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598

INTERIOR DEPARTMENT APPROPRIATION ACT, 1939

[Extracts from] An act making appropriations for the Department of the Interior for the fiscal year ending June 30, 1939, and for other purposes. (Act of May 9, 1938, ch. 187, 52 Stat. 291)

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BUREAU OF RECLAMATION

[Gila project-Water for Arizona State Experiment Farm.]-The Secretary of the Interior is authorized to furnish water for the use of the Arizona State Experiment Farm, embracing the west half southwest quarter of Section 28, Township 9 south, Range 23 west, Gila and Salt River meridian, together with such areas as may be added thereto, the cost, not exceeding $750 annually, to be paid from the appropriations for the Gila project. (52 Stat. 321)

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[Increase in Reclamation Fund-Hayden-O'Mahoney Amendment.]— Increase in the Reclamation Fund: The Secretary of the Treasury is authorized and directed to transfer to the credit of the reclamation fund, created by the Act of June 17, 1902 (32 Stat. 388), a sum equal to the difference between (1) 522 per centum of the moneys which the Secretary of the Treasury shall determine to have accrued to the United States from lands within the naval petroleum reserves, except those in Alaska, from February 25, 1920, to June 30, 1938, inclusive, and (2) the total of all sums advanced to the reclamation fund under the provisions of the Act entitled "An Act to authorize advances to the reclamation fund, and for the issue and disposal of certificates of indebtedness in reimbursement therefor, and for other purposes", approved June 25, 1910 (36 Stat. 835), as amended, and under the provisions of the Act entitled "An Act to authorize advances to the reclamation fund, and for other purposes", approved March 3, 1931 (46 Stat. 1507), as amended, and not reimbursed by transfer from the reclamation fund to the general funds in the Treasury. The transaction provided for in this section shall be deemed to have effected a complete reimbursement of the general funds in the Treasury of all sums advanced to the reclamation fund under the provisions of such Acts of June 25, 1910, and March 3, 1931, as amended.

All moneys received by the United States in connection with any irrigation projects, including the incidental power features thereof, constructed by the Secretary of the Interior through the Bureau of Reclamation, and financed in whole or in part with moneys heretofore or hereafter appropriated or allocated therefor by the Federal Government, shall be covered into the reclamation fund, except in cases where provision has been made by law or contract for the use of such revenues for the benefit of users of water from such project: Provided, That after the net revenues derived from the sale of power developed in connection with any of said projects shall have repaid those construction costs of such project

INTERIOR DEPARTMENT APPROPRIATION ACT, 1939 599

allocated to power to be repaid by power revenues therefrom and shall no longer be required to meet the contractual obligations of the United States, then said net revenues derived from the sale of power developed in connection with such project shall, after the close of each fiscal year, be transferred to and covered into the General Treasury as "miscellaneous receipts": Provided further, That nothing in this section shall be construed to amend the Boulder Canyon Project Act (45 Stat. 1057), as amended, or to apply to irrigation projects of the Office of Indian Affairs. (52 Stat. 322; 43 U.S.C. §§ 391a-1, 392a)

EXPLANATORY NOTES

Codification. The first paragraph is codified as 43 U.S.C. § 391a-1. The second paragraph is codified as 43 U.S.C. § 392a. Popular Name. The above paragraphs are popularly known as the "Hayden-O'Mahoney amendment."

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References in the Text. Each of the Acts referred to in the Hayden-O'Mahoney amendment appears herein in chronological order. The Boulder Canyon Project Act (45 Stat. 1057), which is referred to by title only, is the Act of December 21, 1928.

NOTES OF OPINIONS

The Hayden-O'Mahoney amendment deals with the cash distribution of revenues in the Treasury as between the reclamation fund and the general fund. Its purpose was to assure that the reclamation fund would receive as to each reclamation project an amount of dollars equal to that required to amortize the power investment plus the irrigation assistance. It does not, however, purport to deal with payout requirements of reclamation projects. These, except for special requirements applicable to given projects, are governed by Section 9(c) of the Reclamation Project Act of 1939. Statement furnished by Assistant Secretary Holum for Hearings on H.R. 2337, to Provide for the Construction of the Lower Teton Division, Teton Basin Federal Reclamation Project, Before the Irrigation and Reclamation Subcommittee of the House Committee on Interior and Insular Affairs, 88th Cong., 2d Sess. 38 (1964).

The Hayden-O'Mahoney amendment of 1938 amends section 5 of the Act of April 16, 1906, by providing that after net power revenues have repaid project construction costs allocated to be repaid by such revenues, they shall then be covered into the General Treasury as miscellaneous receipts. Solicitor Harper Opinion, M-33504 (September 26, 1944), in re disposition of power revenues from Grand Valley project.

2. Power revenues

The availability of power revenues to aid irrigation has, in one form or another, been a part of general reclamation law almost since its beginning. This is evident from section 5 of the Act of April 16, 1906, 34 Stat. 116, 117, 43 U.S.C. § 522; the Act of February 24, 1911, 36 Stat. 930, 43 U.S.C.

522; and subsection I, section 4, of the Act of December 5, 1924, 43 Stat. 703, 43 U.S.C. 501. This general trend has been reinforced by the Hayden-O'Mahoney amendment to the Interior Department Appropriation Act, 1939, the Act of May 9, 1938, 52 Stat. 322, 43 U.S.C. § 392a, and a provision in the Interior Department Appropriation Act, 1947, Act of July 1, 1946, 60 Stat 366, as well as section 9 of the Reclamation Project Act of 1939, Act of August 4, 1939, 53 Stat. 1193, 43 U.S.C. § 485h. Memorandum of Chief Counsel Fisher, September 12, 1952, in re procedure on use of surplus power revenues for assistance in financing irrigation distribution systems.

Neither the Hayden-O'Mahoney amendment nor the power marketing statutes involved in the power operations of the Bonneville Power Administration (section 7 of the Bonneville Project Act, section 9 (c) of the Reclamation Project Act of 1939, and section 5 of the Flood Control Act of 1944) require that the costs of each project to be met from power revenues have to be amortized on the basis of a fixed annual obligation. The legal requirements are satisfied if such costs are returned within a reasonable period of years whatever accounting procedure is applied. Statement furnished by Assistant Secretary Holum in

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INTERIOR DEPARTMENT APPROPRIATION ACT, 1939

regard to statutory authority for revised procedure for presenting Bonneville Power Administration rate and repayment data on a consolidated system basis, printed in Hearings on H.R. 2337, to Provide for the Construction of the Lower Teton Division, Teton Basin Federal Reclamation Project, Before the Irrigation and Reclamation Subcommittee of the House Committee on Interior and Insular Affairs, 88th Cong., 2d Sess. 36-38 (1964).

The requirements of the Hayden-O'Mahoney amendment are satisfied as to each reclamation project involved in the power marketing operation of the Bonneville Power Administration when each reclamation project has been compensated by being credited with so much of BPA's power revenues as have, over a reasonable period, repaid that portion of the project's investment allocated to power together with the irrigation assistance. Statement furnished by Assistant Secretary Holum for Hearings on H.R. 2337, to Provide for the Construction of the Lower Teton Division, Teton Basin Federal Reclamation Project, Before the Irrigation and Reclamation Subcommittee of the House Committee on Interior and Insular Affairs, 88th Cong., 2d Sess. 38 (1964).

Under section 9(c) of the Reclamation Project Act of 1939, as construed consistently with the Hayden-O'Mahoney amendment to the Interior Department Appropriation Act, 1939, the minimum rates for the sale of power must be such as will cover (1) an appropriate share of annual operation and maintenance costs and (2) an amount equal to 3 per cent per annum of the original power construction costs; however, if the 3 per cent factor is not enough to return power construction costs plus the irrigation subsidy (the amount of irrigation construction costs beyond the ability of the water users to repay) within a reasonable period of time, then the rates must be increased accordingly. There is no statutory obligation for the Government to recover a profit (in the form of interest) on the investment in power construction costs, and therefore all of the power revenues are available to return power construction costs and the irrigation subsidy. Three per cent per annum is a minimum rate of return which continues without regard to pay-out. Solicitor Harper Opinion, M-33473. (September 24, 1944) and M33473 (Supplemental) (September 10, 1945). [Editor's Note: Although this opinion has not specifically been overruled, it is not followed in two respects. First, the 3 per cent factor used in section 9(c) is regarded as annual interest on the unamor

tized balance of power construction costs, rather than as a constant annual percentage of the original power costs. Second, the revenues represented by the interest component (that part of power revenues attributable to a recovery of interest on the power construction costs) are not considered to be available to return irrigation costs. This latter policy was adopted following a period of controversy culminated by the recommendation of the House Appropriations Committee against use of the interest component to return irrigation costs. H.R. Rept. No. 314, 83rd Congress, 1st Sess. 12 (1953).]

After repayment of construction charges of the Grand Valley Project and operation and maintenance costs during the repayment period, the net power revenues will be required under the Hayden-O'Mahoney amendment, to be covered into the General Treasury as miscellaneous receipts. Solicitor Harper Opinion, M-33504 (September 26, 1944).

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3. Army projects Inasmuch as the Hayden-O'Mahoney amendment does not apply to facilities constructed by the Department of the Army, appropriate allocation of revenues should be made to the Department of the Army powerplants in the Missouri River Basin project, and as required by general provisions of law the sum represented thereby must be deposited in the general fund of the Treasury. Testimony of Assistant Solicitor Weinberg, Missouri Basin Water Problems: Joint Hearings Before the Senate Committees on Interior and Insular Affairs and Public Works, 85th Cong., 1st Sess., pt. 1, 341-42 (1957). Accord: Letter of Administrative Assistant Secretary Beasley to Mr. A. T. Samuelson, General Accounting Office, April 22, 1957; reprinted in Joint Hearings, id. at 364.

An appropriate share of revenues received in connection with contracts for irrigation service from Pine Flat Dam and other Department of the Army developments from which the Secretary of the Interior disposes of irrigation benefits pursuant to section 8 of the Flood Control Act of 1944, should be deposited in the general fund of the Treasury as miscellaneous receipts. Letter of Administrative Assistant Secretary Beasley to Mr. A. T. Samuelson, General Accounting Office, April 22, 1957, reprinted in Missouri Basin Water Problems: Joint Hearings Before the Senate Committees on Interior and Insular Affairs and Public Works, 85th Cong., 1st Sess., pt. 1, at 364-66 (1957).

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4. Headwater benefits

Moneys received from power licenses, under assessments made by the Federal Power Commission pursuant to section 10(f) of the Federal Power Act, for headwater benefits attributable to Reclamation reservoirs, shall be paid into the reclamation fund in accordance with the_Hayden-O'Mahoney amendment of 1938. Dec. Comp. Gen., B156498 (May 24, 1966).

5. Exceptions

The legislative history of the Hayden

O'Mahoney amendment indicates that the type of contract which was intended to be excepted from its application was that authorized to be entered into under subsection I of section 4 of the Act of December 5, 1924, that is, one where the power development has been financed by the Government and the water users have obligated themselves in fact to repay all of the costs. Solicitor Harper Opinion, M-33504 (September 26, 1944), in re disposition of net power revenues from the Grand Valley project.

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[Central Valley project-Relocation authority-Acquisition of propertyContracts for work to be done-Rights-of-way.]-Central Valley project, California, $9,000,000, together with the unexpended balance of the appropriation for this project contained in the Interior Department Appropriation Act, fiscal year 1938, with authority in connection with the construction of the Central Valley project, California, (1) to purchase or condemn and to improve suitable land for relocation of highways, roadways, railroads, telegraph, telephone, or electric transmission lines or other properties the relocation of which, in the judgment of the Secretary of the Interior, will be necessitated by construction or operation and maintenance of said project, (2) in full or part payment for said properties to be relocated to enter into contracts with the owners of said properties to be relocated whereby they undertake in whole or in part the property acquisition and work involved in relocation and, in said Secretary's discretion, to pay in advance for said work undertaken by said owners; and (3) to convey or exchange acquired rights-of-way or other lands or rights-of-way owned or held by the United States for use in connection with said project, or to grant perpetual easements therein or thereover, or to undertake improvement or construction work connected with said relocations, for the purpose of effecting completely said relocation; (52 Stat. 324)

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Sec. 3. [Short title.]—This Act may be cited as the "Interior Department Appropriation Act, 1939". (52 Stat. 342)

EXPLANATORY NOTES

Codification. Only the Hayden-O'Mahoney amendment of this Act is codified in the U.S. Code.

Editor's Note, Provisions Repeated in Appropriation Acts. Provisions which are repeated in two or more appropriation acts

appear herein only in the act in which first used.

Legislative History. H.R. 9621, Public Law 497 in the 75th Congress. H.R. Rept. No. 1855. S. Rept. No. 1566. H.R. Rept. No. 2172 (conference report).

267-067-72—vol. I- 41

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COLUMBIA RIVER FISHERY DEVELOPMENT

An act to provide for the conservation of the fishery resources of the Columbia River, establishment, operation, and maintenance of one or more stations in Oregon, Washington, and Idaho, and for the conduct of necessary investigations, surveys, stream improvements, and stocking operations for these purposes. (Act of May 11, 1938, ch. 193, 52 Stat. 345.)

[Sec. 1. Establishment of salmon cultural stations in Columbia River Basin.]-The Secretary of the Interior is authorized and directed to establish one or more salmon-cultural stations in the Columbia River Basin in each of the States of Oregon, Washington, and Idaho. Any sums appropriated for the purpose of establishing such stations may be expended, and such stations shall be established, operated, and maintained, in accordance with the provisions of the Act entitled "An Act to provide for a five-year construction and maintenance program for the United States Bureau of Fisheries", approved May 21, 1930, insofar as the provisions of such Act are not inconsistent with the provisions of this Act. (52 Stat. 345; 16 U.S.C. § 755)

Sec. 2. [Investigations, biological surveys, and experiments authorized.]— The Secretary of the Interior is further authorized and directed (1) to conduct such investigations, and such engineering and biological surveys and experi ments, as may be necessary to direct and facilitate conservation of the fishery resources of the Columbia River and its tributaries; (2) to construct, install, and maintain devices in the Columbia River Basin for the improvement of feeding and spawning conditions for fish, for the protection of migratory fish from irrigation projects, and for facilitating free migration of fish over obstructions; and (3) to perform all other activities necessary for the conservation of fish in the Columbia River Basin in accordance with law. (52 Stat. 345; 16 U.S.C. § 756)

Sec. 3. [Appropriation.]—There is hereby authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, the sum of $500,000, or so much thereof as may be necessary, to carry out the purposes of this Act. (52 Stat. 345; 16 U.S.C. § 757)

EXPLANATORY NOTES

Popular Name. The above statute is popularly known as the Mitchell Act.

Transfer of Functions. When enacted, the authority now vested in the Secretary of the Interior by this Act was vested in the Secretary of Commerce. Section 4(e) of Reorganization Plan No. II of 1939, 53 Stat. 1433, however, transferred the Bureau of Fisheries, its personnel and functions, from the Department of Commerce to the Department of the Interior. The Bureau of Fisheries was consolidated with the Biological Survey, to be known as the Fish and Wildlife Service, pursuant to Section 3 of

Reorganization Plan No. III of 1940, 54
Stat. 1232.

Reference in the Text. The Act entitled "An Act to provide for a five-year construction and maintenance program for the United States Bureau of Fisheries", approved May 21, 1930, referred to in the text, authorizes appropriations for the establishment of fish cultural stations, substations and laboratories in various states. The Act provides, among other things, that before a station or laboratory is established in a State, it must enact legislation authorizing the United States Commissioner of Fisheries

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