U.S. fishermen in a position of serious competitive disadvantage. Since the result of the suspension is likely to be a breakdown, at least temporarily, of the conservation program to which the United States is committed, the Department looks upon suspension as an action not to be taken lightly, but rather as one to be taken after other means of achieving the cooperation of foreign fishermen, e.g., approaches to foreign governments, application of the import-control provisions, have failed or offer little prospect of success. At the same time the Department is fully aware of the fact that a major objective of the conservation program and, indeed, S. 2568, itself, is the welfare of the U.S. fishing industry. Taking this into account, as well as its basic statutory responsibilities for the welfare of the fishing industry, the Department will not permit dilatory tactics on the part of a foreign government to give that government's fisherman a substantial competitive advantage over U.S. fishermen. The Department has not yet formulated precise criteria to be applied in determining when regulations applicable to U.S. fishermen should be suspended. Such criteria will be formulated, however, and will be related to, among other things, the amount of fishing carried on by foreign fishermen contrary to the recommendations of the Commission, and the effect of such fishing upon the achievement of the objective of the recommendation of the Commission applicable at the time. In the implementation of the suspension provisions of S. 2568, as amended, the Department would plan to monitor the activities of foreign fishermen in the regulatory area, as it will in connection with the application of the import-control provisions. In addition, it will welcome and will act expeditiously upon reliable evidence bearing on the activities of foreign fishermen from any source. DEPARTMENT OF STATE, Hon. WARREN G. MAGNUSON, DEAR MR. CHAIRMAN: During the course of hearings held May 23-24, 1962, by your committee regarding S. 2568, as amended, a bill to amend the act of September 7, 1950 (tuna legislation), several requests were made for information to be supplied for the record of such hearings. The Department of State is in a position to supply some of this information and does so as follows: 1. During the hearings the chairman read a letter from Mr. George Johansen, secretary-treasurer of the Alaska Fishermen's Union, in which objection was lodged, among other things, to the provision of the amended version of S. 2568 permitting the boarding and search of U.S. fishing vessels without a warrant by U.S. enforcement authorities (sec. 5). The chairman requested comments on this subject together with an indication of any similar provisions in legislation implementing other fisheries conventions. The provision in question is a practical necessity if enforcement is to be given full effect. It is manifestly impracticable to expect enforcement officers to obtain a warrant prior to the boarding and search of a vessel suspected of being used in illicit operations, for to do so would entail delays that would in many instances defeat the effort to obtain evidence of illegal activity. There is ample precedent for this kind of enforcement latitude. The Sockeye Salmon Fisheries Act of 1947, as amended (16 U.S.C. 776d), the Northwest Atlantic Fisheries Act of 1950 (16 U.S.C. 990), and the North Pacific Fisheries Act of 1954 (16 U.S.C. 1031) contain similar provisions. 2. With respect to enforcement procedures, the question was raised as to whether there are local officials in American Samoa which might be designated by the Secretary of the Interior to carry out enforcement activities. The answer is in the affirmative since the Office of Territories of the Department of the Interior has officials stationed on American Samoa who could be so designated. 3. During the course of the testimony at the hearings on May 24, 1962, one of the tunaboat owners, representing the American Tunaboat Association, referred to a situation which, unless clarified, is bound to leave some misconception regarding the purchase of foreign fishing permits by American tuna fishermen. The statement was made to the effect that members of the United States tuna fleet are expending substantial sums to purchase from certain countries in this hemisphere authorization to fish within large high seas areas off their coasts; the figure $5.200 was indicated as that which had to be paid one such country for one fishing trip, said sum including the required purchase of a so-called matricula. Any implication that the U.S. Government encourages the practice of some of our fishermen of buying foreign fishing licenses to fish in waters which the United States regards as high seas, is completely inaccurate. Some years ago there was an outbreak of claims by a number of Latin American countries facing on the Pacific to jurisdiction over the sea areas adjacent to their coasts extending offshore to distances of 200 miles and more. This development had a direct effect upon the operations of elements of our tuna producing fleet involving, as it did, waters in which our tuna fishing vessels were accustomed to operating. Most of these vessels used pole and line fishing which required the use of live bait. With the exception of very few localities such live bait was found in practical quantities almost entirely within 3 miles of the coasts of a number of the Latin American countries. Strong representations made by the U.S. Government, maintaining the rights of U.S. vessels upon the high seas, did not resolve the differences. It is our understanding that about this time, in order to fish for bait within 3 miles of the coast, to obtain port privileges, and to minimize the impact of the jurisdictional dispute on their fishing operations, representatives of the American Tunaboat Association worked out an understanding with representatives of a number of the concerned governments, pursuant to which understanding our tuna boats are able to purchase licenses or permits to fish in the “jurisdictional waters" of the adjacent state, without defining the width of such waters. Since operations within 3 miles were necessary for bait purposes a permit of some sort was in any event necessary. Furthermore, in some areas excellent tuna fishing is found within the 3-mile limit. With the change over to purse-seine-type fishing these boats no longer depend on bait but we understand that for one reason or another many of them continue to purchase permits. The record should be made clear that at no time did the U.S. Government become involved in any of the discussions between representatives of our fishermen and foreign authorities which led to the promulgation of the licensing system. The Department of State has taken no cognizance of any private arrangement which might impinge upon the traditional position of the United States regarding the breadth of the territorial sea. The U.S. Government, through the Department of State, has used and will continue to use every reasonable means available to it to protect the interests of American citizens and vessels on the high seas, and to relieve their distress should they run afoul of foreign legislation which the United States considers unjust or contrary to international law. 4. The committee also requested that there be submitted for the record an indication of the amount or share of the total budget spent for tuna research in the convention area by each of the member governments for the past 3 fiscal years. This follows: In addition, the projected financial outlay for this purpose during fiscal year 1963 is in the following proportions: 5. Finally, the chairman requested for the record a statement indicating how much tuna from the regulatory area is taken by the nationals of each country fishing there, whether a member of the Commission or not. This information for the calendar year 1961 is enclosed. Also enclosed is a supplementary statement showing the proportions in which the aforesaid tuna was utilized by the countries whose nationals fish the regulatory area. Degree of utilization is a criterion in determining the proportion in which the Commission's costs are shared by the member countries. Sincerely yours, FREDERICK G. DUTTON, Assistant Secretary. DEPARTMENT OF STATE, Washington, D.C., June 8, 1962. Hon. WARREN G. MAGNUSON, Chairman, Committee on Commerce, DEAR MR. CHAIRMAN: During the course of the hearings by your committee on May 24, 1962, regarding S. 2568, as amended, a bill to amend the act of September 7, 1950 (tuna legislation), the general manager of the Fishermen's Cooperative of San Pedro, Calif., proposed a number of amendments on behalf of his cooperative and the following additional organizations: American Tunaboat Association, San Diego, Calif.; California Fish Canner's Association, Terminal Island, Calif. ; International Longshoremen Warehousemen's Union, Local 33, Fishermen's Union, San Pedro, Calif.; Seine and Line Fishermen's Union, San Pedro, Calif.; Cannery Workers and Fishermen's Union, AFL-CIO, San Diego, Calif. The Department of State, sponsor of the legislation in question, was requested to express its views on these amendments. The present letter responds to that request, setting forth each such proposed amendment, followed by the Department's commentary thereon. 66 1. "Add, following the word 'Interior', on line 16, page 2, the following sentence: "These regulations shall not become effective until the Secretary of Interior makes a finding based on a written statement presented by all the countries engaged in fishing operations for the species covered by the Convention and in the regulatory area that they have enacted and are enforcing regulations that are designed to carry out such recommendations of the Commission.'" The Department fully appreciates the concern of the industry that it should not be placed at a competitive disadvantage which could be the case were it subject to catch restrictions while the nationals of other countries fishing the regulatory area were not. Indeed, awareness of this concern is the basis of the Department's proposed vesting of authority in the Secretary of the Interior to suspend the regulations in certain circumstances (S. 2568, as amended, sec. 2). However, it would be impracticable and self-defeating to go so far as to require that catch restrictions on U.S. nationals shall not take effect until written notices have been received from all other interested countries that they have enacted and are enforcing regulations against their nationals to effectuate the conservation recommendations of the Inter-American Tropical Tuna Commission. First of all, if other countries adopted similar legislation requiring that all other countries have enacted and are enforcing regulations before their own regulations take effect, we would have a situation wherein each country was waiting upon the others. It hardly befits the United States, which takes over 95 percent of the tuna caught in the regulatory area, to set a precedent for such an impracticable requirement. Such a requirement also would place the success of the conservation program in serious jeopardy by subjecting it to conditions whose fulfillment are not necessarily essential to the program's success. For one thing, it is entirely conceivable that one or more of the other interested countries would be willing to cooperate fully by effective legislation but would be unwilling to provide a written commitment to that effect. For another, the entire conservation program should not be permitted to collapse if cooperation were not forthcoming from a country whose catch of the species under regulation is negligible in the context of meaningful effect on the conservation program. For such situations, the embargo on imports, provided for by the legislation, would appear to be adequate treatment. The Department feels that adequate safeguard for preventing inequities to American fishermen are already contained in the proposed bill in the form of the aforesaid power of the Secretary of the Interior to suspend regulations If, however, the industry is convinced that it must have some additional assurance, the Department would be willing to consider incorporating into the bill, as a substitute for the industry's proposed language, the following: "Any such regulations shall not become effective until the Secretary of the Interior makes a finding based on an effective manifestation by the countries whose vessels engage in fishing in the regulatory area on a meaningful scale for the species covered by the convention, that they will not later than an agreed date apply regulations designed to carry out the conservation recommendations of the Commission." 2. "The following language shall be inserted on page 2, line 21, after the sentence ending 'public hearing': "At the hearing any interested person may be heard in person or by representatives. As soon as practicable after completion of the hearing, the Secretary of the Interior shall by order act upon the proposed rulemaking and shall make such order public. Such order shall be based on substantial evidence of record at such hearing and shall set forth, as part of the order, detailed findings of fact on which the order is based'." This amendment was suggested apparently as a safeguard against an unforeseen but unwise determination in the future on the part of the Secretary of the Interior in the rulemaking process. It could be self-defeating. Obviously such authority must vest somewhere. We believe that it should vest in a responsible official. Considering the vast responsibilities and authority now vested in the Secretary, that his position is a public trust, and that the occupant of the office must be presumed to be responsible and equitable in his determinations, the amendment is predicated upon a misapprehension and fear that erroneous conclusions would be reached. Significantly, the bill provides for a mandatory public hearing-clearly indicating that decisions resulting therefrom will be based upon the facts established at the hearing. Any arbitrary or capricious determination would of course be subject to judicial review. Consequently, the suggested requirement that the decision of the Secretary be based "only on substantial evidence of record at such hearing" is not only unnecessary but would in many cases be subject to differences of opinion as to what is, in fact, "substantial." therefore could lead to much unnecessary litigation and expense. A good decision by the Secretary of the Interior might conceivably be overturned through an ill-considered appeal. In any event, the authority now held by the Secretary to regulate other fisheries pursuant to international treaty is not subject to the restrictive steps proposed here. We believe the amendment would be very undesirable. 3. "On page 2, line 25, delete 'is authorized to' and add 'shall'." The Department would interpose no objection to this change. 4. "On page 5, line 11, add after the word 'to' the word 'knowingly'." It The Department could not accept this proposed amendment, for to do so would encumber the enforcement program unduly. Requiring proof of state of mind would make prosecution extremely difficult if not impossible. The situation is clearly one where the fishing crew should be charged with constructive knowledge of the existence of catch regulations, i.e., ignorance of the law should constitute no excuse. Moreover, in practice, the nature and close-knit character of the U.S. tuna-producing industry is such that a member would find it difficult not to know of any existing catch restrictions. 5. "On page 6, line 9, add after the word tunas 'in any form'." This change is quite acceptable since it merely clarifies the original intent of the provision to which it relates. 6. "On page 6, line 14, the word 'may' be changed to 'shall'." This change is objectionable in that it necessitates red tape in instances where none is required. The enforcement authorities should, if they deem it adequate, be permitted to accept a certification from the country concerned rather than have to seek proof also from the shipper in all instances. 7. "On page 7, lines 2 and 3, delete 'or subsection (b)'." This amendment would be acceptable to the Department. Its net effect is to eliminate the possible forfeiture of the cargo of tuna when the offense is only failure to cooperate in furnishing or making available statistical data or other required records. The provision for a fine of up to $10,000 for such offenses would not be affected. 8. "On page 9, line 4, change the word 'shall' to 'may'." This change has already been made. It was referred to in the testimony of the Department's representative on May 23, 1962. In fact, the use of the word "shall" in the text of the proposed amended version of S. 2568 furnished the committee was an inadvertence; the word "may" was actually intended. 9. "On page 9, delete line 25 and on page 10 delete lines 1, 2, and 3, and insert therein the following: ""The marshal or other officer shall also stay the execution of such process, or discharge any cargo seized if the process has been levied, on receiving a direction by a judge of the district court having jurisdiction of the offense that the cargo may be sold at the discretion of the claimant of the cargo for not less than its reasonable market value and that the proceeds of such sale, less payment of expenses designated by such judge is placed in escrow pending judgment in the case.'" The Department's main difficulty with this proposed amendment is with the generalized reference to expenses. If, as it is now understood, this is intended to refer to certain fixed trip expenses and these can be designated by type, the Department's concern would be lessened. So long as changes in S. 2568 are under consideration it is believed that the clause "subject to regulation pursuant to a recommendation of the Commission," in lines 10 and 11 of page 6, could be deleted as redundant. If there were a violation of a "regulation adopted pursuant to section 6(c)," as set forth in this provision of the proposed law, it would necessarily have reference to species of tuna "subject to regulation pursuant to a recommendation of the Commission" inasmuch as regulations promulgated by the Secretary are to be those required to carry out recommendations of the Commission (sec. 2 of S. 2568). The foregoing represents the views of the Department of State. However, since the amendments in question are primarily of concern to the principal enforcement agency, i.e., the Department of the Interior, the State Department has coordinated its position with that Department. In view of the short time available before the record of the hearings on S. 2568 is closed, there has been no opportunity to submit this statement to the Bureau of the Budget for approval. Sincerely yours, FREDERICK G. DUTTON, Hon. E. L. BARTLETT, JUNE 18, 1962. Acting Chairman, Merchant Marine and Fisheries Subcommittee, Senate Committee on Commerce, Washington, D.C. DEAR SENATOR BARTLETT: At the conclusion of the hearings on S. 2568 held on May 24, 1962, you suggested that the interested parties, including representatives of the several Government agencies, confer among themselves with a view to achieving some agreement as to the necessity for amendment of the measure under consideration and to prepare and submit to the committee amendments to accomplish this agreement. Subsequent to the hearing a series of meetings and conferences have taken place both in Washington and in southern California. Participating in these hearings at various times have been representatives of the following organizations in the industry: American Tunaboat Association, San Diego; Fishermen's Cooperative Association, San Pedro; California Fish Canners Association, Terminal Island; Fishermen's Local 33, ILWU, San Pedro; Seine & Line Fishermen's Union, AFL-CIO, San Pedro; Fishermen & Cannery Workers Union, AFL-CIO, San Diego. As the outcome of these series of meetings we have prepared and are enclosing a series of amendments to be incorporated in the version of S. 2568 considered by your committee on May 23 and 24: Amendment in the nature of a substitute introduced on April 27 by Mr. Engle (for himself and Mr. Magnuson). It should be pointed out that the undersigned industry representatives are all agreed in support of these amendments. The several representatives of the Government agencies with whom we have been meeting, including Messrs. Herrington and Blow, Department of State; Messrs. William F. Terry and Ralph Curtiss, Department of the Interior, and others in that Department, participated |