C. It is not valid to argue that regulation of American citizens will bring about an achievement of the objectives of the Commission's recommendations.

1. There is a definite trend to build up tuna fishing production power in fleets that are operated and based in ports outside of California and Puerto Rico. (1) Development of Peru's tuna fishing fleet and tuna canneries. (2) Development of Mexico's tuna fishing fleet and tuna canneries.

(3) Development of Ecuador's tuna fishing fleet.

(4) Prospective development in Canada, Chile, Tahiti.

2. Japanese longliners operate within the regulatory area, and they are increasing their penetration of the area each year.

(1) Sightings of vessels of Galapagos and Mexico.

(2) Size of fleet and estimated production.

(3) Longline operation from Acapulco, Mexico.

D. It is not valid to argue that regulation of American citizens is urgently required, or that regulation is required so as to prevent a serious disaster or calamity in the tuna fishery.

1. Contrary to claims of various experts in mid-1961, our fleet is not having production problems. Generally speaking, our fleet is having a good year. In January 1962 we were advised that the quota of 83,000 tons of yellowfin tuna would not be fulfilled in 1962. It is estimated that as of May 14, 1962, the fleet has caught about 43,000 tons.

E. Specific objections to the language and provisions in S. 2568.

1. Section 2:

(a) Inadequate rules concerning the public hearing on the rulemaking action by the Secretary.

(b) Restricted definition of the United States suggested by the language in the embargo provision.

(c) Power of the Secretary of Interior to be arbitrary in the matter of fish embargo should be limited.

(d) Regulatory power of the Secretary of Interior is too broad, especially as to what he can do to implement the recommendations of the Commission. Suggested exclusions.

(e) Fish embargo provisions are totally inadequate and unenforcible; therefore useless. They cannot be cured by regulations.

2. Section 4:

(a) General objections relate to the amount of the fines being too severe. (b) Forfeiture penalties are not balanced.

(c) Specific deletions and additions to the terminology of the subsections. 3. Section 5:

(a) Permits alternative method of discharging the seized cargo by the claimant.

2 Source: Fisheries of the United States, 1960, C.F.S. No. 2801, Annual Summary, Bureau of Commercial Fisheries, U.S. Department, Fish and Wildlife Service.

3 Not applicable.

2 Source: Annual Statewide Report of Receipts and Case Pack, Tuna and Other Species, 1960. Preliminary record compiled from processor's monthly statement of fish received, fish packed, and byproducts used.

2 Source: Statistical Report of Canned, Fresh, Cured and Manufactured Fishery Products, 1960, Circular No. 35, Biostatistical Section, Marine Resources Operations, State of California, Department of Fish and Game.

Total caught north of California: 69,104 pounds (albacore).

4 Not available.

85667-62-6

TABLE V.-Fresh and frozen tuna and tunalike imports into United States from

Mr. FELANDO. I would like to say, as indicated by Mr. Nizetich, we have attempted to come up with some ideas that we think should be implemented in an amendment to S. 2568. Of course, we are not special draftsmen, or legislative counsel, and we think that there needs to be more work on this business.

I want to tell the Senator why we oppose S. 2568.

The essence of S. 2568 is contained in section 2. And, it is here that we have basic objections to the entire intent and approach of the proposed bill. We strongly object to the unconditional grant of regulatory power to the Secretary of Interior, whereby he can regulate the American tuna producer when he and the Secretary of State believe it is necessary to implement the recommendations of the Commission. As indicated in section 2, this power to regulate comes into being when only two conditions exist, namely:

(1) A recommendation of the Commission made pursuant to paragraph 5 of article II of the convention for the Establishment of an Inter-American Tropical Tuna Commission; and

(2) Approval of such recommendations by the Secretary of State and the Secretary of Interior.

Under this language, it is possible for the American tuna producer to be the only tuna producer under conservation regulations in the eastern tropical Pacific Ocean. At the same time, the tuna fishermen of the member countries, such as Ecuador, Panama, and Costa Rica, can be free of regulatory control by their Governments. The tuna fishermen of the nonmember countries, such as Mexico, Colombia, Peru, Chile, Japan, and a host of other countries, who have suddenly become interested in the tropical tunas of the eastern Pacific can be free of regulatory controls.

This is the same problem confronting the American salmon fishermen, when they watch the Japanese and Russian net fishermen haul in their catches beyond the 3-mile limit.

Senator Bartlett, I am sure you recall the hearings you conducted in April 1959 at Juneau, Alaska. This same subcommittee was considering the Magnuson bill, S. 502, at the time.

I can repeat the concern of the halibut and king crab fishermen, or that of the New England fishermen, as they watch modern, efficient trawlers from Japan and Russia sweep the grounds with fishing gear the American fisherman cannot use because of fishery management regulations. In the Union of South Africa, the sardine fishermen have been told that they can now fish without restriction. Their Gov

ernment took this action because they painfully recognized the fact that Russian and Japanese fishing vessels disregarded their rules on a closed sardine season. In the whaling industry there is trouble. Norway has announced its intention to terminate its participation. They excuse their action on the ground that Russian and Japanese whalers disregard quota regulations.

There exists an unmistakable international turbulence in the problem of effectively managing high seas fisheries. This problem becomes aggravated and more difficult of solution, whenever any one country attempts unilateral conservation action. S. 2568 provides the opportunity for this unsuccessful approach. Under section 2, the Secretary of Interior wants the power to experiment with unilateral conservation of the tropical tuna fishery on the eastern Pacific. For some inconceivable reason, he asks for this power with full knowledge that such an experiment has no possibility of success.

Now admittedly, there is something different in S. 2568. Section 2 contains provisions that give the impression that the American tuna producer will receive equal treatment and protection under the conservation program if it is found by the Secretary of Interior that the foreign fisherman is not following the recommendations of the Commission. Section 2 provides that the Secretary of Interior has the power to suspend the regulations, and that an embargo provision will be used to force compliance by the country that fails to see to it that their fishermen obey the rules of the Commission.

Both of these alleged safeguards are totally inadequate and ineffective.

In 1959, during the hearings of this subcommittee on S. 502, the following dialog took place between Chairman Magnuson and Donald D. McKernan, Director, Bureau of Commercial Fisheries. I refer to page 175 of the report of the hearings:

Chairman Magnuson asked the question:

Would you consider a regulation as long as our fellows-as long as you have tied them all up-to let them go out and join the Japanese out on the high seas? As long as we are all out there, we might as well have a free swing at it. Mr. McKernan answered:

If it came to the point where I felt that all other methods of solving this problem had been exhausted, why, at that particular time, I might recommend throwing up our hands. But, in the first place, I don't believe a high seas fishery such as is being carried on out there is a good thing for conservation and I doubt that our substantial fishermen would really be in favor of such a thing except as a very last resort.

Senator Magnuson then stated:

Then, of course, it may not be economically feasible. *

In the same hearing report, on page 171, Mr. McKernan mentioned in his opening statement as follows:

we don't subscribe to the principle that these runs should be overfished simply because another nation or another group do not at the moment wish to recognize the need for additional conservation.

So the Government of the United States has decided that the only alternative is to keep our fishermen from harvesting the runs this year.

As you well know, Senator Bartlett, the American fishermen operating in Alaska in the Bering Sea did not fish in 1959. They watched on shore as the Japanese fished.

In view of this statement of policy, we have reason to doubt the effectiveness of the provision that gives the Secretary of the Interior the power to suspend the regulations. The issue is not on whether the Secretary of Interior has the power to suspend, and upon what circumstances he can exercise the power. The issue is whether past experience and our Government's overall fishery policy gives reason to believe that he will suspend the regulations.

In our opinion, this provision does not prevent the existence of a discriminatory policy toward the American fishermen on the high seas. It does not reduce the dangers involved in granting the Secretary of Interior the power to experiment with a program of achieving conservation success with unilateral regulation of the American tuna producer. Because of the express refusal of the Secretary of Interior to "throw up his hands" until the "very last resort," the power to suspend the regulations would be exercised only when for economic reasons it would be practically impossible for the American fishermen to compete with the unregulated foreign tuna fishermen. This, of course, is our opinion.

It is also our opinion that section 2 places restrictions on the implied authority of the Secretary of Interior to exercise his power of removing or suspending his own regulations. These requirements do not ease, but rather they appear to enforce the announced position of the Director of the Bureau of Commercial Fisheries that the power of suspension will be exercised only as the "very last resort."

The provisions in section 2 that relate to the embargo protection is both inadequate and impossible of enforcement. Again, this is our opinion.

And the argument that the regulation by the Secretary of Interior will cure the defects is absurd. As such, the embargo protection device offers no assurance that the American tuna producer will receive equal protection and opportunity under the proposed conservation program. The best way to illustrate the defects of these provisions in section 2 is to compare them with the approach adopted by the salmon industry.

In S. 2707, formerly S. 502, and also H.R. 9547, the condition that gives rise to the prohibition device is simple of determination and detection. In these bills, it is provided as follows:

*** any country that permits fishing for salmon by nets on the high seas at times and places where occur large quantities of immature salmon of North American origin, or salmon of mixed North American origin * * *.

The type of fishing gear utilized in a certain fishing ground gives rise to the prohibition. The proposed bills also assist in the determination of such prohibition in that the Secretary of Interior is required to make findings where the salmon runs take place, and what countries permit salmon capture by nets on the high seas of the North Pacific Ocean. These findings are then certified by the Secretary of Interior to the Secretary of Treasury for purposes of enforcement.

We do not wish to comment on the issue of whether this is a good approach. But we wish to say that the bills do provide a simple and clear method of initiating the embargo. No such simple and clear method is provided in S. 2568.

To examine section 2, it is apparent to anyone in the tuna business, that the problem of identifying the fish to be prohibited is impossible.