176. Letter From the Secretary of State to the Chairman of the House Committee on Interstate and Foreign Commerce (Harris)1

Dear Mr. Harris: In response to your letter of April 9, 19572 requesting the views of the Department of State with respect to S.1423, the following comments are submitted.

S.1423 proposes “to amend sections 801, 802, and 1102 of the Civil Aeronautics Act of 1938, as amended.” The Department wishes to comment on (1) the aspect of the bill which would limit the President’s review of Civil Aeronautics Board decisions on applications of air carriers or foreign air carriers for authority to engage in foreign air transportation to cases in which the President determines that the Board’s decision might affect the national defense or foreign policy of the United States, and (2) the aspect which would require that a representative of the United States airline industry should be [Page 475]made a duly accredited member of the United States delegation in any formal negotiation with another country on matters relating to air transportation.

The amendment of section 801 of the Civil Aeronautics Act of 1938 in the manner proposed in S.1423 would apparently be intended to reduce the number of cases relating to foreign air transportation which should be reviewed by the President. In any case where a United States airline is certificated to serve a point in a foreign country or a foreign airline is authorized to operate into the United States the foreign policy of the United States is automatically involved. There is a strong probability that many cases involving foreign air transportation will affect the national defense of the United States. Therefore, it will be necessary for the President to continue to review all Civil Aeronautics Board decisions relating to international air transportation to determine the nature and extent of their impact on the foreign relations of the United States and the national defense. Accordingly, this Department concludes that the proposed amendment of section 801 will not in any way reduce the burden on the President and recommends against the enactment of this portion of S.1423.

The Department of State strongly recommended against the adoption of legislation, introduced in the Senate during the Second Session of the 84th Congress, which would require that a representative of the airline industry be made a duly accredited member of the United States delegation in any formal air transport negotiations. Actual experience of the last few months has increased the conviction of this Department that enactment of the bill into law would be contrary to the best interests of the United States.

International air transportation serves the United States as a whole by providing fixed and dependable air transportation to other countries. While the airlines of the United States which provide such transportation are vitally affected by the agreements which this Government is able to conclude with other governments for the purpose of making possible such air transport services, other segments of the United States are also vitally affected by these agreements. Communities served by international airlines are keenly aware of the advantages of air transportation connecting them with other countries and are increasingly desirous of influencing the position to be taken by United States delegations in the negotiation of agreements to establish international air routes. Aircraft manufacturers of the United States are also interested in the effect on their business of arrangements which can influence the growth of markets for their products.

Because of the direct effect of the agreements on the business of the airline industry the Government has consistently provided representatives [Page 476]of that industry an opportunity to consult with the Government and, in most cases, to serve as observers on the delegations negotiating such agreements. The Department does not believe, however, that it would be in the public interest to give the airline industry a still further preferred position in this regard, especially as compared with other groups having an equally important and valid interest in civil aviation agreements. Since it is obvious that it would not be either desirable or feasible to add to the negotiating delegations representatives of all interests that might possibly be affected by the outcome of the negotiations, it is believed undesirable to create for any of them a preferred position beyond that presently accorded.

The portion of the bill which relates to participation of the airline industry in air transport negotiations also sets forth procedures to be followed in the course of such negotiations. The Department considers it of the utmost importance to receive the advice and views of the airline industry, and believes that the intention of S.1423, as expressed in that portion dealing with procedures to be followed in international negotiations, is currently being met. Prior to the commencement of negotiations the Civil Aeronautics Board advises the United States air carriers that such negotiations will take place and affords an opportunity for them to meet with representatives of the Board and this Department to discuss matters to be considered in the negotiations. Throughout the course of the negotiations the airline industry has a continuing opportunity to present its views to the negotiators.

As a general rule the industry has been afforded an opportunity to have a representative serve as an observer on delegations in formal negotiations on air transport matters. The observer normally is designated by the Air Transport Association. It is the intention of the Department to continue the practice of conferring with the airline industry and to have an industry observer on delegations to the extent feasible. Experience has shown, however, that in most instances the airline industry is unable to provide an observer who can speak for the industry as a whole. In the absence of unanimity the Air Transport Association representative can only observe and report to members of the Association. However, there are a small number of airlines which are not members of the Air Transport Association. When an airline affected by an air transport negotiation is not a member of the Air Transport Association a representative of that Association is not a true representative of the industry.

Accreditation to a delegation binds each member to the position which has been adopted by the United States. Therefore, should an airline representative be accredited to the delegation he would lose his position as a special representative of a special interest and [Page 477]become bound to take all steps necessary to insure the affectual presentation of the governmental position notwithstanding any inherent conflict of interest which might exist because of the special interest of the group which he represents. The observer capacity, therefore, is the most advantageous position on the delegation that the Government can offer to the air transport industry.

Here a mandatory requirement that a representative of the United States airline industry be accredited as a member of the United States delegation to be enacted it would be impossible for this Government to insist upon the exclusion of a representative of a foreign airline, even when such exclusion would be in the best interest of the United States and the United States airlines.

On the other hand, in some cases the foreign government with which the United States is negotiating insists that airline representatives be excluded from the negotiations. Sometimes this insistence is based on the principle that inter-governmental negotiations should not be conducted in the presence of non-governmental personnel, particularly those with partisan interest in the outcome of the negotiations. In other cases it is felt that the presence of airline representatives destroys the opportunity for frank discussions, hampers negotiations, and renders ultimate agreement more difficult, if not impossible. The recent tendency of airline industry representatives to disclose the status of negotiations while they are still in progress can only serve to increase the opposition of foreign governments to the presence of such airline representatives. In certain cases where negotiations were held at the request of the United States for the purpose of obtaining rights important to the airlines of the United States and to the national interest the other country refused to negotiate in the presence of airline representatives.

In view of the above comments this Department recommends that no legislation be enacted which would in any way destroy the flexibility which is often the essential qualification on which the ability to obtain an agreement in the best interest of the United States may depend.

The Department also recommends against the provision of the bill that would require the presence of an airline representative at all delegation meetings. Such a requirement would be in effect a requirement that in some instances considerations which should properly be brought to bear on the subject not be discussed in delegation meetings. It is frequently necessary for government representives serving on delegations to discuss matters which are not public knowledge and which cannot in the interest of the security of the United States and its international relations be divulged to persons outside the Government. Accordingly, such matters could not be discussed in the presence of an airline representative. In this connection [Page 478]it should be noted that, while the airline industry can and should make its views known with regard to the matters of air transport operations and aviation policy, these representatives do not have the experience and information relative to matters outside the air transport field to make them competent advisers on such other aspects of the foreign relations of the United States as may be involved in a negotiation.

In addition, there is a serious question whether the aspect of the bill requiring a representative of the air carriers to be made a duly accredited member of the United States delegation to formal negotiations with foreign governments would be valid, since it represents an intrusion into the exercise by the President of his authority under the Constitution to conduct negotiations with foreign governments through representatives of his choosing.

For all of the above reasons the Department believes the enactment of S.1423 would hamper rather than help the interests of the United States as a whole and the ability of the Government to strengthen and protect our international airlines. Accordingly, the Department is opposed to the enactment of S.1423. The Department would welcome the opportunity to discuss in further detail its views on S.1423 with members of the Committee.

The Department has been advised by the Bureau of the Budget that there is no objection to the submission of this report and that the enactment of S.1423 would not be in accord with the program of the President.3

Sincerely yours,

For the Secretary of State:
Robert C. Hill4
Assistant Secretary
  1. Source: Department of State, Central Files, 911.721/4–957.
  2. Not printed. (Ibid.)
  3. The Secretary of State had sent a somewhat similar letter to Senator Warren G. Magnuson, Chairman of the Senate Committee on Interstate and Foreign Commerce, on June 11, 1956, in connection with S.3914. That letter stated, additionally, as follows: “It is further believed that the President should not be required to report his reasons for approving or disapproving proposed decisions of the Board except to the extent that he in his own discretion might consider such a report valuable to the welfare of the nation.” (Ibid., 911.721/5–2456)
  4. Printed from a copy which bears this typed signature.