) ........-+-+.+--. 
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1269 
Civil Air Patrol 
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Civil Defense... 
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Civil Rights Act of 1866 ww 
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Civil Rights Act of 1960 
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Civil Rights Act of 1964 
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Civil Rights Commission 
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Civil Rights of Institutionalized 
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Civil War Centennial Commission 
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Coal tax 
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Coast Guard 
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Coastal Barrier Resources Act. 
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Coastal Zone Management Act of 1972 
Coastwise Laws 
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Code of Laws of the United’ states 
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Collection and Publication of Statistics 
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Collection of Income Tax at Source of Wages... 
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College of Micronesia ...... 
Columbia Basin Project 
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Commercial Fisheries Research and Development Act of 
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Commercial Motor Vehicle Safety 
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Commercial Motor Vehicles 
. 
. 
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Commercial Space Launch 
. .... 
Commercial Space Launch Act... 
Commission on Civil Rights 
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Commission on erecuelyes Legislative, 
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Commonwealth Entry and Deportation Act of 1983" 
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Communication Satellite Corporation (COMSAT) 
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Communications Act of 1934 
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Community Facilities and Advance Land Acquisition ets 
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Community Relations Service 
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Community Services Block Grant Program 
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Compact of Free Association Act of 1985 he 
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Compensation and Allowances of Members 
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Compensation for Disability or Death to Persons 
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Compensation for Injury, 
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2s 
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Competition 
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Comprehensive Alcohol Abuse and Alcoholism Prevention, _ 
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Comprehensive Child Development 
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Comprehensive Drug Abuse Prevention and Control Act 
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.. 
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Comprehensive Employment _ and training Act of 1973 od, 
Comprehensive Environmental Response, Compensation 
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Comptroller of the Currency os 
Conciliation of Labor Disputes; National Emergencies 
Condominium and Cooperative Conversion Protection and 
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Congregate Housing Services 
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Congressional and Committee Procedure; “Tavestigations 
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Congressional Budget and Fiscal Operations” 
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Congressional Budget Office ..... 
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Congressional Mailing Standards ......- 
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Congressional Medal of Honor Society 
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Conservation and Protection of For “seals, Other Wildlife, 
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Conservation Programs on Government Lands oo 
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Consolidated Farm and Rural Development Act of 1961 
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Consolidated Returns 
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Construction, Alteration, 
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Buildings 
.. 
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Consumer Credit Cost Disclosure ....-- 
+++ 
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Consumer Credit Protection Act 
.... 
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Consumer Product Safety Act... 
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Consumer Product Warranties 
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Consumer-Patient Radiation Health and Safety 
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2 
Contested Elections ......+...+-4.-. 
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Contraband seizure 
.....+ 
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Contract Disputes .... 
2... 
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447 
339 
1202 
12 
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17 
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16 
966 
1244 
416 
378 
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89 
713 
1025 
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322 
333 
335 
1216 
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1372 
1043 
Contract Settlement Act of 1944........ 
Contract Work Hours and Safety Standards Act 
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Contracts for Scientific and Technological Research 
Control of Coal Mine Fires 
............, 
Control of Illegally Taken Fish and Wildlife 
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Control of Jellyfish or Sea Nettles and Floating Seaweed. 
Control of Subversive Activities 
......... 
Controlled Substances Act... ........2.2.~. 
Controlled Substances Import and Export Act 
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Convention for the Conservation of Atlantic Tunas 
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Convention on Cultural PEGPSFEY 
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Convention on the Recognition and Enforcement of 
Foreign Arbitral Awards 
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Conveyance of Submerged Lands to the Territories 
Conveyances to Occupants of Unpatented Mining Claims 
Cooperative Forestry Assistance Act of 1978... 
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Corporation of Foreign Bondholders Act of 1933... 
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... 
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.............2.<,.., 
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Cotton Research and Promotion. .........2.. 
Cotton Standards Act 
.............., 
Cotton Statistics and Estimates. .......... 
Council of Economic Advisers 
............ 
Council of National Defense... 
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Credit Reporting Agencies. .......2...2... 
Crime Control Act of 1999. ...........0.,. 
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Criminal Procedure 
.............0.. 
Critical Defense Housing Areas 
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Crop Insurance 
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Crown of Thorns Starfish 
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Cultural and Technical Interchange Centers 
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Customs Service... 
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Dairy and Tobacco Adjustment Act 
......4... 
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Dairy Research and Promotion 
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Dam inspection 
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Daughters of the American Revolution 
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Death on the High Seas by Wrongful Act 
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Debt Collection Practices... ........0..0. 
Declaration of Taking Act. .........2.... 
Deep Seabed Hard Mineral Resources Act 
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Deepwater Ports... 
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080 eG 
1443 
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Defense Base Act 
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Defense Production Act 
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Delegates to Congress 
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318 
Department of Education. 
. 
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599 
Department of Energy 
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1193 
Department of Health and Human” services ee 
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Department of Housing and Urban Development oe 
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1160 
Department of Labor ....+-+-+- 
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settee errs 
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.- 
+--+ 
++ 
sss 
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1236 
Department of Transportation 
.. 
.- 
2 
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1363, 
1392 
Depository Institution Management interlocks a 
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252 
Depository Institutions Deregulation Act of 1980 
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253 
Depository Libraries 
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Design and Construction of “public Buildings to 
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1165 
Destruction of Property Moving in Commerce 
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314 
Development and Control of Atomic Energy 
- 
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+--+: 
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1146 
Development of Energy Sources 
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Development of Lignite Coal Resources 
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Developmental Disabilities Amendments of 1978»... 
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Developmental Disabilities Assistance and Bill of 
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Diagnostic Inspection Demonstration Projects” 
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Disabled American Veterans 
.-.-.--+--+--++-+s 
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8% 
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Disaster Relief 
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Disclosure of Automobile “mnformation 
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312 
Discriminating duty... 
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Discrimination Against Farmers’ Cooperative Associations 
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Discrimination Based on Sex or “Blindness 
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Disposal of Atomic Energy Communities 
. 
.- 
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1148 
Disposal of foreign excess property 
.. 
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1022 
Disposal of Government-Owned Rubber-Producing Facilities | 
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Disposal of surplus Federal property to public bodies 
. 
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1019 
Disposal of War and Veterans’ Housing 
. 
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1106 
Disposition of Abandoned Money Orders and Traveler's” 
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249 
Dissemination of “pechnical, Scientific “ana ‘gngineering 
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. 
.- 
. 
- 
306 
Distribution and Marketing of Agricultural “products 
1444 
Domestic Minerals Program Extension... 
.. 
Domestic Volunteer Service 
......... 
Domestic Volunteer Service Act of 1973 
... 
Drug Abuse Education and Prevention. 
.... 
Drug Abuse Prevention and Control ..........4.-. 
Drug Abuse Prevention, Treatment, 
and Rehabilitation act 
Dumping or Destruction of Interstate Produce 
.... 
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Earthquake Hazards Reduction 
........4.4.. 
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Economic Opportunity Act of 1964 
......... 
Economic Opportunity Act of 1965 
....... 
Economic Opportunity Program 
.......... 
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Edge Act 
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Education for Economic Security Act... 
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Education for Native Hawaiians 
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Education of Handicapped 
.........2.2.. 
Education of the Deaf. .........20.. 
Education of the Handicapped Act 
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Educational Agencies Financial Aid Act 
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Egg Products Inspection. ........... 
Egg Research and Consumer Information 
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Election of Senators and 
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Elective Franchise 
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Electric and Hybrid Vehicle Research, 
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Demonstration 
..............044 
Electronic Fund Transfer Act 
........... 
Electronic Fund Transfers ...........2.. 
Elementary and Secondary Education Act 
...... 
Emergency Conservation Program 
.......... 
Emergency Energy Conservation. .........,. 
Emergency Federal Law Enforcement Assistance 
.. 
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Emergency Housing Act of 1975 ..........4. 
Emergency Loan Guarantee Act 
........2.4.24. 
Emergency Mortgage Relief ......2.2.~, 
Emergency Petroleum Allocation Act 
.. 
Emergency Planning and Community Right-to-Know 
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Emergency Public Works and Construction Projects 
Emergency Shelter Grants Program 
....... 
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Employee Retirement 
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Employment Act of 1946 
.........2.2..~. 
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Employment Security Administration Financing 
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Encouraging Good Faith Professional Review Activities 
Endangered Species Act of 1973 
...... 
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Energy Conservation. .........2.2.22.2.. 
1445 
Energy Conservation and Production Act of 1976 
Energy Conservation and Resource Renewal 
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Energy Extension Service 
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Energy Policy and Conservation Act 
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Energy Reorganization Act of 1974 ..... 
Energy Research and Development Administration. 
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Energy Security Act of 1980... 
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Energy Supply and Environmental Coordination Act oe 
Enforcement of Voting Rights 
......-+-+++++6 
Enterprise Zone Development 
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Environmental Pollution Study a 
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Environmental Quality Improvement .........-. 
Equal Credit Opportunity 
... 
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Equal Education Opportunities Act of 1974 
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Equal Education Opportunities and Transportation of 
Students... 
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Equal Employment Opportunities 
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Equal Employment Opportunities Commission 
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Estate and Gift Taxes... 
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Ethics 
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Even Start program 
........ 
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Exemption 
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Export Administration Act 
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Export Regulation 
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Export Standards 
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Export Trading Company Act of 1982 
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Export-Import Bank 
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Fair Credit Reporting Act .. 
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Fair Labor Standards “act of 1938 
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Fair Packaging and Labeling Act 
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Farmer-to-—Consumer Direct Marketing a 
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Farmers Home Administration Act of 1946 ......- 
Farmland Protection Policy 
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Federal Advisory Committee Act 
.... 
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Federal Aid in Fish Restoration Act .....-+-++-. 
Federal Aid in Wildlife Restoration Act .....-. 
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1446 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
Federal 
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Federal 
Federal 
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Federal 
Federal 
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Federal 
Federal 
Federal 
Federal 
Federal 
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Federal 
Alcohol Administration Act 
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Aviation Act of 1958 
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Crop Insurance Act 
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Deposit Insurance Corporation. 
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Election Campaign Act... ....... 
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Election Commission... ...... 
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Election Records 
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Energy Administration. 
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Financial Institutions Examination Council 
Financing Bank Act of 1973 
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Home Loan Bank Board 
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Home Loan Mortgage Corporation Act 
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income tax laws 
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Insecticide, 
Fungicide, and Rodenticide Act 
Insurance Contributions Act. ....... 
intermediate credit banks ......., 
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land bank associations 
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land banks 
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Land Policy and Management Act “of 1976. 
Woxious Weed Act of 1974 
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Federal Payments for’ Foster Care and Adoption Assistance 
Federal Power Act... 
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Federal Power Commission 
Federal Property and Administrative Services’ Act “of 
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Federal Register 
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Federal Relations Act... 
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Federal Reserve Act of 1913 ...... 
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Federal Reserve System 
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Federal Seed Act 
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Federal Trade Commission 
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Federal Unemployment Tax Act 
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Federally-Chartered Patriotic Societies and Other 
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Filled Milk Act... 
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Financial assistance to Local Educational Agencies 
Financial Management 
..........4220+0042- 
Financial Recordkeeping 
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Financial Regulation Simplification Act of 1980 
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Financing of Presidential Election Campaigns 
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Fire Prevention and Control Act ........-.--. 
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Fish and Wildlife Act of" 1956 Oe 
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Fish and Wildlife Conservation Act of 1980" soe 
Fish and Wildlife Coordination Act 
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Fish and Wildlife Service 
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Fish Research and Experimentation Program 
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Fishermen’s Protective Act of 1967 
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Fishery Conservation and Management Act 
Fishing Industry 
.......... 
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Flag 
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Flammable Fabrics ee 
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Flammable Fabrics Act .......... 
Flood Control... .......4.. 
Flood Control Acts. 
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Floral Research and Consumer Information Act 
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Follow Through Programs ........-+ 
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Food Security Act of 1985... 
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Food Stamp Program 
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Foreign Agents and Propaganda 
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Foreign Agents Registration Act 
Foreign and Exchange Students .... 
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Foreign Assistance 
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Foreign Banking 
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Foreign Claims settlement Commission 
Foreign Diplomatic and Consular Officers 
Foreign Gifts and Decorations ........ 
Foreign Intelligence Surveillance 
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Foreign Relations and Intercourse 
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Foreign Service Buildings 
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Foreign Wars, War Materials, “and “Neutrality 
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Forest and Rangeland Renewable Resources Research Act 
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Forest Management Act of 1976 
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Forests, 
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Former Members of Congress 
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... 
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Foundation of the Federal Bar Association... 
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Freedom of Information Act 
........ 
48 
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Full Employment Act... .....2.2.~, eRe 
Full Employment and Balanced Growth Act of 1978 
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