Mississippi Poultry Association, Inc. v. Edward R. Madigan, Secretary of the United States Department of Agriculture

992 F.2d 1359

Opinions

WIENER, Circuit Judge.

This is an appeal from the district court’s grant of summary judgment rejecting the Secretary of Agriculture’s interpretation of a critical inspection standard contained in the Poultry Products Inspection Act (PPIA).¹ Like Pertelote, we heed Chanticleer’s² clarion call to resolve the central issue of this most recent in a long and illustrious line of gallinaceous litigation:³ whether the inter pretation of poultry importation standards by the Defendant-Appellant Secretary of Agriculture (the Secretary) is entitled to deference under Chevron USA v. Natural Resources Defense Council,⁴ Finding the language employed by Congress both clear and unambiguous, we conclude not only that we owe no such deference to the Secretary’s interpretation, but also that his interpretation is unsupportable under the plain language of the statute.

I

FACTS AND PROCEEDINGS

At issue in this appeal is the interpretation of § 17(d) of the PPIA⁵ and the implementing regulation promulgated jointly by the Secretary and the Food Safety and Inspection Services (FSIS) (collectively, “the Agency”). Section 466(d) provides that all imported poultry products

shall ... be subject to the same inspection, sanitary, quality, species verification, and the residue standards applied to products produced in the United States; and ... have been processed in facilities and under conditions that are the same as those under which similar products are processed in the United States.⁶

The Agency promulgated a regulation interpreting the foregoing statutory language as requiring that “[t]he foreign inspection system must maintain a program to assure that the requirements referred to in this section, at least equal to those applicable to the Federal System in the United States, are being met.”⁷

During the required notice and comment period, the FSIS received thirty-one comments on the proposed rule, more than 75% of which opposed the “at least equal to” language. Nonetheless, in the preamble to the final rule, the FSIS stated that it did not believe that a literal application of the term “the same as” was the intent of Congress, although the FSIS acknowledged that “there are certain features that any system must have to be considered ‘the same as’ the American system.”⁸

Congress reacted to the effrontery of the “at least equal to” language in the regulation by enacting § 2507 of the Food, Agriculture, Conservation, and Trade Act of 1990 (1990 Farm Bill).⁹ In that section, Congress addressed the Agency’s interpretation, stating that “the regulation promulgated by the Secretary of Agriculture, through the [FSIS], with respect to poultry products offered for importation into the United States does not reflect the intention of the Congress.”¹⁰ It then “urge[s]” the Secretary, through the FSIS, to amend the regulation to reflect the true legislative intent.¹¹ Further, in the House Conference Report accompanying the 1990 Farm Bill, Congress declares that although certain technical deviations from United States standards,, such as dye color and materials used for knives, may be acceptable, the “fundamental inspection system, intensity, procedures, and food safety standards, ... should be the same as those prevalent in the United States for any such country to be certified for export to the United States.”¹² The Agency resisted Congress’ expressed wishes, however, and the regulation remained unchanged.

Recognizing the impasse between the Legislative and Executive branches, the Mississippi Poultry Association, Inc. and the National Broiler Council (the Associations), both non-profit trade associations whose members are domestic poultry producers and processors, involved the third branch of government when they filed suit' in the Southern District of Mississippi. There the Associations sought a judicial declaration that the 1989 regulation implementing § 466(d) was arbitrary and capricious as contemplated by the Administrative Procedure Act.¹³

The Associations and the Agency filed cross motions for summary judgment. The district court granted the motion in favor of the Associations, 790 F.Supp. 1283, concluding that the regulation’s requirement that foreign poultry products be subject to procedures “at least equal” to United States procedures violated the plain language of the statute, which required that procedures for foreign poultry products be “the same as” requirements imposed on domestic poultry. Finding that the “the same as” language was unambiguous, the court declined to give deference to the Agency’s interpretation of the statute. In addition to the statutory language, the court stressed that the subsequent statement of Congress in the 1990 Farm Bill was an unequivocal rejection of the Agency’s interpretation of § 466(d). The Agency timely appealed.

II

ANALYSIS

A. Standard of Review

Our readership should now know by memory that we review the grant of a summary judgment motion “under the same standards which guided the district court.”¹⁴ The standards provide that summary judgment is appropriate when no issue of material fact exists and the movant is entitled to judgment as a matter of law.¹⁵ In determining whether the grant was proper, we view all fact questions in the light most favorable to the nonmovant; questions of law are reviewed de novo.¹⁶

B. Chevron Analysis

In Chevron, the Supreme Court established a two-step method for judicial review of an agency’s interpretation of a statute that it administers.¹⁷ The threshold inquiry in a Chevron analysis is whether Congress clearly expressed its intent in the plain language of the statute. “If the intent of Congress is clear, that is the end of the matter; for the Court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”¹⁸ The first step in determining the intent of Congress is to examine the language of the statute.¹⁹ For, if the language is unambiguous on its face, “then the first canon is also the last: ‘judicial inquiry is complete.’ ”²⁰ In deciding whether the intent of Congress is clear, courts are to employ the traditional rules of statutory construction.²¹

If, but only if, the language of the statute is determined to be either ambiguous or silent on the particular issue, the reviewing court is to proceed to the second Chevron inquiry: “whether the agency’s answer is based on a permissible construction of the statute.”²² As long as the agency’s interpretation is reasonable, the court should defer to that interpretation and not impose its own construction on the statute.²³

Congressional Intent

The Associations insist that the language of the statute is clear in the context of the PPIA: Congress intended that foreign poultry products be subject to inspection standards identical to those imposed on like domestic products. In support of the portion of its argument which urges that the context of the statute controls, the Associations cite the rule that “specific words within a statute may not be read in isolation from the remainder of the entire statutory scheme.”²⁴ “Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all their aggregate take their purport from the setting in which they -are used____”²⁵

To illustrate this latter point, the Associations refer to other sections of the PPIA, in which the words “the same” mean “identical.”²⁶ As the Associations note, another established canon of construction provides that a word used in different parts of the statute should be construed to have the identical meaning throughout the entire statute. When only one meaning of a word can be used consistently throughout the statute, that meaning is plain and unambiguous.²⁷

In complementary fashion, the Associations refer us to other sections of the PPIA in which the words “at least equal to” are used. For example, other sections of the PPIA require that the inspection programs of the several states be “at least equal to” the federal program.²⁸ As the Associations note, “[t]he use of different words or terms within a statute indicates that Congress intended to establish a different meaning for those words.”²⁹

On the other hand, the Agency argues that the language of the statute is ambiguous and thus, under Chevron, it need only show that its interpretation of the ambiguous statutory language is reasonable. In support of its contention, the Agency relies on secondary dictionary definitions of the adjective “same.” Conceding that the primary meaning of the adjective is “resembling in every way,” the government notes that other, secondary definitions include “closely similar” and “comparable,” with synonyms of “equivalent” and “tantamount.”³⁰ At oral argument, counsel for the Agency proclaimed that if Congress had used the word “identical” instead of the term “the same as,” “I don’t think we’d be here today.” We fail to see the distinction: Even these secondary meanings are synonymous with “the same as” but not with “at least equal to.”

Although we acknowledge that “[t]he existence of alternative dictionary definitions of the word ... each making some sense under the statute, itself indicates that the statute is open to interpretation,”³¹ this rule does not advance the Agency’s position in the instant case. As the Associations have demonstrated using well established canons of statutory construction, “at least equal to” as a substitute for “the same as” does not make sense under this statute. In any event, we find the Agency’s argument disingenuous. Just as there are no degrees of uniqueness, there are no degrees of identity; any fair reading of the dictionary definition of “the same” overwhelmingly demonstrates that “the same” is congruent with “identical.”³² And the Agency’s protestations about permissible deviations from an absolute requirement of identity are shown to be unfounded; such de min-imis variances are encompassed by the Committee Report’s authorized exceptions for “technical deviations.”

If the Secretary ever harbored non-frivolous quibbles as to Congress’ intent in choosing the term “the same as,” they were absolutely eliminated by the subsequent congressional declaration in the 1990 Farm Bill. In that Act, Congress stated emphatically and unequivocally that the Agency has misinterpreted the “same as” standard. The Agency’s efforts to make much of Congress’ failure actually to amend the statute is a red herring. There simply was no need for Congress to amend the statute; it already stated precisely what Congress wanted it to state. Congress desired the “same as” language, and that is the language it placed in the statute. It is not required to respond to the Agency’s disregard of unequivocally expressed congressional intent by amending a statute that is both clear and unambiguous on its face.

The Agency also argues that construing “the same as” to mean identical would lead to an absurd result, one which for example would prevent the importation of poultry products processed under superior systems. Even if the Agency is correct, however, we cannot agree that the result is absurd. Had the Agency labeled the actions of Congress protectionism, we would not necessarily disagree. But, while that may be deemed in some quarters to be unwise or undesirable, it cannot be labeled “absurd” in the context of divining the result intended by Congress. The Agency’s complaint, therefore, is one implicating the clear policy choice of Congress — a choice made, undoubtedly, in response to effective lobbying by domestic poultry producers. It is not within the purview of the Agency, however- — or of the courts for that matter — to alter, frustrate, or subvert congressional policy. Our “third branch” role under the constitutional scheme of separation of powers is limited — as is the role of the Agency — to determining whether that policy is clearly expressed. We conclude that it is in this instance.

In another variation on the absurdity theme, the Agency insists that the interpretation urged by the Associations is absurd because it would place the PPIA in violation of the 1) General Agreement on Tariffs and Trade (GATT),³³ 2) the ongoing trade negotiations under the auspices of GATT (the Uruguay Round of the Multilateral Trade Negotiations),³⁴ and 3) the United States-Canada Free-Trade Agreement (FTA).³⁵ The Agency adamantly insists that Congress cannot violate an international obligation without making a clear statement that it intends to do so. The Agency maintains further that a clear statement is especially appropriate in the instant case because the Executive Branch has exclusive responsibility for conducting international affairs. We discern fatal flaws in the Agency’s position.

The Agency has obfuscatorily intertwined its arguments, but when they are untangled there appear three separate but related maxims governing the construction of statutes which implicate international obligations. First, Congress may abrogate a treaty or international obligation entered into by the United States only by a clear statement of its intent to do so.³⁶ Second, the extraterritorial application of domestic laws requires a clear statement of congressional intent so as “to protect against unintended clashes between our laws and those of other nations which could result in international discord.”³⁷ And finally, “[i]t has been a maxim of statutory construction since the decision in Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804), that ‘an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains.’ ”³⁸ Even when we grant arguendo that these truisms of statutory construction exist, we find them inapplicable and therefore not controlling in the instant case.

Despite the Agency’s claim that Congress must clearly express its intention to violate the GATT, it fails to cite us to any authority for that specific proposition and we are aware of none. In fact, we are aware of strongly instructive authority to the contrary. The Federal Circuit³⁹ recently rejected out of hand the argument that a statutory provision should be read consistently with the obligations of the United States as a signatory of GATT — the very position argued here by the Agency. The court reasoned that

even if ... [the] Commeree[ ] [Department’s] interpretation conflicts with the GATT, ... the GATT is not controlling. While we acknowledge Congress’s interest in complying with U.S. responsibilities under the GATT, we are bound not by what we think Congress should or perhaps wanted to do, but by what Congress in fact did. The GATT does not trump domestic legislation; if the statutory provisions at issue here are inconsistent with GATT, it is a matter for Congress and not this court to decide and remedy.⁴⁰

We conclude that this same, flawless reasoning applies to the instant case and mandates that we give effect to Congress’ intent, even if implementation of that intent is virtually certain to create a violation of the GATT.

Our adoption of this reasoning is unaffected by the maxims of statutory construction cited above. The first maxim — that a clear statement of Congress is required to abrogate a treaty — does not require a different result here because Congress is not abrogating a treaty or an international obligation. Abrogation or repeal involves nullifying an obligation. In the instant case, Congress has at most evinced an intent to place the PPIA in violation of the GATT. Certainly, the United States has passed laws that, in a subsequent proceeding before a GATT panel, have been declared in violation of the GATT. Yet these violations have not signified the end of American involvement in the GATT.⁴¹

Second, there is no need here for an Arabian American Oil Co. “clear statement” as required when Congress intends for its legislation to violate the GATT. The instant case is distinguishable from the situation in Aro-bian American Oil Co., which only requires such a clear statement when the intent of Congress is to apply domestic legislation ex-traterritorially, so as “to protect against unintended clashes between our laws and those of other nations which would result in international discord.”⁴² Also irrelevant to this ease is the Agency’s citation of Societe Nationale Industrielle Aerospatiale v. United States District Court for Southern District of Iowa,43 in which the Court stated that “we have long recognized the demands of comity in suits involving foreign states, either as parties or sovereigns with a coordinate interest in the litigation.”⁴⁴

The factual circumstances in both of these cases are distinguishable from those in the instant case. In Arabian American Oil Co, the question was whether Title VII applied to American corporations located in Sa,udi Arabia. Obviously, courts must be hesitant to apply American law when it would displace the law of the foreign forum. Similarly, in Aerospatiale, the defendants were corporations owned by the Republic of France, so for all practical purposes a foreign sovereign was a party in the lawsuit. In both cases the key issue is clear: application of American law would directly affect the sovereignty of a foreign nation. That cannot be said of the case now before us. There is absolutely no issue of sovereignty in the instant case; in the absence of such an issue the concerns voiced in Arabian American Oil Co. and Aerospatiale are not implicated.

Like the first two maxims, the third — that an act of Congress should not be construed to violate the law of nations if there is an alternative construction available — cannot apply here. The Agency directs our attention to no supporting authority for its contention that the GATT — or for that matter any multi-lateral trade agreement— falls under the rubric of “the law of nations”; and again we have been unable to find any.⁴⁵ Neither have we found a single case in which this canon was applied to international commercial law. Rather, all eases relying on the law-of-nations canon of construction either involve traditional rules of public international law or implicate the sovereignty of a foreign nation.⁴⁶ We are loath, therefore, to extend this maxim to multi-lateral trade agreements. To do so in the absence of controlling authority would be to exercise raw judicial fiat.

The additional Agency argument — that a clear congressional statement is especially appropriate in this instance because the Executive Branch has exclusive authority over foreign affairs — borders on frivolity. The Agency overlooks or conveniently ignores the well recognized distinction between foreign affairs and foreign commerce.47 Even though the Executive Branch does have exclusive jurisdiction over foreign affairs, the Constitution grants Congress power to regulate commerce with foreign nations.⁴⁸ To the extent that a dispute exists over possible foreign policy implications to the GATT, we decline to enter the fray.

This final argument exposes the true nature of this case as a dispute between the Executive and Legislative branches over the propriety of Congress’ policy choices. Although the Agency makes a compelling argument that the “at least equal to” language is the better standard, it simply is not the court’s role to judge which branch has proposed the preferable rule. Congress has made clear that “the same as” requires identical inspection and processing procedures, and the fact remains that it is Congress that has the right to make the choice, even if it proves to be the wrong choice. As our colleagues of the Federal Circuit have stated: “[W]e are bound not by what we [or the Agency] think Congress should or perhaps wanted to do, but what Congress in fact did.”⁴⁹ Regardless of whether Congress’ choice should prove to be unwise or disruptive, that choice itself has been made absolutely.

Ill

CONCLUSION

“But you good people who think that this tale is a piece of foolishness about a ... hen, take heed of the moral. For St. Paul says that all which is written is written for our instruction____”⁵⁰ With this caveat in mind, we carefully consider the instructions written by Congress in the PPIA. After application of the traditional tools of statutory construction, we conclude that the plain language of § 466(d) of the PPIA clearly demonstrates that Congress intended “the same as” to be a synonym for “identical.” Any lingering doubt as to Congress’ intent is dispelled by its subsequent passage of the 1990 Farm Bill in which it expressly rejected the Agency’s unilateral mutation of “the same as” standard to the “at least equal to” language in its regulation.

The Agency’s attempts to conjure up ambiguity are unavailing. As we find under the first step of the Chevron methodology that the language of the statute is unambiguous, there is neither need nor authority for us to proceed further. We therefore owe no deference to the Agency’s interpretation and grant none.

For the foregoing reasons, the district court’s summary judgment is

AFFIRMED.

Footnotes

1

. 21 U.S.C. §§ 451-470.

2

. Geoffrey Chaucer, Canterbury Tales 139 (R.M. Lumianski: trans., Simon & Schuster 1954) (The Nun's Priest's Tale).

3

. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) (involving indictment for violations of Live poultry Code); Skinner v. Oklahoma, 316 , 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (striking down state statute requiring sterilization for habitual criminals and noting that under the law a thrice convicted chicken thief would be subject to sterilization); Julius Goldmans Egg City v. United States, 697 F.2d 1051 (Fed.Cir. 1983) (involving the world’s largest egg rancher who had sued U.S. government seeking additional compensation for destruction of his flock to control communicable disease); Coleman v. Sanderson Farms, Inc., 629 F.2d 1077 (5th Cir. 1980) (holding that "Load operators” and "live haul drivers” employed by poultry business were "employees employed in agriculture" under the Fair Labor Standards Act); In re Chicken Antitrust Litigation, 407 F.Supp. 1285 (N.D.Ga.1975) (addressing motions to compel answers to interrogatories and to dismiss for lack of jurisdiction in chicken anti-trust suit); United States v. Pete Brown Enterprises, Inc., 328 F.Supp. 600 (N.D.Miss.1971) (A purchaser of a flock of chickens as to which government had a perfected security interest did not qualify as a “buyer in the ordinary course of business.”); Frigaliment Importing Co. v. B.N.S. Int'l Sales Corp., 190 F.Supp. 116 (S.D.N.Y.1960) (deciding "What is a chicken?”). For additional citations, see Aside, Don't Cry Over Filled Milk: The Neglected Footnote Three to Carolene Products, 136 U.Pa.L.Rev. 1553, 1564 n. 58. For cases involving the PPIA, see American Federation of Government Employees v. Block, 655 F.2d 1153 (D.C.Cir.1981); Armour & Co. v. Ball, 468 F.2d 76 (6th Cir. 1972); Borden Co. v. Freeman, 369 F.2d 404 (3d Cir. 1966); Bell v. Goddard, 366 F.2d 177 (7th Cir. 1966); Pacific Meat Co. v. Otagaki, 47 Haw. 652, 394 P.2d 618 (1964).

4

. 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

5

. 21 U.S.C. § 466(d).

6

. 21 U.S.C. § 466(d) (emphasis added).

7

. 52 Fed.Reg. 15963 (May 1, 1987) (emphasis added).

8

. 54 Fed.Reg. 43591 (Oct. 30, 1989).

9

. Pub.L. No. 101-624, 104 Stat. 3359 (1990).

10

. Id. In its entirety, § 2507 of the 1990 Farm Bill reads:

(a) FINDINGS. — Congress finds that—

(1) in 1985 the [PPIA], an Act to maintain the integrity and wholesomeness of this Nation's food supply, was amended by the Food Security Act of 1985;

(2) the 1985 amendment provided that poultry products offered for importation into the United States shall be subject to the same inspection, sanitary, quality, species verification, and residue standards applied to products produced in the United States and that such products shall have been processed in facilities and under conditions that are the same as those under which similar products are processed in the United States; and

(3) on October 30, 1989, the Secretary of Agriculture, through the [FSIS], ... promulgated a regulation implementing the 1985 amendment to that Act providing that a foreign inspection system seeking certification for export of poultry to the United States merely impose requirements at least equal to those applicable in the United States.

(b) SENSE OF CONGRESS. — It is the sense of the Congress that—

(1) the regulation promulgated by the Secretary of Agriculture, through the [FSIS], with respect to poultry products offered for importation into the United States does not reflect the intention of the Congress; and

(2) to urge the Secretary, through the [FSIS], to repeal the October 30, 1989 regulation and promulgate a new regulation reflecting the intention of the Congress.

Id.

11

. Id.

12

. H.R.Conf.Rep. 916, 101st Cong., 2d Sess., 1222 (1990), reprinted in 1990 U.S.C.C.A.N. 4656, 5747 (emphasis added).

13

. 5 U.S.C. §§ 500-706.

14

. Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988).

15

. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986).

16

. Walker, 853 F.2d at 358.

17

. See generally, Timothy B. Dyk & David Schenck, Exceptions to Chevron, Admin L.News, Winter 1993 at 1.

18

. Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781.

19

. Connecticut Nat. Bank. v. Germain, - U.S. -, -, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992).

20

. Id. at -, 112 S.Ct. at 1149.

21

. See, e.g., EEOC v. Arabian American Oil Co., — U.S. -, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991).

22

. Chevron, 467 U.S. at 843, 104 S.Ct. at 2781.

23

. Id.

24

. In re Thalheim, 853 F.2d 383, 387 (5th Cir. 1988).

25

. King v. St. Vincent's Hosp., - U.S. -, -, 112 S.Ct. 570, 574, 116 L.Ed.2d 578 (1991) (quoting NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir.1941)).

26

. For example, § 4(y) of the PPIA provides that “the terms 'pesticide chemical,' ‘food additive,' 'color additive,' and 'raw agricultural commodity' shall have the same meanings for purposes of this Act as under the Federal Food, Drug, and Cosmetic Act.” Id. (emphasis added). Clearly, “the same” in this section means "identical.”

27

. See Ardestani v. INS, — U.S. -, -, 112 S.Ct. 515, 519, 116 L.Ed.2d 496 (1991).

28

. In a 1968 amendment, Congress altered §§ 460(e) and 454(c), using the term "at least equal to” in requiring that states and territories have poultry processes "at least equal to” the federal system. The Secretary rejects the importance of the amendment, emphasizing that §§ 460(e) and 454(c) were not modified in the 1985 amendments, the amendments that added § 466(d). The Secretary insists that it "stretches speculation of Congressional intent past the breaking point to suppose that the word 'same' included in legislation passed in 1985, necessarily means something different than 'at least equal to' in entirely different sections addressing different concerns in legislation passed 17 years earlier.” We presume, however, that Congress knows the content of the statute it is amending and therefore, when Congress amended the statute in 1985 adding § 466(d), it presumably knew that the "at least equal to” term was already in the statute. The Secretary also disputes the importance of the 1968 amendment, noting that the legislative history indicates that Congress in 1985 thought the terms "same” was the functional equivalent of the "at least equal to” standard applicable to state inspection programs under §§ 460(e) and 454(c). The Secretary's argument on this point is unavailing, as we do not consider the legislative history of a statute when construing the plain language of a statute; we do so after — but only after — a statute is first found to be ambiguous or silent.

29

. Russello v. United States, 464 U.S. 16, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983).

30

. Webster's Unabridged Third New International Dictionary 2007 (1986).

31

. National R.R. Passenger Corp. v. Boston & Maine Corp., — U.S. -, -, 112 S.Ct. 1394, 1402, 118 L.Ed.2d 52 (1992).

32

. Interestingly, Webster's dictionary defines the word "identical” as meaning "the same.” Webster’s, supra note 30, at 1122.

33

. 55 U.N.T.S. 187 (Oct. 30, 1947).

34

. Trade Negotiations Committee, Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Part C, ¶ 7 (Dec. 1991).

35

. United States-Canada Free-Trade Agreement Implementation Act of 1988, Pub.L. No. 100-449, 102 Stat. 1851 (1988).

36

. Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252, 104 S.Ct. 1776, 1782, 80 L.Ed.2d 273 (1984).

37

. Arabian American Oil, - U.S. at -, 111 S.Ct. at 1230.

38

. Weinberger v. Rossi, 456 U.S. 25, 32, 102 S.Ct. 1510, 1516, 71 L.Ed.2d 715 (1982) (quoting Murray v. The Charming Betsy, 2 Cranch at 118).

39

. The Federal Circuit has exclusive jurisdiction over appeals from the International Court of Trade.

40

. Summerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660, 667-68 (Fed.Cir. 1992) (citations omitted).

41

. The same reasoning applies to potential violations of the FTA, which has been in effect only since January 1, 1989. Jim C. Chen, Appointment with Disaster: The Unconstitutionality of Binational Arbitral Review Under the United States-Canada Free Trade Agreement, 49 Wash. & Lee L.Rev 1455, 1456. Any violation of the Uruguay Round Negotiations is irrelevant, as the negotiations are not in final form and thus cannot be considered binding. See Public Citizen v. Office of United States Trade Representative, 970 F.2d 916, 919 (D.C.Cir.1992) (holding that the United States Trade Representative was not required to prepare environmental impact statement for international trade agreements being negotiated). One of the most recent and controversial GATT panel decision holding the United States in violation of the GATT is the Tuna/Dolphin Report, in which the panel concluded that the Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361-1407, violated Article XI, prohibiting most quantitative import or export restrictions. General Agreement on Tariffs and Trade: Dispute Settlement Panel Report on United States Restrictions on Imports of Tuna, 30 I.L.M. 1594 (1991). In addition, we note that the Agency’s argument on this point becomes nonsensical when viewed in the context of the GATT or FTA dispute resolution proceedings. If, as the Agency urges, Congress must expressly state its intention to violate the GATT or the FTA, it would, in effect, have admitted its guilt and these proceedings would be unnecessary.

42

. Arabian American Oil Co., - U.S. at -, 111 S.Ct. at 1230. As support for this proposition, the Court cited McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20-22, 83 S.Ct. 671, 677-78, 9 L.Ed.2d 547 (1963), in which the Court held that the NLRA did not apply to foreign ships employing foreign seamen.

43

. 482 U.S. 522, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987).

44

. Id. at 546, 107 S.Ct. at 2557.

45

. Certainly the Agency cannot contend that the FTA or the Uruguay Round negotiations qualify as "the law of nations." The FTA is a bilateral agreement, involving only the United States and Canada. The Uruguay Round negotiations, on the other hand, cannot bind the United States as there is no final result.

46

. Rossi, 456 U.S. at 25, 102 S.Ct. at 1510 (construing 5 U.S.C. § 7201, which prohibits employment discrimination against United States citizens on military bases overseas unless permitted by "treaty”); McCulloch, 372 U.S. at 21-22, 83 S.Ct. at 678 (holding NLRA docs not apply to maritime operations of foreign flagship employing alien seaman); Lauritzen v. Larsen, 345 U.S. 571, 578, 73 S.Ct. 921, 926, 97 L.Ed. 1254 (1953) (holding Jones Act inapplicable to Danish seamen on ship of Danish flag and registry owned by Danish citizen); Cunard S.S. Co. v. Mellon, 262 U.S. 100, 132, 43 S.Ct. 504, 510, 67 L.Ed. 894 (1923) (Sutherland, J., dissenting) (arguing that 18th Amendment can not apply to foreign ships, as such application would violate international law).

47

. This misapprehension is illustrated in the cases the Agency cites to support this contention: Department of Navy v. Egan, 484 U.S. 518, 529-30, 108 S.Ct. 818, 825, 98 L.Ed.2d 918 (1988) (grant or denial of security clearance to employee); Haig v. Agee, 453 U.S. 280, 293-94, 101 S.Ct. 2766, 2775, 69 L.Ed.2d 640 (1981) (revocation of an individual's passport based on determination that individual was threat to national security).

48

. U.S. Const, art. I, § 8, cl. 3.

49

. Suramerica, 966 F.2d at 667-68 (Fed.Cir. 1992) (citations omitted).

50

. Chaucer, supra note 2, at 152.