I-SEARCH (tm) V1.89P Retrieved Documents Listing on 10/25/93 at 03:53:25. Database: USCODE Search: (40:CITE) ------DocID 43790 Document 1 of 816------ -CITE- 40 USC TITLE 40 -EXPCITE- TITLE 40 -HEAD- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS -MISC1- Chap. Sec. 1. Public Buildings, Grounds, Parks, and Wharves in District of Columbia 1 2. Capitol Building and Grounds 161 2A. National Archives (Transferred or Repealed) 231 3. Public Buildings and Works Generally 251 4. The Public Property 301 5. Hours of Labor and Safety on Public Works 321 6. Acquisition of Sites for and Construction of Public Buildings 341 7. Acquisition of Land in District of Columbia for Use of United States by Condemnation Proceedings (Repealed) 361 8. Emergency Public Works and Construction Projects 401 9. Non-Federal Public Works 451 10. Management and Disposal of Government Property 471 11. Real Property Transactions by Military Departments (Repealed) 551 12. Construction, Alteration, and Acquisition of Public Buildings 601 13. National Capital Transportation Program (Repealed or Omitted) 651 14. Safety Standards for Motor Vehicles 701 15. Government Losses in Shipment 721 16. General Services Administration 751 17. Alaska Communications Disposal 771 17A. Alaska Federal-Civilian Energy Efficiency Swap 795 18. National Visitor Center Facilities; Union Station Redevelopment; Capitol Guide Service 801 19. Capitol and White House-Pennsylvania Avenue Development 871 20. Federal Motor Vehicle Expenditure Control 901 21. National Capital Memorials and Commemorative Works 1001 22. Federal Triangle Development 1101 23. Judiciary Office Building Development 1201 ------DocID 43838 Document 2 of 816------ -CITE- 40 USC Sec. 38 to 40 -EXPCITE- TITLE 40 CHAPTER 1 -HEAD- Sec. 38 to 40. Omitted -COD- CODIFICATION Section 38, act Mar. 4, 1913, ch. 142, 37 Stat. 771, related to temporary rental of a building for Navy Department. Section 39, act May 10, 1916, ch. 117, 39 Stat. 109, related to temporary rental of a building for Department of Justice. Section 40, act May 10, 1916, ch. 117, 39 Stat. 118, related to temporary rental of a building for Department of Labor. ------DocID 10272 Document 3 of 816------ -CITE- 7 USC CHAPTER 40 -EXPCITE- TITLE 7 CHAPTER 40 -HEAD- CHAPTER 40 - HALOGETON GLOMERATUS CONTROL -MISC1- Sec. 1651. Government policy for control of Halogeton glomeratus. 1652. Authority of Secretaries of Agriculture and Interior; surveys; control measures; consent of other departments. 1653. Expenditure of funds; discretion of Secretaries; utilization of available services. 1654. Contributions by States. 1655. Authorization of appropriations; use. 1656. Extent of authority. ------DocID 12088 Document 4 of 816------ -CITE- 10 USC CHAPTER 40 -EXPCITE- TITLE 10 Subtitle A PART II CHAPTER 40 -HEAD- CHAPTER 40 - LEAVE -MISC1- Sec. 701. Entitlement and accumulation. 702. Cadets and midshipmen. 703. Reenlistment leave. 704. Use of leave; regulations. 705. Rest and recuperative absence for qualified enlisted members extending duty at designated locations overseas. 706. Administration of leave required to be taken pending review of certain court-martial convictions. 707. Payment upon disapproval of certain court-martial sentences for excess leave required to be taken. 708. Educational leave of absence. AMENDMENTS 1984 - Pub. L. 98-525, title VII, Sec. 707(a)(2), Oct. 19, 1984, 98 Stat. 2572, added item 708. 1981 - Pub. L. 97-81, Sec. 2(b)(2), Nov. 20, 1981, 95 Stat. 1087, added items 706 and 707. 1980 - Pub. L. 96-579, Sec. 5(b)(2), Dec. 23, 1980, 94 Stat. 3367, added item 705. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 33 section 857a. ------DocID 14631 Document 5 of 816------ -CITE- 10 USC APPENDIX - RULES OF COURT OF MILITARY APPEALS Rule 40 -EXPCITE- TITLE 10 APPENDIX UNITED STATES COURT OF MILITARY APPEALS HEARINGS -HEAD- Rule 40. Hearings -STATUTE- (a) Motions, petitions for grant of review, petitions for extraordinary relief, writ appeal petitions, petitions for new trial, and petitions for reconsideration. Except when ordered by the Court, hearings will not be permitted on motions, petitions for grant of review, petitions for extraordinary relief, writ appeal petitions, petitions for new trial, or petitions for reconsideration. (b) When and how heard. After the case is calendared as provided in Rule 11 and all required briefs have been filed, a hearing may be ordered by the Court. (1) Notice of hearing. The Clerk will give at least 20 days notice in writing to counsel for the parties of the time and place for the hearing, unless ordered otherwise by the Court. Upon receipt of such notice, counsel will notify the Clerk's office of the identity of the counsel who will present oral argument. (2) Presentation. Unless directed otherwise by the Clerk, counsel for the appellant or petitioner will open and close the argument. When the subject of a hearing is a motion, counsel for the moving party will be entitled to open and close. When both parties seek review in this Court, the accused shall be deemed the appellant for the purpose of this rule. Argument by counsel for an amicus curiae will be allowed on motion filed under Rule 30. (3) Time allowed. Each side will normally be allotted 30 minutes to present oral argument. ------DocID 15208 Document 6 of 816------ -CITE- 12 USC Sec. 40 -EXPCITE- TITLE 12 CHAPTER 2 SUBCHAPTER I -HEAD- Sec. 40. Virgin Islands; extension of National Bank Act -STATUTE- The National Bank Act, as amended (12 U.S.C. 21 et seq.), and all other Acts of Congress relating to national banks, shall, insofar as not locally inapplicable after July 19, 1932, apply to the Virgin Islands of the United States. -SOURCE- (July 19, 1932, ch. 508, 47 Stat. 703.) -REFTEXT- REFERENCES IN TEXT The National Bank Act, referred to in text, is act June 3, 1864, ch. 106, 13 Stat. 99, as amended, which is classified principally to chapter 2 (Sec. 21 et seq.) of this title. For complete classification of this Act to the Code, see References in Text note set out under section 38 of this title. ------DocID 16893 Document 7 of 816------ -CITE- 12 USC CHAPTER 40 -EXPCITE- TITLE 12 CHAPTER 40 -HEAD- CHAPTER 40 - INTERNATIONAL LENDING SUPERVISION -MISC1- Sec. 3901. Congressional declaration of policy. 3902. Definitions. 3903. Strengthened supervision of international lending. 3904. Reserves. (a) Establishment and maintenance of special reserves. (b) Accommodation of potential losses on foreign loans by United States banks. (c) Regulations and orders of Federal banking agencies. 3904a. Additional reserve requirements. (a) In general. (b) Determination of institutional exposure to risk. (c) Timing and report. (d) 'Highly indebted country' defined. 3905. Accounting for fees on international loans. 3906. Collection and disclosure of international lending data. (a) Submission of information to Federal banking agencies. (b) Disclosure of information to the public. (c) Regulations and orders of Federal banking agencies. 3907. Capital adequacy. 3908. Foreign loan evaluations. (a) Projects requiring an economic feasibility evaluation; content of evaluation. (b) Review of evaluation by Federal banking agencies. (c) Other statutory authorities applicable. 3909. General authorities. (a) Rules and regulations. (b) Systems uniformity. (c) Existing authorities. (d) Civil penalties; assessment and collection. 3910. Audit authority of General Accounting Office. (a) Scope of audit. (b) Limits on disclosure. (c) Records, property, workpapers, correspondence, and documents; accessability. 3911. Equal representation for Federal Deposit Insurance Corporation. 3912. Reports. ------DocID 17782 Document 8 of 816------ -CITE- 15 USC Sec. 80a-40 -EXPCITE- TITLE 15 CHAPTER 2D SUBCHAPTER I -HEAD- Sec. 80a-40. Hearings by Commission -STATUTE- Hearings may be public and may be held before the Commission, any member or members thereof, or any officer or officers of the Commission designated by it, and appropriate records thereof shall be kept. -SOURCE- (Aug. 22, 1940, ch. 686, title I, Sec. 41, 54 Stat. 842.) -TRANS- TRANSFER OF FUNCTIONS For transfer of functions of Securities and Exchange Commission, with certain exceptions, to Chairman of such Commission, see Reorg. Plan No. 10 of 1950, Sec. 1, 2, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265, set out under section 78d of this title. -CROSS- CROSS REFERENCES Hearings by Commission under - Investment Advisers Act of 1940, see section 80b-12 of this title. Public Utility Holding Company Act of 1935, see section 79s of this title. Securities Act of 1933, see section 77u of this title. Securities Exchange Act of 1934, see section 78v of this title. Trust Indenture Act of 1939, see section 77ttt of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 80a-6, 80a-58 of this title. ------DocID 18601 Document 9 of 816------ -CITE- 15 USC CHAPTER 40 -EXPCITE- TITLE 15 CHAPTER 40 -HEAD- CHAPTER 40 - DEPARTMENT OF COMMERCE -MISC1- Sec. 1501. Establishment of Department; Secretary; seal. 1502, 1503. Omitted. 1503a. Under Secretary of Commerce for Economic Affairs. 1503b. Under Secretary of Commerce for Oceans and Atmosphere; duties; appointment; compensation. 1504. Repealed. 1505. Additional Assistant Secretary; duties, rank of Assistant Secretaries. 1506. Additional Assistant Secretary; appointment; applicability of section 1505. 1507. Additional Assistant Secretary; appointment; compensation; duties. 1507a. Repealed. 1507b. Assistant Secretary of Commerce; appointment; compensation; duties. 1507c. Assistant Secretary of Commerce for Oceans and Atmosphere; duties; appointment; compensation. 1508. General Counsel. 1509. Designation of officer to sign routine papers. 1510. Clerical assistants. 1511. Bureaus in Department. 1511a. Repealed. 1511b. United States fishery trade officers. (a) Appointment. (b) Assignment. (c) Functions of fishery trade officers. (d) Administration. 1511c. Estuarine Programs Office. (a) Establishment. (b) Functions. (c) Authorization. 1512. Powers and duties of Department. 1513. Duties and powers vested in Department. 1514. Basic authority for performance of certain functions and activities of Department. 1515. Records, etc., of bureaus transferred to Department of Commerce. 1516. Statistical information. 1516a. Statistics relating to social, health, and economic conditions of Americans of Spanish origin or descent. 1517. Transfer of statistical or scientific work. 1518. Custody of buildings; officers transferred. 1519. Annual and special reports. 1519a, 1520. Repealed. 1521. Working capital fund; establishment; amount; uses; reimbursement. 1522. Acceptance of gifts and bequests for purposes of the Department; separate fund; disbursements. 1523. Tax status of gifts and bequests of property. 1524. Investment and reinvestments of moneys; credit and disbursement of interest. 1525. Special studies; special compilations, lists, bulletins, or reports; clearinghouse for technical information; transcripts or copies; cost payments for special work; joint projects: cost apportionment, waiver. 1526. Receipts for work or services; deposit in special accounts; availability for payment of costs, repayment or advances to appropriations or funds, refunds, credits to working capital funds; appropriation limitation of annual expenditures from accounts. 1527. Fees or charges for services or publications under existing law unaffected. 1528. Transferred. 1529. Relinquishment of legislative jurisdiction over certain lands. 1530. Awarding of contracts for performance of commercial activity by National Oceanic and Atmospheric Administration. 1531. Buying Power Maintenance accounts for International Trade Administration, Export Administration, and United States Travel and Tourism Administration. 1532. Telecommunications; electromagnetic radiation; research, analysis, dissemination of information; other functions of Secretary. 1533. Commerce, Science, and Technology Fellowship Program. 1534. Assessment of fees for access to environmental data. (a) Basis of assessment. (b) Eligible recipients; waiver of fees in cases of foreign governments and international organizations. (c) Publication of fee schedules in Federal Register; initial schedule effective for three-year period. (d) Effective date of assessments; progressive increments. (e) Data archive center operations; availability of fees for expenses of centers. (f) Report to Congressional committees. (g) Other assessment authorities unaffected. 1535. Office of Space Commerce; report of activities. ------DocID 19666 Document 10 of 816------ -CITE- 16 USC Sec. 40 -EXPCITE- TITLE 16 CHAPTER 1 SUBCHAPTER V -HEAD- Sec. 40. Additions to park; entry under other acts -STATUTE- The President of the United States is authorized, in his discretion, to add by Executive proclamation to Yellowstone National Park any or all of the lands within a certain territory or tract in township 9 south, ranges 7 and 8 east, Montana principal meridian, to wit: Beginning at a point on the north line of said Yellowstone National Park where said line crosses the divide between Reese Creek and Mol Heron Creek, thence northeasterly along said divide to the junction of said divide with the branch divide north and west of Reese Creek; thence along said branch divide in a northeasterly and easterly direction around the drainage of Reese Creek, to the Yellowstone River; thence southerly and southeasterly along the west bank of the Yellowstone River to the line marking the western limits of the town of Gardiner, Montana; thence south on said town limits line to the northern boundary of Yellowstone National Park; thence west along the north boundary of Yellowstone National Park to the point of beginning, which are unappropriated lands of the United States or which may be acquired by the United States under the provisions of sections 37 to 40 of this title, within the territory described in this section, subject, however, to all valid existing claims and to reservations such as are authorized by section 39 of this title; but, with the exception of valid existing claims, no land so added to Yellowstone National Park shall be subject to entry under the mining laws of the United States: Provided, That the Secretary of the Interior for such lands as are added to Yellowstone National Park may provide by rules and regulations for the management and use of the added lands as may in his discretion be necessary to accomplish the purposes of sections 37 to 40 of this title: And provided further, That the lands of the United States acquired by donation or purchase within the area described in section 37 of this title shall not be subject to location and entry under the mining laws of the United States nor the Act of June 11, 1906, authorizing homestead entries in national forests. -SOURCE- (May 26, 1926, ch. 399, Sec. 6, 44 Stat. 656.) -REFTEXT- REFERENCES IN TEXT The mining laws of the United States, referred to in text, are classified generally to Title 30, Mineral Lands and Mining. Act of June 11, 1906, referred to in text, means act June 11, 1906, ch. 3074, 34 Stat. 233, which was classified to sections 506 to 508 and 509 of this title, and was repealed by Pub. L. 87-869, Sec. 4, Oct. 23, 1962, 76 Stat. 1157. -CROSS- CROSS REFERENCES Change of boundaries of park, see section 21a of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 37, 39 of this title. ------DocID 23134 Document 11 of 816------ -CITE- 16 USC CHAPTER 40 -EXPCITE- TITLE 16 CHAPTER 40 -HEAD- CHAPTER 40 - SOIL AND WATER RESOURCES CONSERVATION -MISC1- Sec. 2001. Congressional findings. 2002. Definitions. 2003. Congressional policy and declaration of purpose. (a) Responsiveness to long-term needs. (b) Full utilization of cooperative arrangements with State agencies. (c) Attainment of policies and purposes. 2004. Continuing appraisal of soil, water, and related resources. (a) Data. (b) Collection of data. (c) Public participation. (d) Completion dates. 2005. Soil and water conservation program. (a) Program development. (b) Completion dates. 2005a. Technical assistance for water resources. (a) Authority of Secretary of Agriculture. (b) Report to Congress. 2006. Reports to Congress. (a) Appraisal, program, and detailed statement of policy when Congress convenes. (b) Annual report accompanying budget covering program effectiveness. 2007. Authorization of appropriations. 2008. Utilization of available information and data. 2009. Termination of program. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 582a, 3432 of this title. ------DocID 24073 Document 12 of 816------ -CITE- 18 USC CHAPTER 40 -EXPCITE- TITLE 18 PART I CHAPTER 40 -HEAD- CHAPTER 40 - IMPORTATION, MANUFACTURE, DISTRIBUTION AND STORAGE OF EXPLOSIVE MATERIALS -MISC1- Sec. 841. Definitions. 842. Unlawful acts. 843. Licenses and user permits. 844. Penalties. 845. Exceptions; relief from disabilities. 846. Additional powers of the Secretary. 847. Rules and regulations. 848. Effect on State law. AMENDMENTS 1990 - Pub. L. 101-647, title XXXV, Sec. 3520, Nov. 29, 1990, 104 Stat. 4923, substituted 'Licenses' for 'Licensing' in item 843. 1970 - Pub. L. 91-452, title XI, Sec. 1102(a), Oct. 15, 1970, 84 Stat. 952, added chapter 40 and items 841 to 848. ------DocID 25130 Document 13 of 816------ -CITE- 18 USC Rule 40 -EXPCITE- TITLE 18 RULES OF CRIMINAL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS IX -HEAD- Rule 40. Commitment to Another District -STATUTE- (a) Appearance Before Federal Magistrate. If a person is arrested in a district other than that in which the offense is alleged to have been committed, that person shall be taken without unnecessary delay before the nearest available federal magistrate. Preliminary proceedings concerning the defendant shall be conducted in accordance with Rules 5 and 5.1, except that if no preliminary examination is held because an indictment has been returned or an information filed or because the defendant elects to have the preliminary examination conducted in the district in which the prosecution is pending, the person shall be held to answer upon a finding that such person is the person named in the indictment, information or warrant. If held to answer, the defendant shall be held to answer in the district court in which the prosecution is pending, provided that a warrant is issued in that district if the arrest was made without a warrant, upon production of the warrant or a certified copy thereof. (b) Statement by Federal Magistrate. In addition to the statements required by Rule 5, the federal magistrate shall inform the defendant of the provisions of Rule 20. (c) Papers. If a defendant is held or discharged, the papers in the proceeding and any bail taken shall be transmitted to the clerk of the district court in which the prosecution is pending. (d) Arrest of Probationer or Supervised Releasee. If a person is arrested for a violation of probation or supervised release in a district other than the district having jurisdiction, such person shall be taken without unnecessary delay before the nearest available federal magistrate. The federal magistrate shall: (1) Proceed under Rule 32.1 if jurisdiction over the person is transferred to that district; (2) Hold a prompt preliminary hearing if the alleged violation occurred in that district, and either (i) hold the person to answer in the district court of the district having jurisdiction or (ii) dismiss the proceedings and so notify that court; or (3) Otherwise order the person held to answer in the district court of the district having jurisdiction upon production of certified copies of the judgment, the warrant, and the application for the warrant, and upon a finding that the person before the magistrate is the person named in the warrant. (e) Arrest for Failure To Appear. If a person is arrested on a warrant in a district other than that in which the warrant was issued, and the warrant was issued because of the failure of the person named therein to appear as required pursuant to a subpoena or the terms of that person's release, the person arrested shall be taken without unnecessary delay before the nearest available federal magistrate. Upon production of the warrant or a certified copy thereof and upon a finding that the person before the magistrate is the person named in the warrant, the federal magistrate shall hold the person to answer in the district in which the warrant was issued. (f) Release or Detention. If a person was previously detained or conditionally released, pursuant to chapter 207 of title 18, United States Code, in another district where a warrant, information, or indictment issued, the federal magistrate shall take into account the decision previously made and the reasons set forth therefor, if any, but will not be bound by that decision. If the federal magistrate amends the release or detention decision or alters the conditions of release, the magistrate shall set forth the reasons therefore (FOOTNOTE 1) in writing. (FOOTNOTE 1) So in original. Probably should be 'therefor'. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 30, 1979, eff. Aug. 1, 1979; July 31, 1979, Pub. L. 96-42, Sec. 1(2), 93 Stat. 326; Apr. 28, 1982, eff. Aug. 1, 1982; Oct. 12, 1984, Pub. L. 98-473, title II, Sec. 209(c), 215(d), 98 Stat. 1986, 2016; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES 1. This rule modifies and revamps existing procedure. The present practice has developed as a result of a series of judicial decisions, the only statute dealing with the subject being exceedingly general, 18 U.S.C. 591 (now 3041) (Arrest and removal for trial): For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any United States commissioner, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. * * * Where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had. The scope of a removal hearing, the issues to be considered, and other similar matters are governed by judicial decisions, Beavers v. Henkel, 194 U.S. 73; Tinsley v. Treat, 205 U.S. 20; Henry v. Henkel, 235 U.S. 219; Rodman v. Pothier, 264 U.S. 399; Morse v. United States, 267 U.S. 80; Fetters v. United States ex rel. Cunningham, 283 U.S. 638; United States ex rel. Kassin v. Mulligan, 295 U.S. 396; see, also, 9 Edmunds, Cyclopedia of Federal Procedure 39053, et seq. 2. The purpose of removal proceedings is to accord safeguards to a defendant against an improvident removal to a distant point for trial. On the other hand, experience has shown that removal proceedings have at times been used by defendants for dilatory purposes and in attempting to frustrate prosecution by preventing or postponing transportation even as between adjoining districts and between places a few miles apart. The object of the rule is adequately to meet each of these two situations. 3. For the purposes of removal, all cases in which the accused is apprehended in a district other than that in which the prosecution is pending have been divided into two groups: first, those in which the place of arrest is either in another district of the same State, or if in another State, then less than 100 miles from the place where the prosecution is pending; and second, cases in which the arrest occurs in a State other than that in which the prosecution is pending and the place of arrest is 100 miles or more distant from the latter place. In the first group of cases, removal proceedings are abolished. The defendant's right to the usual preliminary hearing is, of course, preserved, but the committing magistrate, if he holds defendant would bind him over to the district court in which the prosecution is pending. As ordinarily there are no removal proceedings in State prosecutions as between different parts of the same State, but the accused is transported by virtue of the process under which he was arrested, it seems reasonable that no removal proceedings should be required in the Federal courts as between districts in the same State. The provision as to arrest in another State but at a place less than 100 miles from the place where the prosecution is pending was added in order to preclude obstruction against bringing the defendant a short distance for trial. In the second group of cases mentioned in the first paragraph, removal proceedings are continued. The practice to be followed in removal hearings will depend on whether the demand for removal is based upon an indictment or upon an information or complaint. In the latter case, proof of identity and proof of reasonable cause to believe the defendant guilty will have to be adduced in order to justify the issuance of a warrant of removal. In the former case, proof of identity coupled with a certified copy of the indictment will be sufficient, as the indictment will be conclusive proof of probable cause. The distinction is based on the fact that in case of an indictment, the grand jury, which is an arm of the court, has already found probable cause. Since the action of the grand jury is not subject to review by a district judge in the district in which the grand jury sits, it seems illogical to permit such review collaterally in a removal proceeding by a judge in another district. 4. For discussions of this rule see, Homer Cummings, 29 A.B.A.Jour. 654, 656; Holtzoff, 3 F.R.D. 445, 450-452; Holtzoff, 12 George Washington L.R. 119, 127-130; Holtzoff, The Federal Bar Journal, October 1944, 18-37; Berge, 42 Mich.L.R. 353, 374; Medalie, 4 Lawyers Guild R. (3)1, 4. Note to Subdivision (b). The rule provides that all removal hearings shall take place before a United States commissioner or a Federal judge. It does not confer such jurisdiction on State or local magistrates. While theoretically under existing law State and local magistrates have authority to conduct removal hearings, nevertheless as a matter of universal practice, such proceedings are always conducted before a United States commissioner or a Federal judge, 9 Edmunds, Cyclopedia of Federal Procedure 3919. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT The amendment conforms to the change made in the corresponding procedure in Rule 5(b). NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT Subdivision (a) is amended to make clear that the person shall be taken before the federal magistrate 'without unnecessary delay.' Although the former rule was silent in this regard, it probably would have been interpreted to require prompt appearance, and there is therefore advantage in making this explicit in the rule itself. See C. Wright, Federal Practice and Procedure: Criminal Sec. 652 (1969, Supp. 1971). Subdivision (a) is amended to also make clear that the person is to be brought before a 'federal magistrate' rather than a state or local magistrate authorized by 18 U.S.C. Sec. 3041. The former rules were inconsistent in this regard. Although rule 40(a) provided that the person may be brought before a state or local officer authorized by former rule 5(a), such state or local officer lacks authority to conduct a preliminary examination under rule 5(c), and a principal purpose of the appearance is to hold a preliminary examination where no prior indictment or information has issued. The Federal Magistrates Act should make it possible to bring a person before a federal magistrate. See C. Wright, Federal Practice and Procedure: Criminal Sec. 653, especially n.35 (1969, Supp. 1971). Subdivision (b)(2) is amended to provide that the federal magistrate should inform the defendant of the fact that he may avail himself of the provisions of rule 20 if applicable in the particular case. However, the failure to so notify the defendant should not invalidate the removal procedure. Although the old rule is silent in this respect, it is current practice to so notify the defendant, and it seems desirable, therefore, to make this explicit in the rule itself. The requirement that an order of removal under subdivision (b)(3) can be made only by a judge of the United States and cannot be made by a United States magistrate is retained. However, subdivision (b)(5) authorizes issuance of the warrant of removal by a United States magistrate if he is authorized to do so by a rule of district court adopted in accordance with 28 U.S.C. Sec. 636(b): Any district court * * * by the concurrence of a majority of all the judges * * * may establish rules pursuant to which any full-time United States magistrate * * * may be assigned * * * such additional duties as are not inconsistent with the Constitution and laws of the United States. Although former rule 40(b)(3) required that the warrant of removal be issued by a judge of the United States, there appears no constitutional or statutory prohibition against conferring this authority upon a United States magistrate in accordance with 28 U.S.C. Sec. 636(b). The background history is dealt with in detail in 8A J. Moore, Federal Practice 40.01 and 40.02 (2d ed. Cipes 1970, Supp. 1971). Subdivision (b)(4) makes explicit reference to provisions of the Bail Reform Act of 1966 by incorporating a cross-reference to 18 U.S.C. Sec. 3146 and Sec. 3148. NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT This substantial revision of rule 40 abolishes the present distinction between arrest in a nearby district and arrest in a distant district, clarifies the authority of the magistrate with respect to the setting of bail where bail had previously been fixed in the other district, adds a provision dealing with arrest of a probationer in a district other than the district of supervision, and adds a provision dealing with arrest of a defendant or witness for failure to appear in another district. Note to Subdivision (a). Under subdivision (a) of the present rule, if a person is arrested in a nearby district (another district in the same state, or a place less than 100 miles away), the usual rule 5 and 5.1 preliminary proceedings are conducted. But under subdivision (b) of the present rule, if a person is arrested in a distant district, then a hearing leading to a warrant of removal is held. New subdivision (a) would make no distinction between these two situations and would provide for rule 5 and 5.1 proceedings in all instances in which the arrest occurs outside the district where the warrant issues or where the offense is alleged to have been committed. This abolition of the distinction between arrest in a nearby district and arrest in a distant district rests upon the conclusion that the procedures prescribed in rules 5 and 5.1 are adequate to protect the rights of an arrestee wherever he might be arrested. If the arrest is without a warrant, it is necessary under rule 5 that a complaint be filed forthwith complying with the requirements of rule 4(a) with respect to the showing of probable cause. If the arrest is with a warrant, that warrant will have been issued upon the basis of an indictment or of a complaint or information showing probable cause, pursuant to rules 4(a) and 9(a). Under rule 5.1 dealing with the preliminary examination, the defendant is to be held to answer only upon a showing of probable cause that an offense has been committed and that the defendant committed it. Under subdivision (a), there are two situations in which no preliminary examination will be held. One is where 'an indictment has been returned or an information filed,' which pursuant to rule 5(c) obviates the need for a preliminary examination. The order is where 'the defendant elects to have the preliminary examination conducted in the district in which the prosecution is pending.' A defendant might wish to elect that alternative when, for example, the law in that district is that the complainant and other material witnesses may be required to appear at the preliminary examination and give testimony. See Washington v. Clemmer, 339 F.2d 715 (D.C. Cir. 1964). New subdivision (a) continues the present requirement that if the arrest was without a warrant a warrant must thereafter issue in the district in which the offense is alleged to have been committed. This will ensure that in the district of anticipated prosecution there will have been a probable cause determination by a magistrate or grand jury. Note to Subdivision (b). New subdivision (b) follows existing subdivision (b)(2) in requiring the magistrate to inform the defendant of the provisions of rule 20 applicable in the particular case. Failure to so notify the defendant should not invalidate the proceedings. Note to Subdivision (c). New subdivision (c) follows existing subdivision (b)(4) as to transmittal of papers. Note to Subdivision (d). New subdivision (d) has no counterpart in the present rule. It provides a procedure for dealing with the situation in which a probationer is arrested in a district other than the district of supervision, consistent with 18 U.S.C. Sec. 3653, which provides in part: If the probationer shall be arrested in any district other than that in which he was last supervised, he shall be returned to the district in which the warrant was issued, unless jurisdiction over him is transferred as above provided to the district in which he is found, and in that case he shall be detained pending further proceedings in such district. One possibility, provided for in subdivision (d)(1), is that of transferring jurisdiction over the probationer to the district in which he was arrested. This is permissible under the aforementioned statute, which provides in part: Whenever during the period of his probation, a probationer heretofore or hereafter placed on probation, goes from the district in which he is being supervised to another district, jurisdiction over him may be transferred, in the discretion of the court, from the court for the district from which he goes to the court for the other district, with the concurrence of the latter court. Thereupon the court for the district to which jurisdiction is transferred shall have all power with respect to the probationer that was previously possessed by the court for the district from which the transfer is made, except that the period of probation shall not be changed without the consent of the sentencing court. This process under the same conditions may be repeated whenever during the period of this probation the probationer goes from the district in which he is being supervised to another district. Such transfer may be particularly appropriate when it is found that the probationer has now taken up residence in the district where he was arrested or where the alleged occurrence deemed to constitute a violation of probation took place in the district of arrest. In current practice, probationers arrested in a district other than that of their present supervision are sometimes unnecessarily returned to the district of their supervision, at considerable expense and loss of time, when the more appropriate course of action would have been transfer of probation jurisdiction. Subdivision (d)(2) and (3) deal with the situation in which there is not a transfer of probation jurisdiction to the district of arrest. If the alleged probation violation occurred in the district of arrest, then, under subdivision (d)(2), the preliminary hearing provided for in rule 32.1(a)(1) is to be held in that district. This is consistent with the reasoning in Morrissey v. Brewer, 408 U.S. 471 (1972), made applicable to probation cases in Gagnon v. Scarpelli, 411 U.S. 778 (1973), where the Court stressed that often a parolee 'is arrested at a place distant from the state institution, to which he may be returned before the final decision is made concerning revocation,' and cited this as a factor contributing to the conclusion that due process requires 'that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.' As later noted in Gerstein v. Pugh, 420 U.S. 103 (1975): In Morrissey v. Brewer * * * and Gagnon v. Scarpelli * * * we held that a parolee or probationer arrested prior to revocation is entitled to an informal preliminary hearing at the place of arrest, with some provision for live testimony. * * * That preliminary hearing, more than the probable cause determination required by the Fourth Amendment, serves the purpose of gathering and preserving live testimony, since the final revocation hearing frequently is held at some distance from the place where the violation occurred. However, if the alleged violation did not occur in that district, then first-hand testimony concerning the violation is unlikely to be available there, and thus the reasoning of Morrissey and Gerstein does not call for holding the preliminary hearing in that district. In such a case, as provided in subdivision (d)(3), the probationer should be held to answer in the district court of the district having probation jurisdiction. The purpose of the proceeding there provided for is to ascertain the identity of the probationer and provide him with copies of the warrant and the application for the warrant. A probationer is subject to the reporting condition at all times and is also subject to the continuing power of the court to modify such conditions. He therefore stands subject to return back to the jurisdiction district without the necessity of conducting a hearing in the district of arrest to determine whether there is probable cause to revoke his probation. Note to Subdivision (e). New subdivision (e) has no counterpart in the present rule. It has been added because some confusion currently exists as to whether present rule 40(b) is applicable to the case in which a bench warrant has issued for the return of a defendant or witness who has absented himself and that person is apprehended in a distant district. In Bandy v. United States, 408 F.2d 518 (8th Cir. 1969), a defendant, who had been released upon his personal recognizance after conviction and while petitioning for certiorari and who failed to appear as required after certiorari was denied, objected to his later arrest in New York and removal to Leavenworth without compliance with the rule 40 procedures. The court concluded: The short answer to Bandy's first argument is found in Rush v. United States, 290 F.2d 709, 710 (5 Cir. 1961): 'The provisions of Rules 5 and 40, Federal Rules of Criminal Procedure, 18 U.S.C.A. may not be availed of by a prisoner in escape status * * *.' As noted by Holtzoff, 'Removal of Defendants in Federal Criminal Procedure', 4 F.R.D. 455, 458 (1946): 'Resort need not be had, however, to this (removal) procedure for the purpose of returning a prisoner who has been recaptured after an escape from custody. It has been pointed out that in such a case the court may summarily direct his return under its general power to issue writs not specifically provided for by statute, which may be necessary for the exercise of its jurisdiction and agreeable to the usages and principles of law. In fact, in such a situation no judicial process appears necessary. The prisoner may be retaken and administratively returned to the custody from which he escaped.' Bandy's arrest in New York was pursuant to a bench warrant issued by the United States District Court for the District of North Dakota on May 1, 1962, when Bandy failed to surrender himself to commence service of his sentence on the conviction for filing false income tax refunds. As a fugitive from justice, Bandy was not entitled upon apprehension to a removal hearing, and he was properly removed to the United States Penitentiary at Leavenworth, Kansas to commence service of sentence. Consistent with Bandy, new subdivision (e) does not afford such a person all of the protections provided for in subdivision (a). However, subdivision (e) does ensure that a determination of identity will be made before that person is held to answer in the district of arrest. Note to Subdivision (f). Although the matter of bail is dealt with in rule 46 and 18 U.S.C. Sec. 3146 and 3148, new subdivision (f) has been added to clarify the situation in which a defendant makes his initial appearance before the United States magistrate and there is a warrant issued by a judge of a different district who has endorsed the amount of bail on the warrant. The present ambiguity of the rule is creating practical administrative problems. If the United States magistrate concludes that a lower bail is appropriate, the judge who fixed the original bail on the warrant has, on occasion, expressed the view that this is inappropriate conduct by the magistrate. If the magistrate, in such circumstances, does not reduce the bail to the amount supported by all of the facts, there may be caused unnecessary inconvenience to the defendant, and there would arguably be a violation of at least the spirit of the Bail Reform Act and the Eighth Amendment. The Procedures Manual for United States Magistrates, issued under the authority of the Judicial Conference of the United States, provides in ch. 6, pp. 8-9: Where the arrest occurs in a 'distant' district, the rules do not expressly limit the discretion of the magistrate in the setting of conditions of release. However, whether or not the magistrate in the district of arrest has authority to set his own bail under Rule 40, considerations of propriety and comity would dictate that the magistrate should not attempt to set bail in a lower amount than that fixed by a judge in another district. If an unusual situation should arise where it appears from all the information available to the magistrate that the amount of bail endorsed on the warrant is excessive, he should consult with a judge of his own district or with the judge in the other district who fixed the bail in order to resolve any difficulties. (Where an amount of bail is merely recommended on the indictment by the United States attorney, the magistrate has complete discretion in setting conditions of release.) Rule 40 as amended would encourage the above practice and hopefully would eliminate the present confusion and misunderstanding. The last sentence of subdivision (f) requires that the magistrate set forth the reasons for his action in writing whenever he fixes bail in an amount different from that previously fixed. Setting forth the reasons for the amount of bail fixed, certainly a sound practice in all circumstances, is particularly appropriate when the bail differs from that previously fixed in another district. The requirement that reasons be set out will ensure that the 'considerations of propriety and comity' referred to above will be specifically taken into account. CONGRESSIONAL MODIFICATION OF PROPOSED 1979 AMENDMENT Section 1(2) of Pub. L. 96-42 provided in part that the amendment proposed by the Supreme Court (in its order of Apr. 30, 1979) affecting rule 40 of the Federal Rules of Criminal Procedure (this rule) would take effect on Aug. 1, 1979, as further amended by Congress. NOTES OF ADVISORY COMMITTEE ON RULES - 1982 AMENDMENT The amendment to 40(d) is intended to make it clear that the transfer provisions therein apply whenever the arrest occurs other than in the district of probation jurisdiction, and that if probable cause is found at a preliminary hearing held pursuant to Rule 40(d)(2) the probationer should be held to answer in the district having probation jurisdiction. On occasion, the district of probation supervision and the district of probation jurisdiction will not be the same. See, e.g., Cupp v. Byington, 179 F.Supp. 669 (S.D.Ind. 1960) (supervision in Southern District of Indiana, but jurisdiction never transferred from District of Nevada). In such circumstances, it is the district having jurisdiction which may revoke the defendant's probation. Cupp v. Byington, supra; 18 U.S.C. Sec. 3653 ('the court for the district having jurisdiction over him * * * may revoke the probation'; if probationer goes to another district, 'jurisdiction over him may be transferred,' and only then does 'the court for the district to which jurisdiction is transferred * * * have all the power with respect to the probationer that was previously possessed by the court for the district from which the transfer was made'). That being the case, that is the jurisdiction to which the probationer should be transferred as provided in Rule 40(d). Because Rule 32.1 has now taken effect, a cross-reference to those provisions has been made in subdivision (d)(1) so as to clarify how the magistrate is to proceed if jurisdiction is transferred. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT The amendments recognize that convicted defendants may be on supervised release as well as on probation. See 18 U.S.C. Sec. 3583, and 3624(e). 1984 AMENDMENT Subd. (d)(1). Pub. L. 98-473, Sec. 215(d), substituted '3605' for '3653'. Subd. (f). Pub. L. 98-473, Sec. 209(c), substituted 'Release or Detention' for 'Bail' as the subdivision heading and, in text, substituted 'If a person was previously detained or conditionally released, pursuant to chapter 207 of title 18, United States Code,' for 'If bail was previously fixed', 'decision previously made' for 'amount of bail previously fixed', 'by that decision' for 'by the amount of bail previously fixed', and 'amends the release or detention decision or alters the conditions of release' for 'fixes bail different from that previously fixed'. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 215(d) of Pub. L. 98-473 effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of such amendment, see section 235(a)(1) of Pub. L. 98-473, set out as an Effective Date note under section 3551 of this title. -CROSS- CROSS REFERENCES Habeas corpus, no right of appeal from detention pending removal proceedings, see section 2253 of Title 28, Judiciary and Judicial Procedure. Warrant for removal of prisoner from one district to another, see section 3049 of this title. ------DocID 25176 Document 14 of 816------ -CITE- 19 USC Sec. 40 -EXPCITE- TITLE 19 CHAPTER 1 -HEAD- Sec. 40. Repealed. Aug. 2, 1956, ch. 887, Sec. 4(a)(15), 70 Stat. 947 -MISC1- Section, R.S. Sec. 2627, act June 17, 1930, ch. 497, title IV, Sec. 523, 46 Stat. 740, related to duties of surveyor of customs. Section 5a of this title abolished the offices of surveyor of customs at all ports except New York. ------DocID 26721 Document 15 of 816------ -CITE- 20 USC Sec. 1070d-40 -EXPCITE- TITLE 20 CHAPTER 28 SUBCHAPTER IV Part A subpart 6 -HEAD- Sec. 1070d-40. Construction of needs provisions -STATUTE- Nothing in this subpart, or any other Act, shall be construed to permit the receipt of a scholarship under this subpart to be counted for any needs test in connection with the awarding of any grant or the making of any loan under this chapter or any other provision of Federal law relating to educational assistance. -SOURCE- (Pub. L. 89-329, title IV, Sec. 419J, as added Pub. L. 99-498, title IV, Sec. 401(a), Oct. 17, 1986, 100 Stat. 1345.) -REFTEXT- REFERENCES IN TEXT This chapter, referred to in text, was in the original 'this Act', meaning Pub. L. 89-329, as amended, known as the Higher Education Act of 1965. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of this title and Tables. -MISC2- PRIOR PROVISIONS A prior section 1070d-40, Pub. L. 89-329, title IV, Sec. 419J, as added Pub. L. 98-558, title VIII, Sec. 801(a), Oct. 30, 1984, 98 Stat. 2902, provided that receipt of scholarship under Robert C. Byrd Honors Scholarship Program not be counted for needs test for education grant or loan, prior to the general revision of this part by Pub. L. 99-498. ------DocID 27274 Document 16 of 816------ -CITE- 20 USC CHAPTER 40 -EXPCITE- TITLE 20 CHAPTER 40 -HEAD- CHAPTER 40 - CONSOLIDATION OF EDUCATION PROGRAMS ------DocID 28791 Document 17 of 816------ -CITE- 22 USC Sec. 31 to 40 -EXPCITE- TITLE 22 CHAPTER 1 -HEAD- Sec. 31 to 40. Repealed. Aug. 13, 1946, ch. 957, title XI, Sec. 1131(2), (3), (5), (6), (15), (19), (27), (28), (30), (31), (52), (55), (57), (58), 60 Stat. 1035 -MISC1- Section 31, act Mar. 2, 1909, ch. 235, 35 Stat. 672, related to restriction against creation of new ambassadorships. See section 901 of this title. Section 32, R.S. Sec. 1675; acts Mar. 3, 1875, ch. 153, 18 Stat. 483; Feb. 27, 1925, ch. 364, 43 Stat. 1015; Jan. 21, 1931, ch. 42, 46 Stat. 1040, related to appointment and salaries of ambassadors, ministers, etc. See sections 861 et seq. and 900 et seq. of this title. Section 32a, act Jan. 21, 1931, ch. 42, 46 Stat. 1040, related to salary of minister to Liberia. See sections 866 and 867 of this title. Section 33, R.S. Sec. 1744, related to citizenship as prerequisite to payment of compensation. See section 910 of this title. Section 34, act Sept. 29, 1919, ch. 72, 41 Stat. 291, related to appointment of an ambassador to Belgium. See section 901 of this title. Section 34a, act Jan. 22, 1930, ch. 22, 46 Stat. 57, related to appointment of an ambassador to Poland. See section 901 of this title. Section 34b, act June 5, 1930, ch. 404, 46 Stat. 502, related to appointment of a minister to the Union of South Africa. See section 901 of this title. Section 34c, act June 1, 1922, ch. 204, title I, 42 Stat. 600, related to appointment of a minister to Egypt. See section 901 of this title. Section 35, acts Feb. 27, 1925, ch. 364, title I, 43 Stat. 1016; Apr. 29, 1926, ch. 195, title I, 44 Stat. 331; Feb. 24, 1927, ch. 189, title I, 44 Stat. 1180; Feb. 15, 1928, ch. 57, title I, 45 Stat. 65; Jan. 25, 1929, ch. 102, title I, 45 Stat. 1096; Apr. 18, 1930, ch. 184, title I, 46 Stat. 175, related to clerks at embassies and legations. See sections 936 to 939 of this title. Section 36, R.S. Sec. 1686, related to compensation of persons filling two offices. Section 37, act June 11, 1874, ch. 275, Sec. 1, 18 Stat. 67, related to special allowance to embassy messenger in Paris. Section 38, act Feb. 5, 1915, ch. 23, Sec. 7, 38 Stat. 807, related to transaction of business by diplomatic officers. See section 805 of this title. Section 39, R.S. Sec. 1688, related to prohibition against uniforms and official costumes. See section 803 of this title. Section 40, R.S. Sec. 1674; acts Feb. 5, 1915, ch. 23, Sec. 6, 38 Stat. 806; July 1, 1916, ch. 208, 39 Stat. 252; May 24, 1924, ch. 182, Sec. 2, 43 Stat. 140, related to definition of diplomatic offices. See section 802 of this title. EFFECTIVE DATE OF REPEAL Repeal effective three months after Aug. 13, 1946, see section 1141 of act Aug. 13, 1946. ------DocID 29036 Document 18 of 816------ -CITE- 22 USC Sec. 277d-40 -EXPCITE- TITLE 22 CHAPTER 7 SUBCHAPTER IV -HEAD- Sec. 277d-40. Authorization of appropriations -STATUTE- There is authorized to be appropriated to the Department of State for the use of the United States section of the International Boundary and Water Commission, United States and Mexico, such sums as may be necessary to carry out the provisions of the treaty and title I of this Act. -SOURCE- (Pub. L. 92-549, title I, Sec. 108, Oct. 25, 1972, 86 Stat. 1162.) -REFTEXT- REFERENCES IN TEXT This Act, referred to in text, is Pub. L. 92-549, Oct. 25, 1972, 86 Stat. 1161, known as the 'American-Mexican Boundary Treaty Act of 1972'. Title I of this Act enacted sections 277d-34 to 277d-40 of this title and amended section 1322 of Title 19, Customs Duties. For complete classification of this Act to the Code, see Short Title note set out under section 277d-34 of this title and Tables. ------DocID 30619 Document 19 of 816------ -CITE- 22 USC CHAPTER 40 -EXPCITE- TITLE 22 CHAPTER 40 -HEAD- CHAPTER 40 - INTERNATIONAL EXPOSITIONS -MISC1- Sec. 2801. Congressional findings. 2802. Federal recognition. (a) Eligibility requirements. (b) Recognition and registration procedure; compliance with international convention; participation by States and foreign governments. (c) Report to Congress. 2803. Federal participation. (a) Congressional authorization; proposals. (b) Construction of Federal pavilion. (c) Authorization of appropriations for Federal pavilion. (d) Requisites and temporary nature of Federal pavilion. 2804. Establishment of standards and criteria; publication in the Federal Register. 2805. Withdrawal of Federal recognition or participation. 2806. Other provisions unaffected. 2807. Authorization of appropriations. ------DocID 31711 Document 20 of 816------ -CITE- 25 USC Sec. 40 -EXPCITE- TITLE 25 CHAPTER 2 -HEAD- Sec. 40. Limits of superintendencies, agencies, and subagencies -STATUTE- The limits of each superintendency, agency, and subagency shall be established by the Secretary of the Interior, either by tribes or geographical boundaries. -SOURCE- (R.S. Sec. 2066.) -COD- CODIFICATION R.S. Sec. 2066 derived from acts June 30, 1834, ch. 162, Sec. 7, 4 Stat. 736; Mar. 3, 1847, ch. 66, Sec. 1, 9 Stat. 203. -TRANS- TRANSFER OF FUNCTIONS For transfer of functions of other officers, employees, and agencies of Department of the Interior, with certain exceptions, to Secretary of the Interior, with power to delegate, see Reorg. Plan No. 3 of 1950, Sec. 1, 2, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1262, set out in the Appendix to Title 5, Government Organization and Employees. ------DocID 33553 Document 21 of 816------ -CITE- 26 USC Sec. 40 -EXPCITE- TITLE 26 Subtitle A CHAPTER 1 Subchapter A PART IV Subpart D -HEAD- Sec. 40. Alcohol used as fuel -STATUTE- (a) General rule For purposes of section 38, the alcohol fuels credit determined under this section for the taxable year is an amount equal to the sum of - (1) the alcohol mixture credit, plus (2) the alcohol credit, plus (3) in the case of an eligible small ethanol producer, the small ethanol producer credit. (b) Definition of alcohol mixture credit, alcohol credit, and small ethanol producer credit For purposes of this section, and except as provided in subsection (h) - (1) Alcohol mixture credit (A) In general The alcohol mixture credit of any taxpayer for any taxable year is 60 cents for each gallon of alcohol used by the taxpayer in the production of a qualified mixture. (B) Qualified mixture The term 'qualified mixture' means a mixture of alcohol and gasoline or of alcohol and a special fuel which - (i) is sold by the taxpayer producing such mixture to any person for use as a fuel, or (ii) is used as a fuel by the taxpayer producing such mixture. (C) Sale or use must be in trade or business, etc. Alcohol used in the production of a qualified mixture shall be taken into account - (i) only if the sale or use described in subparagraph (B) is in a trade or business of the taxpayer, and (ii) for the taxable year in which such sale or use occurs. (D) Casual off-farm production not eligible No credit shall be allowed under this section with respect to any casual off-farm production of a qualified mixture. (2) Alcohol credit (A) In general The alcohol credit of any taxpayer for any taxable year is 60 cents for each gallon of alcohol which is not in a mixture with gasoline or a special fuel (other than any denaturant) and which during the taxable year - (i) is used by the taxpayer as a fuel in a trade or business, or (ii) is sold by the taxpayer at retail to a person and placed in the fuel tank of such person's vehicle. (B) User credit not to apply to alcohol sold at retail No credit shall be allowed under subparagraph (A)(i) with respect to any alcohol which was sold in a retail sale described in subparagraph (A)(ii). (3) Smaller credit for lower proof alcohol In the case of any alcohol with a proof which is at least 150 but less than 190, paragraphs (1)(A) and (2)(A) shall be applied by substituting '45 cents' for '60 cents'. (4) Small ethanol producer credit (A) In general The small ethanol producer credit of any eligible small ethanol producer for any taxable year is 10 cents for each gallon of qualified ethanol fuel production of such producer. (B) Qualified ethanol fuel production For purposes of this paragraph, the term 'qualified ethanol fuel production' means any alcohol which is ethanol which is produced by an eligible small ethanol producer, and which during the taxable year - (i) is sold by such producer to another person - (I) for use by such other person in the production of a qualified mixture in such other person's trade or business (other than casual off-farm production), (II) for use by such other person as a fuel in a trade or business, or (III) who sells such ethanol at retail to another person and places such ethanol in the fuel tank of such other person, or (ii) is used or sold by such producer for any purpose described in clause (i). (C) Limitation The qualified ethanol fuel production of any producer for any taxable year shall not exceed 15,000,000 gallons. (D) Additional distillation excluded The qualified ethanol fuel production of any producer for any taxable year shall not include any alcohol which is purchased by the producer and with respect to which such producer increases the proof of the alcohol by additional distillation. (5) Adding of denaturants not treated as mixture The adding of any denaturant to alcohol shall not be treated as the production of a mixture. (c) Coordination with exemption from excise tax The amount of the credit determined under this section with respect to any alcohol shall, under regulations prescribed by the Secretary, be properly reduced to take into account any benefit provided with respect to such alcohol solely by reason of the application of subsection (b)(2), (k), or (m) of section 4041, section 4081(c), or section 4091(c). (d) Definitions and special rules For purposes of this section - (1) Alcohol defined (A) In general The term 'alcohol' includes methanol and ethanol but does not include - (i) alcohol produced from petroleum, natural gas, or coal (including peat), or (ii) alcohol with a proof of less than 150. (B) Determination of proof The determination of the proof of any alcohol shall be made without regard to any added denaturants. (2) Special fuel defined The term 'special fuel' includes any liquid fuel (other than gasoline) which is suitable for use in an internal combustion engine. (3) Mixture or alcohol not used as a fuel, etc. (A) Mixtures If - (i) any credit was determined under this section with respect to alcohol used in the production of any qualified mixture, and (ii) any person - (I) separates the alcohol from the mixture, or (II) without separation, uses the mixture other than as a fuel, then there is hereby imposed on such person a tax equal to 60 cents a gallon (45 cents in the case of alcohol with a proof less than 190) for each gallon of alcohol in such mixture. (B) Alcohol If - (i) any credit was determined under this section with respect to the retail sale of any alcohol, and (ii) any person mixes such alcohol or uses such alcohol other than as a fuel, then there is hereby imposed on such person a tax equal to 60 cents a gallon (45 cents in the case of alcohol with a proof less than 190) for each gallon of such alcohol. (C) Producer credit If - (i) any credit was determined under subsection (a)(3), and (ii) any person does not use such fuel for a purpose described in subsection (b)(4)(B), then there is hereby imposed on such person a tax equal to 10 cents a gallon for each gallon of such alcohol. (D) Applicable laws All provisions of law, including penalties, shall, insofar as applicable and not inconsistent with this section, apply in respect of any tax imposed under subparagraph (A), (B), or (C) as if such tax were imposed by section 4081 and not by this chapter. (4) Volume of alcohol For purposes of determining - (A) under subsection (a) the number of gallons of alcohol with respect to which a credit is allowable under subsection (a), or (B) under section 4041(k) or 4081(c) the percentage of any mixture which consists of alcohol, the volume of alcohol shall include the volume of any denaturant (including gasoline) which is added under any formulas approved by the Secretary to the extent that such denaturants do not exceed 5 percent of the volume of such alcohol (including denaturants). (5) Pass-thru in the case of estates and trusts Under regulations prescribed by the Secretary, rules similar to the rules of subsection (d) of section 52 shall apply. (e) Termination (1) In general This section shall not apply to any sale or use - (A) for any period after December 31, 2000, or (B) for any period before January 1, 2001, during which the Highway Trust Fund financing rate under section 4081(a)(2) is not in effect. (2) No carryovers to certain years after expiration If this section ceases to apply for any period by reason of paragraph (1), no amount attributable to any sale or use before the first day of such period may be carried under section 39 by reason of this section (treating the amount allowed by reason of this section as the first amount allowed by this subpart) to any taxable year beginning after the 3-taxable-year period beginning with the taxable year in which such first day occurs. (f) Election to have alcohol fuels credit not apply (1) In general A taxpayer may elect to have this section not apply for any taxable year. (2) Time for making election An election under paragraph (1) for any taxable year may be made (or revoked) at any time before the expiration of the 3-year period beginning on the last date prescribed by law for filing the return for such taxable year (determined without regard to extensions). (3) Manner of making election An election under paragraph (1) (or revocation thereof) shall be made in such manner as the Secretary may by regulations prescribe. (g) Definitions and special rules for eligible small ethanol producer credit For purposes of this section - (1) Eligible small ethanol producer The term 'eligible small ethanol producer' means a person who, at all times during the taxable year, has a productive capacity for alcohol (as defined in subsection (d)(1)(A) without regard to clauses (i) and (ii)) not in excess of 30,000,000 gallons. (2) Aggregration (FOOTNOTE 1) rule (FOOTNOTE 1) So in original. Probably should be 'Aggregation'. For purposes of the 15,000,000 gallon limitation under subsection (b)(4)(C) and the 30,000,000 gallon limitation under paragraph (1), all members of the same controlled group of corporations (within the meaning of section 267(f)) and all persons under common control (within the meaning of section 52(b) but determined by treating an interest of more than 50 percent as a controlling interest) shall be treated as 1 person. (3) Partnership, S corporations, and other pass-thru entities In the case of a partnership, trust, S corporation, or other pass-thru entity, the limitations contained in subsection (b)(4)(C) and paragraph (1) shall be applied at the entity level and at the partner or similar level. (4) Allocation For purposes of this subsection, in the case of a facility in which more than 1 person has an interest, productive capacity shall be allocated among such persons in such manner as the Secretary may prescribe. (5) Regulations The Secretary may prescribe such regulations as may be necessary - (A) to prevent the credit provided for in subsection (a)(3) from directly or indirectly benefiting any person with a direct or indirect productive capacity of more than 30,000,000 gallons of alcohol during the taxable year, or (B) to prevent any person from directly or indirectly benefiting with respect to more than 15,000,000 gallons during the taxable year. (h) Reduced credit for ethanol blenders In the case of any alcohol mixture credit or alcohol credit with respect to any alcohol which is ethanol - (1) subsections (b)(1)(A) and (b)(2)(A) shall be applied by substituting '54 cents' for '60 cents'; (2) subsection (b)(3) shall be applied by substituting '40 cents' for '45 cents' and '54 cents' for '60 cents'; and (3) subparagraphs (A) and (B) of subsection (d)(3) shall be applied by substituting '54 cents' for '60 cents' and '40 cents' for '45 cents'. -SOURCE- (Added Pub. L. 96-223, title II, Sec. 232(b)(1), Apr. 2, 1980, 94 Stat. 273, Sec. 44E, and amended Pub. L. 97-34, title II Sec. 207(c)(3), Aug. 13, 1981, 95 Stat. 225; Pub. L. 97-354, Sec. 5(a)(2), Oct. 19, 1982, 96 Stat. 1692; Pub. L. 97-424, title V, Sec. 511(b)(2), (d)(3), Jan. 6, 1983, 96 Stat. 2170, 2171; renumbered Sec. 40 and amended Pub. L. 98-369, div. A, title IV, Sec. 471(c), 474(k), title IX, Sec. 912(c), (f), 913(b), July 18, 1984, 98 Stat. 826, 832, 1007, 1008; Pub. L. 100-203, title X, Sec. 10502(d)(1), Dec. 22, 1987, 101 Stat. 1330-444; Pub. L. 101-508, title XI, Sec. 11502(a)-(f), Nov. 5, 1990, 104 Stat. 1388-480 to 1388-482.) -MISC1- PRIOR PROVISIONS A prior section 40, added Pub. L. 92-178, title VI, Sec. 601(a), Dec. 10, 1971, 85 Stat. 553, and amended Pub. L. 94-455, title XIX, Sec. 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834, which related to the allowance as a credit of expenses of work incentive programs, was repealed by Pub. L. 98-369, div. A, title IV, Sec. 474(m)(1), July 18, 1984, 98 Stat. 833. Another prior section 40 was renumbered section 35 of this title. AMENDMENTS 1990 - Subsec. (a)(2). Pub. L. 101-508, Sec. 11502(a)(1), substituted ', plus' for period at end. Subsec. (a)(3). Pub. L. 101-508, Sec. 11502(a)(2), added par. (3). Subsec. (b). Pub. L. 101-508, Sec. 11502(e)(2), which directed the insertion of ', and except as provided in subsection (h)' in introductory provisions without specifying the location of such insertion, was executed after 'section' to reflect the probable intent of Congress. Pub. L. 101-508, Sec. 11502(b)(3), substituted ', alcohol credit, and small ethanol producer credit' for 'and alcohol credit' in heading. Subsec. (b)(4), (5). Pub. L. 101-508, Sec. 11502(b)(1), (2), added par. (4) and redesignated former par. (4) as (5). Subsec. (d)(3)(C), (D). Pub. L. 101-508, Sec. 11502(d)(1), (2), added subpar. (C), redesignated former subpar. (C) as (D), and substituted 'subparagraph (A), (B), or (C)' for 'subparagraph (A) or (B)'. Subsec. (e). Pub. L. 101-508, Sec. 11502(f), amended subsec. (e) generally, substituting present provisions for provisions prohibiting the applicability of this section to any sale or use after Dec. 31, 1992, and prohibiting carryovers to any taxable year beginning after Dec. 31, 1994. Subsec. (g). Pub. L. 101-508, Sec. 11502(c), added subsec. (g). Subsec. (h). Pub. L. 101-508, Sec. 11502(e)(1), added subsec. (h). 1987 - Subsec. (c). Pub. L. 100-203 substituted ', section 4081(c), or section 4091(c)' for 'or section 4081(c)'. 1984 - Pub. L. 98-369, Sec. 471(c), renumbered section 44E of this title as this section. Subsec. (a). Pub. L. 98-369, Sec. 474(k)(1), substituted 'For purposes of section 38, the alcohol fuels credit determined under this section for the taxable year is an amount equal to the sum of' for 'There shall be allowed as a credit against the tax imposed by this chapter for the taxable year an amount equal to the sum of' in introductory provisions. Subsec. (b)(1)(A), (2)(A). Pub. L. 98-369, Sec. 912(c)(1), substituted '60 cents' for '50 cents'. Subsec. (b)(3). Pub. L. 98-369, Sec. 912(c), substituted '45 cents' for '37.5 cents' and '60 cents' for '50 cents'. Subsec. (c). Pub. L. 98-369, Sec. 913(b), substituted '(b)(2), (k), or (m)' for '(b)(2) or (k)'. Pub. L. 98-369, Sec. 474(k)(2), substituted 'the credit determined under this section' for 'the credit allowable under this section'. Subsec. (d)(1)(A)(i). Pub. L. 98-369, Sec. 912(f), substituted 'coal (including peat)' for 'coal'. Subsec. (d)(3)(A). Pub. L. 98-369, Sec. 912(c), substituted '60 cents' for '50 cents' and '45 cents' for '37.5 cents'. Subsec. (d)(3)(A)(i). Pub. L. 98-369, Sec. 474(k)(3), substituted 'credit was determined' for 'credit was allowable'. Subsec. (d)(3)(B). Pub. L. 98-369, Sec. 912(c), substituted '60 cents' for '50 cents' and '45 cents' for '37.5 cents'. Subsec. (d)(3)(B)(i). Pub. L. 98-369, Sec. 474(k)(3), substituted 'credit was determined' for 'credit was allowable'. Subsec. (e). Pub. L. 98-369, Sec. 474(k)(4), redesignated subsec. (f) as (e). Former subsec. (e), which had placed a limitation based on the amount of tax, was struck out. Subsec. (e)(2). Pub. L. 98-369, Sec. 474(k)(5), substituted 'section 39 by reason of this section (treating the amount allowed by reason of this section as the first amount allowed by this subpart)' for 'subsection (e)(2)'. Subsec. (f). Pub. L. 98-369, Sec. 474(k)(6), added subsec. (f). Former subsec. (f) redesignated (e). 1983 - Subsec. (b)(1)(A), (2)(A). Pub. L. 97-424, Sec. 511(d)(3)(A), substituted '50 cents' for '40 cents'. Subsec. (b)(3). Pub. L. 97-424, Sec. 511(d)(3), substituted '50 cents' for '40 cents' and '37.5 cents' for '30 cents'. Subsec. (c). Pub. L. 97-424, Sec. 511(b)(2), substituted 'subsection (b)(2) or (k) of section 4041 or section 4081(c)' for 'section 4041(k) or 4081(c)' after 'reason of the application of'. Subsec. (d)(3)(A), (B). Pub. L. 97-424, Sec. 511(d)(3), substituted '50 cents' for '40 cents' and '37.5 cents' for '30 cents'. 1982 - Subsec. (d)(5). Pub. L. 97-354 substituted 'Pass-thru in the case of estates and trusts' for 'Pass-through in the case of subchapter S corporations, etc.' in par. heading, and substituted provisions relating to the applicability of rules similar to rules of subsec. (d) of section 52 for provisions relating to the applicability of rules similar to rules of subsecs. (d) and (e) of section 52. 1981 - Subsec. (e)(2)(A). Pub. L. 97-34 substituted '15' for '7' in two places, and '14' for '6' in one place. EFFECTIVE DATE OF 1990 AMENDMENT Section 11502(h) of Pub. L. 101-508 provided that: '(1) Except as provided in paragraph (2), the amendments made by this section (amending this section) shall apply to alcohol produced, and sold or used, in taxable years beginning after December 31, 1990. '(2) The amendments made by subsection (g) (amending provisions not classified to the Code) shall apply to articles entered or withdrawn from warehouse on or after January 1, 1991.' EFFECTIVE DATE OF 1987 AMENDMENT Section 10502(e) of Pub. L. 100-203 provided that: 'The amendments made by this section (enacting sections 4091 to 4093 of this title, amending this section and sections 4041, 4081, 4101, 4221, 6206, 6416, 6421, 6427, 6652, 9502, 9503, and 9508 of this title, and enacting provisions set out as notes under sections 4091 and 9502 of this title) shall apply to sales after March 31, 1988.' EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 474(k) of Pub. L. 98-369 applicable to taxable years beginning after Dec. 31, 1983, and to carrybacks from such years, see section 475(a) of Pub. L. 98-369, set out as a note under section 21 of this title. Section 912(g) of Pub. L. 98-369 provided that: 'The amendments made by this section (amending this section and sections 4041, 4081, and 6427 of this title) shall take effect on January 1, 1985.' Amendment by section 913(b) of Pub. L. 98-369 effective Aug. 1, 1984, see section 913(c) of Pub. L. 98-369, set out as a note under section 4041 of this title. EFFECTIVE DATE OF 1983 AMENDMENT Amendments by section 511(b)(2), (d)(3) of Pub. L. 97-424 effective Apr. 1, 1983, see section 511(h) of Pub. L. 97-424, set out as a note under section 4041 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-354 applicable to taxable years beginning after Dec. 31, 1982, see section 6(a) of Pub. L. 97-354, set out as an Effective Date note under section 1361 of this title. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97-34 applicable to unused credit years ending after Sept. 30, 1980, see section 209(c)(2)(C) of Pub. L. 97-34, set out as an Effective Date note under section 168 of this title. EFFECTIVE DATE Section 232(h)(1), (4) of Pub. L. 96-223, as amended by Pub. L. 97-448, title II, Sec. 202(e), Jan. 12, 1983, 96 Stat. 2396, provided that: '(1) The amendments made by subsections (b) and (c) (enacting sections 44E (now 40) and 86 of this title and amending sections 55, 381, 383, 4081, and 6096 of this title) shall apply to sales or uses after September 30, 1980, in taxable years ending after such date. '(4) Notwithstanding paragraph (1), the provisions of section 44E(d)(4)(B) (now 40(d)(4)(B)) of such Code, as added by this section, shall take effect on April 2, 1980.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 38, 87, 196, 6501 of this title. ------DocID 34857 Document 22 of 816------ -CITE- 26 USC CHAPTER 40 -EXPCITE- TITLE 26 Subtitle D CHAPTER 40 -HEAD- CHAPTER 40 - GENERAL PROVISIONS RELATING TO OCCUPATIONAL TAXES -MISC1- Sec. 4901. Payment of tax. 4902. Liability of partners. 4903. Liability in case of business in more than one location. 4904. Liability in case of different businesses of same ownership and location. 4905. Liability in case of death or change of location. 4906. Application of State laws. 4907. Federal agencies or instrumentalities. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in section 4463 of this title. ------DocID 35928 Document 23 of 816------ -CITE- 26 USC APPENDIX - RULES OF TAX COURT Rule 40 -EXPCITE- TITLE 26 APPENDIX TITLE IV -HEAD- Rule 40. Defenses and Objections Made by Pleading or Motion -STATUTE- Every defense, in law or fact, to a claim for relief in any pleading shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: (a) lack of jurisdiction, and (b) failure to state a claim upon which relief can be granted. If a pleading sets forth a claim for relief to which the adverse party is not required to file a responsive pleading, then such party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting failure to state a claim on which relief can be granted, matters outside the pleading are to be presented, then the motion shall be treated as one for summary judgment and disposed of as provided in Rule 121, and the parties shall be given an opportunity to present all material made pertinent to a motion under Rule 121. ------DocID 36110 Document 24 of 816------ -CITE- 27 USC Sec. 11 to 40 -EXPCITE- TITLE 27 CHAPTER 2 -HEAD- Sec. 11 to 40. Repealed. Aug. 27, 1935, ch. 740, title I, Sec. 1, 49 Stat. 872 -MISC1- Section 11, act Oct. 28, 1919, ch. 85, title II, Sec. 2, 41 Stat. 308, authorized Commissioner of Internal Revenue, his assistants, agents, and inspectors to swear out warrants before United States commissioners or other officers or courts authorized to issue warrants, and to investigate and report violations of this title to United States attorney for district in which violations were committed. Section 12, act Oct. 28, 1919, ch. 85, title II, Sec. 3, 41 Stat. 308, provided that no person manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as otherwise provided by provisions of this title. Section 13, act Oct. 28, 1919, ch. 85, title II, Sec. 4, 41 Stat. 309, exempted specified articles, after having been manufactured and prepared for market, from provisions of this title, required manufacturers of such exempt articles to secure permits, give bonds, keep records, and make reports, and made unlawful the failure to comply with any of foregoing requirements. Section 14, act Oct. 28, 1919, ch. 85, title II, Sec. 5, 41 Stat. 309, authorized commissioner to analyze specified manufactured articles in order to determine whether said articles constituted intoxicating liquors. Section 15, act Nov. 23, 1921, ch. 134, Sec. 2, 42 Stat. 222, authorized commissioner to order a change of formula of preparations used as a beverage or for intoxicating liquor purposes where sale or use of such preparations was substantially increased in community by reason of its use as a beverage or for intoxicating beverage purposes. Section 16, act Oct. 28, 1919, ch. 85, title II, Sec. 6, 41 Stat. 310, required that any person manufacturing, selling, purchasing, transporting, or prescribing any liquor, except liquor purchased and used for medicinal purposes when prescribed by a physician, liquor purchased and used in a bona fide hospital or sanitarium for treatment of alcoholism, and wine manufactured, etc., for sacramental or religious purposes, first obtain a permit from commissioner. Section 17, act Oct. 28, 1919, ch. 85, title II, Sec. 7, 41 Stat. 311, authorized no one but a physician holding a permit to prescribe liquor to issue any prescription for liquor, required every such physician to keep a record of every prescription issued, and required pharmacist filling each prescription issued to indorse upon it over his own signature 'canceled'. Section 18, act Nov. 23, 1921, ch. 134, Sec. 2, 42 Stat. 222, specified kinds of liquor which could be prescribed for medicinal purposes, percentage of alcohol in such prescriptions, and quantity permitted to be prescribed. Section 19, act Oct. 28, 1919, ch. 85, title II, Sec. 8, 41 Stat. 311, authorized commissioner to issue prescription blanks, free of cost, to physicians holding permits to prescribe liquor for medicinal purposes. Section 20, act Nov. 23, 1921, ch. 134, Sec. 2, 42 Stat. 222, set forth number of prescription blanks that could be issued to a physician, and number of prescriptions that could be issued by a physician. Section 21, act Oct. 28, 1919, ch. 85, title II, Sec. 9, 41 Stat. 311, set forth procedure by which commissioner could cite permittees believed not to be conforming to provisions of this title, or who had violated laws of any State relating to intoxicating liquors. Section 22, act Oct. 28, 1919, ch. 85, title II, Sec. 10, 41 Stat. 312, required every person manufacturing, purchasing, selling, or transporting any liquor to make and keep a permanent record of all such transactions. Section 23, act Oct. 28, 1919, ch. 85, title II, Sec. 11, 41 Stat. 312, required all manufacturers and wholesale or retail druggists to keep a copy of all permits to purchase on which a sale of any liquor was made. Section 24, act Oct. 28, 1919, ch. 85, title II, Sec. 12, 41 Stat. 312, required all persons manufacturing liquor for sale to attach labels to every container, and specified the information to be placed on such labels. Section 25, act Oct. 28, 1919, ch. 85, title II, Sec. 13, 41 Stat. 312, required every carrier to make a record at place of shipment of receipt of any liquor transported, and to deliver liquor only to persons presenting to him a verified copy of a permit to purchase. Section 26, act Oct. 28, 1919, ch. 85, title II, Sec. 14, 41 Stat. 312, made it unlawful for any person to use or induce any carrier, or any agent or employee thereof, to carry or ship any package or receptacle containing liquor without notifying carrier of true nature and character of shipment, and required all packages carrying liquor to contain enumerated information. Section 27, act Oct. 28, 1919, ch. 85, title II, Sec. 15, 41 Stat. 313, made it unlawful for any consignee to accept any package containing liquor upon which appeared a statement known by him to be false, or for any carrier to consign, etc., any such package, knowing such statement to be false. Section 28, act Oct. 28, 1919, ch. 85, title II, Sec. 16, 41 Stat. 313, made it unlawful to order a carrier to deliver liquor to any person not a bona fide consignee. Section 29, act Oct. 28, 1919, ch. 85, title II, Sec. 17, 41 Stat. 313, made it unlawful to advertise liquor, or manufacture, sale, or keeping for sale of liquor, and exempted manufacturers and wholesale druggists holding permits to sell liquor from prohibition when furnishing price lists to persons permitted to purchase liquor or when advertising in business publications. Section 30, act Oct. 28, 1919, ch. 85, title II, Sec. 18, 41 Stat. 313, made it unlawful to advertise, manufacture, sell, or possess for sale any utensil, ingredient, or formula intended for use in unlawful manufacture of intoxicating liquor. Section 31, act Oct. 28, 1919, ch. 85, title II, Sec. 19, 41 Stat. 313, prohibited any person from soliciting or receiving orders for liquor or giving information as to how liquor could be obtained in violation of this title. Section 32, act Oct. 28, 1919, ch. 85, title II, Sec. 20, 41 Stat. 313, gave a right of action to any person injured in person, property, means of support, or otherwise by any intoxicated person against any person who unlawfully sold liquor to such intoxicated person, or caused or contributed to such intoxication. Section 33, act Oct. 28, 1919, ch. 85, title II, Sec. 21, 41 Stat. 314, declared any property used in connection with a violation of this title to be a common nuisance, set forth punishment for maintenance of a common nuisance, and made owner of such property liable. Section 34, act Oct. 28, 1919, ch. 85, title II, Sec. 22, 41 Stat. 314, set forth procedure which authorized an action in equity to enjoin any nuisance defined in this title. Section 35, act Oct. 28, 1919, ch. 85, title II, Sec. 23, 41 Stat. 314, declared any person keeping or carrying liquor with intent to sell, or soliciting orders for liquor guilty of a nuisance and restrainable by injunction. Section 36, act Oct. 29, 1919, ch. 85, title II, Sec. 23, 41 Stat. 314, set forth fees of officers removing and selling property in enforcement of these provisions. Section 37, act Oct. 28, 1919, ch. 85, title II, Sec. 23, 41 Stat. 314, provided that any violation upon any leased premises by the lessee or occupant thereof could, at the option of the lessor, work a forfeiture of lease. Section 38, act Oct. 28, 1919, ch. 85, title II, Sec. 24, 41 Stat. 315, set forth procedure and punishment for violation of any injunction granted pursuant to these provisions. Section 39, act Oct. 28, 1919, ch. 85, title II, Sec. 25, 41 Stat. 315, prohibited unlawful possession of liquor or property designed for manufacture thereof, and authorized issuance of search warrants and destruction of unlawfully possessed liquor and property seized pursuant to such search warrants. Section 40, act Oct. 28, 1919, ch. 85, title II, Sec. 26, 41 Stat. 315, set forth procedure for seizure and destruction of unlawfully transported liquor and sale of any vehicle found to be used for such transportation. ------DocID 36409 Document 25 of 816------ -CITE- 28 USC CHAPTER 40 -EXPCITE- TITLE 28 PART II CHAPTER 40 -HEAD- CHAPTER 40 - INDEPENDENT COUNSEL -MISC1- Sec. 591. Applicability of provisions of this chapter. 592. Preliminary investigation and application for appointment of an independent counsel. 593. Duties of the division of the court. 594. Authority and duties of an independent counsel. 595. Congressional oversight. 596. Removal of an independent counsel; termination of office. 597. Relationship with Department of Justice. 598. Severability. 599. Termination of effect of chapter. AMENDMENTS 1987 - Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1293, amended chapter 40 heading and analysis generally, substituting items 591 to 599 for former items 591 to 598. 1986 - Pub. L. 99-554, title I, Sec. 144(g)(1), Oct. 27, 1986, 100 Stat. 3097, substituted '40' for '39' as chapter designation. 1983 - Pub. L. 97-409, Sec. 2(a)(1)(A), Jan. 3, 1983, 96 Stat. 2039, substituted 'independent counsel' for 'special prosecutor' in chapter heading and in items 592, 594, and 596. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in section 49 of this title; title 18 section 202. ------DocID 37022 Document 26 of 816------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 40 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 40. Petition for rehearing -STATUTE- (a) Time for filing; content; answer; action by court if granted. - A petition for rehearing may be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order or by local rule. The petition shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and shall contain such argument in support of the petition as the petitioner desires to present. Oral argument in support of the petition will not be permitted. No answer to a petition for rehearing will be received unless requested by the court, but a petition for rehearing will ordinarily not be granted in the absence of such a request. If a petition for rehearing is granted the court may make a final disposition of the cause without reargument or may restore it to the calendar for reargument or resubmission or may make such other orders as are deemed appropriate under the circumstances of the particular case. (b) Form of petition; length. - The petition shall be in a form prescribed by Rule 32(a), and copies shall be served and filed as prescribed by Rule 31(b) for the service and filing of briefs. Except by permission of the court, or as specified by local rule of the court of appeals, a petition for rehearing shall not exceed 15 pages. -SOURCE- (As amended Apr. 30, 1979, eff. Aug. 1, 1979.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This is the usual rule among the circuits, except that the express prohibition against filing a reply to the petition is found only in the rules of the Fourth, Sixth and Eighth Circuits (it is also contained in Supreme Court Rule 58(3)). It is included to save time and expense to the party victorious on appeal. In the very rare instances in which a reply is useful, the court will ask for it. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT Subdivision (a). The Standing Committee added to the first sentence of Rule 40(a) the words 'or by local rule,' to conform to current practice in the circuits. The Standing Committee believes the change noncontroversial. Subdivision (b). The proposed amendment would eliminate the distinction drawn in the present rule between printed briefs and those duplicated from typewritten pages in fixing their maximum length. See Note to Rule 28. Since petitions for rehearing must be prepared in a short time, making typographic printing less likely, the maximum number of pages is fixed at 15, the figure used in the present rule for petitions duplicated by means other than typographic printing. -CROSS- CROSS REFERENCES Mandate, issuance unless delayed by petition for rehearing, see rule 41. ------DocID 37085 Document 27 of 816------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 40 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 40. Assignment of Cases for Trial -STATUTE- The district courts shall provide by rule for the placing of actions upon the trial calendar (1) without request of the parties or (2) upon request of a party and notice to the other parties or (3) in such other manner as the courts deem expedient. Precedence shall be given to actions entitled thereto by any statute of the United States. -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES U.S.C., Title 28, (former) Sec. 769 (Notice of case for trial) is modified. See (former) Equity Rule 56 (On Expiration of Time for Depositions, Case Goes on Trial Calendar). See also (former) Equity Rule 57 (Continuances). For examples of statutes giving precedence, see U.S.C., Title 28, Sec. 47 (now 1253, 2101, 2325) (Injunctions as to orders of Interstate Commerce Commission); Sec. 380 (now 1253, 2101, 2284) (Injunctions alleged unconstitutionality of state statutes); Sec. 380a (now 1253, 2101, 2284) (Same; Constitutionality of federal statute); (former) Sec. 768 (Priority of cases where a state is party); Title 15, Sec. 28 (Antitrust laws; suits against monopolies expedited); Title 22, Sec. 240 (Petition for restoration of property seized as munitions of war, etc.); and Title 49, (former) Sec. 44 (Proceedings in equity under interstate commerce laws; expedition of suits). -CROSS- CROSS REFERENCES Adoption of local rules not inconsistent with these rules, see rule 83. ------DocID 37307 Document 28 of 816------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 40 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 40. Veterans, Seamen, and Military Cases -STATUTE- .1. A veteran suing to establish reemployment rights under 38 U.S.C. Sec. 2022, or under any other provision of law exempting a veteran from the payment of fees or court costs, may file a motion to proceed upon typewritten papers under Rule 34, except that the motion shall ask leave to proceed as a veteran, and the affidavit shall set forth the moving party's status as a veteran. .2. A seaman suing pursuant to 28 U.S.C. Sec. 1916 may proceed without the prepayment of fees or costs or furnishing security therefor, but a seaman is not relieved of printing costs nor entitled to proceed on typewritten papers. .3. An accused person petitioning for a writ of certiorari to review a decision of the United States Court of Military Appeals pursuant to 28 U.S.C. Sec. 1259 may proceed without the prepayment of fees or costs or furnishing security therefor and without filing an affidavit of indigency, but is not relieved of the printing requirements under Rule 33 and is not entitled to proceed on typewritten papers except as authorized by the Court on separate motion. ------DocID 37362 Document 29 of 816------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 40 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 40. Assignment of Cases for Trial -STATUTE- Assignment of cases for trial is the responsibility of the judge to whom the case is assigned, and may be made (1) without request of the parties or (2) upon request of a party and notice to the other parties or (3) in such other manner as the court deems expedient. All trials shall be scheduled by the judge by order filed with the clerk. Precedence shall be given to actions entitled thereto by any statute of the United States. ------DocID 37470 Document 30 of 816------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 40 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 40. Request for Trial -STATUTE- (a) Request. At any time after issue is joined in an action, unless the court otherwise directs, any party who desires to try an action shall: (1) confer with the opposing party or parties to attempt to reach agreement as to the time and place of trial, and (2) serve upon the opposing party or parties, and file with the court, a request for trial which shall be substantially in the form set forth in Form 6 in the Appendix of Forms. The request shall be served and filed at least 30 days prior to the requested date of trial, or upon a showing of good cause, at a reasonable time prior to the requested date of trial. A party who opposes the request shall serve and file its opposition within 10 days after service of the request, unless a shorter period is directed by the court. In all instances where a trial is requested to be held at a location other than or in addition to the courthouse at One Federal Plaza, New York, New York, all other parties shall serve and file a response within 10 days after the service of the request, unless a shorter period is directed by the court. (b) Designation. The court shall designate the date and place for trial, as prescribed in Rule 77(c)(1) or (2), and shall give reasonable notice thereof to the parties. (c) Premarking Exhibits. All exhibits and documents which are intended to be introduced in evidence are to be marked for identification and exhibited to opposing counsel prior to trial or court proceeding. -SOURCE- (As amended Oct. 3, 1990, eff. Jan. 1, 1991.) -MISC1- PRACTICE COMMENT To implement the authority conferred upon the chief judge by 28 U.S.C. Sec. 253(b) and 256(a), and for the convenience of parties, there is set out in the instructions for Form 6, in the Appendix of Forms, a list of tentative dockets and the procedures to be followed in connection with trials or oral arguments of dispositive motions at places other than New York City. A schedule, agreed to by the parties, suitable for attachment to a decision of the court, shall be filed at the time an action is submitted to the court for final determination upon a dispositive motion or upon the conclusion of a trial. The schedule should indicate (1) when one action is involved, the ports of entry, protest and entry numbers, (2) when consolidated actions are involved, the ports of entry, court numbers, protest and entry numbers, and (3) when joined actions are involved, the ports of entry, court numbers, plaintiffs, protest and entry numbers. Cases should be arranged according to port of entry, in numerical order. ------DocID 38507 Document 31 of 816------ -CITE- 30 USC Sec. 40 -EXPCITE- TITLE 30 CHAPTER 2 -HEAD- Sec. 40. Verification of affidavits -STATUTE- All affidavits required to be made under sections 21, 22 to 24, 26 to 28, 29, 30, 33 to 48, 50 to 52, 71 to 76 of this title, and section 661 of title 43 may be verified before any officer authorized to administer oaths within the land district where the claims may be situated, and all testimony and proofs may be taken before any such officer, and, when duly certified by the officer taking the same, shall have the same force and effect as if taken before the register of the land office. In cases of contest as to the mineral or agricultural character of land, the testimony and proofs may be taken as herein provided on personal notice of at least ten days to the opposing party; or if such party cannot be found, then by publication of at least once a week for thirty days in a newspaper, to be designated by the register of the land office as published nearest to the location of such land; and the register shall require proof that such notice has been given. -SOURCE- (R.S. Sec. 2335; Mar. 3, 1925, ch. 462, 43 Stat. 1145; 1946 Reorg. Plan No. 3, Sec. 403, eff. July 16, 1946, 11 F.R. 7876, 60 Stat. 1100.) -REFTEXT- REFERENCES IN TEXT Sections 21, 22 to 24, 26 to 28, 29, 30, 33 to 48, 50 to 52, 71 to 76 of this title and section 661 of title 43, referred to in text, were in the original 'this chapter', meaning chapter 6 of title 32 of the Revised Statutes, consisting of R.S. Sec. 2318 to 2352. -COD- CODIFICATION R.S. Sec. 2335 derived from act May 10, 1872, ch. 152, Sec. 13, 17 Stat. 95. -MISC3- AMENDMENTS 1925 - Act Mar. 3, 1925, affected words in first sentence of text, now reading 'before the register of the land office.' Such words formerly read 'before the register and receiver of the land-office.' Such act is treated more fully in note under section 29 of this title. -TRANS- TRANSFER OF FUNCTIONS Office of register of district land office abolished and all functions of register transferred to Secretary of the Interior, or to officers and agencies of Department of the Interior as Secretary may designate, by Reorg. Plan No. 3 of 1946, Sec. 403, eff. July 16, 1946, 11 F.R. 7876, 60 Stat. 1100, set out in the Appendix to Title 5, Government Organization and Employees. See also note set out under section 1 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 24, 29, 33, 37, 38, 39, 42, 46, 47, 48, 49, 102, 541b of this title; title 16 section 460mm-1; title 25 section 640d-10; title 43 sections 1712, 1714, 1732. ------DocID 39720 Document 32 of 816------ -CITE- 33 USC Sec. 40 -EXPCITE- TITLE 33 CHAPTER 1 SUBCHAPTER II -HEAD- Sec. 40. One Hundred and Two River, Missouri -STATUTE- One Hundred and Two River south of the north boundary line of Andrew County, Missouri, as now located, is declared to be not a navigable water of the United States within the meaning of the laws enacted by Congress for the preservation and protection of such waters. The right to alter, amend, or repeal this section is expressly reserved. -SOURCE- (Feb. 15, 1910, ch. 31, Sec. 1, 2, 36 Stat. 194.) ------DocID 40916 Document 33 of 816------ -CITE- 33 USC CHAPTER 40 -EXPCITE- TITLE 33 CHAPTER 40 -HEAD- CHAPTER 40 - OIL POLLUTION -MISC1- SUBCHAPTER I - OIL POLLUTION LIABILITY AND COMPENSATION Sec. 2701. Definitions. 2702. Elements of liability. (a) In general. (b) Covered removal costs and damages. (c) Excluded discharges. (d) Liability of third parties. 2703. Defenses to liability. (a) Complete defenses. (b) Defenses as to particular claimants. (c) Limitation on complete defense. 2704. Limits on liability. (a) General rule. (b) Division of liability for mobile offshore drilling units. (c) Exceptions. (d) Adjusting limits of liability. 2705. Interest. (a) General rule. (b) Period. 2706. Natural resources. (a) Liability. (b) Designation of trustees. (c) Functions of trustees. (d) Measure of damages. (e) Damage assessment regulations. (f) Use of recovered sums. (g) Compliance. 2707. Recovery by foreign claimants. (a) Required showing by foreign claimants. (b) Discharges in foreign countries. (c) 'Foreign claimant' defined. 2708. Recovery by responsible party. (a) In general. (b) Extent of recovery. 2709. Contribution. 2710. Indemnification agreements. (a) Agreements not prohibited. (b) Liability not transferred. (c) Relationship to other causes of action. 2711. Consultation on removal actions. 2712. Uses of Fund. (a) Uses generally. (b) Defense to liability for Fund. (c) Obligation of Fund by Federal officials. (d) Access to Fund by State officials. (e) Regulations. (f) Rights of subrogation. (g) Audits. (h) Period of limitations for claims. (i) Limitation on payment for same costs. (j) Obligation in accordance with plan. (k) Preference for private persons in area affected by discharge. 2713. Claims procedure. (a) Presentation. (b) Presentation to Fund. (c) Election. (d) Uncompensated damages. (e) Procedure for claims against Fund. 2714. Designation of source and advertisement. (a) Designation of source and notification. (b) Advertisement by responsible party or guarantor. (c) Advertisement by President. 2715. Subrogation. (a) In general. (b) Actions on behalf of Fund. 2716. Financial responsibility. (a) Requirement. (b) Sanctions. (c) Offshore facilities. (e) Methods of financial responsibility. (f) Claims against guarantor. (g) Limitation on guarantor's liability. (h) Continuation of regulations. (i) Unified certificate. 2716a. Financial responsibility civil penalties. (a) Administrative. (b) Judicial. 2717. Litigation, jurisdiction, and venue. (a) Review of regulations. (b) Jurisdiction. (c) State court jurisdiction. (d) Assessment and collection of tax. (e) Savings provision. (f) Period of limitations. 2718. Relationship to other law. (a) Preservation of State authorities; Solid Waste Disposal Act. (b) Preservation of State funds. (c) Additional requirements and liabilities; penalties. (d) Federal employee liability. 2719. State financial responsibility. SUBCHAPTER II - PRINCE WILLIAM SOUND PROVISIONS 2731. Oil Spill Recovery Institute. (a) Establishment of Institute. (b) Functions. (c) Advisory board. (d) Scientific and technical committee. (e) Director. (f) Evaluation. (g) Audit. (h) Status of employees. (i) Termination. (j) Use of funds. (k) Research. (l) 'Prince William Sound and its adjacent waters' defined. 2732. Terminal and tanker oversight and monitoring. (a) Short title and findings. (b) Demonstration programs. (c) Oil Terminal Facilities and Oil Tanker Operations Association. (d) Regional Citizens' Advisory Councils. (e) Committee for Terminal and Oil Tanker Operations and Environmental Monitoring. (f) Committee for Oil Spill Prevention, Safety, and Emergency Response. (g) Agency cooperation. (h) Recommendations of Council. (i) Administrative actions. (j) Location and compensation. (k) Funding. (l) Reports. (m) Definitions. (n) Savings clause. (o) Alternative voluntary advisory group in lieu of Council. 2733. Bligh Reef light. 2734. Vessel traffic service system. 2735. Equipment and personnel requirements under tank vessel and facility response plans. (a) In general. (b) Definitions. 2736. Funding. (a) Section 2731. (b) Sections 2733 and 2734. 2737. Limitation. SUBCHAPTER III - MISCELLANEOUS 2751. Savings provision. (a) Cross-references. (b) Continuation of regulations. (c) Rule of construction. (d) Actions and rights. (e) Admiralty and maritime law. 2752. Annual appropriations. (a) Required. (b) Exceptions. 2753. Outer Banks protection. (a) Short title. (b) Findings. (c) Prohibition of oil and gas leasing, exploration, and development. (d) Additional environmental information. (e) Environmental Sciences Review Panel. (f) Authorization of appropriations. SUBCHAPTER IV - OIL POLLUTION RESEARCH AND DEVELOPMENT PROGRAM 2761. Oil pollution research and development program. (a) Interagency Coordinating Committee on Oil Pollution Research. (b) Oil pollution research and technology plan. (c) Oil pollution research and development program. (d) International cooperation. (e) Biennial reports. (f) Funding. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in section 1321 of this title; title 26 section 9509; title 43 section 1653.