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In view of (a) the U.S.-Romanian Trade Relations Agreement, signed on April 2, 1975, and entered into force on August 3, 1975, which granted nondiscriminatory tariff treatment to Romanian products, (b) Romania's status as a contracting party to the General Agreement on Tariffs and Trade and its membership in the International Monetary Fund, and (c) the repeated manifestation of Romanian determination to pursue an independent foreign policy, Romania, although a Communist country, fulfills the requirements for GSP eligibility set forth in section 502(b)(1) of the Trade Act. Somalia
Somalia is now taking steps to discharge its obligations under international law with respect to an investment dispute which had the effect of a nationalization, expropriation, or other seizure of U.S. property by Somalia. Turkey
Turkey also is taking steps to discharge its obligations under the international law with respect to property questions in the Turkish-controlled area of Cyprus which could be considered as nationalizations, expropriations, or seizures of United States properties.
In addition, the tariff preferences that Turkey extends to the products of members of the E.E.C. do not have, and are not likely to have, significant adverse effects on United States commerce. This conclusion depends upon the continuance by Turkey of certain key government decrees. The Government of Turkey understands the importance of the maintenance of those decrees to Turkey's continued eligibility for GSP, and has acknowledged the desirability of consulting with the United States before changing its customs tariffs in a manner prejudicial to its status as a beneficiary country.
Weekly Compilation of Presidential Documents, Vol. 11, No. 46, Nov. 17, 1975, pp. 1266–1267.
On November 24, 1975, President Ford issued Executive Order 11888, superseding Executive Order 11844, effective January 1, 1976. In addition to including the newly designated countries and territories eligible for GSP, it removed expired provisions of the Tariff Schedules of the United States relating to the Philippines and the Trust Territory of the Pacific Islands.
Fed. Reg., Vol. 40, No. 229, Nov. 26, 1975, pp. 55276-55306. For implementing regulations, see U.S. Customs Service, Dept. of Treasury, regulations regarding “Duty Free Entry of Certain Merchandise from Designated Beneficiary Developing Countries,” Fed. Reg., Vol. 40, No. 251, Dec. 31, 1975, pp. 60047-60049 and Office of the Special Representative for Trade Negotiations, regulations regarding “Reviews Pertaining to the Eligibility of Articles," Fed. Reg., Vol. 40, No. 251, Dec. 31, 1975, pp. 60041-60043.
The Office of the Special Representative for Trade Negotiations filed on November 3, 1975, on behalf of the President, a notice of intention to terminate the status of the Khmer Republic (Cambodia) and Viet-Nam (South) as beneficiary developing countries for purposes of GSP under Title V of the Trade Act of 1974, and to issue an Executive order amending Executive Order 11844 of March 24, 1975, to that effect. It had been determined that the Khmer Republic and Viet-Nam (South) no longer met the eligibility criteria set forth in Section 502(b) of the Act, particularly Section 502(b)(1).
Fed. Reg., Vol. 40, No. 213, Nov. 4, 1975, p. 51251. Sec. 502(b)(1) of the Trade Act of 1974 denies eligibility “if such country is a Communist country, unless (A) the products of such country receive nondiscriminatory treatment, (B) such country is a contracting party to the General Agreement on Tariffs and Trade and a member of the International Monetary Fund, and (C) such country is not dominated or controlled by international communism."
On October 9, 1975, the Director of the National Marine Fisheries Service (NMFS) in the Department of Commerce imposed an embargo, effective November 1, 1975, on the import into the United States of yellowfin tuna received directly or indirectly from Spain in any form. The embargo was imposed as a result of findings that Spanish vessels were operating contrary to the recommendations of the Inter-American Tropical Tuna Commission (IATTC), established by a Convention of May 31, 1949 (TIAS 2044; 1 UST 230; entered into force for the United States March 3, 1950).
On September 8, 1975, the Department of State, in an aidememoire to the Embassy of Spain, had called attention to problems arising from Spanish fishing boats operating in the yellowfin tuna regulatory area of the IATTC. It warned that the Department of Commerce would shortly file notice that the United States would prohibit the import of yellowfin tuna products from countries whose fishing operations were undermining the effectiveness of the IATTC conservation program, and noted that the embargo would affect Spain and certain other countries. The Department's note stated:
The Department recognizes that Spain is not a member of the IATTC. However, Spain is a party to the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas, which calls for cooperation in conservation matters. Further, domestic United States law, adopted to implement the IATTC, requires mandatory action when it has been determined that any country operating in the regulatory area is doing so in a manner which undermines the effectiveness of IATTC regulations.
The Department suggests that, in order to avoid unfortunate consequences from the embargo, effective measures be taken to ensure compliance with Commission regulations before the end of the thirty-day period, including withdrawal of the boats now operating in the regulatory area. The Department is prepared to discuss cooperative efforts in this regard as well as to consider how to avoid such problems in the future, for example, by seeking to facilitate Spain's membership in the IATTC, if the Government of Spain still wishes to become a member.
The notice of embargo issued on October 9, 1975, stated that the yellowfin tuna season for unlimited taking had been closed on March 13, 1975, but that vessels of certain countries had thereafter engaged in a directed fishery in the Commission Yellowfin Regulatory Area (CYRA) contrary to the IATTC recommendation. Citing the authority of the Tuna Conventions Act of 1950, as amended (16 U.S.C. 951-961), and the implementing regulations in Title 50, Code of Federal Regulations, Part 281, a hearing in San Diego on August 29, 1975, on the nature and extent of the foreign fishing operations in the CYRA during the closed season, the publication of a notice of intent and finding in the Federal Register on September 11, 1975 (40 Fed. Reg. 42229), and comments received in response to such notice, the Director of the NMFS found as follows:
1. That foreign fishing vessels have been operating within the CYRA during the closed season contrary to the conservation recommendations of IATTC,
2. That foreign fishing vessels of certain countries have taken more than 1,000 tons of yellowfin tuna in the CYRA in 1975 and this constitutes a meaningful fishing effort by each of such countries,
3. That these foreign fishing activities in the CYRA are contrary to the conservation recommendations of IATTC and tend to diminish the effectiveness of the IATTC conservation recommendations, and
4. That the results of the investigation are as follows:
(a) Spain. Fishing vessels of Spain are or were fishing during the closed season in the CYRA and have taken approximately 2,500 tons of yellowfin tuna in 1975 in a manner tending to diminish the effectiveness of the conservation recommendations of IATTC. Spain does not have in force adequate conservation measures applicable to its fishermen consistent with IATTC conservation objectives; does not have in effect any means to control landings by its fishermen or fishermen of other countries of yellowfin tuna taken in a manner tending to diminish the effectiveness of the conservation recommendations of the IATTC; has had during 1975 vessels operating in the CYRA which harvest a significant quantity of yellowfin tuna; and conducts fishing with its vessels which constitutes a significant fishing effort in relation to the total quantity of yellowfin tuna taken.
(b) Other Countries. At the present time, there is insufficient evidence of violations in 1975 of the IATTC conservation recommendations by other foreign vessels.
(c)Panama. The Republic of Panama has, in recent weeks, made a firm commitment through diplomatic channels to take the necessary steps to ensure effective control over its flag vessels in the enforcement of the conservation recommendations of the IATTC. The United States welcomes this action by Panama and is offering the cooperation and assistance required to effect this commitment.
Now therefore, by the authority of the Tuna Conventions Act of 1950, as amended, and the related regulations (50 CFR Part 281) all yellowfin tuna whether received directly or indirectly from Spain, in any form, shall, effective November 1, 1975, be denied entry into the United States of America except as provided in 50 CFR Part 281 until such time as fishing activities by Spanish vessels in the CYRA do not diminish the effectiveness of the conservation recommendations of the IATTC. If and when such import restrictions are removed, a notice to that effect will be published in the Federal Register.
See Fed. Reg., Vol. 40, No. 199, Oct. 14, 1975, pp. 48159-48160. For aide-memoire of Sept. 8, 1975, see Dept. of State File No. P75 0142-1144.
Petroleum and Petroleum Products
On January 14, 1975, Attorney General William B. Saxbe, in a letter to the Secretary of the Treasury, gave an opinion regarding compliance with Section 232 of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862), and applicable Treasury regulations, of proposed procedures and the proposed contents of an amendment to Proclamation 3279, Adjusting Imports of Petroleum and Petroleum Products into the United States, 3 CFR Proc. 3279, as amended. The following is a summary of that opinion:
The phrase "such action” in section 232(b) of the Trade Expansion Act of 1962, as amended, 19 U.S.C. 1862(b), means a continuing course of action, so that a new finding of a threat to the national security is not required for changes in the means by which imports are restricted.
Nevertheless, the statute contemplates that the President will continually monitor the situation to determine the need for changes in or the continuation of particular measures. This monitoring, however, need not comply with the procedural requirements relating to the initial investigation and finding. Even if those procedural requirements are applicable in this particular situation, they would not require public notice, comment, or hearings.
The authority granted to the President under section 232(b) is most broad, allowing him to take whatever actions are necessary to adjust the level of imports.
On January 23, 1975, President Ford issued Proclamation 4341, modifying Proclamation 3279, effective February 1, 1975, and providing for the long term control of imports of petroleum and petroleum products through a system of license fees. The stated purpose was to "discourage importation into the United States of petroleum, petroleum products, and related products, in such quantities or under such circumstances as to threaten to impair the national security”; to create conditions favorable to domestic crude oil production; and to encourage the development of other sources of energy.
Fed. Reg., Vol. 40, No. 18, Jan. 27, 1975, pp. 3965-3971. Proclamation 4341 imposed a supplemental fee per barrel on crude oil of $1 effective Feb. 1; rising to $2 effective Mar. 1; and $3 on Apr. 1. On Mar. 4, 1975, President Ford issued Proclamation 4355, to postpone for two months the scheduled increases. Fed. Reg., Vol. 40, No. 45, Mar. 6, 1975, pp. 10437–10439. On Apr. 30, 1975, the President issued Proclamation 4370, deferring on a temporary basis the increases scheduled to take effect on May 1 and June 1. Fed. Reg., Vol. 40, No. 87, May 5, 1975, pp. 19421-19422. On May 27, 1975, the President imposed in Proclamation 4377 an additional $1 per barrel fee on imported crude oil and a $.60 per barrel fee on imported refined products, effective June 1, 1975. Fed. Reg., Vol. 40, No. 105, May 30, 1975, pp. 23429-23430.
In a split decision on August 11, 1975, the Court of Appeals for the District of Columbia, in Algonquin SNG, Inc. et al. v. Federal Energy Administration, 518 F.2d 1051 (1975), held that the President does not have the statutory authority to impose license fees on imported oil. At issue was the $2 a barrel fee on imported oil levied by the President on “national security" grounds by his proclamation of January 27, 1975, as supplemented, supra. The Court of Appeals subsequently stayed the effect of its ruling to allow an appeal, and on November 3, 1975, the Supreme Court agreed to review the holding (No. 75-382).
The majority opinion by the Court of Appeals was that Section 232(b) of the Trade Expansion Act of 1962, 19 U.S.C. 1862(b), delegates to the President authority to adjust imports to protect national security only through "direct" mechanisms. It considered the license fee imposed on the importer an indirect method, and thus not authorized.
Upon signing the Energy Policy and Conservation Act on December 22, 1975 (P.L. 94–163; 89 Stat. 871), President Ford stated that the legislation put into place “the first elements of a comprehensive national energy policy" and permitted him to remove the $2 per barrel oil import fee. The legislation established a modified system of crude oil price controls to be phased out in 40 months. On January 3, 1976, President Ford issued Proclamation 4412, further amending Proclamation 3279, as amended, and removing, effective December 22, 1975, the $2 per barrel oil import fee.