permit for the construction of a bridge between Mexico and the United States. The International Bridge Act of 1972, Public Law 92-434, approved September 26, 1972, 86 Stat. 731, 33 U.S.C. 535-535i, gives Congressional consent to States, their subdivisions, or instrumentalities to enter into agreements with Canada and Mexico (or their respective governmental subdivisions or instrumentalities) for the construction, operation, and maintenance of bridges (and their approaches), the effectiveness of an agreement to be "conditioned on its approval by the Secretary of State." Executive Order 11423, issued by President Lyndon B. Johnson on August 16, 1968, authorizes the Secretary of State "to receive all applications for permits for the construction at the borders of the United States, of . . . (IV) bridges, to the extent that Congressional authorization is not required." The Presidio Bridge Company, owners and operators of the only toll bridge between Presidio, Texas and Ojinaga, Mexico, complained that the Department of State had failed to comply, inter alia, with the procedural requirements established under Executive Order 11423 and the International Bridge Act of 1972, when issuing a permit in 1976 to Presidio County, Texas to construct a second bridge at the same site. The Company first contended that the 1968 Executive Order did not apply to the International Bridge Act of 1972 and that, therefore, the Secretary's compliance with the procedures contained in that Order was not dispositive. Second, the Company argued that if these procedures were applicable, they had not been complied with in this instance. The District Court had rejected the first contention, finding that the Executive Order "must be read as a related document to the 1972 Act." 486 F.Supp. at 295. The Court pointed to the fact that the 1972 bill was itself drafted by the Executive: The most logical explanation for the symbiotic reading of the two documents is this: history and the words of the documents themselves show that, after four years of work in drafting a bill, the President issued an Executive Order anticipating its final passage; passage was not forthcoming for another three years; but the bill that was ultimately produced was the product of the same arm of the government that issued the Order, and was passed by a Congress that was well aware of both the provisions in that Order and the reason for its existence. Ibid., at 295-296. The Court accordingly found that if the prerequisites detailed in the Executive Order had been satisfied, the permit had Presidential approval as required by 33 U.S.C. 535b, provided that there was also approval by the United States section of the International Boundary and Water Commission, United States and Mexico. The Court had also rejected the company's contention that the Department of State had not complied with the requirement in Executive Order 11423 for the Secretary to consult with specified government agencies, and with the President if any agency disagreed with the Secretary and requested him to refer the application to the President. Central to the Court's determination were affidavits filed by officials of agencies that, the plaintiffs alleged, had sought such referral. The affidavits refuted the plaintiffs' contentions. The Court also found that the company lacked standing to assert that the Department had failed to comply with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. On Feb. 12, 1980, the United States Court of Appeals for the Fifth Circuit affirmed the decision without a written opinion. See, also, Whiteman, Digest of International Law, Vol. 9 (1968), pp. 917-918, 929-932. -J.E.A. Transportation Rates for Cargo Carriage Between Third-Country Ports Sea-Land Industries, Inc. filed a petition on September 24, 1980 in Docket No. 80-68, U.S. Cargo over Canada, a proceeding before the Federal Maritime Commision (FMC), requesting that the Commission, under the authority of the Shipping Act of 1916, 46 U.S.C. 801 et seq., issue a declaratory order that would require the filing of rates for carriage of cargo between Canadian ports and ports of third countries. The Embassy of Canada formally expressed the concern of the Government of Canada regarding this action, in a note dated October 30, 1980, that read in part: the Canadian authorities would consider any such Declaratory Order to be an unacceptable exercise of extraterritorial jurisdiction by the United States through one of its regulatory agencies. Such a Declaratory Order would have the effect of regulating services offered by carriers operating between Canadian ports and third countries merely because U.S.A. origin or destination cargoes are aboard such carriers and U.S.A. ports are on their itineraries. Such unwarranted extension of U.S.A. jurisdiction would be inconsistent with established maritime practices and with Canadian public policy, and contrary to recognized principles of international law and comity. For these reasons the Embassy requests that the Department intervene with the Federal Maritime Commission to ensure that the Commission take account of international law and comity and to request that the Sea-Land Petition be denied. Dept. of State File No. P80 0165-1130. The Department of State thereafter filed a reply in FMC proceeding No. 80-68, supporting the Canadian Government's representations and stating the Department's view that there was "no basis under the Shipping Act of 1916 . . . or its history for such an unprecedented and expansive interpretation of its provisions." The reply continued: Petitioner asserts that the relief requested would be in accordance with the holding of the court in Austasia Intermodal Lines v. Federal Maritime Commission, 580 F.2d 642 (D.C.Cir. 1978). The Department disagrees. That case held only that a shipping line which ships cargo overland out of the United States and then solely between foreign ports is not a "common carrier by water in the foreign commerce of the United States" subject to tariff filing requirements of the Shipping Act. In reaching this holding, the court simply observed that the above definition (set forth at 46 U.S.C. sec. 801) "clearly require(s) that a carrier make use of a United States port at some point on its own route or a through route in which it participates." Even if a shipping line may be a "common carrier by water in the foreign commerce of the United States," section 18 of the Shipping Act, 46 U.S.C. sec. 817, does not require that the line file rates for carriage of cargo solely between foreign ports. Section 18 requires only the filing of rates for carriage between ports of the United States and foreign ports on its own route or on through routes in which it participates. Any other interpretation of this requirement would be incongruous. For example, a liner serving SeattleVancouver-Kobe-Hong Kong would be required to file its rates for cargo carriage between Kobe and Hong Kong. This result is clearly unwarranted by the Act and inconsistent with the FMC's longestablished construction of the Act. The Department requested dismissal of the petition upon the grounds, also, that such a far-reaching interpretation of the Act would be detrimental to United States foreign relations and that, in particular, the requested declaratory order would cause unjustified injury to United States-Canadian relations. Dept. of State File No. P80 0165-1127. Sea-Land subsequently withdrew its petition and requested dismissal of Docket No. 80-68, noting "statements of opposition" and deeming it not in the public interest to press for a declaratory order "on anything less than the most complete record possible." SeaLand's request was made without prejudice to its right to petition the Commission further at a future date. On December 12, 1980, the Department of State informed the Canadian Embassy of Sea-Land's withdrawal of the petition and of its understanding that the Federal Maritime Commission did not intend to take any action on the issue at the present time. Ibid., No. P80 0165-1125. Sail-Assisted Technology: Pacific Insular Areas -J.E.A. Public Law 96-597, approved December 24, 1980, 94 Stat. 3477, authorized appropriations for American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, the Trust Territory of the Pacific Islands, and the Virgin Islands. Several provisions under Title VI of the act were directed toward the economic betterment of these insular areas, among them section 605, which made applicable to the areas section 22 of the Water Resources Development Act of 1974 (Public Law 93-251, 42 U.S.C. 1962d-16, "Comprehensive plans for development, utilization, and conservation of water and related resources"), and section 606, regarding the development of sail-assisted technology to alleviate the dependence of the peoples of the Trust Territory of the Pacific Islands upon imported fuels for inter-island transportation. 94 Stat. 3477, 3482. §10 Agriculture and Labor Grain Sales to the Union of Soviet Socialist Republics Export Restrictions In a memorandum to the Secretary of Commerce, dated January 7, 1980, President Carter directed the Secretary to take immediate action under the Export Administration Act to terminate shipments of agricultural commodities and products, including wheat and corn, to the Soviet Union. Export licenses were to be granted, however, to the extent necessary to permit shipments to continue up to the eight million metric tons of wheat and corn covered by the 1975 Agreement between the United States and the Union of Soviet Socialist Republics on the Supply of Grain (see the 1975 Digest, pp. 539-545). The President's decision was taken in the national security and foreign policy interests of the United States as a result of the Soviet invasion of Afghanistan. Weekly Comp. of Pres. Docs., Vol. 16, No. 2, pp. 32-33; Public Papers of the Presidents: Jimmy Carter, 1980-81, Bk. I (1981), p. 32. The President discussed his action in his State of the Union address on January 21, in part as follows: Soviet Grain Suspension In response to the Soviet armed invasion of Afghanistan on Christmas Eve, I took several actions to demonstrate our Nation's resolve to resist such hostile acts of aggression against a sovereign, independent nation. One of the most important of these actions was the suspension of grain sales to the Soviet Union beyond the 8 million tons provided under our 1975 grains agreement. The Soviet Union had intended to purchase an estimated 25 million tons of U.S. wheat and feed grains. Thus, the suspension of sales above the 8-million-ton agreement level is expected to result in the freeing of about 17 million tons. My decision to suspend these sales was a difficult one, but a necessary one. We could not continue to do business as usual with the Soviet Union while it is invading an independent, sovereign nation in an area of the world of strategic importance to the United States. I am fully committed to a policy of promoting international trade, and particularly the expanded export of U.S. agricultural products. To protect American farmers from the price-depressing effects of the grain suspension, I directed the Secretary of Agriculture to take several actions: • The Commodity Credit Corporation will assume the contractual obligations for grain previously committed for shipment to the Soviet Union. The Department of Agriculture, acting through the Commodity Credit Corporation, will purchase wheat contracted for export to the Soviet Union for the purpose of forming an emergency international wheat reserve. In this connection, I will propose legislation authorizing release of this wheat for international aid purposes. To encourage farmers to place additional grain in the farmerheld grain reserve, the Secretary of Agriculture has made several modifications in that important program. • The Commodity Credit Corporation will purchase corn at the local level to alleviate the congestion within the transportation system caused by the refusal of the International Longshoremen's Association to load grain up to the 8-million-metric ton level. In combination, these actions are expected to isolate from the market an amount of grain equivalent to that not shipped to the Soviet Union, thereby avoiding a decline in grain prices. I am pleased to report that these actions are having the desired results and that American farmers are being protected from the effects of the suspension. If further actions are necessary to insure that American agriculture does not bear a disproportionately large share of the burden associated with this action. I will not hesitate to take them. International Emergency Wheat Reserve The Congress has not yet acted on the proposal I made in the last Session to create an International Emergency Wheat Reserve. This reserve of up to 4 million tons of wheat would be used to assure recipient nations that we will meet our international food aid commitments. The suspension of further grain sales to the Soviet Union provides an appropriate opportunity to provide this author |