132 U.S. 174, 178 (1889); Sutherland, Statutory Construction (3d ed., 1943) section 4820. This rule is particularly relevant where, as here, the declaration of policy was not contemporaneous with the enactment or amendment of any of the basic pertinent statutes: the Export Control Act, the Agricultural Act of 1949, and the Commodity Credit Corporation Charter Act.s I have examined the history of the declaration with care and find no indication that Congress itself viewed the amendment as more than an expression of its policy, to be given consideration by the Executive in making decisions within the framework of authorizations and prohibitions established by prior law. Representative Latta, who sponsored the declaration, himself stated that its purpose was to have the Department of Commerce know "what the sense of this Congress is" with respect to the transactions in question. 107 Cong. Rec. 13746. And Representative Hoeven, of Iowa, one of its supporters, pointed out that the amendment "pertains only to the policy section of this bill." Id. at 13747. At no point in the legislative consideration of the declaration was any effort made to revise or to repeal the statutes that would have to be deemed amended if the policy were to be given binding legal effect. The Congress could, of course, have embodied its policy in a provision of positive law to which the executive branch would have been bound to adhere. That it did not choose to do so is significant, not only in establishing that section 2(c) is without legal effect but in determining its proper interpretation and application as policy. Congress evidently contemplated that situations might thereafter arise in which the considerations of policy to which it was directing attention should not be decisive; that it would be necessary for the Executive to consider and appraise the policy thus declared and to determine whether its application would serve the national interest in particular situations. Both Congress and 8 Export Control Act of 1949 (Feb. 26, 1949, c. 11, 63 Stat. 7, as amended, 50 U.S.C. App. 2021 et seq.) (authorizing the President to regulate exports, including their financing, transportation, and other servicing); ́Agricultural Act of 1949, section 407, supra (CCC ́authorized to sell agricultural commodities for export at less than support prices); Commodity Credit Corporation Charter Act (June 29, 1948, c. 704, sec. 5, 62 Stat. 1072), supra (CCC empowered to procure agricultural commodities for sale to foreign governments, and to export such commodities, or cause them to be exported, and to aid in the development of foreign markets for these commodities). the courts have traditionally sought to avoid restricting the Executive unduly in matters affecting foreign relations because of the need for flexibility in this area and the fact that the Constitution entrusts the external affairs of the Nation primarily to the Executive. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-321 (1936); Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111-114(1948). If, therefore, the executive branch should determine that permitting the sales in question would serve the national interest at this time, its action would not only be lawful but consistent with the intention of Congress as to the manner in which section 2(c) was to be interpreted and applied. III THE BATTLE ACT I agree with the Acting Secretary that the Mutual Defense Assistance Control Act of 1951 (Oct. 26, 1951, c. 575, 65 Stat. 644, as amended, 22 U.S.C. 1611 et seq.) (the Battle Act) presents no legal obstacle to sales of agricultural commodities. to Eastern European bloc countries. The Battle Act was designed to supplement the Export Control Act of 1949, supra, n. 3, which authorizes the President to "prohibit or curtail the exportation from the United States, *** of any articles, materials, or supplies, *** except under such rules and regulations as he shall prescribe." Pursuant to the Export Control Act, a comprehensive system of export licensing was set up to control the shipment of commodities from the United States to foreign countries. See H. Rept. 318, 82d Cong., 1st sess. (1951). The Battle Act added to this system of regulation a mechanism for inducing other countries to embargo the shipment to the Soviet bloc of "arms, ammunition, and implements of war, atomic energy materials, petroleum, transportation materials of strategic value, and items of primary strategic significance used in [their] production." See S. Rept. 698, 82d Cong., 1st sess. (1951). The act provides. (section 103, 22 U.S.C. 1611b (b)) for the termination of all military, economic, or financial assistance to any nation upon the recommendation of the Administrator of the program, subject to review by the President in certain instances, if it "knowingly permits the shipment to any nation or combina tion of nations threatening the security of the United States, including the Union of Soviet Socialist Republics and all countries under its domination," of any of the embargoed materials. The act contains a further declaration of policy regarding the export, by countries receiving assistance, of other commodities "which in the judgment of the Administrator should be controlled." Section 201, 22 U.S.C. 16128. If a country receiving assistance from the United States does not effectively cooperate in controlling exports of such commodities, all military, economic, or financial assistance is to be terminated upon a determination by the President of noncooperation. Section 203, 22 U.S.C. 1612b. As indicated by the above summary of its provisions, the Battle Act did not purport to regulate private United States shipments to Soviet bloc countries, which were already subject to regulation under the Export Control Act. The Battle Act relates, rather, to trade with the Soviet bloc by countries receiving aid or assistance from the United States. Moreover, the transactions to which this opinion relates would be purely commercial in nature from the standpoint of the purchasing countries, and would therefore not involve "economic or financial assistance" within the meaning of the Battle Act. The Commodity Credit Corporation assists exports of agricultural products through the payment to United States exporters of subsidies designed to eliminate the impact on such exporters of the domestic price support program and thereby enable them to compete on an equal basis with foreign exporters. However, as the Acting Secretary's letter states, the only "assistance" involved in the payment of such subsidies redounds to the benefit exclusively of United States producers and exporters.* This view is supported by my recent opinion to the Secretary of Agriculture of August 29, 1963 (42 Op. A.G. No. 14), regarding the applicability of the Cargo Preference Act to export sales on long-term credit negotiated by the Secretary of Agriculture with domestic exporters under Title IV of Public Law 480. While the opinion concludes that the Cargo Preference Act applied because the purpose of the Title IV long-term credit program was in substantial part “to assist" the foreign economy, it was stated that if the Department of Agriculture should sell surplus agricultural commodities to a domestic exporter for export purposes under a program designed to dispose of the goods on the best possible terms and conditions, "the resulting export is a purely commercial transaction * * * and, hence, not subject to the Cargo Preference Act even if the United States advances credit to the exporter and the ultimate purchaser is a foreign government." (p. 12, supra.) As to both points, the following colloquy between Senator Sparkman, of Alabama, the floor manager of the Battle Act in the Senate, and Senator Kem, of Missouri, who advocated a more stringent bill, is instructive (97 Cong. Rec. 10675): "Mr. SPARKMAN: I should like to say that it does not make any difference what the United States is receiving [from the USSR]. That is not the question. The question relates to trade between Soviet countries and countries towhich the United States intends to extend help. "Mr. KEM: Exactly. "Mr. SPARKMAN: Either economic or military. It has nothing to do with trade between the United States and Russia or any other country. "Mr. KEM: I did not intend to imply anything else." Accordingly, it is clear that the act has no application to the contemplated transactions. IV THE EXPORT CONTROL ACT The Acting Secretary's letter properly states that in any event the export of agricultural products to the Soviet Union and to bloc countries would require the issuance of licenses in accordance with the export control regulations promulgated pursuant to the Export Control Act of 1949, supra. I am not aware of any other Federal statutes relevant to the problems involved. Accordingly, it is my opinion that the transactions described in your letter could be accomplished in conformity with the laws of the United States. Sincerely, ROBERT F. KENNEDY. TITLE TO NATURALLY-MADE LANDS UNDER THE SUBMERGED LANDS ACT The Submerged Lands Act (act of May 22, 1953, c. 65, 67 Stat. 29, 43 U.S.C. 1301–1315) relinquished any former title of the United States to lands naturally-made as islands, which formerly were "lands beneath navigable waters," as that phrase is defined in the act. Title to accretions to public lands of the United States was not affected by the act. The ruling of the Bureau of Land Management of the Department of the Interior in the case of Floyd A. Wallis (BLM-A 036376), as affirmed by the Secretary of the Interior (65 I.D. 369 (1958)), to the contrary is erroneous and should be revoked. THE SECRETARY OF THE INTERIOR. DECEMBER 20, 1963. MY DEAR MR. SECRETARY: I have the honor to submit for your guidance, pursuant to a request from the President on October 30, 1963, an opinion formally embodying the advice which I gave him on January 30, 1963, concerning the title, if any, of the United States to lands which formed as islands in the marginal sea within the boundaries of a State after the State was admitted to the Union but before May 22, 1953, the effective date of the Submerged Lands Act, c. 65, 67 Stat. 29 (43 U.S.C. 1301 et seq.). The most important of the disputed areas lie along the Florida coast and in Louisiana at the mouth of the Mississippi. A brief description of the factual and legal background is necessary to clarify the issue. Off the Florida coast the tides and ocean currents sometimes form shoals that become tiny islands. The islands may grow quite rapidly, especially if a mangrove seed is dropped by a passing bird and takes root, for the roots hold the shifting earth. Although the exact chronology is uncertain because of the incompleteness of the early charts, many such islands were formed within the past century. Since their formation they |