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Page:United States Statutes at Large Volume 90 Part 1.djvu/1287

 PUBLIC LAW 94-406—SEPT. 10, 1976

90 STAT. 1237

(b) A permit issued pursuant to subsection (a) may be granted only to a vessel engaged in transporting cargo, including bulk fuel, from point to point within the State of Alaska and only if— (1) the vessel does not exceed three hundred gross tons; (2) the vessel is in a condition which does not present an immediate threat to the safety of life or the environment; and (3) the vessel was operating in the waters off Alaska as of June 1, 1976, or the vessel is a replacement for a vessel which was operating in the waters off Alaska as of June 1, 1976, if the vessel which is being replaced is no longer in service, (c) Except in a situation declared to be an emergency by the Sec- Emergency retary of the department in which the Coast Guard is operating, a situations. vessel operating under permit may not transport cargo to or from a point if the cargo could be transported by another commercial vessel which is reasonably available and which does not require exemptions to legally operate or if the cargo could be readily transported by overland routes. (d) A permit may be issued for a specific voyage or for a period of time not exceeding one year. The permit may impose specific requirements as to the amount or type of cargo to be carried, manning, the areas or specific routes over which the vessel may operate, or other similar matters. The duration of the permit and any restrictions contained therein shall be at the sole discretion of the Secretary or his delegate. (e) If a designated Coast Guard official has reason to believe that a vessel to which a permit has been issued is in a condition or is used in a manner which creates an immediate threat to the safety of life or the environment or is operated in a manner which is inconsistent with the terms of the permit, the official may direct the operator to take immediate and reasonable steps to safeguard life and the environment, including directing the vessel to a port or other refuge. (f) If a vessel to which a permit has been issued creates an imme- Permit diate threat to the safety of life or the environment, or is operated in a revocation. manner inconsistent wth the terms of the permit or the requirements of subsection (c) of this section, the permit may be revoked. The Penalty, owner, master, or person in charge of a vessel to which a permit is issued, who willfully permits the vessel to be used or uses the vessel in a manner inconsistent with the terms of the permit or subsection (c) of this section, shall be liable to a civil penalty of not more than $1,000. Approved September 10, 1976.

LEGISLATIVE HISTORY: HOUSE REPORTS: No. 94-989 (Comm. on Merchant Marine and Fisheries) and No. 94-1374 (Comm. of Conference). SENATE REPORTS: No. 94-865 (Comm. on Commerce) and No. 94-1054 (Comm. of Conference). CONGRESSIONAL RECORD, Vol. 122 (1977): Apr. 5, considered and passed House. June 16, considered and passed Senate, amended. Aug. 2, Senate agreed to conference report. Aug. 30, House agreed to conference report.

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Page:United States Statutes at Large Volume 90 Part 1.djvu/1288

 90 STAT. 1238

PUBLIC LAW 94-407—SEPT. 11, 1976

Public Law 94-407 94th Congress An Act Sept. 11, 1976 [H.R. 13372]

Wild and Scenic Rivers Act, amendment. 82 Stat. 906. 16 USC 1273.

16 USC 1278.

To amend the Wild and Scenic Rivers Act (82 Stat. 906; 16 U.S.C. 1271), and for other purposes.

Be it eTMcted by the Seriate and House of Representatives of the United States of America in Congress assembled, That the Wild and Scenic Eivers Act (82 Stat. 905), as amended (16 U.S.C. 1271 et seq.) is amended as follows: (1) In section 2 delete "Maine, and that segment of the Wolf River, Wisconsin, which flows through Langlade County," and insert in lieu thereof "Maine; that segment of the Wolf River, Wisconsin, which flows through Langlade County; and that segment of the New River in North Carolina extending from its confluence with Dog Creek downstream approximately 26.5 miles to the Virginia State line.". (2) In section 7(a), after the third sentence, insert the following: "Any license heretofore or hereafter issued by the Federal Power Commission affecting the New River of North Carolina shall continue to be effective only ror that portion of the river which is not included in the National Wild and Scenic Rivers System pursuant to section 2 of this Act and no project or undertaking so licensed shall be permitted to invade, inundate or otherwise adversely affect such river segment.". Approved September 11, 1976.

LEGISLATIVE HISTORY: HOUSE REPORT No. 94-1264 (Comm. on Interior and Insular Affairs). SENATE REPORT No. 94-952 accompanying S. 158 (Comm. on Interior and Insular Affairs). CONGRESSIONAL RECORD, Vol. 122 (1976): Aug. 9, 10, considered and passed House. Aug. 30, considered and passed Senate. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 12, No. 38: Sept. 11, Presidential statement.

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Page:United States Statutes at Large Volume 90 Part 1.djvu/1289

 PUBLIC LAW 94-408—SEPT. 11, 1976

90 STAT. 1239

Public Law 94-408 94th Congress An Act To provide for protection of the spouses of major Presidential and Vice Presidential nominees.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That subsection (a) of the first section of the Act of June 6, 1968, Public Law 90-331, 82 Stat. 170, is amended by adding the following sentence at the end thereof: "Upon request of a Presidential or Vice Presidential nominee of a major political party, as determined by the Secretary after consultation with the advisory committee, the Secretary may authorize the United States Secret Service to furnish protection to the spouse of such major Presidential or Vice Presidential nominee, except that such protection shall not commence more than sixty days prior to the general Presidential election.". SEC. 2. Section 3056 of title 18, United States Code, is amended to read as follows: "(a) Subject to the direction of the Secretary of the Treasury, the United States Secret Service, Treasury Department, is authorized to protect the person of the President of the United States, the members of his immediate family, the President-elect, the Vice President or other officer next in the order of succession to the Office of President, and the Vice President-elect, and the members of their immediate families unless the members decline such protection; protect the person of a former President and his wife during his lifetime, the person of a widow of a former President until her death or remarriage, and minor children of a former President until they reach sixteen years of age, unless such protection is declined; protect the person of a visiting head of a foreign state or foreign government and, at the direction of the President, other distinguished foreign visitors to the United States and official representatives of the United States performing special missions abroad; detect and arrest any person committing any offense against the laws of the United States relating to coins, obligations, and securities of the United States and of foreign governments; detect and arrest any person violating any of the provisions of sections 508, 509, and 871 of this title and, insofar as the Federal Deposit Insurance Corporation, Federal land banks, joint-stock land banks and Federal land bank associations are concerned, of sections 218, 221, 433, 493, 657, 709, 1006, 1007, 1011, 1013, 1014, 1907, and 1909 of this title; execute warrants issued under the authority of the United States; carry firearms; offer and pay rewards for services or information looking toward the apprehension of criminals; pay expenses for unforeseen emergencies of a confidential nature under the direction of the Secretary of the Treasury and accounted for solely on his certificate; and perform such other functions and duties as are authorized by law. In the performance of their duties under this section, the Director, Deputy Director, Assistant Directors, Assistants to the Director, inspectors, and agents of the Secret Service are authorized to make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the

Sept. 11, 1976 [H.R. 15371]

Presidential candidates. Spouse protection. 18 USC 3056 note.

Secret Service powers.

18 USC 508, 509, 871. 18 USC 218, 221, 433, 493, 657, 709, 1006, 1007, 1011, 1013, 1014, 1907, 1909.

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 90 STAT. 1240

Penalty.

PUBLIC LAW 94-408—SEPT. 11, 1976 person to be arrested has committed or is committing such felony. Moneys expended from Secret Service appropriations for the purchase of counterfeits and subsequently recovered shall be reimbursed to the appropriation current at the time of deposit. "(b) Whoever knowingly and willfully obstructs, resists, or interferes with an agent of the United States Secret Service or other Federal law enforcement agent engaged in the performance of the protective functions authorized by this section, by the Act of June 6, 1968 (82 Stat. 170) or by section 1752 of title 18, United States Code, shall be fined not more than $300 or imprisoned not more than one year or both.". Approved September 11, 1976.

LEGISLATIVE HISTORY: CONGRESSIONAL RECORD, VoL 122 (1976): Sept. 2, considered and passed House. Sept. 7, considered and passed Senate.

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Page:United States Statutes at Large Volume 90 Part 1.djvu/1291

 PUBLIC LAW 94-409—SEPT. 13, 1976

90 STAT. 1241

Public Law 94-409 94th Congress An Act To provide that meetings of Government agencies shall be open to the public, and for other purpot-e.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Government in the Sunshine Act".

Sept. 13, 1976 [S.5]

Government in the Sunshine Act. 5 USC 552b note.

DECLARATION OF POLICY

SEC. 2. It is hereby declared to be the policy of the United States that the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government. It is the purpose of this Act to provide the public with such information while protecting the rights of individuals and the ability of the Government to carry out its responsibilities. OPEN

5 USC 552b note.

MEETINGS

SEC. 3. (a) Title 5, United States Code, is amended by adding after section 552a the following new section: "§ 552b. Open meetings "(a) For purposes of this section— "(1) the term 'agency' means any agency, as defined in section 552(e) of this title, headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Seriate, and ai^y subdivision thereof authorized to act on behalf of the agency; "(2) the term 'meeting' means the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business, but does not include deliberations required or permitted by subsection (d) or (e); and "(3) the term 'member' means an individual who belongs to a collegial body heading an agency, (b) Members shall not jointly conduct or dispose of agency business other than in accordance with this section. Except as provided in subsection (c), every portion of every meeting of an agency shall be open to public observation. "(c) Except in a case where the agency finds that the public interest requires otherwise, the second sentence of subsection (b) shall not apply to any portion of an agency meeting, and the requirements of subsections (d) and (e) shall not apply to any information pertaining to such meeting otherwise required by this section to be disclosed to the public, where the agency properly determines that such portion or portions of its meeting or the disclosure of such information is likely to— " (1) disclose matters that are (A) specifically authorized under criteria established by an Executive order to be kept secret in the

5 USC 552b. Definitions. 5 USC 552.

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 90 STAT. 1242

PUBLIC LAW 94-409—SEPT. 13, 1976

5 USC 552.

'

,

5 USC 554.

interests of national defense or foreign policy and (B) in fact properly classified pursuant to such Executive order; "(2) relate solely to the internal personnel rules and practices of an agency; "(3) disclose matters specifically exempted from disclosure by statute (other than section 552 of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; "(4) disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential; "(5) involve accusing any person of a crime, or formally censuring any person; " (6) disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; "(7) disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose invastigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel; "(8) disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; "(9) disclose information the premature disclosure of which would— " (A) in the case of an agency which regulates currencies, securities, commodities, or financial institutions, be likely to (i) lead to significant financial speculation in currencies, securities, or commodities, or (ii) significantly endanger the stability of any financial institution; or "(B) in the case of any agency, be likely to significantly frustrate implementation of a proposed agency action, except that subparagraph (B) shall not apply in any instance where the agency has already disclosed to the public the content or nature of its proposed action, or where the agency is required by law to make such disclosure on its own initiative prior to taking final agency action on such proposal; or "(10) specifically concern the agency's issuance of a subpena, or the agency's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the agency of a particular case of formal agency adiudication pursuant to the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity for a hearing.

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Page:United States Statutes at Large Volume 90 Part 1.djvu/1293

 PUBLIC LAW 94-409—SEPT. 13, 1976 " (d)(1) Action under subsection (c) shall be taken only when a majority of the entire membership of the agency (as defined in subsection (a)(1)) votes to take such action. A separate vote of the agency members shall be taken with respect to each agency meeting a portion or portions of which are proposed to be closed to the public pursuant to subsection (c), or with respect to any information which is proposed to be withheld under subsection (c). A single vote may be taken with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each meeting in such series involves the same particular matters and is scheduled to be held no more than t h i r t y days after the initial meeting in such series. The vote of each agency member participating in such vote shall be recorded and no proxies shall be allowed. " (2) Whenever any person whose interests may be directly affected by a portion of a meeting requests that the agency close such portion to the public for any of the reasons referred to in paragraph (5), (6), or (7) of subsection (c), the agency, upon request of any one of its members, shall vote by recorded vote whether to close such meeting. " (3) W i t h i n one day of any vote taken pursuant to paragraph (1) or (2), the agency shall make publicly available a written copy of such vote reflecting the vote of each member on the question. If a portion of a meeting is to be closed to the public, the agency shall, within one day of the vote taken pursuant to paragraph (1) or (2) of this subsection, make publicly available a full written explanation of its action closing the portion together with a list of all persons expected to attend the meeting and their affiliation. " (4) Any agency, a majority of whose meetings may properly be closed to the public pursuant to paragraph (4), (8), (9)(A), or (10) of subsection (c), or any combination thereof, may provide by regulation for the closing of such meetings or portions thereof in the event that a majority of the members of the agency votes by recorded vote at the beginning of such meeting, or portion thereof, to close the exempt portion or portions of the meeting, and a copy of such vote, reflecting the vote of each member on the question, is made available to the public. The provisions of paragraph s (1), (2), and (3) of this subsection and subsection (e) shall not apply to any portion of a meeting to which such regulations a p p l y: Provided, That the agency shall, except to the extent that such information is exempt from disclosure under the provisions of subsection (c), provide the public with public announcement of the time, place, and subject matter of the meeting and of each portion thereof at the earliest practicable time. " (e)(1) I n the case of each meeting, the agency shall make public announcement, at least one week before the meeting, of the time, place, and subject matter of the meeting, whether it is to be open or closed to the public, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting. Such announcement shall be made unless a majority of the members of the agency determines by a recorded vote that agency business requires that such meeting be called at an earlier date, in which case the agency shall make public announcement of the time, place, and subject matter of such meeting, and whether open or closed to the public, at the earliest practicable time. " (2) The time or place of a meeting may be changed following the public announcement required by paragraph (1) only if the agency publicly announces such change at the earliest practicable time. The

90 STAT. 1243 Recorded voting.

Copies, availability.

Meeting closure, regulation.

Public announcement.

Scheduling, public announcement.

Scheduling changes, public announcement.

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Page:United States Statutes at Large Volume 90 Part 1.djvu/1294

 90 STAT. 1244

Scheduling notice, publication in Federal Register.

Closed meetings, certification.

Transcripts, recordings or minutes.

Public availability.

Retention.

Publication in Federal Register. Regulations.

PUBLIC LAW 94-409—SEPT. 13, 1976 subject matter of a meeting, or the determination of the agency to open or close a meeting, or portion of a meeting, to the public, may be changed following the public announcement required by this subsection only if (A) a majority of the entire membership of the agency determines by a recorded vote that agency business so requires and that no earlier announcement of the change was possible, and (B) the agency publicly announces such change and the vote of each member upon such change at the earliest practicable time. "(3) Immediately following each public announcement required by this subsection, notice of the time, place, and subject matter of a meeting, whether the meeting is open or closed, any change in one of the preceding, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting, shall also be submitted for publication in the Federal Register. "(f)(1) For every meeting closed pursuant to paragraphs (1) through (10) of subsection (c), the General Counsel or chief legal officer of the agency shall publicly certify that, in his or her opinion, the meeting may be closed to the public and shall state each relevant exemptive provision. A copy of such certification, together with a statement from the presiding officer of the meeting setting forth the time and place of the meeting, and the persons present, shall be retained by the agency. The agency shall maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or portion of a meeting, closed to the public, except that in the case of a meeting, or portion of a meeting, closed to the public pursuant to paragraph (8), (9)(A), or (10) of subsection (c), the agency shall maintain either such a transcript or recording, or a set of minutes. Such minutes shall fully and clearly describe all matters discussed and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any rollcall vote (reflecting the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes. "(2) The agency shall make promptly available to the public, in a place easily accessible to the public, the transcript, electronic recording, or minutes (as required by paragraph (1)) of the discussion of any item on the agenda, or of any item of the testimony of any witness received at the meeting, except for such item or items of such discussion or testimony as the agency determines to contain information which may be withheld under subsection (c). Copies of such transcript, or minutes, or a transcription of such recording disclosing the identity of each speaker, shall be furnished to any person at the actual cost of duplication or transcription. The agency shall maintain a complete verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each meeting, or portion of a meeting, closed to the public, for a period of at lepst two years after such meeting, or until one year after the conclusion of any agency proceeding with respect to which the meeting or portion was held, whichever occurs later. "(g) Each agency subject to the requirements of this section shall, within 180 days after the date of enactment of this section, following consultation with the Office of the Chairman of the Administrative Conference of the United States and published notice in the Federal Register of at least thirty days and opportunity for written comment by any person, promulgate regulations to implement the requirements

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Page:United States Statutes at Large Volume 90 Part 1.djvu/1295

 PUBLIC LAW 94-409—SEPT. 13, 1976

90 STAT. 1245

of subsections (b) through (f) of this section. Any person may bring a proceeding in the United States District Court for the District of Columbia to require an agency to promulgate such regulations if such agency has not promulgated such regulations within the time period specified herein. Subject to any limitations of time provided by law, any person may bring a proceeding in the United States Court of Appeals for the District of Columbia to set aside agency regulations issued pursuant to this subsection that are not in accord with the requirements of subsections (b) through (f) of this section and to require the promulgation of regulations that are in accord with such subsections. " (h)(1) The district courts of the United States shall have jurisdiction to enforce the requirements of subsections (b) through (f) of this section by declaratory judgment, injunctive relief, or other relief as may be appropriate. Such actions may be brought by any person against an agency prior to, or within sixty days after, the meeting out of which the violation of this section arises, except that if public announcement of such meeting is not initially provided by the agency in accordance with the requirements of this section, such action may be instituted pursuant to this section at any time prior to sixty days after any public announcement of such meeting. Such actions may be brought in the district court of the United States for the district in which the agency meeting is held or in which the agency in question has its headquarters, or in the District Court for the District of Columbia. In such actions a defendant shall serve his answer within thirty days after the service of the complaint. The burden is on the defendant to sustain his action. In deciding such cases the court may examine in camera any portion of the transcript, electronic recording, or minutes of a meeting closed to the public, and may take such additional evidence as it deems necessary. The court, having due regard for orderly administration and the publie interest, as well as the interests of the parties, may grant such equitable relief as it deems appropriate, including granting an injunction against future violations of this section or ordering the agency to make available to the public such portion of the transcript, recording, or minutes of a meeting as is not authorized to be withheld under subsection (c) of this section. "(2) Any Federal court otherwise authorized by law to review agency action may, at the application of any person properly participating in the proceeding pursuant to other applicable law, inquire into violations by the agency of the requirements of this section and afford such relief as it deems appropriate. Nothing in this section authorizes any Federal court having jurisdiction solely on the basis of paragraph (1) to set aside, enjoin, or invalidate any agency action (other than an action to close a meeting or to withhold information under this section) taken or discussed at any agency meeting out of which the violation of this section arose. "(i) The court may assess against any party reasonable attorney fees and other litigation costs reasonably incurred by any other party who substantially prevails in any action brought in accordance with the provisions of subsection (g) or (h) of this section, except that costs may be assessed against the plantiff only where the court finds that the suit was initiated by the plantiff primarily for frivolous or dilatory purposes. In the case of assessment of costs against an agency, the costs may be assessed by the court against the United States. "(j) Each agency subject to the requirements of this section shall annually report to Congress regarding its compliance with such requirements, including a tabulation of the total number of agency

Judicial proceeding.

Jurisdiction.

Civil actions.

Relief,

Inquiry,

Litigation costs, assessment.

Report to Congress,

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 90 STAT. 1246

PUBLIC LAW 94-409—SEPT. 13, 1976

meetings open to the public, the total number of meetings closed to the public, the reasons for closing such meetings, and a description of any litigation brought against the agency under this section, including any costs assessed against the agency in such litigation (whether or not paid by the agency). " (k) Nothing herein expands or limits the present rights of any 5 USC 552. person under section 552 of this title, except that the exemptions set forth in subsection (c) of this section shall govern in the case of any request made pursuant to section 552 to copy or inspect the transcripts, recordings, or minutes described in subsection (f) of this section. The 44 USC 3301 et requirements of chapter 33 of title 44, United States Code, shall not seq. apply to the transcripts, recordings, and minutes described in subsection (f) of this section. "(1) This section does not constitute authority to withhold any information from Congress, and does not authorize the closing of any agency meeting or portion thereof required by any other provision of law to be open. " (m) Nothing in this section authorizes any agency to withhold from any individual any record, including transcripts, recordings, or minutes required by this section, which is otherwise accessible to such 5 USC 552a. individual under section 552a of this title.". 5 USC prec. 500. (b) The chapter analysis of chapter 5 of title 5, United States Code, is amended by inserting: '552b. Open meetings." mmediately below: '552a. Records about individuals.". EX PARTE

COMMUNICATIONS

SEC. 4. (a) Section 557 of title 5, United States Code, is amended by a d d i n g at the end thereof the following new subsection: " (d)(1) I n any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law— " (A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex part e communication relevant to the merits of the proceeding; " (B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding; " (C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding: " (i) all such written communications; " (ii) memoranda stating the substance of all such oral communications; and

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 PUBLIC LAW 94-409—SEPT. 13, 1976

90 STAT. 1247

"(iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph; "(D) upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and " (E) the prohibitions of this subsection shall apply beginning Applicability at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge. "(2) This subsection does not constitute authority to withhold information from Congress.". (b) Section 551 of title 5, United States Code, is amended— (1) by striking out "and" at the end of paragraph (12); (2) by striking out the "act." at the end of paragraph (13) and inserting in lieu thereof "act; and"; and (3) by adding at the end thereof the following new paragraph: "(14) 'ex parte communication' means an oral or written com- "Ex parte munication not on the public record with respect to which reason- communication. able prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter.". (c) Section 556(d) of title 5, United States Code, is amended by inserting between the third and fourth sentences thereof the following new sentence: "The agency may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the agency, consider a violation of section 557(d) of this title suffi- 5 USC 557. cient groimds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur.". CONFORMING AMENDMENTS

SEC. 5. (a) Section 410(b)(1) of title 39, United States Code, is amended by inserting after "Section 552 (public information)," the words "section 552a (records about individuals), section 552b (open meetings),". (b) Section 552(b)(3) of title 5, United States Code, is amended to read as follows: "(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;". (c) Subsection (d) of section 10 of the Federal Advisory Committee Act is amended by striking out the first sentence and inserting in lieu 5 USC app. I. thereof the following: "Subsections (a)(1) and (a)(3) of this section shall not apply to any portion of an advisory committee meeting where

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 90 STAT. 1248 ,

PUBLIC LAW 94-409—SEPT. 13, 1976 the President, or the head of the agency to which the advisory committee reports, determines that such portion of such meeting may be closed to the public in accordance with subsection (c) of section 552b of title 5, United States Code.". EFFECTIVE DATE

5 USC 552b note.

SEC. 6. (a) Except as provided in subsection (b) of this section, the provisions of this Act shall take effect 180 days after the date of its enactment. (b) Subsection (g) of section 552b of title 5, United States Code, as added by section 3(a) of this Act, shall take effect upon enactment. Approved September 13, 1976.

LEGISLATIVE HISTORY: HOUSE REPORTS: No. 94-880, Pt. I and No. 94-880, Pt. 2, accompanying H.R. 11656 (Comm. on Goverament Operations) and No. 94-1441 (Comm. of Conference). SENATE REPORTS: No. 94-354 (Comm. on Government Operations), No. 94-381 (Comm. on Rules and Administration) and No. 94-1178 (Comm. of Conference). CONGRESSIONAL RECORD: Vol. 121 (1975): Nov. 5, 6, considered and passed Senate. Vol. 122 (1976): July 28, considered and passed House, amended, in lieu of H.R. 11656. Aug. 31, House and Senate agreed to conference report. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS: Vol. 12, No. 38 (1976): Sept. 13, Presidential statement.

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Page:United States Statutes at Large Volume 90 Part 1.djvu/1299

 PUBLIC LAW 9 4 - 4 1 0 — S E P T. 13, 1976

90 STAT. 1249

Public Law 94-410 94th Congress An Act To amend the Packers and Stockyards Act of 1921, as amended, and for other purposes.

bept. 13, 1976 [H.R. 8410]

Be it enacted by the Senate and House of Representatives of the United States of Ame7^ca in Congress assembled, That the proviso in Packers and the paragraph designated "Packers and Stockyards Act " under the Stockyards heading " M A R K P: T I N G S E R VI C P: " in the Act of July 12, 1943

Act of 1921,

(57 Stat. 422; 7 U.S.C. 204), is amended by striking out "market agency and dealer" and inserting in lieu thereof "market agency (as defined in title III of the Act), every packer (as defined in title II of the Act) in connection with its livestock purchasing operations (except that those packers whose average annual purchases do not exceed $500,000 will be exempt from the provisions of this paragraph), and every other person operating as a dealer (as defined in title III of the Act) ". SEC. 2. Section 201 of the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 191) is amended to read as follows: " SEC. 201. W h e n used in this Act the term 'packer' means any person en<;aged in the business (a) of buying livestock in commerce for purposes of slaughter, or (b) of manufacturing or p r e p a r i n g meats or meat food products for sale or shipment in commerce, or (c) of marketing meats, meat food products, or livestock products in an unmanufactured form acting as a wholesale broker, dealer, or distributor in commerce.". SEC. 3. (a) Sections 202 and 312(a) of the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 192 and 2 1 3 (a)) are amended by deleting the phrase "in commerce" wherever it appears in those sections, and by deleting the commas immediately before and following the phrase "in commerce" in sections 202(b) and 312(a) of the Act ( 7 U.S.C. 192(b) and 2 1 3 (a)). (b) Sections 203(b) and 312(b) of the Packers and Stockyards Act (7 U.S.C. 193(b) and 2 1 3 (b)) are amended by adding a t the end of both sections the following new sentences: " The Secretary may also assess a civil penalty of not more than $10,000 for each such violation. I n determining the amount of the civil penalty to be assessed under this section, the Secretary shall consider the gravity of the offense, the size of the business involved, and the effect of the penalty on the person's ability to continue in business. If, after the lapse of the period allowed for appeal or after the affirmance of such penalty, the person against whom the civil penalty is assessed fails to pay such penalty, the Secretary may refer the matter to the Attorney General who may recover such penalty by an action in the appropriate district court of the United States.".^ (c) The Packers and Stockyards Act, 1921, as amended, is amended by striking out the words "live stock" and "live-stock" wherever they appear in the Act and substituting therefor "livestock". SEC. 4. The proviso in the paragraph designated "Packers and Stockyards Act " under the heading " M A R K E T I N G SERVICE " in the Act of July 12, 1943 (57 Stat. 422; 7 U.S.C. 204), is further

amendments, 7 USC 201. Infra.

"Packer."

Penalty,

7 USC 182, 183, 201, 207, 210, 212, 213.

�


text:
Hardwick v. Bowers (760 F.2d 1202)/Opinion of the Court

Johnson, Circuit Judge:

The Atlanta Police arrested Michael Hardwick on August 3, 1982, because he had committed the crime of sodomy with a consenting male adult in the bedroom of his own home. Charges were brought as a result of the arrest and after a hearing in the Municipal Court of Atlanta Hardwick was bound over to the Superior Court. At that point the District Attorney's office decided not to present the case to the grand jury unless further evidence developed.

Hardwick then filed this suit asking the federal district court to declare unconstitutional the Georgia statute that criminalizes sodomy, O.C.G.A. Sec. 16-6-2 (1984). Hardwick alleged in his complaint that he is a practicing homosexual who regularly engages in private homosexual acts and will do so in the future. He was joined in bringing the suit by John and Mary Doe, a married couple acquainted with Hardwick. They claimed that they desired to engage in sexual activity proscribed by the statute but had been "chilled and deterred" by the existence of the statute and the recent arrest of Hardwick.

The complaint named as defendants Michael Bowers, Attorney General of Georgia; Lewis Slaton, District Attorney for Fulton County; and George Napper, Public Safety Commissioner of Atlanta. All three filed a motion to dismiss for failure to state a claim upon which relief could be granted.

The district court granted the motion. It ruled that the Does did not have standing to bring suit and that Hardwick, although he possessed standing, had no legal claim in light of the Supreme Court's summary affirmance of a three-judge district court in Doe v. Commonwealth's Attorney for the City of Richmond, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), aff'g. 403 F. Supp. 1199 (E.D.Va.1975). All three plaintiffs have appealed the dismissal.

I. Standing
A federal court may not hear a legal claim unless it arises from a genuine case or controversy. A case or controversy requires a plaintiff with a personal stake in the outcome sufficient to assure an adversarial presentation of the case. Hence, a plaintiff must demonstrate that he or she has suffered an actual or threatened injury caused by the challenged conduct of the defendant. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (11th Cir.1983).

The State is not currently prosecuting Hardwick or the Does under the sodomy statute. The Does have never been arrested under the statute and Hardwick cannot rely solely on his past arrest to confer upon him standing to challenge the constitutionality of the statute. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). This suit, therefore, presents an anticipatory challenge to the statute. The standing of each of the plaintiffs will depend on whether the threat of prosecution under this statute is real and immediate or "imaginary" and "speculative." Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974).

A court can estimate the likelihood of prosecution by examining the identity and interests of each of the parties. The interest of the State in enforcing the statute, along with past enforcement patterns, provides one indication; the interest of the plaintiff in engaging in the prohibited activity provides another. International Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 818 (5th Cir.1979).

The interest of the State in prosecuting these plaintiffs need not take the form of a specific threat of prosecution against them individually, although such a threat will often suffice to give a plaintiff standing. Steffel v. Thompson, supra. A general threat of prosecution against an identifiable group may confer standing in some instances. For instance, in Lake Carriers' Association v. MacMullan, 406 U.S. 498, 508, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972), the Court ruled that a group of bulk cargo vessel owners had standing to challenge a state law, about to go into effect, mandating certain sewage disposal methods for cargo vessels. Even though the State had threatened no particular owner with prosecution under the statute, it announced that it would prosecute violators as soon as the statute became effective.

The past enforcement of the statute against Hardwick is especially significant in measuring the State's intentions of prosecuting him in the future. Hardwick alleges that his arrest resulted from a situation in which he regularly places himself, one that will recur often in the future. As this Court recognized in Cuidadanos Unidos de San Juan v. Hidalgo County Grand Jury Commissioners, 622 F.2d 807, 820 (5th Cir.1980), cert. denied, 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 613 (1981), evidence of past injuries inflicted by the State raises the strong inference that future injuries will appear. A past enforcement effort often will confirm the reasonableness of a plaintiff's subjective fear of prosecution. This is particularly true in Hardwick's case if one accepts as true his allegation that the Atlanta Police enforce the statute in a way that places all practicing homosexuals in imminent danger of arrest.

A second indicator of threatened harm to these plaintiffs comes from the nature of their interest in violating the statute. Each of them claims that their normal course of activity will lead them to violate the statute, completely apart from their desire to have it invalidated. Hardwick's status as a homosexual adds special credence to his claim. See International Society for Krishna Consciousness v. Eaves, supra, at 819. While a plaintiff hoping only to challenge a statute might overestimate his or her willingness to risk actual prosecution, a plaintiff who genuinely desires to engage in conduct regardless of its legal status presents a court with a more plausible threat of future prosecution.

In some cases, the authentic interest of the plaintiff in engaging in the prohibited conduct can establish standing even though the only threat of enforcement by the State comes from the very existence of the statute. The Supreme Court in Babbitt v. United Farm Workers National Union, 442 U.S. 289, 302-03, 99 S.Ct. 2301, 2310-11, 60 L.Ed.2d 895 (1979), held that a union could challenge a state law prohibiting deceptive advertising relating to farm products because the union planned to sponsor advertising campaigns in the future and the State had not disavowed any intention of enforcing the statute. The risk that the State would detect the inadvertent use of an inaccuracy in an advertisement by the union and would prosecute for that offense was a threat immediate enough to give the union standing. See also Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (doctor who consulted with pregnant women regarding birth control in violation of law was "one of those against whom these criminal statutes directly operate"); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (teacher challenging statute prohibiting teaching of evolution). A plaintiff has a stronger claim for standing if, in addition to the authenticity of the interest, he or she is best suited to challenge a law. Atlanta Gas Light Company v. United States Department of Energy, 666 F.2d 1359, 1364 n. 7 (11th Cir.), cert. denied, 459 U.S. 836, 103 S.Ct. 81, 74 L.Ed.2d 78 (1982).

The past arrest of Hardwick, combined with the continuing resolve on the part of the State to enforce the sodomy statute against homosexuals and the authenticity of Hardwick's desire to engage in the proscribed activity in the future, leads us to agree with the district court that Hardwick has standing to bring this lawsuit. The issue of the Does' standing is less straightforward. They have not been arrested or threatened with arrest for sodomy. At first glance, they appear to be in the same position as several of the plaintiffs in Younger v. Harris, 401 U.S. 37, 40-42, 91 S.Ct. 746, 748-749, 27 L.Ed.2d 669 (1971), who intervened in a federal suit filed by an acquaintance who had been prosecuted by the state under a criminal syndicalism law. The intervenors, teachers, alleged that the existence of the statute and the prosecution of Harris had "inhibited" their teaching and had left them "uncertain" as to their legal rights. The Court ruled that the intervenors had no standing.

The Does argue that they do not stand in precisely the same position as the intervenors in Younger because the defendants in that case brought their appeal after the entry of final judgment in the three-judge district court. The intervenors had been given an opportunity to present evidence of a realistic probability of prosecution apart from their unsupported fears; they had presented no such evidence. The Does, on the other hand, have not had an opportunity to engage in discovery and to present evidence relating to the enforcement of this statute against married couples.

The lack of evidence related to threat of injury should in many cases lead a court to permit discovery and to make factual findings before dismissing a suit for lack of standing. Cf. Chancery Clerk of Chickasaw County, Mississippi v. Wallace, 646 F.2d 151, 159 (5th Cir. Unit A 1981); City of Waco v. Environmental Protection Agency, 620 F.2d 84 (5th Cir.1980). The Does, however, did not allege in their complaint that they faced a serious risk of prosecution. They stated only that the existence of the statute along with the arrest of Hardwick had "chilled and deterred" them and had "interfered" with decisions regarding their private lives. In resisting the defendants' motion to dismiss for lack of standing, the Does never claimed membership in a group especially likely to be prosecuted. Throughout the proceedings in the district court, including the motion for reconsideration of the judgment, the Does claimed that the existence of the statute, its literal applicability to their situation, and the refusal of the State to disavow any intent to prosecute them combined to give them standing. At no time before this appeal did they request discovery or an evidentiary hearing to determine the likelihood of future prosecution; they filed no affidavit to establish any realistic threat. Under these circumstances, Younger v. Harris, supra, controls and we affirm the district court's dismissal of the Does' complaint for lack of standing. Cf. Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961).

II. The Effect of Doe v. Commonwealth's Attorney
In 1975 a three-judge district court in Virginia upheld the constitutionality of that state's sodomy law, Doe v. Commonwealth's Attorney for City of Richmond, 403 F. Supp. 1199 (E.D.Va.1975). The plaintiffs, homosexuals who had neither been arrested nor threatened with prosecution, argued that the statute violated their rights to due process, freedom of expression, privacy, and freedom from cruel and unusual punishment. They appealed the adverse decision of the district court to the Supreme Court. The Court summarily affirmed the judgment. 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). The district court in this case dismissed Hardwick's complaint for failure to state a claim upon which relief could be granted, relying exclusively on Doe.

A. The Bounds of the Original Holding in Doe
A summary affirmance of the Supreme Court has binding precedential effect. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975). Yet because the Court disposes of the case without explaining its reasons, the holding must be carefully limited. A summary affirmance represents an approval by the Supreme Court of the judgment below but should not be taken as an endorsement of the reasoning of the lower court. Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977); Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975).

Despite this general admonition, finding the precise limits of a summary affirmance has proven to be no easy task. Courts seeking to identify the issues governed by a summary affirmance should examine the issues necessarily decided in reaching the result as well as the issues mentioned in the jurisdictional statement. Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 181-83, 99 S.Ct. 983, 988-89, 59 L.Ed.2d 230 (1979). These two criteria conflict in this case. The jurisdictional statement in Doe presented the question of whether Virginia's sodomy statute violated constitutional rights to privacy, due process, and equal protection under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Yet the Court could have approved of the result reached by the district court without addressing those constitutional issues because the plaintiffs in Doe plainly lacked standing to sue. Hence, the constitutional issues presented in Doe were issues listed in the jurisdictional statement but not necessary to the disposition of that case.

Several reasons lead us to conclude that the mention of constitutional issues in the jurisdictional statement in Doe does not override the clear availability of a narrower ground of decision. To begin with, the Supreme Court has generally referred to the two indicia, necessity to the decision and presentation in the jurisdictional statement, as if both were necessary. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 499, 101 S.Ct. 2882, 2888, 69 L.Ed.2d 800 (1981) (summary affirmance binding as to "precise issues presented and necessarily decided") (emphasis supplied); Illinois State Board of Elections v. Socialist Workers Party, supra, 440 U.S. at 182-83, 99 S.Ct. at 989-90; Mandel v. Bradley, supra, 432 U.S. at 176, 97 S.Ct. at 2240; see also Cherry v. Steiner, 716 F.2d 687, 690 (9th Cir.1983), cert. denied, 466 U.S. 931, 104 S.Ct. 1719, 80 L.Ed.2d 190 (1984). Furthermore, if the jurisdictional statement could expand a summary affirmance beyond the scope of issues necessarily decided, it would give the litigants considerable control over the scope of summary dispositions. While a jurisdictional statement prevents speculation as to what issues the Court actually considered, see Howell v. Jones, 516 F.2d 53, 56 (5th Cir.1975), cert. denied, 424 U.S. 916, 96 S.Ct. 1116, 47 L.Ed.2d 321 (1976), it is only a tool in determining the ultimate question: the most narrow plausible rationale for the summary decision.

Lower courts may rely upon the jurisdictional statement as an outside limit on the precedential scope of a summary decision but Supreme Court precedent does not allow us to consider the jurisdictional statement as both a minimum and a maximum formulation of the issues decided. Where, as in the Doe case, the facts of the case plainly reveal a basis for the lower court's decision more narrow than the issues listed in the jurisdictional statement, a lower court should presume that the Supreme Court decided the case on that narrow ground. We therefore construe Doe as an affirmance based on the plaintiffs' lack of standing and not controlling in this case.

B. Doctrinal Developments after Doe
Even if Doe had been resolved on the constitutional grounds now asserted by Hardwick, the Supreme Court has indicated since that time that the constitutionality of statutes such as the one in question here is not governed by Doe but, rather, remains an open question. Since a summary disposition binds lower courts only until the Supreme Court indicates otherwise, Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 2289-90, 45 L.Ed.2d 223 (1975), developments subsequent to the Doe decision undermine whatever controlling weight it once may have possessed.

Doctrinal developments need not take the form of an outright reversal of the earlier case. The Supreme Court may indicate its willingness to reverse or reconsider a prior opinion with such clarity that a lower court may properly refuse to follow what appears to be binding precedent. Indianapolis Airport Authority v. American Airlines, Inc., 733 F.2d 1262 (7th Cir.1984); Browder v. Gayle, 142 F. Supp. 707 (M.D.Ala.) (three-judge court), aff'd per curiam, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956). Even less clear-cut expressions by the Supreme Court can erode an earlier summary disposition because summary actions by the Court do not carry the full precedential weight of a decision announced in a written opinion after consideration of briefs and oral argument. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 500, 101 S.Ct. 2882, 2888, 69 L.Ed.2d 800 (1981); Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974). The Court could suggest that a legal issue once thought to be settled by a summary action should now be treated as an open question, and it could do so without directly mentioning the earlier case. At that point, lower courts could appropriately reach their own conclusions on the merits of the issue. Lecates v. Justice of the Peace Court No. 4 of Delaware, 637 F.2d 898 (3d Cir.1980).

At least two actions by the Supreme Court demonstrate that it now considers the constitutional issues purportedly determined in Doe to be unsettled. The first indication came in the decision in Carey v. Population Services, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). The Court there held, inter alia, that a state could not prevent the sale of non-prescription contraceptives to adults by persons other than licensed pharmacists. Justice Powell stated in a concurring opinion that the majority had employed an unnecessarily broad principle that subjected all state regulation affecting "adult sexual relations" or "personal decisions in matters of sex" to the strictest standard of judicial review. The majority responded in footnote 5 that its holding only applied to state regulation that burdens an individual's right to decide to prevent conception by substantially limiting access to the means of effectuating that decision. It then went on to state the following: "As we observe below, 'the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults,' n. 17, infra, and we do not purport to answer that question now" (brackets in original). Footnote 17, although joined only by a plurality, casts some light on the nature of the "private consensual sexual behavior among adults" referred to in footnote 5 because it cites a law review comment that discusses the possible application of Supreme Court precedent to criminal statutes outlawing private consensual sexual activities, including sodomy. Justice Rehnquist, in a dissenting opinion, criticized the language of footnote 5 because he considered it to be in conflict with Doe, which in his view had definitively established the constitutional validity of state prohibitions of certain consensual activities.

The implications of footnote 5 could hardly be clearer. The plain meaning of the phrase "private consensual sexual behavior among adults" encompasses acts of sodomy carried out between consenting adults in private. The identical phrase in footnote 17 is accompanied by a reference to just that sort of activity. The ability of the state to regulate conduct as Georgia has attempted to do, according to the Court in Carey, is now an open question. Obviously Carey does not provide much guidance as to the proper analysis of the constitutional claims presented in this case; just as obviously, it calls on lower courts to analyze such claims rather than relying on Doe.

A second development in the Supreme Court occurred more recently when the Court granted certiorari in New York v. Uplinger, 464 U.S. 812, 104 S.Ct. 64, 78 L.Ed.2d 80 (1983), and later dismissed the writ as improvidently granted, 467 U.S. 246, 104 S.Ct. 2332 (1984). The New York Court of Appeals had ruled in that case that federal constitutional law invalidated a New York statute prohibiting persons from loitering in a public place for the purpose of engaging, or soliciting another person to engage, in "deviate sexual behavior." The decision was premised on an earlier ruling by that court in People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (1980), cert. denied, 451 U.S. 987, 101 S.Ct. 2323, 68 L.Ed.2d 845 (1981), where it held that the federal constitution invalidated a state statute criminalizing any act of sodomy between two persons. Hence, the petitioner for writ of certiorari in Uplinger urged the Supreme Court to consider the constitutionality of state regulations prohibiting consensual sodomy among adults.

After the Supreme Court received the briefs of the parties and heard oral argument in Uplinger, it dismissed the writ of certiorari as improvidently granted. In a per curiam order, the Court stated that the case presented an "inappropriate vehicle" for resolving the "important constitutional issues" raised by the parties. The Court also indicated that the constitutionality of state laws against consensual sodomy was one of the most important of those issues; it explained that several impediments to consideration of the constitutional issues presented in the Onofre decision figured heavily in its decision to dismiss the writ. Those impediments included the belated decision of the petitioner not to challenge the Onofre decision and the fact that the state court decision in Uplinger was subject to varying interpretations, leaving uncertainty as to the precise federal constitutional issue the state court decided.

It is fair to conclude from this order that the Supreme Court was prepared to address the constitutionality of state regulations like Georgia's sodomy statute but chose to address the issue when presented more directly in another case. While the Court may have meant that it was prepared to reconsider the Doe affirmance, which would have remained binding precedent until overruled, such a possibility is unlikely because the Court never referred to Doe in the Uplinger proceedings or indicated in any way that the underlying constitutional issue was settled, even temporarily. Under these circumstances, we interpret the order as an indication that the constitutional questions presented by Hardwick are still open for consideration by the Supreme Court and by this Court. This order, together with the Court's observation in Carey, deprives Doe v. Commonwealth's Attorney of whatever controlling weight it once may have had. The district court erred in dismissing Hardwick's claim.

III. Constitutional Standards
Despite the fact that the district court erred in relying on Doe v. Commonwealth's Attorney, we still confront the question of whether the appellees were entitled to dismissal as a matter of law on some other ground. Smith v. Phillips, 455 U.S. 209, 215 n. 6, 102 S.Ct. 940, 945 n. 6, 71 L.Ed.2d 78 (1982). In particular, the judgment below could stand if we were to conclude that the statute in question is subject to minimal judicial scrutiny and that the appellants could not under any set of facts prove that the statute is not rationally related to the State's regulatory interest. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

Such is not the case here. The Georgia sodomy statute infringes upon the fundamental constitutional rights of Michael Hardwick. On remand, the State must demonstrate a compelling interest in restricting this right and must show that the sodomy statute is a properly restrained method of safeguarding its interests. Cf. Dike v. School Board of Orange County, Florida, 650 F.2d 783, 787 (5th Cir. Unit B 1981).

The Constitution prevents the States from unduly interfering in certain individual decisions critical to personal autonomy because those decisions are essentially private and beyond the legitimate reach of a civilized society. These include the decision whether to conceive and bear a child, City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979); Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147 (1973); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), and decisions affecting certain intimate relationships such as marriage, Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), and other familial ties, Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Dike v. School Board of Orange County, Florida, 650 F.2d 783 (5th Cir. Unit B 1981).

While the constitutional source of these limitations of the power of the State has been termed the "right to privacy," it is not limited to conduct that takes place strictly in private. Some personal decisions affect an individual's life so keenly that the right to privacy prohibits state interference even though the decisions could have significant public consequences. For instance, the direction of a child's education will have profound public consequences, yet under the Constitution a parent retains authority to direct his or her child's education. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Stough v. Crenshaw County Board of Education, 744 F.2d 1479 (11th Cir.1984). Similarly, a state has an interest in assuring the physical health of its citizens by regulating or forbidding certain medical procedures, but that interest gives way when a woman in the early stages of pregnancy chooses not to have a child. City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

Hardwick desires to engage privately in sexual activity with another consenting adult. Although this behavior is not procreative, it does involve important associational interests. The Supreme Court has indicated in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), that the intimate associations protected by the Constitution are not limited to those with a procreative purpose. The Court in Griswold struck down a state law prohibiting the use of contraceptives because it unduly interfered with the sanctity of the marriage relationship. One component of that relationship is the decision whether to beget and bear children. Carey v. Population Services International, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977). But the marital relationship is also significant because of the unsurpassed opportunity for mutual support and self-expression that it provides. As the Griswold Court stated, "Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes...." 381 U.S. at 486, 85 S.Ct. at 1682. See also Zablocki v. Redhail, 434 U.S. 374, 385-86, 98 S.Ct. 673, 680-81, 54 L.Ed.2d 618 (1978) (listing "associational interests" and procreation as separate interests protected by right to marry).

The intimate association protected against state interference does not exist in the marriage relationship alone. In Eisenstadt v. Baird, supra, the Supreme Court held that prohibiting the distribution of contraceptives to unmarried persons was unconstitutional because it treated married and unmarried individuals differently. The benefits of marriage can inure to individuals outside the traditional marital relationship. For some, the sexual activity in question here serves the same purpose as the intimacy of marriage.

In addition to the resemblance between Hardwick's conduct and the intimate association of marriage, we pay heed to the fact that he plans to carry out his sexual activity in private. The right to privacy extends to some activities that would not normally merit constitutional protection simply because those activities take on added significance under certain limited circumstances. In particular, the constitutional protection of privacy reaches its height when the state attempts to regulate an activity in the home. Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980).

In Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), police officers executing a valid search warrant found some obscene films in Stanley's home and he was charged with possession of obscene material. The Supreme Court ruled that a state could not make the private possession of obscene material a crime. Although a state may regulate obscenity when such material is distributed or displayed in public, it may not prohibit strictly private uses of obscenity: "Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home.... Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." Stanley's First Amendment interests, while not sufficient to allow the viewing of obscene material in public, prevented the State from deciding what he could view in private. Thus, the element of privacy deepened Stanley's interests and limited the possible purposes of state regulation. See also Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality) (city may not prohibit family members from living together; Justice Stevens concurs on ground that ordinance directed at internal composition of home lies beyond city's zoning power).

This case presents a person asserting an interest at least as substantial as the one in Stanley v. Georgia. In both cases, the fact that the activity is carried out in seclusion bolsters its significance. This is not a case involving sexual activity with children or with persons who are coerced either through physical force or commercial inducement. The absence of any such public ramifications in this case plays a prominent part in our consideration of Hardwick's legal claim.

In sum, the Supreme Court's analysis of the right to privacy in Griswold v. Connecticut, supra, Eisenstadt v. Baird, supra, and Stanley v. Georgia, supra, leads us to conclude that the Georgia sodomy statute implicates a fundamental right of Michael Hardwick. The activity he hopes to engage in is quintessentially private and lies at the heart of an intimate association beyond the proper reach of state regulation. Such a right is protected by the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 486-94, 85 S.Ct. 1678, 1682-87, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring), and the notion of fundamental fairness embodied in the due process clause of the Fourteenth Amendment. Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147 (1973). We therefore remand this case for trial, at which time the State must prove in order to prevail that it has a compelling interest in regulating this behavior and that this statute is the most narrowly drawn means of safeguarding that interest.

Reversed and remanded.


text:
Page:United States Statutes at Large Volume 90 Part 1.djvu/1300

 90 STAT. 1250 Notice and hearing.

Temporary injunction or retraining order. 7 USC 229. 7 USC 228a.

Violations.

Livestock delivery. 7 USC 228b.

PUBLIC LAW 9 4 - 4 1 0 — S E P T. 13, 1976 amended by adding at the end thereof a new sentence as follows: "If Ihe Secretary finds any packer is insolvent, he may after notice and hearing issue an order under the provisions of section 203 requiring such packer to cease and desist from purchasing livestock while insolvent, or while insolvent purchasing livestock except under such conditions as the Secretary may prescribe to effectuate the purposes of the Act.". SEC. 5. The Packers and Stockyards Act, 1921, as amended, is further amended by redesignating section 408 as section 411 and l3y adding a new section 408 to read as follows: " SEC. 408. Whenever the Secretary has reason to believe that any person subject to this Act (a) with respect to any transactions subject to this Act, has failed to pay or is unable to p a y for livestock, meats, meat food products, or livestock products in unmanufactured form, or has failed to remit to the person entitled thereto the net proceeds from the sale of any such commodity sold on a commission basis; or (b) has operated while insolvent, or otherwise in violation of this Act in a manner which may reasonably be expected to cause irreparable damage to another person; or (c) does not have the required b o n d; and that it would be in the public interest to enjoin such person from operating subject to this Act or enjoin him from operating subject to this Act except under such conditions as would protect vendors or consignors of such commodities or other affected persons, until a complaint under this Act is issued and dismissed by the Secretary or until an order to cease and desist made thereon by the Secretary has become final and effective within the meaning of this Act or is set aside on appellate review of the Secretary's order, the Secretary may notify the Attorney General, who may apply to the United States district court for the district in which such person has his principal place of business or in which lie resides for a temporary injunction or restraining order. W h e n needed to effectuate the purposes of this section, the court shall, upon a proper showing, issue a temporary injunction or restraining order, without bond. Attorneys employed by the Secretary of Agriculture may, with the approval of the Attorney General, appear in the United States district court representing the Secretary in any action seeking such a temporary restraining order or injunction.". SEC. 6. Section 308(a) of the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 2 0 9 (a)) is amended to read as follows: " (a) If any person subject to this Act violates any of the provisions of this Act, or of any order of the Secretary under this Act, relating to the purchase, sale, or handling of livestock, he shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of such violation.". SEC. 7. The Packers and Stockyards Act, 1921, as amended, is further amended by adding aft«r section 408 (7 U.S.C. 229) a new section 409 to read as follows: " SEC. 409. (a) E a c h packer, market agency, or dealer purchasing livestock shall, before the close of the next business day following the purchase of livestock and transfer of possession thereof, deliver to the seller or his duly authorized representative the full amount of the purchase p r i c e: Provided, That each packer, market agency, or dealer purchasing livestock for slaughter shall, before the close of the next business day following purchase of livestock and transfer of

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90 STAT. 1251

possession thereof, actually deliver at the point of transfer of possession to the seller or his duly authorized representative a check or shall wire transfer funds to the seller's account for the full amount of the purchase price; or, in the case of a purchase on a carcass or 'grade and yield' basis, the purchaser shall make payment by check at the point of transfer of possession or shall wire transfer funds to the seller's account for the full amount of the purchase price not later than the close of the first business day following determination of the purchase price: Provided further, That if the seller or his duly authorized representative is not present to receive payment at the point of transfer of possession, as herein provided, the packer, market agency or dealer shall wire transfer funds or place a check in the United States mail for the full amount of the purchase price, properly addressed to the seller, within the time limits specified in this subsection, such action being deemed compliance with the requirement for prompt payment. "(b) Notwithstanding the provisions of subsection (a) of this Written section and subject to such terms and conditions as the Secretary may agreement. prescribe, the parties to the purchase and sale of livestock may expressly agree in writing, before such purchase or sale, to effect payment in a manner other than that required in subsection (a). Any Disclosure. such agreement shall be disclosed in the records of any market agency or dealer selling the livestock, and in the purchaser's records and on the accounts or other documents issued by the purchaser relating to the transaction. "(c) Any delay or attempt to delay by a market agency, dealer, Unfair or packer purchasing livestock, the collection of funds as herein pro- practice. vided, or otherwise for the purpose of or resulting in extending the normal period of payment for such livestock shall be considered an 'unfair practice' in violation of this Act. Nothing in this section shall be deemed to limit the meaning of the term 'unfair practice' as used in this Act.". SEC. 8. The Packers and Stockyards Act, 1921, as amended (7 U.S.C. 181 et seq.), is further amended by adding after section 205 (7 U.S.C. 195) a new section 206, to read as follows: "SEC. 206. (a) It is hereby found that a burden on and obstruction Financing to commerce in livestock is caused by financing arrangements under arrangements, which packers encumber, give lenders security interest in, or place remedy. liens on, livestock purchased by packers in cash sales, or on inventories 7 USC 196. of or receivables or proceeds from meat, meat food products, or livestock products therefrom, when payment is not made for the livestock and that such arrangements are contrary to the public interest. This section is intended to remedy such burden on and obstruction to commerce in livestock and protect the public interest. " (b) All livestock purchased by a packer in cash sales, and all inventories of, or receivables or proceeds from meat, meat food products, or livestock products derived therefrom, shall be held by such packer in trust for the benefit of all unpaid cash sellers of such livestock until full payment has been received by such unpaid sellers: Provided, That any packer whose average annual purchases do not exceed $500,000 will be exempt from the provisions of this section. Payment shall not be considered to have been made if the seller receives a payment instrument which is dishonored: Provided, That the unpaid seller shall lose the benefit of such trust if, in the event that a payment instrument has

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State and local requirements. Federal preemption. 7 USC 228c.

Savings provision. 7 USC 182 note. 7 USC 181 et seq. 7 USC 204. Budget estimates, testimony before congressional committees. 7 USC 228.

Rules.

PUBLIC LAW 94-410—SEPT. 13, 1976

not been received, within thirty days of the final date for making a payment under section 409, or within fifteen business days after the seller has received notice that the payment instrument promptly presented for payment has been dishonored, the seller has not preserved his trust under this subsection. The trust shall be preserved by giving written notice to the packer and by filing such notice with the Secretary. (c) For the purpose of this section, a cash sale means a sale in which the seller does not expressly extend credit to the buyer.". SEC. 9. The Packers and Stockyards Act, 1921, as amended, is further amended by adding after new section 409 a new section 410 to read as follows: "SEC. 410. No requirement of any State or territory of the United States, or any subdivision thereof, or the District of Columbia, with respect to bonding of packers or prompt payment by packers for livestock purchases may be enforced upon any packer operating in compliance with the bonding provisions under the Act of July 12, 1943 (57 Stat. 422; 7 U.S.C. 204), and prompt payment provisions of section 409 of this Act, respectively: Provided, That this section shall not preclude a State from enforcing a requirement, with respect to payment for livestock purchased by a packer at a stockyard subject to this Act, which is not in conflict with this Act or regulations thereunder: Provided further. That this section shall not preclude a State from enforcing State law or regulations with respect to any packer not subject to this Act or the Act of July 12, 1943.". SEC. 10. Pending proceedings shall not be abated by reason of any provision of this Act, but shall be disposed of pursuant to the provisions of the Packers and Stockyards Act, 1921, as amended, and the Act of July 12, 1943, in effect immediately prior to the effective date of this Act. SEC. 11. Section 407 of the Packers and Stockyards Act, 1921, as amended, is amended by adding the following new subsections to read as follows: "(d) On or before February 15 of each calendar year beginning with calendar year 1977, or such other date as may be specified by the appropriate committee, the Secretary of Agriculture shall testify before the Senate Committee on Agriculture and Forestry and the House Committee on Agriculture and provide justification in detail of the amount requested in the budget to be appropriated for the next fiscal year for the purposes authorized in the Packers and Stockyards Act, 1921, as amended. " (e) The Secretary shall, not later than sixty days after the effective date of this subsection, prescribe and implement rules to assure that any hearing from which any order may issue under this Act or any hearing the expenses of which are paid from funds authorized to be appropriated under this Act shall— "(1) if such hearing concerns a single unit of local government or the residents thereof, be held within the boundaries of such unit; "(2) if such hearing concerns a single geographic area within a State or the residents thereof, be held within the boundaries of such area; or

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"(3) if such hearing concerns a single State or the residents thereof, be held within such State. "(f) For the purposes of subsection (e)— Definitions. "(1) the term 'unit of local government' means a county, municipality, town, township, village, or other unit of general government below the State level; and "(2) the term 'geographic area within a State' means a special purpose district or other region recognized for governmental purposes within such State which is not a unit of local government.". Approved September 13, 1976.

LEGISLATIVE HISTORY: HOUSE REPORTS: No. 94-1043 (Comm. on Agriculture) and No. 94-1391 (Comm. of Conference). SENATE REPORTS: No. 94-932 (Comm. on Agriculture and Forestry) and No. 94-1065 (Comm. of Conference). CONGRESSIONAL RECORD, Vol. 122 (1976): May 6, considered and passed House. June 17, considered and passed Senate, amended. Aug. 4, Senate agreed to conference report. Aug. 30, House agreed to conference report. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 12, No. 38: Sept. 13, Presidential statement.

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PUBLIC LAW 9 4 - 4 1 1 — S E P T. 13, 1976

Public Law 94-411 94th Congress An Act Sept. 13, 1976 [S. 2862]

Federal Fire Prevention and Control Act of 1974, amendment. Appropriation authorization. 15 USC 2210.

To authorize appropriations for the Federal Fire Prevention and Control Act of 1974. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) section 17 of the Federal F i r e Prevention and Control Act of 1974 (15 U.S.C. 2216) is amended to read as follows: "AUTHORIZATION OF APPROPRIATIONS

" SEC. 17. There are authorized to be appropriated to carry out the foregoing provisions of this Act, except section 11 of this Act, not to exceed $3,750,000 for the transitional fiscal quarter of July 1, 1976, through September 30, 1976, not to exceed $15,000,000 for the fiscal year ending September 30, 1977, and not to exceed $20,000,000 for the fiscal year ending September 30, 1978.". (b) Section 16(b) of the Act of March 3, 1901 (15 U.S.C. 278f (b)) is amended to read as follows: " (b) AUTHORIZATION OF APPROPRIATIONS.—For purposes of

this

section, there are authorized to be appropriated not to exceed $1,275,000 for the transitional fiscal quarter of July 1, 1976, through September 30, 1976, not to exceed $5,500,000 for the fiscal year ending September 30, 1977, and not to exceed $6,000,000 for the fiscal year ending September 30, 1978.". Approved September 13, 1976.

LEGISLATIVE HISTORY: SENATE REPORT No. 94-864 (Comm. on Commerce). CONGRESSIONAL RECORD, Vol. 122 (1976): May 19, considered and passed Senate. Aug. 31, considered and passed House. WEEKLY COMPILATION OF PTIESIDENTIAL DOCUMENTS, Vol. 12, No. 38: Sept. 13, Presidential statement.

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 PUBLIC LAW 94-412—SEPT. 14, 1976

90 STAT. 1255

Public Law 94-412 94th Congress An Act To terminate certain authorities with respect to national emergencies still in effect, and to provide for orderly implementation and termination of future national emergencies.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Xational Emergencies Act". TITLE I—TERMINATING EXISTING DECLARED EMERGENCIES

Sept. 14, 1976 [H.R. 3884]

National Emergencies Act. 50 USC 1601 note.

SEC. 101. (a) All powers and authorities possessed by the President, 50 USC 1601. any other officer or employee of the Federal Government, or any executive agency, as defined in section 105 of title 5, United States Code, as a result of the existence of any declaration of national emergency in effect on the date of enactment of this Act are terminated two years from the date of such enactment. Such termination shall not affect— (1) any action taken or proceeding pending not finally concluded or determined on such date; (2) any action or proceeding based on any act committed prior to such date; or (3) any rights or duties that matured or penalties that were incurred prior to such date. (b) For the purpose of this section, the words "any national emer- "Any national gency in effect" means a general declaration of emergency made by emergency m effect." the President. TITLE II—DECLARATIONS OF FUTURE NATIONAL EMERGENCIES SEC. 201. (a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register. (b) Any provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with this Act. No law enacted after the date of enactment of this Act shall supersede this title unless it does so in specific terms, referring to this title, and declaring that the new law supersedes the provisions of this title. SEC. 202. (a) Any national emergency declared by the President in accordance with this title shall terminate if— (1) Congress terminates the emergency by concurrent resolution; or (2) the President issues a proclamation terminating the emergency.

50 US(, 1621.

Presidential proclamation, transmittal to Congress; publication in Federal Register.

Termination. 50 USC 1622.

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PUBLIC LAW 94-412—SEPT. 14, 1976

Termination date. Any national emergency declared by the President shall be terminated on the date specified in any concurrent resolution referred to in clause (1) or on the date specified in a proclamation by the President terminating the emergency as provided in clause (2) of this subsection, whichever date is earlier, and any powers or authorities exercised by reason of said emergency shall cease to be exercised after such specified date, except that such termination shall not affect— (A) any action taken or proceeding pending not finally concluded or determined on such date; . (B) any action or proceeding based on any act committed prior to such date; or (C) any rights or duties that matured or penalties that were incurred prior to such date. (b) Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a concurrent resolution to determine whether that emergency shall be terminated. Concurrent (c)(1) A concurrent resolution to terminate a national emergency resolution, declared by the President shall be referred to the appropriate comreferral to mittee of the House of Representatives or the Senate, as the case may congressional be. One such concurrent resolution shall be reported out by such comcommittees. mittee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee, unless such House shall otherwise determine by the yeas and nays. (2) Any concurrent resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents) and shall be voted on within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays. (3) Such a concurrent resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays. Conference (4) In the case of any disagreement between the two Houses of committee, filing Congress with respect to a concurrent resolution passed by both Houses, of report. conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such concurrent resolution within six calendar days after the day on which managers on the part of the Senate and the House have been appointed. Notwithstanding any rule in either House concerning the printing of conference reports or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed in the House in which such report is filed first. In the event the conferees are unable to agree within forty-eight hours, they shall report back to their respective Houses in disagreement.

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 PUBLIC LAW 94-412—SEPT. 14, 1976 (5) Paragraphs (l) - (4) of this subsection, subsection (b) of this section, and section 502(b) of this Act are enacted by Congress— (A) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in the House in the case of resolutions described by this subsection; and they supersede other rules only to the extent that they are inconsistent therewith; and (B) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House. (d) Any national emergency declared by the President in accordance with this title, and not otherwise previously terminated, shall terminate on the anniversary of the declaration of that emergency if, within the ninety-day period prior to each anniversary date, the President does not publish in the Federal Register and transmit to the Congress a notice stating that such emergency is to continue in effect after such anniversary.

90 STAT. 1257 Post, p. 1258.

Publication in Federal Register, transmittal to Congress, •

TITLE III — E X E R C I S E OF EMERGENCY POWERS AND AUTHORITIES SEC. 301. When the President declares a national emergency, no 50 USC 1631. powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a Executive orders; national emergency, or by one or more contemporaneous or subsequent publication in Federal Register, Executive orders published in the Federal Register and transmitted to transmittal to the Congress. Congress. TITLE IV—ACCOUNTABILITY AND REPORTING REQUIREMENTS OF THE P R E S I D E N T SEC. 401. (a) When the President declares a national emergency, or Congress declares war, the President shall be responsible for maintaining a file and index of all significant orders of the President, including Executive orders and proclamations, and each Executive agency shall maintain a file and index of all rules and regulations, issued during such emergency or war issued pursuant to such declarations. (b) All such significant orders of the President, including Executive orders, and such rules and regulations shall be transmitted to the Congress promptly under means to assure confidentiality where appropriate. (c) When the President declares a national emergency or Congress declares war, the President shall transmit to Congress, within ninety days after the end of each six-month period after such declaration, a report on the total expenditures incurred by the United States Government during such six-month period which are directly attributable to the exercise of powers and authorities conferred by such declaration. Not later than ninety days after the termination of each such emergency or war, the President shall transmit a final report on all such expenditures.

Presidential orders, rules and regulations, file maintenance. 50 USC 1641. Presidential orders, transmittal to Congress. Expenditures, reports to Congress.

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PUBLIC LAW 94-412—SEPT. 14, 1976 TITLE V—EEPEAL AND CONTINUATION O F CERTAIN EMERGENCY POWER AND OTHER STATUTES

Loss of nationality.

Leases, nonexcess property.

RepeaL RepeaL RepeaL

RepeaL Savings provision. 50 USC 1601 note.

50 USC 1651.

SEC. 501. (a) Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481(a)) is amended— (1) at the end of paragraph (9), by striking out "; or" and inserting in lieu thereof a period; and (2) by striking out paragraph (10). (b) Section 2667(b) of title 10 of the United States Code is amended— (1) by inserting "and" at the end of paragraph (3); (2) by striking out paragraph (4); and (3) by redesignating paragraph (5) as (4). (c) The joint resokition entitled "Joint resolution to authorize the temporary continuation of regulation of consumer credit", approved August 8, 1947 (12 U.S.C. 249), is repealed. (d) Section 5(m) of the Tennessee Valley Authority Act of 1933 as amended (16 U.S.C. 831d(m)) is repealed. (e) Section 1383 of title 18, United States Code, is repealed. (f) Section 6 of the Act entitled "An Act to amend the Public Health Service Act in regard to certain matters of personnel and administration, and for other purposes", approved February 28, 1948, is amended by striking out subsections (b), (c), (d), (e), and (f) (42 U.S.C. 211b). (g) Section 9 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1742) is repealed. (h) This section shall not affect— (1) any action taken or proceeding pending not finally concluded or determined at the time of repeal; (2) any action or proceeding based on any act committed prior to repeal; or (3) any rights or duties that matured or penalties that were incurred prior to repeal. SEC. 502. (a) The provisions of this Act shall not apply to the following provisions of law. the powers and authorities conferred thereby, and actions taken thereunder: (1) Section 5(b) of the Act of October 6, 1917, as amended (12 U.S.C. 95a; 50 U.S.C. App. 5 (b)); (2) Act of April 28.1942 (40 U.S.C. 278b); (3) Act of June 30, 1949 (41 U.S.C. 252); (4) Section 3477 of the Revised Statutes, as amended (31 U.S.C. 203); (5) Section 3737 of the Revised Statutes, as amended (41 U.S.C. 15); (6) Public Law 85-804 (Act of Aug. 28, 1958, 72 Stat. 972; 50 U.S.C. 1431-1435); (7) Section 2304(a)(1) of title 10, United States Code; (8) Sections 3313, 6386(c), and 8313 of title 10, United States Code.

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90 STAT. 1259

(b) Each committee of the House of Representatives and the Senate Congressional having jurisdiction with respect to any provision of law referred to committees, in subsection (a) of this section shall make a complete study and inves- ^^^^Y'^ report to tigation concerning that provision of law and make a report, including ingress. any recommendations and proposed revisions such committee may have, to its respective House of Congress within two hundred and seventy days after the date of enactment of this Act. Approved September 14, 1976.

LEGISLATIVE HISTORY: HOUSE REPORT No. 94-238 (Comm. on the Judiciary). SENATE REPORT No. 94-1168 (Comm. on Government Operations). CONGRESSIONAL RECORD: VoL 121 (1975): Sept. 4, considered and passed House. Vol. 122 (1976): Aug. 27, considered and passed Senate, amended. Aug. 31, House concurred in Senate amendments. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS: Vol. 12, No. 38 (1976): Sept. 14, Presidential statement.

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