The other pertinent amendment considered in 1962 was offered by Senator Keating" and would have replaced the existing § 6(c) with the following: "(c) No department . . . or official exercising any functions under this Act shall withhold or refuse to disclose information obtained hereunder, except trade secrets submitted on a confidential basis, unless the head of such department . . . determines that the disclosure of such information will be contrary to the national security. Nothing in this section shall be deemed to prohibit the disclosure of any information obtained hereunder to either House of Congress or to any duly authorized committee thereof, if a request is made for such information by either House of Congress or by a duly authorized committee thereof." Senator Keating stated that his amendment "would reverse the presumption in the present law against disclosure of information relating to trade with the Communists" and that, in addition, it "would specifically require that all information obtained under this Act be made available to the Houses of Hougress. He referred to recent disputes between congressional committees and the Department of Commerce regarding the availability of such information. Later, questions were raised about the effect of the amendment upon the treatment of trade secrets; and, agreeing that such issues required further study, Senator Keating withdrew the amendment." 13 12 It is well established law that, in construing a statute, the interpretation adopted by the administering agency must be given weight. See, e.g., Udall v. Tallman, 380 U.S. 1, 16 (1965); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315 (1933). This principle is particularly applicable where a statutory provision which has been given an administrative interpretation is re-enacted by Congress without significant change. See, e.g., Zemel v. Rusk, 381 U.S. 1, 11-12 (1965). Here, this last concept takes on added force, because congressional acquiescence in the administrative interpretation need not be entirely presumed, but can be seen in a legislative record which contains discussion of of the interpretation and rejection of several proposals to change it. I see no sound basis for distinguishing, for present purposes, between reports concerning boycotts or restrictive trade practices and other kinds of information obtained by the Department of Commerce under the Act. The terms of § 7 (c) of the Act clearly encompass the reports which are the subject of the present subpoena. For the reasons discussed above, it is my opinion that you are not obligated to provide the subpoenaed reports to the Subcommittee. Issuance of the subpoena does not compel you to determine that withholding the reports would be contrary to the national interest. Congress has placed responsibility for making such determinations not with its committees, but with the Secretary of Commerce.15 Unless you decide, in the exercise of your discretion, that such a determination is warranted, the confidentiality requirement of § 7(c) controls. Sincerely, APPENDIX M EDWARD H. LEVI, U.S. DEPARTMENT OF COMMERCE, AND INTERNATIONAL BUSINESS, Washington, D.C., September 3, 1975. Memorandum for: Arthur T. Downey, James Gleason, Edward J. Henriksen, Charles W. Hostler, Donald E. Johnson, Samuel B. Sherwin, and Clancy Zens. Subject: Department Policy on Dissemination of Trade and Investment Opportunities Containing Restrictive Trade Practices. Section 3 (5) of the Export Administration Act states that "It is the policy of the United States (A) to oppose restrictive trade practices or boycotts fostered by 11 108 Cong. Rec. 10702 (1962). 13 108 Cong. Rec. 10702 (1962). 13 Subsequently, the Acting Secretary of Commerce sent the Chairman of the Senate Committee on Banking and Currency a letter opposing the Keating amendment and describing in detail recent actions of the Department regarding release of export information to congressional committees. See 108 Cong. Rec. 11479-81 (1962). 14 108 Cong. Rec. 11488 (1962). 15 Cf. Administrator, Federal Aviation Administration v. Robertson, 43 U.S. Law Week 4833, 4837 (1975). foreign countries against other countries friendly to the United States, and (B) to encourage and request U.S. concerns not to take any action, including the furnishing of information or the signing of agreements, which has the effect of furthering or supporting such restrictive trade practices or boycotts." Commerce Department regulations pursuant to Section 3(5) require that any U.S. concern receiving a request to participate in a restrictive trade practice must report the receipt of such request to the Office of Export Administration, Bureau of East-West Trade. While the language of Section 3(5) is addressed to restrictive trade practices or boycotts in general, in practice its application has been limited almost exclusively to restrictive trade practices incident to the Arab boycott of Israel, whereby Arab countries enforce a secondary boycott of dealing with foreign firms which undertake certain types of business relations with Israel. Virtually every transaction with most Arab countries will involve a boycott of Israel request at some stage of the transaction. Such requests may take various forms-e.g., firms bidding on contracts or initially establishing business relations in an Arab country may be confronted with a questionnaire about their relations with Israel; bid invitations and/or specifications may contain a clause, e.g., that the goods may not be of Israeli origin or the product of a boycotted firm, or that the bidder agrees to abide by the country's boycott of Israel regulations; or the request may appear only at the letter-of-credit stage of a transaction as a requirement that the shipping documents include certification that the goods are not of Israeli origin and that the ship and/or insurance company is not boycotted by the Arab countries. Boycott clauses of this type customarily do not appear in foreign service telegrams or airgrams reporting trade and investment opportunities from the Arab countries, although this may possibly occur for some opportunities requiring special handling. Follow-on bid documents and specifications, however, can be expected in most cases to include boycott clauses. Important It is of the utmost importance that the Department of Commerce not disseminate any opportunity or other document which contains a restriction or request which would constitute discrimination against U.S. citizens, concerns, or institutions on the basis of race, color, religion, national origin, or sex, as distinguished from restrictions or requests aimed at implementing the Arab countries' secondary boycott of Israel. For example, a request directed against persons of the Jewish faith or against Jewish-owned firms would clearly be a discriminatory action, not a boycott action. Note, however, the distinction between “national origin" and nationality." As noted, a reference to "persons of the Jewish faith” or "Jewish-owned firms" would be to national origin and therefore discriminatory. On the other hand, a reference to "Israeli," "Israeli origin," or "owned by Israeli nationals" is to nationality and is therefore a boycott rather than a discriminatory matter. It is improbable that documents reaching Commerce through the trade opportunity channels will contain references to discrimination, since our Embassies follow a policy of not transmitting such documents. All concerned units should exercise special care, however, to detect any such references that might appear in documents received from other sources. I repeat, the Department will not, under any circumstances, disseminate any document bearing a reference to discrimination on the basis of race, color, religion, national origin, or sex. Any document received by any unit containing such a discriminatory reference should be immediately forwarded to the office of the Assistant General Counsel for DIBA for referral to the Departments of Justice and State for appropriate action. The procedures which are outlined below therefore apply only to business opportunities containing restrictions or requests aimed at enforcing the secondary boycott of Israel. The Department recently was accused of violating the U.S. policy stated in the above Section 3(5) by disseminating trade opportunity specifications containing boycott clauses. Such dissemination was, in fact, the case. This charge focused attention to the fact that the Department currently was failing to implement a policy decision of 1965 requiring that a statement of the U.S. policy of opposition to the boycott be attached when disseminating any trade opportunity document containing a boycott clause. The Department will continue to disseminate trade and investment opportunities from Arab countries, including those with boycott clauses. It is imperative, however, that we immediately reinstitute procedures to make this activity consistent with the provisions of Section 3(5). All offices concerned with handling trade and investment opportunities are hereby directed to implement the procedures outlined below effective September 8, 1975. Heads of operating units will be responsible for assuring that all personnel handling trade and investment opportunities are thoroughly familiar with these procedures. Interim measures have been put into effect to ensure against dissemination of any document containing a boycott clause before the effective date of the procedures. 1. All trade and investment opportunities and related documents (bid conditions, specifications, etc.) from Arab countries reaching Commerce through the foreign service, Arab embassies in Washington, or other sources will be screened for any reference to the Arab boycott of Israel. Although the initial trade opportunity reports (TOPS and other "special-handling" telegrams or airgrams) customarily will not contain such references, they are to be included in the screening process. The countries involved, and the respective reporting posts, appear in Attachment I. 2. All trade and investment opportunities and related documents disseminated directly to U.S. firms will be prominently stamped with a statement of U.S. policy regarding the boycott. Trade and investment opportunity telegrams (including TOPS programs), airgrams, or other bid documents related to such opportunities which containd no reference to the Arab boycott of Israel will be stamped to indicate that the recipient may be confronted with a boycott request at some later stage of a resulting transaction and to give the statement of U.S. policy. For trade or investment opportunity documents which contain a reference to the boycott of Israel, the stamp will direct the recipient's attention to the specific paragraph and page containing the boycott clause and also state the U.S. policy. No trade or investment opportunity, or related document, from an Arab country will be disseminated without the appropriate stamp. Facsimilies of the two stamps appear in Attachment II. The stamp must appear prominently and boldly on the document; it should appear on the first page of the document, unless such positioning would obscure significant printed information. If possible, make copies from the original stamped document; avoid re-copying which produces a dim imprint of the stamp. 3. Adherence to these procedures can best be assured if control is centralized rather than being dispersed among the operating units which disseminate opportunities to the business community. The most effective point for such control is the point of entry of the documents into Commerce. Accordingly, I assign to the Communications Branch, Communications Management Division, Office of of Administrative Support, Directorate of Administrative Management the responsibility for screening and appropriately stamping all incoming trade or investment opportunity documents from Arab countries prior to distribution to action units. A qualified analyst is to be assigned this responsibility in the Communications Branch. This responsibility should remain with the same analyst on a continuing basis to the fullest extent possible. In no case will such responsibility be assigned to an analyst who has not been adequately briefed on the requirements of these procedures. 4. Assignment of the primary screening and stamping responsibility to the Communications Branch does not relieve operating units which disseminate the opportunities of the responsibilities to recheck any such documents before they are sent out. If in such a recheck the operating unit finds a document covered by these procedures which is unstamped or inappropriately stamped, it will have the document appropriately stamped by the Communications Branch before any dissemination is made, and the Communications Branch will submit to Deputy Assistant Secretary Johnson a written explanation for the error. The Overseas Business Opportunities Division, Office of Export Development, Bureau of International Commerce, will be responsible for assuring that all TOPS opportunities from Arab countries have the appropriate stamp before they are put into the computer. 5. In the case of business opportunities published in Commerce Today, it is not deemed necessary to include the full U.S. policy statement with each opportunity published. As the alternative, a box item will be prominently displayed on each page of the publication which contains trade or investment opportuni ties from any Arab country listed in Attachment I. A similar procedure will be adopted by Commerce Business Daily. In this case, the box item will appear at the beginning of the page which carries overseas business opportunities. The content of the statement for the box item appears in Attachment III. 6. The Commerce Action Group for the Near East, Bureau of International Commerce, will be responsible for coordinating the initiation of these procedures. Questions concerning the procedures should be addressed to Jack Hearn of that office on extension 3993. An appropriate official will be designated at a later date to monitor the implementation of the procedures and ensure continuing compliance by all operating units. I wish to emphasize again the importance of strict adherence to these procedures. Any failure in this respect could subject the Department to serious criticism and possibly to legal action. TRAVIS E. REED, Assistant Secretary for Domestic and International Business. ATTACHMENT I Countries from which trade and investment opportunities are subject to these procedures: NOTE. Algeria, Morocco, and Tunisia apply the boycott with less severity than other Arab countries, and many documents may be received from these countries without boycott clauses. Nevertheless, screening of such documents should be thorough in order to catch the occasional boycott reference that may appear. Mauritania, Somalia, and Sudan are more recent entrants to the League of Arab States, the parent organization of the Arab boycott. It is not known to what extent they may apply the boycott. Nevertheless, documents from these countries should be screened with equal care to that given to documents from the other Arab countries to avoid possible lapses in the procedures. ATTACHMENT II 1. Stamp to be affixed on trade or investment opportunities, or related bid documents, which do not contain any reference to the Arab boycott of Israel. Important It is possible that at some stage of any transaction that may result from this opportunity, you will be asked to participate in a restrictive trade practice or boycott as defined in the Commerce Department's Export Administration Regulation (15 CFR, Part 368 et. seq.). You are reminded that, pursuant to Section 3 (5) of the Export Administration Act of 1969, it is the policy of the United States (A) to oppose restrictive trade practices or boycotts postered or imposed by foreign countries against other countries friendly to the United States, and (B) to encourage and request domestic concerns engaged in the export of articles, materials, supplies, or information to refuse to take any action, including the furnishing of information or the signing of agreements, which has the effect of furthering or supporting such restrictive trade practices or boycotts. Accordingly, I encourage and request individuals and firms receiving such requests to refuse to comply with them. You are further reminded that the receipt of any request to participate in a restrictive trade practice or boycott must be reported to the Department of Commerce, per Section 369.2 of the above-cited regulations. SECRETARY OF COMMERCE. 2. Stamp to be affixed on trade or investment opportunities, or related bid documents, which contain a reference to the Arab boycott of Israel. Important Your attention is addressed to paragraph-of this document, which contains a request for participation in a restrictive trade practice. You are reminded that pursuant to Section 3(5) of the Export Administration Act of 1969, it is the policy of the United States (A) to oppose restrictive trade practices or boycotts fostered or imposed by foreign countries against other countries friendly to the United States, and (B) to encourage and request domestic concerns engaged in the export of articles, materials, supplies, or information to refuse to take any action, including the furnishing of information or the signing of agreements, which has the effect of furthering or supporting such restrictive trade practices or boycotts. Accordingly, I encourage and request you not to comply with the request. You are further reminded that the receipt of any request to participate in a restrictive trade practice or boycott must be reported to the Department of Commerce in accordance with the export administration regulations (15 CFR, Part 369 et. seq.). SECRETARY OF COMMERCE. NOTE. Following the paragraph number, indicate the page number if the document contains more than one page. ATTACHMENT III Statement to appear prominently in a box item on any page of Commerce Today which contains a trade or investment opportunity from an Arab country. Important Member countries of the League of Arab States employ a secondary boycott against foreign firms which undertake certain specified types of business relationships with the State of Israel. It is possible that U.S. firms responding to trade or investment opportunities from Arab countries published herein may be asked at some stage of a transaction to participate in an Arab boycott-related restrictive trade practice as defined in the Department's Export Administration Regulations (15 CFR, Part 369 et. seq.). Firms are reminded that pursuant to Section 3(5) of the Export Administration Act of 1969, as amended, it is the policy of the United States (A) to oppose restrictive trade practices or boycotts fostered or imposed by foreign countries against other countries friendly to the United States, and (B) to encourage and request U.S. concerns engaged in the export of articles, materials, supplies, or information to refuse to take any action, including the furnishing of information or the signing of agreements, which has the effect of furthering or supporting such restrictive trade practices or boycotts. Accordingly, U.S. concerns receiving such requests to participate in a restrictive trade practice or boycott are encouraged and requested to refuse to comply with them. You are further reminded that U.S. concerns receiving requests to participate in a restrictive trade practice or boycott must report such receipt to the Department of Commerce in accordance with Section 369.2 of the above-cited regulations. |