military purpose. In addition, the Government of India has given the United States written assurance that the special nuclear material, and products therefrom, exported by the United States to Tarapur ". . . will be devoted exclusively to the needs of that Station unless the U.S. specifically agrees that such material may be used for other purposes." Letter from Homi N. Sethna, Chairman, Department of Atomic Energy, Government of India, to Dixy Lee Ray, Chairman, U.S. Atomic Energy Commission, dated September 17, 1974. We are unaware of any evidence suggesting that material provided by the U.S. to India for use in connection with the TAPS facility has been employed in the development of a nuclear explosive device.

One factor of which the Commission is keenly aware-as are all other participants in the instant proceeding-is the detonation of a nuclear explosive device by the Government of India in 1974. It would be a gross understatement to opine that this incident has introduced a most troubling note into the relations between the governments of the United States and India on matters affecting nuclear nonproliferation policy. However, the Commission's responsibility is to determine what implications this event has for the common defense and security of the United States, considering all the circumstances which have surrounded the Rajasthan explosion and the events which have occurred in the three years since that event.

Newly elected Prime Minister Morarji Desai of India has recently voiced his opposition to nuclear weapons and reiterating Indian policy not to use nuclear energy for military purposes. It is far too early to expect that the newly established administration in New Delhi-or, for that matter, in Washington-will have resolved all aspects of their relations on nuclear cooperation and nonproliferation. However, the Commission does take favorable note of the fact that discussions between the executive branch and the Government of India are being conducted on a continuing basis, at the highest levels, and with the evident sense of urgency demanded by the crucial nature of the subject matter. Diplomacy must have time to work in this important field. It is for that reason that the Commission is inclined to weigh heavily expressions by the Department of State, as chief foreign policy agency of the U.S. Government, that maintaining the supply of fuel for the Tarapur facility is an important precondition for insuring that the continuing discussions on a broad range of issues-in both non-nuclear and nuclear fieldscan proceed without serious disruption.

Petitioners argue that the practice of authorizing export to countries which have not signed the Non-Proliferation Treaty violates Article I of the NPT prohibiting the U.S. from transferring "nuclear weapons or other nuclear explosive devices over such weapons or explosive devices directly or indirectly" to any nation and from "assisting any non-nuclear weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices," and claim that article III of the NPT prohibits the transfer of special nuclear material to any non-weapon state in the absence of safeguards on all nuclear activities within its territory, or under its control or jurisdiction.

The executive branch addressed these contentions in great depth in its Supplemental Response of March 19.

We do not believe it can reasonably be asserted that the U.S. is encouraging India to develop nuclear explosive devices, particularly in light of the new U.S. policy to terminate further nuclear cooperation with any non-nuclear weapon state which explodes a nuclear explosive device.

The executive branch also disagrees with petitioners' interpretation of article III of the NPT. The State Department, after analyzing the language of the statute and examining the practices of other parties to the Treaty, concluded "Since the entry into force of the NPT, it has been commonly understood by the parties that they could export nuclear equipment, devices, and materials to non-party states, if safeguards followed the exported equipment devices, or materials." State Department Supplemental Response of March 19,

On matters such as the legal interpretation of provisions in the NPT, the Commission gives great weight to the views of the Department of State not only because the Department was responsible for negotiating that Treaty, but also because it is the U.S. Government agency which possesses the greatest expertise in the interpretation of international law. The Commission, after examining the written submissions on this issue and the presentations at the oral proceedings last July, finds the Department of State views on this issue to be persuasive.

In the Matter of Edlow International Company, NRC License No. XSNM-845, Docket No. 70–2131 (1977). (Footnotes omitted.)

Department of Energy Organization Act

On August 4, 1977, President Carter signed into law Senate bill 826, the Department of Energy Organization Act, Public Law 95-91, 91 Stat. 565, 42 USC 7101. The President described the effect the Act would have on the reorganization of Federal agencies, on producers and consumers of energy, and on U.S. relations with foreign countries as follows:

For the first time in 11 years, a Cabinet-level department is now being created. The impending crisis of energy shortages has brought about an unprecedented quick action by the Congress in establishing the new Department of Energy.

This in some ways has been controversial legislation because many agencies of Government are now being brought together under one roof, about 50 different agencies. And in the future, the head of this Department will be a person working directly under the President, who can be identified for those who want to work together in our Nation to at least alleviate the consequences of inevitable shortages of oil and gas and other energy supplies.

I want to point out that the Department can now, I think, begin to deal in a much more aggressive and effective way not only with the needs of suppliers to increase the production of oil, gas, coal, solar, nuclear powers, but also to make sure that consumers of our country are treated fairly, that prices are adequate and not excessive. It can also work with the State Department and others in relationships with foreign countries. . . .

13 Weekly Comp. of Pres. Doc. 1165 (Aug. 8, 1977).

Five portions of the Act touch directly on foreign and international energy issues. Section 101 contains the following two findings dealing with the energy shortage and U.S. dependence on foreign supplies:

SEC. 101. The Congress of the United States finds that

(1) the United States faces an increasing shortage of nonrenewable energy resources;

(2) this energy shortage and our increasing dependence on foreign energy supplies present a serious threat to the national security

of the United States and to the health, safety and welfare of its citizens;

Section 102, entitled "Purposes," has among its 18 subparagraphs the following concerning the coordination of international energy and national security issues:

Section 102. . . . It is the purpose of this Act

(10) to establish and implement through the Department, in coordination with the Secretaries of State, Treasury, and Defense, policies regarding international energy issues that have a direct impact on research, development, utilization, supply, and conservation of energy in the United States and to undertake activities involving the integration of domestic and foreign policy relating to energy, including provision of independent technical advice to the President on international negotiations involving energy resources, energy technologies, or nuclear weapons issues, except that the Secretary of State shall continue to exercise primary authority for the conduct of foreign policy relating to energy and nuclear nonproliferation, pursuant to policy guidelines established by the President:

(18) to provide for the administration of the functions of the Energy Research and Development Administration related to nuclear weapons and national security which are transferred to the Department by this Act.

Section 302 (a) (1) (F) transferred from the Department of the Interior to the Department of Energy the functions of the Secretary and Department of the Interior with respect to "international storage reservoir projects on the Rio Grande

. . . ."

Section 649 provides the Secretary of the Department of Energy and the newly created Federal Energy Regulatory Commission with the following authority concerning the use of facilities of the United States and any foreign government:

SEC. 649. (a) With their consent, the Secretary and the Federal Energy Regulatory Commission may, with or without reimbursement, use the research, equipment, and facilities of any agency or instrumentality of the United States or of any State, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States, or of any political subdivision thereof, or of any foreign government, in carrying out any function now or hereafter vested in the Secretary or the Commission.

Section 657 requires the Secretary of the Department of Energy to report to the President for submission to the Congress concerning,

257-179 O 7953

among other items, foreign entities owning or controlling U.S. energy sources and supplies:

Section 657. The Secretary shall, as soon as practicable after the end of each fiscal year, commencing with the first complete fiscal year following the effective date of this Act, make a report to the President for submission to the Congress on the activities of the Department during the preceding fiscal year. Such report shall include . . .:

(8) to the extent practicable, a summary of activities in the United States by companies or persons which are foreign owned or controlled and which own or control United States energy sources and supplies, including the magnitude of annual foreign direct investment in the energy sector in the United States and exports of energy resources from the United States by foreign owned or controlled business entities or persons, and such other related matters as the Secretary may deem appropriate.

S. Rep. No. 95-164, 95th Cong., 1st Sess. 19-20 (1977).

89

Containers

Communications and Transportation

Ocean Transportation

The International Safe Container Act (Public Law 95-208; 91 Stat. 1475), was approved by President Carter on December 13, 1977. The Act implements the International Convention for Safe Containers (CSC), with annexes, which was done on December 2, 1972, and which received the U.S. Senate's advice and consent to ratification on September 15, 1976. Though President Ford signed an instrument of ratification for the Convention on October 8, 1976, the United States did not then deposit the U.S. ratification because implementing legislation had not been enacted.

The Senate Report submitted on Oct. 27, 1977, by Senator Warren G. Magnuson, Chairman of the Senate Commerce, Science, and Transportation Committee, concerning this legislation described the Act in part as follows:

The first section provides a short title for the bill: the International Safe Container Act.

Section 2 provides several definitions to be used in implementing the remaining sections of the bill. Importantly, it defines "new container" as any container (other than a container specially designed for air transport), used or which may be used in international transport, construction of which began on or after September 6, 1977. . . .

Section 3 spells out the duty of owners to get their new containers approved according to the procedures established by the Secretary [of Transportation] or by the administration of any party to the Convention and to maintain all of their containers to meet the standards of the Convention. Owners of existing containers are given 5 years to get those containers into compliance with the standards of the Convention, although during the 5 years they may voluntarily submit these existing containers to the Secretary for approval.

An owner who is both domiciled and has his principal office in the United States may get his containers initially approved by any party to the Convention, but must have his containers periodically inspected according to the procedures established by the Secretary. An owner who has one country as his domicile and another where he maintains his principal office, may have the initial approval done in any country which is a party to the Convention, but must have the periodic examination done in the country of his domicile or where he maintains his principal office, so long as the country under whose auspices he is having such examination done is a party to the Convention.

Finally, any owner who is neither domiciled nor maintains a principal office in a country which is a party to the Convention may submit [its] containers voluntarily for inspection and approval by the Secretary.

Section 4 details the duties of the Secretary of Transportation who is the "administration" of the Convention in the United States. There are three categories of duties imposed upon the Secretary by this bill: (1) After the Convention enters into force for the United States, the Secretary shall enforce the Convention in the United States. (2) On and after the date of enactment of the bill, the Secretary shall establish procedures for such enforcement and for collecting and disseminating data relating to container safety and the international transport of containers. (3) On and after such date, the Secretary may establish fees to be charged for services performed by him or under authority delegated by him, may authorize the affixation of safety approval plates to containers meeting the standards of the Convention, and may delegate any of his authority to inspect, test, and approve containers to any person. No person to whom the Secretary delegates authority under this bill may, however, issue any detention order or any other order enforcing the bill or the Convention. Section 5 authorizes the Secretary to initially test, inspect and approve containers and container designs, and to periodically examine containers in international transport to determine if they have a valid safety approval plate and that they do not have any significant evidence of obvious risk of safety. If they have no plate or there is such evidence, then he may issue a detention order to remove the container from service or allow it to be moved to a place where it can be repaired or disposed of. In addition, in those instances where there are minor violations of this bill or of the Convention, but the container is found to be in a safe condition, the Secretary may fashion lesser orders, restricting the movement of a container, or allowing it to be moved only to be unloaded and then brought into compliance with the bill or Convention, or applying any other remedy the Secretary finds appropriate.

Section 6 establishes penalties for violations of detention or other orders of the Secretary issued under this bill. . . .

Section 7 provides that no employee may be discharged or discriminated against for reporting the existence of an unsafe container or a violation of this bill. The section also establishes a procedure for the Secretary of Labor to use in enforcing the provisions of this section.

Section 8 establishes a procedure, to be used by the Secretary of State, with the concurrences of the Secretary, in proposing amendments to the Convention. Section 9 provides an authorization of appropriation, beginning with fiscal year 1979.

S. Rep. No. 95-552, 95th Cong., 1st Sess., 3-4 (Oct. 27, 1977).

For further information concerning the Convention for Safe Containers of 1972. see the 1976 Digest, Ch. 10, § 9, pp. 566-567.

§ 10

Agriculture and Labor

International Structures for Food Assistance

World Food Council

In an address on June 20, 1977, before the Third Ministerial Session of the World Food Council held in Manila, Secretary of Agriculture