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Weekly Compilation of Presidential Documents, Vol. 11, No. 52, Dec. 29, 1975, p. 1392; Fed. Reg., Vol. 41, No. 3, Jan. 3, 1976, pp. 1037-1039.
Cattle and Meat Imports
On August 5, 1975, President Ford issued Proclamation No. 4382, terminating in part import restrictions that had been proclaimed on November 16, 1974, by Proclamation No. 4335, and which imposed temporary quantitative limitations on the importation into the United States of certain cattle, swine, and pork from Canada. The 1974 limitation had been imposed “in response to Canada's imposing unjustifiable restrictions on cattle and meat imports from the United States.” The United States terminated its restriction in response to the lifting by Canada of the cattle import restrictions to which the United States had objected. President Ford stated that he acted under the authority vested in him by the Constitution and statutes, including Section 255(b) of the Trade Expansion Act of 1962 (19 U.S.C. 1885(b)), "in order to encourage the resolution of trade disputes between the United States and Canada."
See Fed. Reg., Vol. 40, No. 154, Aug. 8, 1975, pp. 33425–33426; Dept. of State Bulletin, Vol. LXXIII, No. 1890, Sept. 15, 1975, p. 416.
On December 31, 1975, President Ford proclaimed the termination, effective January 1, 1976, of the remaining restrictions imposed in Proclamation No. 4335 of November 16, 1974, specifically those imposing temporary quantitative limitations on the importation into the United States of certain beef and veal from Canada, in order to encourage trade between the two countries.
Proclamation No. 4410, Dec. 31, 1975; Fed. Reg., Vol. 41, No. 2, Jan. 5, 1976.
Voluntary Restraint Arrangements
In Consumers Union of U.S., Inc. v. Committee for the Implementation of Textile Agreements, et al. (Civil Action No. 74–968), the U.S. District Court for the District of Columbia held, on October 16. 1975, that the Executive did not violate the Agricultural Act of 1956, as amended, 7 U.S.C. 1854, or the Administrative Procedure Act (APA), 5 U.S.C. 552, 553, in entering into bilateral arrangements imposing quantitative limitations on the amount of textiles and textile products shipped into the United States from certain other countries within the framework provided by the multilateral Arrangement Regarding International Trade in Textiles (TIAS 7840; 25 UST 1001; entered into force for the United States in part on January 1, 1974, and in whole on April 1, 1974).
The Consumers Union had brought suit to compel the Committee for the Implementation of Textile Agreements (an interdepartmental committee consisting of representatives from the Departments of State, the Treasury, Commerce, and Labor) to make reasoned determinations with regard to the need to impose restraints on imports of textiles and textile products, and to adhere to certain minimum procedural safeguards in establishing the basis for imposing restraints. Specifically, the plaintiff claimed that the defendants had violated Section 204 of the Agricultural Act of 1956 by failing to make determinations that imports from the countries in question had caused “market disruption" or that such restraints are needed “to eliminate real risks of market disruption." The quoted phrases are found in Article 4, paragraph 2, of the multilateral Arrangement Regarding International Trade in Textiles under which bilateral restraint arrangements are authorized. Additionally, plaintiff charged that the defendants failed to follow the procedures in Sections 3 and 4 of the APA in imposing restraints.
The Court found that the delegation of authority to the President in Section 204 of the Agricultural Act of 1956 to negotiate with foreign governments to limit export from such countries and import into the United States of agricultural commodities or textiles or textile products involves the foreign affairs authority of the President. In such situation, the Court held, it is lawful for the Congress to make a broad, unfettered delegation of authority. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936); United States v. Approximately 633.79 T. Yellow Tuna, 383 F. Supp. 659 (1974). Nor did the Court consider that the Executive was required to make a determination of actual or potential domestic market disruption since there was no showing of abdication of authority by the Congress or abuse of delegated authority by the President.
The Court took note of the decision of the Court of Appeals in Consumers Union of U.S., Inc. v. Kissinger, 506 F.2d 136 (1974), holding that similar action of the Executive in entering into voluntary restraint arrangements on steel imports was not improper or foreclosed by the Constitution or the Trade Expansion Act (19 U.S.C. 1801 et seq.). The Court also noted that the dissenting opinion of Judge Leventhal in that case had recognized the exception in the case of imports of textiles and agricultural products, in Section 204 of the Agricultural Act of 1956, from the type of procedural steps that Judge Leventhal considered applicable in the steel import case. Ibid., at p. 156. See the 1974 Digest, pp. 460_462.
Finally, the Court ruled that the Executive action taken pursuant to Section 204 of the Agricultural Act of 1956 comes under the foreign affairs exception to the APA (5 U.S.C. 553(a)(1).
On November 6, 1975, the Court of Customs and Patent Appeals reversed the U.S. Customs Court in the case of United States v. Yoshida International, Inc., C.C.P.A., No. 75-6 (1975), 526 F.2d 560 (1975), and upheld the validity of Presidential Proclamation 4074 of August 15, 1971, which declared an emergency and imposed a temporary import surcharge in the form of a supplemental duty amounting to 10 percent ad valorem on most imports. Yoshida International had brought suit in the Customs Court challenging the validity of Proclamation 4074. It contended that the duty surcharge was not within the President's delegated powers under the Tariff Act of 1930, as amended, 19 U.S.C. 135(a/6), the Trade Expansion Act of 1962, 19 U.S.C. 1885(b), or the Trading with the Enemy Act, as amended, 50 U.S.C. App. 5(b). Alternatively, Yoshida claimed that even if the surcharge duty was statutorily authorized, such authorization was an unconstitutional delegation of power. The Customs Court had upheld Yoshida's contentions, 378 F. Supp. 1155 (1974). See the 1974 Digest, pp. 462-467.
The Court of Customs and Patent Appeals agreed with the Customs Court's interpretation of the President's powers under the Tariff Act and the Trade Expansion Act, but held that the Trading with the Enemy Act granted the President, during an emergency, the power to regulate importation by imposing the import duty surcharge. Specifically, the Court found that the Act was extremely broad and hence authorized the import surcharges since the statute provides that the President may, during any period of emergency declared by him, “regulate," "prevent,” or "prohibit” the importation of any property in which any foreign country or national has an interest. Further, the Court held that the surcharge authorized by the Act and encompassed by Proclamation 4074 was not an unconstitutional delegation of power, but rather, the delegation passed “constitutional muster" in all respects.
On May 16, 1975, the Department of Commerce announced that effective at 12:01 a.m. that day shipments of virtually all U.S. products to Cambodia and South Viet-Nam would require validated export licenses. The announcement stated that since the fall of those two countries into Communist hands, no validated licenses had been issued and all outstanding licenses had been suspended.
The embargo of U.S. exports to Cambodia and South Viet-Nam was taken after consultations with the Department of State and was authorized under the national security and foreign policy provisions of the Export Administration Act of 1969 (P.L. 91–184; 83 Stat. 841; 50 U.S.C. App. 2401–2413). The action expanded validated licensing requirements to virtually all shipments to the two destinations.
Under the new classification, Cambodia and South Viet-Nam were listed as Group 2 countries along with North Viet-Nam, North Korea, and Cuba. The general embargo policy then in effect for those countries was to deny licenses for any exports except where special humanitarian considerations were involved.
Dept. of Commerce News, No. G 75–71, May 16, 1975. The new regulations are found at Fed Reg., Vol. 40, No. 98, May 20, 1975, revising the Export Administration Regulations, 15 CFR Parts 370, 371, 374, 376, 385, 386, and 390.
In testimony before the International Trade and Commerce Subcommittee of the International Relations Committee of the House of Representatives on June 4, 1975, Robert H. Miller, Deputy Assistant Secretary of State for East Asian and Pacific Affairs, after referring to the placement of Cambodia and South Viet-Nam in the Group Z category, stated:
This type of export control was imposed on "the Communist controlled area" of Viet-Nam in 1958. Thus, when the Government of South Viet-Nam collapsed, it was a reasonable interpretation of the regulations that the Z category export controls were applicable to all parts of Viet-Nam. As far as Viet-Nam is concerned, the regulations announced on May 16 thus made no changes in the existing situation but only clarified them as they related to South Viet-Nam. The May 16 decision did extend these controls to Cambodia in order to make coverage of Cambodia consistent with that of Viet-Nam.
When the friendly Governments of Cambodia and South VietNam capitulated to the force of arms of their opponents, we had the option of doing nothing or classifying these countries under one or the other categories of our export control regulations. There was the obvious need to deny strategically important goods to the new governments in South Viet-Nam and Cambodia. This could have been accomplished by establishing Y category controls which are now applicable to the U.S.S.R., to the People's Republic of China and most of the Eastern European countries. The trade effect of the export controls was not a major consideration. In the past five years we had no commercial, non-AID financed exports to Cambodia; during these years the same type of exports to South Viet-Nam ranged between $30–50 million and it is reasonable to assume that even without controls U.S. trade with South Viet-Nam would be practically nil for the foreseeable future. . . . the decision to apply Z category controls was based primarily on the consideration that the Z category controls were already applicable to all of Viet Nam once the Communist authorities took control. Because of North Viet-Nam's dominance over the areas, it was determined desirable to apply the same controls to Cambodia and South Viet Nam that have long applied to North Viet-Nam.
imposition of export and assets controls allowed us to stabilize these economic and commercial matters in a new situation unfavorable to our policies. With these controls in force we are now in a position to assess the two regimes as they emerge and in light of their actions. Statement released at the Dept. of State news briefing, June 4, 1975. Regarding imposition of foreign assets controls for Cambodia and South Viet-Nam, see post, Ch. 10, § 5, pp. 635_638.
On September 30, 1975, Secretary of Commerce Rogers C. B. Morton announced that export controls on petroleum and petroleum products would continue through the fourth quarter of 1975, under authority of the Export Administration Act of 1969, as amended (83 Stat. 841; 50 U.S.C. App. 2401-2413). Secretary Morton announced at the same time that validated licenses would be required for all exports of manufactured gas and synthetic natural gas to all destinations, effective September 29, 1975.
In addition the Secretary of Commerce announced that the export regulations had been amended:
-to make clear that they apply to shipments of petroleum produced or refined in offshore areas under State or Federal jurisdiction, including the Outer Continental Shelf,
-to permit exceptions to petroleum short supply export controls without regard to established quotas or other export control provisions in cases involving overriding questions of national security or foreign policy, and
—to redefine the criteria which must be met before a license would be issued for the export of crude oil not subject to the export restrictions of the Alaskan Pipeline Act.
In explanation of the continued export controls on petroleum and petroleum products, Secretary Morton said they were to