Senator COOPER. You are just sticking now to the question of liability, aren't you? Do you want to go any further than that?

Senator MUSKIE. Well, this is going to be the last day of hearings, Senator. Why don't you go into any aspect of this that you would like?

PROHIBITION OF DRILLING IN SELECTED AREAS

Senator COOPER. I know former Secretary Udall is going to testify, so that I don't want to take too much time, but in testimony before us there have been suggestions that oil companies in future leasing (and I don't really know what you do about the past leases), should be prohibited from drilling offshore in certain areas where it is more likely that communities would be affected by spillage and that areas of importance to conservation should be protected.

Do you want to comment on that

Mr. GAMMELGARD. Well, that is a pretty tough question. There is a national interest, certainly in my opinion, involved in drilling for oil. I think it transcends a company interest. I think that to the extent that we do not have to be dependent upon foreign oil, certainly this country is better off from the balance-of-payments viewpoint and national defense viewpoint.

Whether certain areas should be set aside due to their natural beauty, their ecology, whatever it might be, that is a policy matter that it seems to me I am not really capable of commenting on. Offshore oil is becoming an increasing amount of the total oil production of the world. I just read a recent statement by the president of the Standard Oil Co. of California in which he said that by 1980 it is expected that 35 percent of the crude oil produced in the world will be from offshore and that even today 80 countries are producing oil offshore or at least exploring for it if they are not producing it.

So, if this is where the oil is going to be found in the future, I think the national interest of having your own oil is going to be important in deciding whether you should or should not drill in a certain area.

Senator COOPER. You said it is a policy question. I know it is a policy question to Congress and I think it would be helpful if you would file on behalf of the institute your comments on this suggestion that drilling should be prohibited in the future in certain areas which the Congress will designate for conservation or other reasons. Mr. GAMMELGARD. Yes, sir.

INFORMATION AVAILABLE TO USGS

Senator COOPER. My last question is that I recall from the testimony we have heard so far that the only work done in exploring the subsoil in the seabed has been done by the companies. You do the core drilling. The companies do the core drilling. They are looking for oil. Mr. GAMMELGARD. Yes.

Senator COOPER. I believe it has also been indicated to the committee that you provide the Geological Survey the evidence from your own explorations as to the depth of the subsoil, the depth when you strike oil, at least an oil sand, and other data with which I am not too familiar. But this data would give to the Geological Survey peo

ple in the Department of the Interior information dealing with the subsurface which may give them some basis for determination that there is danger in drilling there.

Do you know whether or not that information is now provided to the Geological Survey?

Mr. GAMMELGARD. Senator Cooper, it is my understanding that after a company has been successful in obtaining a lease by

Senator COOPER. I should have specified before a lease is granted. That is my point.

Mr. GAMMELGARD. Not before. Prior to the granting of a lease any information that they obtain is pretty proprietary and very important to them as to whether their competition knows it also if it is made public and they, too, are interested in this tract, let's say. But as soon as they have obtained the lease, all the information that they have, as I understand it, is made available to the USGS.

Senator COOPER. That might be too late. That might be after the horse has been stolen, so to speak. We would have to assume that the Geological Survey and the Department of the Interior would not abuse the confidence, but what is wrong with providing that information to the Department of the Interior and the proper agencies there before the lease is granted? So that these agencies can determine whether or not drilling there is likely to result in oil spillage.

Mr. GAMMELGARD. I would think that the company that had done the seismic work and other exploration work ahead of time prior to bidding on a lease would know, or be satisfied, certainly in their own mind, that this is a lease that they wouldn't run into problems on and that they would want to make a bid on it.

Each well that is drilled, prior to being drilled has to be approved by the USGS. So if they came and bid on a lease and were successful and then the USGC examined their data and said, "This indicates that you should not do any drilling on here," the company, in my understanding, would not be able to drill. Each individual well from a platform, and I think there were 56 that were intended to be drilled. from this particular platform of Union's, has to be approved.

The entire casing program must be approved as to how they intend going about things prior to starting the drilling of that well.

Senator COOPER. I understand that. My point is that the Geological Survey on the basis of the core drillings and all the things found in core drilling might decide it is too risky to drill if the lease were given.

Mr. GAMMELGARD. I think if they thought it was too risky to drill, they would not permit them to drill the first well.

Senator COOPER. But you just said you don't turn over all the data. Mr. GAMMELGARD. You do as soon as you have signed the contract for the lease.

Senator COOPER. That is the whole point, after you have signed the contract for the lease.

Mr. GAMMELGARD. But prior to drilling. There might be some clause considered to the effect that if after seeing the data they did not want you to drill on that particular lease that the deal is washed out. That might be the solution to that kind of situation.

Senator COOPER. It is a very technical field. I am certainly no expert but I must say I am not convinced.

TESTING BY GEOLOGICAL SURVEY

Senator BOGGS. On Senator Cooper's point, if you will yield, Senator. Wouldn't it be satisfactory, Mr. Gammelgard, if the Geological Survey did testing on the drilling before the leasing and made that information generally public to anybody that wanted to bid on the leases, wouldn't that inure to more benefit to the Government in competitive bidding and at the same time assure a greater safety factor? Mr. GAMMELGARD. I don't know. Of all the thousands of core holes that have been drilled and all the seismic work done by exploratory crews, the companies will go into a certain area because they think it looks geologically interesting to them. The Government would then be in a position of being a clearinghouse in developing information on all of our Outer Continental Shelf on all coasts. It would be a tremendous task. It would require a huge number of people to carry out. I don't think that that would be a practical way to go about developing the offshore reserves in the best manner.

Senator BOGGS. We are glad to have your views on that.

Senator CRANSTON. May I comment on that particular point?
Senator MUSKIE. Surely.

Senator CRANSTON. The testimony in Santa Barbara has led to a feeling that it would be wise for the Department of the Interior to be free to go in and do whatever core drilling it chose to obtain more information when bidding occurred and thus to be able to evaluate bids and the wisdom of the proceeding. However, I think that in view of the competitive nature of the oil business, it would be wise for the oil companies to be free to do whatever core drilling they wished to do on their own and at their own expense prior to drilling.

They obviously might be interested in more detail, since they are putting up all that money.

Mr. GAMMELGARD. I agree with you, Senator.

Senator MUSKIE. Are there other questions?

Senator CRANSTON. I would like to make one other comment. I think there was some indication in the hearings that not all information that the oil companies get is turned over after leasing. There was some indication that Department of the Interior officials did not want that information, terming it "proprietary."

Mr. GAMMELGARD. I am not aware of that. I seem to recall one of their lease forms that brought out in a footnote that this contained all the information except that in the nature of proprietary information. Senator CRANSTON. There is that exception even after the leasing, I believe.

Senator DOLE. Mr. Chairman, just a comment there.
Senator MUSKIE. Senator Dole.

Senator DOLE. There is a recommendation which was discussed at length in Santa Barbara which would require that prior to any operation, information concerning structural and other proprietary data be filed with the USGS. The question we raised is whether or not the USGS, frankly, relies too heavily on the genius of the oil industry.

I had one USGS witness testify several times about the genius of the oil industry, and I was looking for a genius in USGS.

Senator MUSKIE. If there are no more questions, thank you very much, gentlemen.

Mr. GAMMELGARD. Thank you, sir.

Senator MUSKIE. Our next witness this morning is Mr. Thomas O'Callaghan, president of the International Organization of Masters, Mates & Pilots, accompanied by Mr. Hoyt S. Haddock, executive director of the AFL-CIO maritime committee.

STATEMENT OF THOMAS O'CALLAGHAN, PRESIDENT, INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS, AFL-CIO MARITIME COMMITTEE (AS PRESENTED BY HOYT S. HADDOCK, EXECUTIVE DIRECTOR, AFL-CIO MARITIME COMMITTEE)

Mr. HADDOCK. Good morning, Mr. Chairman. Captain O'Callaghan is in bed this morning with an illness, and he has asked me to go ahead and present the testimony on his behalf. I am Hoyt Haddock, executive director of the AFL-CIO maritime committee.

I would like to file a statement, Mr. Chairman, and just comment briefly emphasizing a couple of points.

Senator MUSKIE. All right.

(The statement follows:)

STATEMENT OF CAPT. THOMAS F. O'CALLAGHAN, PRESIDENT, INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS (AFL-CIO)

Mr. Chairman, I am Captain Thomas F. O'Callaghan, President of the International Organization of Masters, Mates and Pilots (AFL-CIO). I am accompanied by Mr. Hoyt Haddock, Executive Director of the AFL-CIO Maritime Commitee, and Julian H. Singman, MM&P's Washington Counsel.

On behalf of the Masters, Mates and Pilots, the Union which I am privileged to represent as President, and the AFL-CIO Maritime Committee and all of the Union members it represents, we wish to make it clear that we recognize the most serious nature of the problems created by oil pollution of our navigable waters and we firmly support the legislation before this Committee-namely S. 7. As representatives of seamen who traverse the navigable waters of the world, we are acutely aware of the need for adequate legislation in this area and will continue to support all forward-thinking efforts to eliminate or minimize the serious hazards created by oil pollution. We feel the present legislation is constructive and desirable and urge its adoption with four points of clarification.

First, in Section 12(a)(8) on page 12, line 11, the term "owner or operator" is defined to mean "any person owning, operating, or chartering by demise, a vessel." It should be made very clear that the word "operator" does not include shipboard personnel. The Bill need not be changed in order that this result may be obtained, but if it is to be changed, words should be added to exclude ships' masters and other seagoing personnel. All that is really necessary is that a statement to the effect that the term "operator" does not include shipboard personnel be carried in the Committee Report or that it be made on the floor of the United States Senate by the Chairman of this Committee or any other member of this Committee.

Second, the Bill as presently proposed in Section 12(c) (1) on page 14 calling for notice states that "[a]ny person who discharges or permits or causes or contributes to the discharge of oil in substantial quantities from any source into or upon the navigable waters of the United States or adjoining shorelines, shall immediately notify the Secretary or his delegate of such discharge," and failure to make such notification may result in conviction with fine of up to $5,000 and imprisonment for up to one year, or both. This provision fails to take into account the normal and usual requirement that such conduct involve either

gross or willful negligence. Accordingly, it is our suggestion that Section 12(c) (1) should be amended by placing a comma after the word "knowingly" in line 9 and adding the words "or by his gross negligence" before the words "fails to make such notification."

It should be observed that the Oil Pollution Act of 1924 recognized the principal that an essential element for the commission of the crime of "discharge" of oil is willful intent to commit the proscribed conduct or gross negligence. The effect of the proposed legislation is that if a Master or other officer in charge does not report the discharge of oil, he is guilty of a crime despite the fact that he may be wholly without fault, that equipment aboard a vessel may be latently defective, unreliable, or obsolescent, and that the Master or other officer in charge may in fact not know of such oil discharge. The words other seaman should be stricken. The reporting of spills should be and remain the Master or other officer in charge. The responsibility should not be assigned to anyone not in charge of the vessel.

We feel certain that it would not be the intent of Congress to impose such an intolerable burden on American maritime officers and other seamen who have a long history of loyal and dedicated service aboard vessels of the American merchant marine. In testimony before the House Committee on Public Works in April of 1968, Mr. Jesse M. Calhoon, President of the National Marine Engineers, an official association (AFL-CIO), made an excellent analysis of the provisions of a similar Bill then pending before Congress.

At the conclusion of Mr. Calhoon's testimony with respect to liability only for gross or willful negligence, Congressman Denney stated, and I quote:

"I agree with you gentlemen. * * * I [am] a former prosecutor, and I would like the record to show I object to this kind of language for two reasons. I do not think any act is criminal unless it is done with intent to cause harm or is done intentionally. Secondly, I believe the way this law is written that it places the burden upon the accused to prove he is innocent, and that is not true in America. * * * Mr. Chairman, I want the record to show that I absolutely disavow that provision in this law as I do not think it is enforceable because I think you must set forth the criminal intent if you are going to have a criminal penalty."

Supporting Mr. Denney was Congressman Blatnik, who stated:

"I think Mr. Haddock and Mr. Calhoon have made a very strong case, for amendment of this bill. It seems to me to be discriminatory on its face not only against the personnel of the ship but also against American seamen as opposed to the seamen on those other vessels who would not be subject to licensing by our own Coast Guard, if I understand the situation on these foreign flag ships. ** I think it is one item you can be quite sure will be worked over very thoroughly by this committee."

We, the representatives of the shipboard personnel, do not desire or request to be relieved from the consequencies of our negligent or grossly negligent conduct, but ask only that, before severe punishment is inflicted, long-standing rules of justice be honored and the seamen be found guilty of either willful intent to commit the prohibited conduct or of gross negligence in their performance of their duties. This is the American constitutional requirement of conviction for criminal offense. Seamen should be treated no less than any other person.

Third, in the same Section the term "substantial quantities" is used without any definition or instructions. This vague language requires all shipboard personnel to make an individual determination as to what discharge is "substantial," requiring notification to the Secretary. Moreover, each crew member would have to determine whether he "caused or contributed" to the discharge of oil; and if he acknowledges such action by sending the required notice, he may be giving grounds for his immediate discipline or discharge by the ship's owner. The shipboard officers must be protected from such potential retaliation by their employers, and a provision prohibiting such action must be inserted in the Bill. Should the Master or seaman report a spillage, he runs the risk of being told by the Company that he used poor judgment because there was not a "substantial quantity" discharged and, on the other side of the coin, should he fail to notify the Secretary, he may be liable for a $5,000 fine and one year's imprisonment. Such an impossible conflict should not be allowed to remain. The 1936 Merchant Marine Act uses the phrase "substantial portion", in refering to that portion of U.S. waterborne commerce which is to be