The Agreement between the United States and Japan concerning the Ryukyu Islands and the Daito Islands with related arrangements was signed on June 17, 1971 (TIAS 7314; 23 UST 446; entered into force on May 15, 1972).

The General Treaty of Friendship and Cooperation between the United States and Panama, accompanied by sixteen exchanges of notes embodying interpretations of the Treaty or Arrangements pursuant thereto was signed on Mar. 2, 1936 (TS 945; 53 Stat. 1807; 10 Bevans 742; entered into force on July 27, 1939). For the map attached to the U.S.-Panamanian Neutrality Treaty of 1977 (Annex B), see 77 Dept. of State Bulletin 501 (1977). For other related information concerning the U.S.-Panamanian Canal and Neutrality Treaties of 1977, see passim 77 Dept. of State Bulletin 481-545 (1977).

$8 Ports

Deepwater Ports

Louisiana Offshore Oil Port (LOOP)

On August 1, 1977, Secretary of Transportation Brock Adams announced that the directors of Louisiana Offshore Oil Port, Inc. (LOOP), had agreed to accept the license offered on January 17, 1977. by former Secretary of Transportation William T. Coleman, Jr., to own, construct, and operate a deepwater port in the Gulf of Mexico 18 miles south of Grand Isle, Louisiana. In his announcement that the LOOP consortium was able to provide owners' guaranties which meet the license requirements, Secretary Adams expressed the following support for the development of deepwater ports:

These ports will be cheaper to operate because they can handle much greater quantities of oil than conventional ports. They also should provide greater environmental protection to our vulnerable coastal areas.

Because of their importance, certain conditions have been built into the deepwater port licenses to guard against anti-competitive abuses of the ownership, control or operation of these facilities. LOOP's acceptance makes it apparent that the Federal Government's efforts to protect consumer interests can be compatible with the interests of deepwater port operators.

Dept. of Transportation News (DOT 88–77), Aug. 1, 1977.

LOOP, a consortium composed of Ashland, Inc., Marathon Pipeline Company, Murphy Oil Corporation, Shell Oil Company, and Texaco, Inc., plans to build a deepwater port capable of unloading oil from supertankers, which draw too much water to be able to dock at existing east coast ports, and transfer the oil to shore via underwater pipeline. The first phase of LOOP construction consists of a $350 million terminal capable of handling about 1.3 million barrels of oil a day. When completed, the port is scheduled to cost $735 million and have an unloading capacity of 3.4 million barrels a day.

Following are some portions of the license offered in a letter from Secretary Coleman to William B. Read, President of LOOP, Inc., on Jan. 17, 1977, and accepted by LOOP on Aug. 1, 1977:

Article 4. Design.

The Licensee shall submit for Coast Guard approval plans of the offshore components comprising the Deepwater Port, as required by the Regulations at 33 CFR 149.203, accompanied by an engineering hydrographic survey of the final marine site.

Article 5. Construction.

All work in the construction of the Port Complex and any expansion or modification shall be undertaken in a manner that does not interfere with the reasonable use of the high seas, adversely affect the safety of navigation, or pose a threat to human safety or health or to the environment.

Construction of the Port Complex shall be undertaken diligently and expeditiously. Construction shall begin not later than two years after the effective date of this license, and the Port Complex shall, within five years thereafter, be sufficiently complete to operate at its design capacity of an average daily throughput of 1,400,000 barrels, unless there shall be delay due to a force majeure or a failure to receive required approval of any application pursued with due diligence.

Article 6. Operations.

The Licensee shall operate the Port Complex at all times (a) in the manner contemplated in the design and construction of the port approved by the Commandant, (b) without unreasonable interference with international navigation or other reasonable uses of the high seas and (c) in accordance with the Port Operations Manual approved in accordance with the Regulations.

Article 10. Requirements for Vessels Calling.

The Licensee shall furnish all facilities and services necessary and appropriate for the mooring of, unloading oil cargoes from, and otherwise handling and accommodating (but not fueling, manning or victualing, unless the Licensee shall so elect) all vessels that may reasonably be expected to utilize the facilities of the Deepwater Port, giving consideration to the availability of alternative domestic onshore facilities and the environmental and navigational risks associated with the use of such alternative facilities; provided, however, that the Licensee shall not be required to moor and accept cargoes from any vessel that, by reason of unique characteristics, cannot be accommodated at the Deepwater Port without undue expense or hazard.

Except in the case of force majeure, the Licensee shall not accept for mooring, and shall not accept cargoes from, any vessel unless and until such vessel:

(a) conforms to applicable Coast Guard regulations;

(b) is registered under the laws of the United States or (i) is registered under the laws of a foreign state that has agreed to recognize the jurisdiction of the United States over such vessel and its personnel while the vessel is in the safety zone, and (ii) its owner or operator of which has designated an agent in the United States for receipt of service or process;

(c) shall have a Certificate of Financial Responsibility (Oil Pollution) issued by the Federal Maritime Commission pursuant to section 311 (p) (1) of the Federal Water Pollution Control Act and its owner or operator shall have furnished evidence of insurance or surety bond sufficient to cover liability for discharge of oil under section 18 of the Act.

Article 11. Nondiscrimination.

Neither the Licensee nor any shareholder thereof (any such shareholder, together with any corporation or business entity owning or controlling such shareholder, together with their respective successors and assigns, hereinafter an Owner) shall discriminate, in the construction and operation of the Port Complex, against shippers or owners of oil, in the facilities furnished, services rendered, or rates charged, under same or similar circumstances. Neither the

Licensee nor any Owner shall provide, in the construction and operation of the Port Complex, special or favored treatment for any Owner, shareholder or guarantor of the Deepwater Port or affiliate thereof. Any waiver of requirements or special arrangements extended to any shipper shall be extended to all shippers under the same conditions. Neither the Licensee nor any Owner shall directly or indirectly, condition or require use of the Port Complex on or for the purchase or sale of any service or commodity.

The Licensee shall not, directly or indirectly, charge, demand, collect or receive from any shipper or owner of oil a greater or lesser compensation for any service rendered than from another shipper or owner for a like and contemporaneous service. This Article shall not limit the right of the Licensee to prescribe different rates for unloading, storage and further transportation for different quantities and rates of flow or to different inland points, provided that such differences are justified by differences in costs to the Licensee. When more oil is tendered for unloading, storage and further transportation than can be handled expeditiously, services and space shall be apportioned ratably without regard for commitments for future shipments or history of past shipments. A policy or plan for apportioning tenders in excess of capacity shall be included in the Operations Manual and approved in accordance with the Regulations. If the Licensee or any Owner elects to furnish, sponsor, permit, authorize or make available facilities for the servicing, repair or maintenance of vessels, fueling or bunkering, accommodation of crews, manning, victualing, navigation or other services incidental to the operation of the Deepwater Port, all such services and facilities shall be available to all shippers, owners, vessels, masters and crew equally and without discrimination in types of services or facilities or charges therefor.

Article 12. Shipments.

The Licensee shall accept for unloading, transportation, storage and delivery to connecting carriers oil tendered by any shipper or consignor without regard to ownership, quantity, source, destination, specification or properties, unless the Licensee shall have determined, with the prior approval of the Secretary, that oil of unique or unusual properties and specifications, or in unusually low quantities, cannot be accommodated at the Deepwater Port without undue expense or risk of contamination of other cargoes.

Any such determination shall be nondiscriminatory, reasonable and consistent with industry practice. It shall be made prior to the tender of any cargo and shall be approved by the Secretary by incorporation into the Operations Manual. The determination shall be included in any tariff or other document specifying requirements for cargoes.

The Licensee may deliver to each consignee either the identical oil received for that consignee, subject to ordinary consequences of mixing as are incidental to standard practices in pipeline transportation and terminal operations, or the Licensee may deliver to each consignee oil from its common stocks that is of substantially like kind and of equal value (subject to cash or quantity adjustments in accordance with industry usage). A plan for segregation and batching of oil of different properties and specifications shall be included in the Operations Manual and approved in accordance with the Regulations.

Article 14. Facilities.

The Licensee shall design and construct the Port Complex, and shall from time to time modify the Port Complex in order to satisfy the express requirements of Articles 10, 11 and 12 hereof, and to provide adequate capacity and facilities to serve the transportation needs of such shippers of oil as shall from time to time be expected to utilize the Port Complex, giving consideration to the location of existing or planned connecting transportation facilities and refining facilities which can reasonably and efficiently be served by the Port Complex and the availability of alternative facilities.

The Licensee shall furnish storage facilities of sufficient capacity to enable shippers and consignees to store oil for a reasonable period pending delivery into a connecting pipeline, giving consideration to the size of the shipment and the capacity of such connecting pipeline. The Licensee shall furnish pipelines. pumping facilities, connections, breakout tankage, and such other facilities as may be necessary or desirable to deliver oil to connecting carriers for further transportation to inland points.

Article 15. Expansion.

The Licensee shall have an absolute obligation to expand the Port Complex in the stages set forth in the Application to an average throughput capacity of 3,400,000 barrels per day, if and when such expansion becomes necessary, as demonstrated by sufficient evidence of throughput commitment, to assure adequacy of service to owners and nonowners alike.

The Licensee shall further expand the Port Complex, or increase the capacity thereof or of any part thereof, in accordance with an order of the Secretary if the Secretary shall determine that:

(a) there is a definite and continuing need, as may be evidenced by throughput nominations or specific requests of shippers, for additional capacity or facilities to assure adequacy of service to owners and nonowners alike;

(b) expansion is technologically practicable and consistent with all safety, environmental, and international laws and obligations, and consistent with the purposes of the Act; and

(c) expansion is economically feasible, as evidenced by the availability of sufficient throughput commitments and financial arrangements to complete construction and to give assurance that the operation of the Port Complex with such additional capacity, will be able to earn a rate of return on investment which is reasonable and will not result in materially impairing the earning power of the investment in the pre-existing Port Complex.

The Secretary shall not order any expansion (a) without first providing the Licensee with sufficient opportunity to comment and holding a public hearing, and (b) beyond the size necessary to handle an average daily throughput of 4,250,000 barrels. The Licensee shall furnish such information and conduct such analyses as the Secretary may require in order to make the foregoing determinations.

If expansion will benefit primarily a particular shipper or number of shippers, then the Licensee may require that such shipper or shippers furnish throughput commitments or other guarantees which the Licensee considers to be necessary or desirable for the financing of such facilities.

A shareholder or group thereof holding more than one-half of the shares of common stock issued and outstanding shall have the authority to cause the Licensee to expand or modify the Port Complex or secure financing therefor. Notwithstanding the foregoing, any shareholder of the Licensee or group thereof shall have the power and authority to cause the Licensee to expand the Port Complex or construct additional facilities, if such shareholder or group is willing and able to bear and finance the cost of the expansion or addition.

For further information, see the 1976 Digest, Ch. 7, § 8. pp. 374–376.

89

Marine Environment

U.S. Regulations

Marine Vessel Pollution

On December 30, 1976, Russell E. Train, Administrator of the Environmental Protection Agency (EPA), signed the final revision of regulations and criteria for ocean dumping. Effective as of February 10, 1977, these regulations and criteria for the issuance of all ocean dumping permits amend Subchapter H of Chapter I of Title 40 of the Code of Federal Regulations and were issued pursuant to the Marine Protection, Research, and Sanctuaries Act of 1972, as amended, 33 U.S.C. 1401 et seq. ("the Act"). The regulations and criteria apply the standards and criteria where applicable of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other

Matter, with annexes, done on December 29, 1972 (TIAS 8165; 26 UST 2403; entered into force for the United States on August 30, 1975). An excerpt from section 220.1 of the regulations, entitled purpose and scope, follows:

(a) General. This Subchapter H establishes procedures and criteria for the issuance of permits by EPA pursuant to section 102 of the Act. This Subchapter H also establishes the criteria to be applied by the Corps of Engineers in its review of activities involving the transportation of dredged material for the purpose of dumping it in ocean waters pursuant to section 103 of the Act. Except as may be authorized by a permit issued pursuant to this Subchapter H, or pursuant to section 103 of the Act, and subject to other applicable regulations promulgated pursuant to section 103 of the

Act:

(1) No person shall transport from the United States any material for the purpose of dumping it into ocean waters;

(2) In the case of a vessel or aircraft registered in the United States or flying the United States flag or in the case of a United States department, agency, or instrumentality, no person shall transport from any location any material for the purpose of dumping it into ocean waters; and

(3) No person shall dump any material transported from a location outside the United States:

(i) Into the territorial sea of the United States; or

(ii) Into a zone contiguous to the territorial sea of the United States, extending to a line twelve nautical miles seaward from the base line from which the breadth of the territorial sea is measured, to the extent that it may affect the territorial sea or the territory of the United States.

(b) Relationship to international agreements. In accordance with section 102 (a) of the Act, the regulations and criteria included in this Subchapter H apply the standards and criteria binding upon the United States under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter to the extent that application of such standards and criteria do not relax the requirements of the Act.

*

42 Fed. Reg. 2468-2469 (1977). The regulations contain exclusions from the permit requirements of Subchapter H for certain fish wastes, fisheries resources, routine discharges of effluent incidental to the propulsion of vessels, artificial islands, and discharges from vessels or aircraft in an emergency to safeguard life at sea. For the full text of the final revisions, see 42 Fed. Reg. 2462–2490 (1977).

On March 17, 1977, President Carter sent to the Congress a message concerning the problem of oil pollution of the oceans. The President recommended, inter alia, that the United States ratify the International Convention for the Prevention of Pollution from Ships with annexes and protocols done on November 2, 1973, and that the Con