* Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. ¤ 292(a).

1 Intervenor-appellants Japan Fisheries Association and Japan Whaling Association argue that certification and the imposition of sanctions pursuant to such certification are violations of international law when applied to a validly objecting member insofar as the Convention requirements are not effective with respect to such a member. We disagree. There is no prohibition in the Convention against member nations acting unilaterally to force an objecting member (or nonmember) to comply with the Convention's regulations, even where those regulations are not binding on the member (or nonmember) under the terms of the Convention itself. - The idea behind this provision was that a foreign country in this position will choose the less damaging economic alter native, which will usually be giving up the proscribed fishing rather than the U.S. fish products export market. As the House reported noted, In the case of Atlantic Salmon, Danish exports to the United States totalled 54,365 pounds in 1970 worth $63,844.00. Imports of all Danish fish products totalled 31,656,00 lbs. valued at $10,543,298. The impact of lossing fs/'c] a 10 million dollar market as opposed to a 63 thousand dollar market is obvious. House Pelly Report at 7.

8 In 1978, in response to the signing of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), opened for signatureMarch 3, 1973, [1976]

27 U.S.T. 1087, T.I.A.S. No. 8249, Congress amended the Pelly Amendment by adding a new certification section: When the Secretary of Commerce or the Secretary of the Interior finds that nationals of a foreign country, directly or indirectly, are engaging in trade or taking which diminishes the effectiveness of any international program for endangered or threatened species, the Secretary making such finding shall certify such fact to the President.

22 U.S.C. ¤ 1978(a) (2). Further, ¤ 1978(a) (4) was amended to authorize the President to “prohibit the bringing or the importation into the United States of wildlife products from the offending country” in the case of such certification. The congressional notification provisions also were applied to these situations. See22 U.S.C. ¤ 1978(b).

4 The Packwood-Magnuson Amendment provisions regarding imposition of the sanction are:

(B) If the Secretary issues a certification with respect to any foreign country, then each [U.S. fishing allocation] that

(i) is in effect for that foreign country on the date of issuance; or

(ii) is not in effect on such date but would, without regard to this paragraph, be made to the foreign country within the remedial period [the one year following certification]; shall be reduced by the Secretary of State, in consultation with the Secretary, by not less than 50 percent.

(C) The following apply for purposes of administering subparagraph (B) with respect to any foreign country:

(i) If on the date of certification, the foreign country has harvested a portion, but not all, of the quantity of fish specified under any allocation, the reduction under subparagraph (B) for that allocation shall be applied with respect to the quantity not harvested as of such date.

(ii) If the Secretary notified the Secretary of State that it is not likely that the certification of the foreign country will be terminated under section which an allocation is applicable or before the close of the remedial period (whichever close first occurs) the Secretary of State, in consultation with the Secretary, shall reallocate any portion of any reduction made under subparagraph (B) among one or more foreign countries for which no certification is in effect.

(iii) If the certification is terminated under such section 1978(d) of title 22 during the remedial period, the Secretary of State shall return to the foreign country that portion of any allocation reduced under subparagraph (B) that was not reallocated under clause (ii) ; unless the harvesting of the fish covered by the allocation is otherwise prohibited under this chapter.

(iv) The Secretary may refund or credit, by reason of reduction of any allocation under this paragraph, any fee paid [by the foreign country for its fishing permits].

(D) If the certification of a foreign country is not terminated under section 1978(d) of title 22 before the close of the last day of the remedial period, the Secretary of State.

(i) with respect to any allocation made to that country and in effect (as reduced under subparagraph

(B)) on such last day, shall rescind, effective on and after the day such last day, any unharvested portion of such allocation; and

(ii) may not thereafter make any allocation to that country until the certification is terminated. 1G U.S.C. ¤ 1821(e) (2).

B As originally introduced, the bill would have applied to all countries certified under the Pelly Amendment with reone spect to “living marine resources” and would have required 100% prohibition of U.S. fishing allocations. SeeS. Rep. No. 96-72, 96th Cong., 1st Sess. 6 (1979). See also125 Cong. Rec. 21743 (1979) (statement of Sen. Packwood) ; id.at 22082- 22083 (statement of Rep. Murphy). (Under the final bill, a 50% reduction is required; a greater reduction is possible at the discretion of the Secretary of State.) The original bill, however, would have cut the allocation only as of the expiration of the country's current fishing permit. See id.at 22083 (statement of Rep. Murphy).

* It also explicitly preserved the option of imposing the Pelly Amendment sanction in addition to the Packwood- Magnuson sanction. See16 U.S.C. ¤ 1821(e) (2) (A) (i). See also125 Cong. Rec. 21743 (1979) (statement of Sen. Magnuson)

“This amendment is a significant addition to the sanctions presently available under the Pelly Amendment ”) ; id.at 22084 (statement of Rep. Oberstar) (“The legislation before us does not deprive the President of the authority to invoke the discretionary penalty; it adds an additional penalty that is automatic”).

7 The District Court had previously denied such a stay. See American Cetacean Society v. Baldridge,604 F.Supp. 1411 (1985).

8 See Fed. R. Civ. P. 56(c) (“[Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”).

9 See28 U.S.C. ¤1361 (1982) (“The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”).

10 Even where mandamus is lepally appropriate, a District Court may exercise its equitable discretion and deny the write Regional Corp.,654 F.2d 758, 760, 762-763 (D.C. Cir. 1980) (delay of four years in seeking writ reasonable basis for denying it). See also Cartier v. Secretary of State,506 F.2d 191,

11 22 U.S.C. ¤ 1978(d) provides: After making a certification to the President under subsection (a) of this section, the Secretary of Commerce or the Secretary of the Interior, as the case may be, shall periodically review the activities of the nationals of the offending country to determine if the reasons for which the certification was made no longer prevail. Upon determining that such reasons no longer prevail, the Secretary concerned shall terminate the certification and publish notice thereof, together with a statement of the facts on which such determination is based, in the Federal Kegister.

12 There are actually two Senate Reports, both issued the same day, that are relevant to the Pelly Amendment. The first, S. Rep. No. 92-582, accompanied S.2191. S.2191, however, was amended in committee to the exact language of II.R. 3304, the bill that the Senate eventually passed as the Pelly Amendment. The second, S. Rep. No. 92-583, 92d Cong., 1st Sess. (1971), accompanied H.R. 3304. S. Rep. 92-582 contains substantive discussion of S.2191. S. Rep. 92-583 merely reported H.R. 3304 without recommendation or amendment. Since both bills were the same with respect to the provisions that concern us, we regard S. Rep. 92-582 as the relevant report.

13 Representative Pelly stated that the provision would extend to “flagrant violations” other than salmon fishing and that the provision would prevent American benefits (access to the American import market) from accruing to foreign countries that “flount [sic]international conservation measures.” See117 Cong. Rec. 34752 (1971). These statements do indicate that flagrant actions in excess of internationally set regulations would result in certification, but do not indicate that non-flagrant actions would not. Consequently, they are not directly relevant to the issue at hand.

16 U.S.C. ¤ 955(c) provides in relevant part: [U]pon the promulgation of any [domestic regulations implementing: the recommendations of the Inter-American. Tropical Tuna Commission] the Secretary of Commerce shall promulgate additional regulations, with the concurrence of the Secretary of State, which shall become effective simultaneously with the application of the fdomestic regulations] (1) to prohibit the entry into the United States, from any country when the vessels of such country are being used in the conduct of fishing operations in the regulatory area in such manner or in such circumstances as would tend to diminish the effectiveness of the conservation recommendations of the commission, of fish in any form of those species which are subject to regulation pursuant to a recommendation of the commission and which were taken from the regulatory area; and (2) to prohibit entry into the United States, from any country, of fish in any form of those species which are subject to regulation pursuant to a recommendation of the commission and which were taken from the regulatory area by vessels other than those of such country in such manner or in such circumstances as would tend to diminish the effectiveness of the conservation recommendations of the commission.

18 The original bill evidently endowed the Secretary of the Interior rather than the Secretary of Commerce with the responsibility for executing this statutory provision.

10 We find no evidence of an interpretation of the 1962 amendments contrary to that expressed in their legislative history. No cases interpreting that statutory section were apparently decided. The Secretary did promulgate implementing regulations, see, e.g.,50 C.F.R. ¤281.5 (1984), but those regulations were consistent with the statement in the Senate Report.

17 The 1962 amendments also provided: In the case of repeated and flagrant fishing operationsin the regulatory area by the vessels of any country which seriously threaten the achievement of the objectives of the commission's recommendations,the Secretary of Commerce, with the concurrence of the Secretary of State, may, in his discretion, also prohibit the entry from such country of such other species of tuna, in any form, as may be under investigation by the commission and which were taken in the regulatory area.

16 U.S.C. ¤ 955(c) (emphasis added). Thus these amendments created a bipartite scheme for enforcing the tuna treaties. First, failure to implement or enforce the treaty recommendations would result in prohibition of imports of a particular tuna species from the offending country. Second, particularly serious violations of the treaty recommendations might, at the discretion of the Secretary of Commerce, result in prohibition of importation of all protected tuna species taken from the regulated area. Given this bipartite scheme, the use of the “diminish the effectiveness” language in the Pelly Amendment seriously undermines two additional arguments made by the appellants. First, the “diminish the effectiveness” provision clearly did not apply only to flagrant “violations.” Seebrief of Japanese appellants at 19-20. Another provision, with a greater potential sanction, was of such limited applicability. Thus such seriousness was not necessary for actions to qualify as “tending to diminish the effectiveness” of the Commission's recommendations. Second, the “diminish the effectiveness” provision cited the commission's recommendations themselves, as opposed to the more serious provision of the 1962 amendments, which referred to achievement of the objectives of those recommendations. Thus the “diminish the effectiveness” provision centered on enforcement of the recommendations. The latter provision, on the other hand, was aimed at larger activities with potential for undermining the entire international program and its objectives. Comparebrief for federal appellants at 27-28 (focusing on overall program objectives in Pelly Amendment context). In the 1962 tuna amendments, therefore, fishing in excess of the international body's recommendations was understood to be per sean action “tending to diminish the effectiveness” of thmp.recommendations.

18 Seenote 3 supra. 1M We note simply that the parties’ characterizations of this practice differ and that the record does not conclusively show what that practice has been. Any disagreement on this point does not present a genuine issue of material fact because, as we conclude, even if the government could show a consistent practice supporting its interpretation, there are no indications that it was acknowledged, let alone accepted, by Congress. (statement of Rep. Breaux) (“[A]ctually what we are talking about under the Pelly amendment is a two-stage process. First, if a country is violating the terms of an international treaty, the Secretary of Commerce has to certify that he is doing that, and that is not a discretionary thing.”).

21 Seenote 3 supra.

22 The lone nondiscretionary standard is that there be the required permits. All other requirements necessitate exercise

23 The Japanese appellants raise two additional arguments. First, they contend that the Secretary was required to promulgate rules regarding his interpretation of the governing statutory provision. Given that the issue here was one of congressional intent, however, whether or not the Secretary has promulgated interpretive rules is irrelevant. See also SEC v. Chenery Corp.,332 U.S. 194 (1947). Second, they contend that imposition of the Packwood- Mugnuson sanction deprives them of a property right (the fishing allocation granted by 16 U.S.C. ¤ 1821(e)(1)) without due process and without a hearing “on the record” provided by the Administrative Procedure Act. 5 U.S.C. ¤ 556(d) (1982). These claims are also without merit. The organic statutes here provide no opportunity for a hearing at all, let alone a hearing on the record. Consequently, ¤ 556(d) does not apply. See, e.g., United States v. Allegheny-Ludlum Steel Corp.,406 U.S. 742, 757 (1972). Further, with respect to the due process claim, even assuming that applying the Packwood-Magnuson sanction would deprive these appellants of property rights, we conclude that, in the particular circumstances of this case, they have been afforded adequate due process: The underlying facts of the case are not at issue, see American Cetacean Society v. Baldridge [sic],604 F.Supp. 1399, 1404, 1409 (D. D.C. 1985), and these appellants have participated in these proceedings, in which the legal issues have been fully briefed and argued.

1 This suit was filed on November 8, 1984, about three weeks after the negotiations commenced.

2 There is no indication that the parties originally considered the term “cognizant authorities” to include the Judicial Branch of the United States government. 8 Cf.note 2 supra.

4 Baker v. Carr, supra,369 U.S. at 211. B The Adamscourt made this statement in the context of an expedited appeal from a preliminary injunction, and its holding does not of its own force preclude a decision that the Secretary has a statutory duty enforceable by mandamus. Cf. Ramirez de Arellano v. Weinberger,745 F.2d 1500, 1521 n.81 (D.C. Cir. 1984) (en banc). a Chevron, U.S.A. v. NRDC,104 S. Ct. 2778, 2782 n.9 (1984).

7 See Council of and for the Blind of Delaware County v. Regan,709 F.2d 1521 (D.C. Cir. 1983) (en banc); 13th Regional Corp., supra.Similarly, the remaining cases cited by the majority for its theory of legislative interpretation do not implicate foreign affairs. See Chemical Manufacturers Ass'n v. NRDC,105 S. Ct. 1102 (1985); Chevron, U.S.A., Inc. v. NRDC, 104 S. Ct. 2778 (1984); American Methyl Corp. v. EPA, 749 F.2d 826 (D.C. Cir. 1984); State of Montana v. Clark,749 F.2d 740 (D.C. Cir. 1984); Rettigv. Pension Benefit Guaranty Corp.,744 F.2d 133 (D.C. Cir. 1984),

8 See United States v. Curtiss-Wright Export Corp.,299 U.S. 304, 320 (1936).