et seq.) as its title implies, is directed specifically to the taking of sea otters on the high seas, and the Fur Seal Act of 1966 (16 U.S.C. 1151 et seq.) is directed largely to carrying out the obligations of the United States under the North Pacific Seal Convention. We perceive the likelihood of some problems in determining which provisions of the latter statute would be affected by the repealer language of the present bill, but defer to the Departments of State, Commerce and the Interior as to whether a different approach should be taken on this matter. The Department of Justice perceives no constitutional or other legal objections to enactment of this bill. However, whether the bill should be enacted involves policy considerations as to which the Department defers to the Departments of the Interior, Commerce and State. We do wish to point out that the sections in the bill after 303 are designated 404 and 405 instead of 304 and 305, that on page 6, line 4, the word "relates" should be changed to "relate", and that on page 6, line 12, the word "Commissioners" should be changed to "Magistrates". Also, two successive sections have been designated at "Sec. 208." The Office of Management and Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration's program. DEAR MR. CHAIRMAN: This is in response to your request for comment on S. 1315, a bill to be cited as the "Ocean Mammal Protection Act of 1971." Consistent with a Congressional declaration that ocean mammals, including seals, whales, walrus, manatee, sea otters, sea lions, polar bears, porpoise and dolphins, are being "ruthlessly pursued, harassed, or killed" and may therefore become rare or extinct, this bill contains provisions that would greatly enlarge Federal responsibility for conservation of such animals, regardless of their status as endangered species. Specifically, S. 1315 would (1) with certain limited exceptions, make unlawful the taking of ocean mammals on land or sea by vessels or persons subject to jurisdiction of the United States; (2) express the sense of Congress that the Interim Convention on the Conservation of North Pacific Fur Seals not be continued upon its termination in 1975; (3) provide that, pending termination of the Convention, the United States not harvest its quota of North Pacific Fur Seals, and that the quotas of Japan and Canada be honored either by in lieu payments or direct shipment of skins; (4) establish a Pribilof Islands National Seal Rookery Reserve and Bird Sanctuary to be administered by this Department; and (5) direct the appointment of a Pribilof Islands Commission to assist in the development of a substitute economy for the Pribilof Islands. In addition, S. 1315 would repeal relevant, but inconsistent, provisions of the Fur Seal Act of 1966 (16 U.S.C. 1151 et seq.) We defer to the Departments of State and Commerce concerning effects of this legislation upon efforts to regulate by international agreement the taking of pelagic mammals. As the Committee is aware, primary responsibility for implementation of the Convention and for administration of the Pribelof Islands was transferred to the Department of Commerce by Reorganization Plan No. 4 of 1970. We offer comment, however, based on experience with implementation of the Convention and our interest in effective management of wildlife resources. It is clearly a basic premise of S. 1315 that an absolute unilateral prohibition against the killing of all ocean mammals will assure their protection, and that such cessation of the harvest is a sound objective. We do not agree. To meet a legitimate public concern for preservation and protection of endangered species, the Congress has enacted legislation that authorizes the Secretary of the Interior to undertake a program for conservation of animals so classified. Further, the Secretary has exercised regulatory authority to prevent the importation of special found to be threatened with extinction. We refer, of course, to the Act of October 15, 1966 (80 Stat. 926), as amended by the Endangered Special Conservation Act of 1969 (16 U.S.C. 668aa et seq.). The list of species threatened with worldwide extinction now includes several species of whale, the Dugong (sea cow), and Florida Manatee. Other species named by S. 1315 are neither threatened with extinction nor subject to ruthless harassment, as the bill would find. Some of the subject species, notably fur seals and whales, are protected to some degree by international convention. Others are protected by State regulation. We recognize that some species not now threatened with extinction will become endangered in the absence of effective international regulation. S. 1315 is unsound in other respects. With some exceptions, individual States, and not the Federal government assert jurisdiction for management of resident birds and mammals, including seals, the manatee, sea otter, sea lion, walrus, and polar bear. Enforcement under section 206(a), diffused among five Departments, would be unwieldly, if not entirely unworkable. The substitute economy envisaged by section 303, for the Pribilof Islands would fail, we believe, because the season is too short, the climate too severe, and transportation too expensive to attract tourists in numbers sufficient to support the native population. If the fur seal industry were terminated, as S. 1315 proposes, it would be necessary to relocate allor most of the Aleut inhabitants. A sound approach to management of ocean mammals requires further research and strengthened international regulation of those practices which threaten species not already classified as "endangered." This approach would serve to reaffirm our concern for the worldwide protection of wildlife. We think it important to strengthen, rather than abolish the existing international institutions which make such protection possible. The Office of Management and Budget has advised that there is no objection to the presentation of this report from the standpoint of the Administration's program. DEAR MR. CHAIRMAN: The Secretary has asked me to reply to your letter of April 1, 1971 requesting the Department's views on S. 1315, "To protect ocean mammals from being pursued, harassed, or killed; and for other purposes." S. 1315 proposes that the Congress make a finding "that ocean mammals are being ruthlessly... killed. . . [and] that many ocean mammals will become rare, if not extinct, unless steps are taken to prevent their slaughter." On this basis, the bill would declare it to be the public policy of the United States that all ocean mammals should be protected from slaughter and that negotiations should be undertaken with a view of obtaining a world-wide ban on the further slaughter of such mammals. Further, the bill would express the sense of the Congress that the Interim Convention on Conservation of North Pacific Fur Seals, 1957, should be permitted to expire in 1976 and that the Secretary of State should initiate negotiations with the other parties to the Convention and any other interested states for the purpose of obtaining international agreement to ban all killing of North Pacific fur seals, whether at sea or on land. The Department recommends against the enactment of S. 1315. The United States has consistently demonstrated by its actions, both domestic and international, that it stands ready to take positive measures, and to seek agreement of other nations to such measures, for the protection and conservation of marine animals and other wildlife. We have negotiated a number of treaties and agreements relating to the protection of living marine resources, including two treaties specifically addressed to certain species of ocean mam mals. These agreements have been based on the concept of conservation, one definition of which is to be found in the Convention on Fishing and Conservation of the Living Resources of the High Seas, adopted by the United Nations Conference on the Law of the Sea, 1958. Article 2 of that Convention states: "As employed in this Convention, the expression conservation of the living resources rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products." Thus, in terms of these agreements we have been dealing with marine animals as renewable resources to be used for the benefit of man. The United States has also been moving forward with measures for the protection of those species of wildlife which, on the basis of scientific evidence, are deemed to be endangered or rare. The Endangered Species Conservation Act of 1969 (P.L. 91-135) authorizes the Secretary of the Interior to protect in various ways species which he finds, on the basis of scientific evidence, to be threatened with worldwide extinction. Included within the latest list of species prepared pursuant to the Act are certain special of whales, the Mediterranean monk seal, dugongs and the West Indian manatee. Further, the United States will convene a world conference on protection of wildlife in April, 1972. A major objective of the conference will be to conclude a convention on this subject. For that purpose, the International Union for the Conservation of Nature and Natural Resources (IUCN) has prepared, in consultation with some 60 Governments, including that of the United States, a draft of such a convention which divides wildlife to be given a special protection into two categories, those species which are threatened with extinction and those which are not yet so threatened but which require special measures to prevent "undue exploitation incompatible with their survival." All species of sirenians (manatees, dugongs, etc.) are listed in the first category; sea otters, polar bears, Guadelupe fur seals and walruses are listed in the second category. The draft convention provides for additions to or amendments of the lists, based on the findings of competent scientists. The Department has serious doubts that the evidence available supports the finding proposed by S. 1315. Giving full weight to the present findings of the Secretary of the Interior and the IUCN, it appears that at present manatees and dugongs, one species of seals and some species of whales are endangered, and that sea otters, one other species of seals, walruses and polar bears need special measures of protection. From this, it may be inferred that most species of ocean mammals are not threatened or in danger of becoming so, though the Department must obviously disclaim any special scientific competence in the matter. Since there appears to be no sound, scientific basis for a total ban on the killing of all marine mammals, we believe it quite unlikely that other Governments would be prepared to enter into negotiations to this end. The Department stands ready to seek international agreements for the conservation for rational use of species beneficial to man or for the protection of endangered special when a reasonable scientific case can be made that such measures are needed. We have found that other Governments are generally receptive to proposals of negotiations looking to agreements to cover such circumstances. On the other hand, whatever may be the ethical merits of the concept that a blanket prohibition on the killing of ocean mammals is a desirable end in itself, we believe that few, if any, other nations would at the present time be prepared to accept this concept as a basis for negotiations. In passing, we might note that the taking of five of the eight species of whales on the endangered list published by the Secretary of the Interior has been prohibited for some years under regulations of the International Whaling Commission, of which the United States and the major whaling countries are members. The United States is continuing to seek more effective measures by the Commission for the conservation of the other three species. Further, the killing of northern fur seals is controlled through the North Pacific Seal Commission. Conservation of the harp and hood seals of the northwestern Atlantic Ocean is among the responsibilities of the International Commission for the Northwest Atlantic Fisheries. The 1957 Interim Convention on Conservation of North Pacific Seals, the parties to which are the United States, Canada, Japan and the Soviet Union, is the successor to the 1911 treaty on this subject between the four countries. In the years prior to 1911 the fur seal herds had been decimated by indiscrimi nate pelagic sealing-the killing of seals at sea. Since it was not possible to determine beforehand the sex or age of the animals, many females and immature seals were killed. Many animals were lost through wounding or sinking. By the time of conclusion of the 1911 treaty the herds on the Pribilof Islands had been reduced to perhaps 200,000 animals; the herds under Russian jurisdiction faced extinction. The 1911 treaty forbade pelagic sealing to the nationals and vessels of the four parties. In exchange, the taking of fur sealskins was shared in such a way that the countries controlling the rookeries retained 70 per cent of the skins and distributed 30 per cent among the others. The treaty was highly successful in restoring the seal populations, so much so in fact that the Japanese Government as early as 1926 suggested a conference for modification of the convention on grounds that the seais had become too numerous. No conference was held, however, and the treaty continued until 1941 when it was terminated by notice given by Japan, in connection with which it was alleged by that Government that both direct and indirect damage had been inflicted on the Japanese fisheries by the increase of the fur seal populations. The present Convention retains the prohibition on pelagic sealing and the basic features of the sharing formula. It also provides for research and for coordination of research and management plans through the North Pacific Fur Seal Commission, composed of one member from each party. The killing of the fur seals on the Pribilofs and the taking of the skins is conducted by the National Marine Fisheries Service, Department of Commerce, according to the management plan, which is addressed to the objective of bringing the herds to the level of maximum sustainable productivity and maintaining them at that level. We understand that the Pribilof population now numbers about 1.3 million; there are perhaps another half million on the Soviet rookeries. Termination of the 1957 treaty would expose the fur seals to the possibility of resumption of the wasteful practice of pelagic sealing and consequent overexploitation. It is not certain, of course, that other countries would permit the resumption of the hunting of these animals at sea. It appears very doubtful, however, that other Governments, for example, that of Japan, would be prepared without any tangible quid pro quo to restrain their nationals from taking the seals for their valuable furs, particularly when these animals have been accused of causing damage to the fisheries. Moreover, we believe that the existence of an international conservation agreement, generally regarded as highly successful, constitutes a significant deterrent to additional countries which are in a position to engage in pelagic sealing. Termination of the treaty would remove this deterrent. Thus, the actions proposed by S. 1315 might well lead to a situation directly opposite to that desired by the proponents of the bill. The Department considers it highly unlikely that an international agreement or agreements to ban all killing of North Pacific fur seals at sea or on land could be successfully negotiated. In addition to the considerations cited above, which pertain to countries not possessing rookeries, the Soviet Union is interested in bringing the herds on its rookeries to, and maintaining them at, the level which will provide the maximum sustainable yield of fur sealskins. The commercial kill by the Soviet Union on its rookeries was 16,306 seals in 1970 and 15,648 in 1969. Accordingly, we have no reason to believe that the Soviet Government would be amenable to a proposal to prohibit all killing of fur seals. With respect to the interim arrangements regarding fur seals which are proposed by S. 1315, a major objective of the 1957 Convention is to bring the fur seal populations to and maintain them at "the levels which will provide the greatest harvest year after year . . ." To maintain maximum sustainable productivity in ordinary circumstances requires the elimination of certain numbers of surplus animals from the herds. Therefore, it is our understanding that an arbitrary limitation on the kill, such as is proposed by S. 1315 as an interim measure, might constitute a failure by the United States to carry out its treaty obligations. In summary, the Department believes that this legislation should not be enacted because other national or international means are more appropriate for the conservation and protection of over-exploited or endangered species, because some provisions of the legislation are impossible of successful implementation, and because the provisions regarding fur seals would likely create a situation counter to that desired by the bill's proponents and might moreover require violation of United States treaty obligations. The Department therefore recommends against enactment. The Office of Management and Budget advises that from the standpoint of the Administration's program there is no objection to the submission of this report. Sincerely, DAVID M. ABSHIRE, Congressional Relations. DEPARTMENT OF STATE, Washington, D.C., October 19, 1971. Hon. WARREN G. MAGNUSON, Chairman, Committee on Commerce, Washington, D.C. DEAR MR. CHAIRMAN: Your letter of October 6, 1971 requested the comments of the Department of State on S. 2579, "To protect ocean mammals from being pursued, harassed, or killed, and for other purposes." S. 2579 appears to be a revision of S. 1315 so as to provide primarily for renegotiation and renewal of the 1957 Interim Convention on Conservation of North Pacific Fur Seals in the event that a new treaty to ban all killing of northern fur seals cannot be successfully negotiated prior to the expiration date of the 1957 Convention. The Department's comments on S. 1315 were conveyed to you by my letter of September 28, 1971. We consider that the provisions of S. 2579 relating to possible renewal of the present fur seal treaty are an improvement, though it appears in any event that certain changes in that treaty would be required because of the provisions of Section 402 of the bill, which would impose new conditions as to the numbers and categories of seals which might be killed and as to the sharing arrangements with Canada and Japan. Otherwise, the Department recommends against the enactment of S. 2579 for essentially the same reasons as given in our report on S. 1315. The broad approach of the bill does not take into account the different circumstances of different species of marine mammals, and the Department believes that other national and international means are more appropriate for the conservation and protection of over-exploited or endangered species, including the measures expected to develop from the world conference on protection of wildlife which the United States will convene in April, 1972. Further, we believe that few, if any, other nations would at the present time be prepared to enter into negotiations looking to a complete prohibition of the killing of all marine mammals. In addition, the interim provisions of Section 402 of the bill relating to action under the present fur seal treaty would, at least in the short term, bring into question the fulfillment of United States treaty obligations. The Office of Management and Budget advises that from the standpoint of the Administration's program there is no objection to the submission of this report. Sincerely, DAVID M. ABSHIRE, OFFICE OF THE SECRETARY OF TRANSPORTATION, Hon. WARREN G. MAGNUSON, Washington, D.C. DEAR MR. CHAIRMAN: This is in response to your request for this Department's comments on S. 2579, a bill "To protect ocean mammals from being pursued, harassed, or killed, and for other purposes." Enforcement of the proposal, if enacted, would not appear to require significant additional law enforcement activity on the part of the Coast Guard. |