The best example of such invalidity is the size of the fleet that presently operates from California. In 1952, there were 225 vessels operating from San Diego. Today, there are about 92 vessels. Two of that number have been inactive for years. In 1960, there were 50 regular seiners fishing for tuna from San Pedro. Today there are about 25 such vessels. The transfer of American tuna fishing vessels to Mexican, Peruvian, and Panamanian registry has been steadily increasing. A Peruvian firm recently purchased two tuna refrigerated vessels and eight tuna fishing vessels. The company transferred registry of these vessels from the U.S. merchant marine to Panama. This fleet operates from Peru. We are informed that this firm will receive two or three large American converted tuna purse seiners. The fish these vessels will handle shall be delivered to the American cannery who once owned and operated these vessels from California. This same Peruvian firm is building 20 small tuna purse seiners. It is interesting to note that in 1960 Peru's total tropical tuna and tunalike landings exceeded comparative landings in California. The tuna production, as indicated by the imports in the United States from Mexico, Ecuador, and Peru are on a steady increase for 1962. We have new competition as well. Canada is building large tuna seiners for their fishermen on a remarkable construction subsidy program. Japan's largest tuna company and an American cannery are planning to build a large 4,000ton cold storage plant in Tahiti. The joint venture includes plans to use small Japanese tuna vessels for use within the regulatory area. Don't forget the competition of Japanese longliners already present within the regulatory area. They say that they have 50 vessels operating within the area, and their total production figure is unknown. The yellowfin production has been estimated to be from 1,200 to 5,000 annually. It is our opinion that the United States is faced with the strong possibility that American fishing vessels operating from San Diego and San Pedro, Calif., will no longer control the tuna production within the eastern tropical Pacific Ocean. The following production figures indicate this trend: Share of total catch of tropical tunas in eastern tropical Pacific Ocean by various fleets 1 Peruvian landings: 1959, 52.3; 1960, 60.0; 1961, not available. For the first time in the history of the American tuna industry direct and effective competition on the fishing grounds exist on a major scale between American fishing vessels and foreign tuna vessels. It is also our conviction that this movement of tuna fishing production power will continue to gravitate where the following conditions prevail : (1) Where you have complete access to the fishing grounds, and (2) Where you have freedom from strict Government enforcement of regulatory control, if any actually do exist, on the right to fish such grounds. It appears to us that under S. 2568, the Secretary of Interior will speed the attraction of American and foreign tuna vessels to those countries that provide such conditions. I say this because of the following reasons: (1) Apparently, our Government cannot guarantee the American tuna producer free access to high seas tuna fishing grounds. (2) Apparently, our Government, acting through the Department of State and Interior, desires to restrict our access to such grounds. (3) Apparently, our Government, through the Departments of State and Interior, desires to regulate our competitive ability on these grounds by strict Government enforcement of regulations regardless of whether or not foreign fishermen are free of regulations. If the Departments of Interior and State do it right, they'll get rid of the American tuna fleet, and also get rid of some headaches. But what about the interest of our Nation in a high seas tuna fishery. With every major fishing nation in the world actively engaged in the development of their fisheries, why is it a fact that our country is standing still. Are we having illusions about our right to grow and help with the development of our country? Are we asking too much in pleading with our Government to be fair in the treatment of its citizens? SPECIFIC OBJECTIONS 1. Under section 2, the Secretary of Interior is required to take certain steps before issuing regulations. The law does provide the basic requirements of notice and opportunity for hearing. We believe that the law should prescribe certain rules regarding the hearing. The Secretary of Interior should be required to make findings to form the basis for the regulations. We believe substantial and legally competent evidence should be required to sustain the findings. In view of the serious nature of the regulations, additional safeguards to the right of judicial review should not be overlooked or denied. The scope of review should not be limited to matters of fundamental authority and abuse of discretion. The regulations should not be based on information produced outside of the hearing. In these respects, therefore, we object to the provisions of section 2, lines 16-21, page 2. The same objections apply with equal force on the methods to be adopted by the Secretary of Interior in promulgating the additional regulations concerning the prohibitions of fish into the country. Reference to lines 21-25, page 3, lines 1-20, page 4. 2. Also,, under section 2, we have a question as to whether the definition of United States is of sufficient scope as to include the Commonwealth of Puerto Rico, and the islands under the jurisdiction of the Department of Interior besides American Samoa. At the moment, I'm concerned with the Virgin Islands. It is our opinion that the law should present a definition of the United States that is all inclusive in its coverage and scope. 3. It is our belief that the Secretary of Interior should be required to make findings on the matter of fish prohibitions, and that on an annual basis he certify his findings to the enforcement agencies. Under the provisions of section 2 he has too much authority to make decisions on these prohibitions, and is not sufficiently pressed to produce facts to justify his actions. 4. It is also our belief that section 2 gives too much scope to the regulatory power of the Secretary of the Interior. The listing of specific items that are or can be covered by the regulations are too expansive and have no place in our fishery. This is especially true as to the following: (1) Licensing of vessels as may be necessary to carry out the purposes of the Convention and the act. In view of our relationship with other countries on this matter of licenses, the grant of power over this area may become a difficult subject of negotiation. This is also true on the establishment of the closedseasons provision, and the clause relating to the fixing of the size and characteristics of fishing appliances. We think these matters should be specially excluded from the grant of power to the Secretary of Interior. 5. As stated earlier, the embargo provision in section 2(c) is impractical and unenforceable. It is in this area that the Secretary of Interior should have a blanket power to regulate all imports of fish in any form of those species which are subject to regulation pursuant to a recommendation of the Commission. SECTION 4 Under this section, the unlawful acts are listed and the penalties established Our general objections are as follows: 1. The fines are too severe. The amounts should be reduced. 2. The unlawful acts described in section 8(a), lines 11-16, should be divided into two separate parts. 3. The penalty of forfeiture should not be applied to a violation of section (b). 4. The penalty of forfeiture should be applied to a violation of section (c). By taking such action, the sanctions imposed upon the American tuna vessel owner and crewmembers will be on the same level as that of an importer. 5. We propose the following changes: (a) Lines 15, page 5, amendment by additional words to read as follows: "any fish in any form." Line 9, page 6, "tunas in any form." (b) Lines 23, 24, page 5, amendment by deletion "or a person authorized by the Commissions." (c) Lines 1, 2, page 6, amendment by deletion, "or persons authorized by the Commissions." We believe proposal (a) is proper in that it more carefully defines the property that is taken or retained in violation of such regulations. It also corresponds with the language used in section 2. The terms of "tuna" or "fish" have a limited commercial definition. The language offered in proposal (a) broadens the scope of the violation to include canned fish, fillets, etc. Proposal (b) and (c) are proper because there are two Commissions in existence under the Tuna Conventions Act of 1950 (16 U.S.C. 951). A confusion of the persons to be so authorized is eliminated. We also object to inclusion of such persons, on the ground that they are employed by an international agency. We do not believe it is advisable to give such powers to persons other than citizens of the United States, and who have the authority to act for the United States. 6. We propose the additional change: (a) Lines 5, 6, page 6, amendments by deletion "or to obstruct such officials in the performance of their duties." We think it sufficient that the section specifically provide for the unlawful acts. The provision requested to be deleted is sort of a catchall, and is improper in that it is too indefinite in its coverage. To avoid difficulties in personal relationships, we suggest the deletion of such provision. It is sufficient that the master of the vessel or its owner cannot refuse authorized officials the right to board, inspect, and question. To impose the affirmative duty of avoiding actions that could be interpreted as being obstructive is pushing a little bit too hard. 7. Another change in section 4 is as follows: (a) Line 14, page 6, amendment by additional words "require that the shipper and importer furnish proof ***" In view of the fact that the subsection deals with an unlawful act of importation, it appears reasonable to impose a requirement that the importer as well as the shipper be subjected to the obligation of furnishing proof satisfactory to the Secretary that the tuna is not eligible for such entry. 8. As to the matter of fines and forfeiture penalties, the following changes are offered: (a) Subsection (g) appears to be unclear as to whether the forfeiture penalty would apply only to a cargo of tuna aboard a tuna vessel or to tuna that has been processed into a different form. As such, the application of this forfeiture penalty appears to be unclear. Subsection (g) should be written to include the forfeiture of fish in any form. It is also believed that this forfeiture provision should not apply to a violation of subsection (b). This is an extremely severe penalty. Especially when a violation of subsection (b) already has a $10,000 fine penalty. We suggest that subsection (g) take the following form: (g) In connection with a violation of subsection (a), the fish in any form of those species which are subject to regulation pursuant to a recommendation of the Commission, may be forfeited. SECTION 5 Subsection (f), line 25, page 9, lines 1-3, page 10. This language appears to be inadequate to accomplish the objective of allowing the accused vessel owner the opportunity to stay the execution of a warrant of arrest or other process in rem, and be able to discharge the seized cargo. The accused should have the same opportunity as he would have under the arrangement provided by the bond or stipulation for value requirement. We suggest the following substitute commencing after the word "court," line 24, page 9: “*** court; 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." PROPOSED EMBARGO PROVISION "Section X. It shall be unlawful to import fish in any form of those species which are subject to regulation pursuant to a recommendation of the Commission into the United States or its possessions, directly or indirectly, from any country. "The provisions of section X of this act shall be inoperative with regard to any country upon certification by the Secretary of Interior to the committees of Congress having jurisdiction over the matter: "(1) That such country has made it unlawful for any person subject to its jurisdiction to engage in fishing activities that prevent the achievement of the objectives of the Inter-American Tropical Tuna Commission's recommendations made pursuant to paragraph 5 of article II of the Convention for the Establishment of an Inter-American Tropical Tuna Commission. "(2) That such country has made it unlawful for any person subject to its jurisdiction to fail to make, keep, or furnish any catch returns, statistical records, or other reports as are recommended by the Director of Investigations of the Inter-American Tropical Tuna Commission. "(3) That such country has made it unlawful for any person subject to its jurisdiction and who is in charge of any fishing vessel of such country to fail to stop upon being hailed by a person authorized by the Inter-American Tropical Tuna Commission. "(4) That such country has made it unlawful for any person subject to its jurisdiction to refuse to permit a person authorized by the Inter-American Tropical Tuna Commission to board any vessel belonging to such person or inspect its catch, equipment, books, documents, records, or other articles, or question the persons on board such vessel in accordance with the provisions of the Convention, or to obstruct such officials of the Commission in the performance of their duties. "(5) That such country has established the enforcement responsibility of such laws upon responsible government agencies, and that in fact, such country has taken all necessary action to cause any person subject to its jurisdiction to conduct fishing operations in the regulatory area established by the Commission so that they shall contribute to the achievement of the objectives of the Commission's recommendations: Provided, That upon withdrawal of such certification by the Secretary of the Interior, the said provisions shall again become operative with regard to such country. "That upon the promulgation of any regulations required to carry out recommendations of the Commission made pursuant to paragraph 5 of article II of the Convention for the Establishment of an Inter-American Tropical Tuna Commission by the Secretary of the Interior, the Secretary of the Treasury, in consultation with the Secretary of the Interior, is authorized and directed to promulgate all necessary rules and regulations not inconsistent with this section X as may be necessary to enforce the same and effectuate the purposes thereof." CONCLUSION We believe that our country has a right to share in the proper development of the world's ocean resources. In the future, the sea must be used in the feeding of our people. Toward this end, our tuna fleet, the largest group of oceangoing fishing vessels this Nation has in operation must be permitted to effectively compete with foreign fleets in the capture of the tropical tunas in the Eastern Pacific. It is our conviction, that S. 2568, as presently drafted, will cause quick and serious injury to this ability to compete and as such, may cause the effective death of the tuna fleet of the United States. We do not have the exclusive responsibility to properly manage the tropical tuna fishery in the Eastern Pacific. This is a duty of all nations who want to fish for such specie within the Eastern Tropical Pacific Ocean. As such, the adoption of S. 2568 cannot be expected to be successful in achieving the performance of such duty. Fortunately, our country was wise. in establishing and in financing the activities of the Inter-American Tropical Tuna Commission. We have shown the other countries the proper avenue of enlighten fishery management. Now, we must show these countries that a unified approach toward regulation, inspection and enforcement is the next step forward. The adoption of S. 2568 will not do the job, it will make our dealings with these other countries more difficult. It is inadequate to handle the task. This is why we oppose S. 2568. SUMMARY OF STATEMENT A. S. 2568 is objectionable in that the Secretary of Interior has the power to promulgate regulations that are required to carry out recommendations of the Commission made pursuant to paragraph 5 of article II of the convention regardless of what type of action other contracting governments may undertake jointly or severally. 1. There is a danger in allowing the Secretary of Interior this power, because with reference to the tuna fishery of the eastern tropical Pacific Ocean unilateral regulation will not bring about an effective conservation or management program. (a) There exists the additional danger that as a result of unilateral regulation, American citizens will be subjected to discriminatory regulations and controls. (b) The dangers of unilateral regulation are real and not speculative, otherwise section 2 would not be so concerned about the effects of foreign fishing efforts upon the achievement of the objectives of the Commission's recommendations. (c) These dangers are not removed or lessened by the provision regarding the authorization of the Secretary of Interior to suspend the regulations. (1) It is the policy of the Bureau of Commercial Fisheries to recommend the exercise of this power of suspension only as the "very last resort." (2) The Bureau of Commercial Fisheries does not prescribe to the principle of suspension just because another nation or another group do not wish to recognize the need for conservation. (3) The additional requirements on the implied authority of the Secretary of Interior to exercise his power of removing or suspending his own regulations, do not ease but rather enforce the announced position of the Bureau of Commercial Fisheries that the power of suspension will only be exercised as the "very last resort." (d) The dangers of unilateral regulation are not removed or lessened by the provisions regarding the embargo of fish. (1) The embargo provisions are impractical and unenforceable, and therefore, useless. (a) They are impractical because it is too difficult to distinguish fish caught within the regulatory area and fish caught elsewhere. (b) The problems becomes aggravated when the fish is processed into a canned product or in a fillet form or even in a fresh or frozen condition. (c) The problem becomes closer to the impossible when it is necessary to establish the fact that the fish offered for entry were caught in such a manner or in such circumstances as would tend to diminish the effectiveness of the conservation recommendations of the Commission. (d) No amount of regulation magic could make this embargo provision enforceable or workable. (e) Contrary to the embargo provision contained in the salmon legislation H.R. 9547, S. 2707, proposed back in 1959, there are too many difficulties in establishing the findings required to raise the prohibition. 2. According to the convention, joint action by the contracting governments is contemplated whenever the Commission makes recommendations pursuant to paragraph 5 of article II of the convention. Thus, S. 2568 does not strictly adhere to the provisions of the convention. B. S. 2568 is also objectionable on the ground that it was introduced into Congress before our Government representatives developed a unified approach to the proposal of the Commission for consideration and adoption by the other contracting governments, and nonmember governments who fish in the area. As a result of this inaction, the Department of State has placed the burden on Congress to develop the program. Congress does not have this responsibility. There is some question as to who does have the duty. This approach has weakened our solutions to the problems involved in the implementation of the recommendations by the Commission. |