However, we defer to the Departments of Interior, Commerce, and State on the desirability of the bill. 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 to the Committee. DEAR MR. CHAIRMAN: This responds to your request for comment on S. 2579, S. 2639, and S. 2871, similar bilis to be cited either as the "Marine Mammal Protection Act of 1971" or the "Ocean Mammal Protection Act of 1971." S. 2579 is essentially similar to S. 1315, about which we commented by letter of September 17, 1971. Like S. 1315, S. 2579 would (1) make unlawful the taking of designated species 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 payments in lieu of skins or direct shipment; (4) establish a Pribilof Islands National Seal Rookery Preserve 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. S. 2579 would go beyond S. 1315 in urging the Secretary of State to seek international agreement to outlaw all killings of those ocean mammals covered by the bill, and in providing that notwithstanding item (2) above, if an international agreement to ban all killing of North Pacific fur seals cannot be reached, Title IV of S. 2579 urges continuation of the Fur Seal Treaty. Section 405 would require the Secretary of Commerce to report to the Congress his findings and efforts concerning the use of "modern, rapid, and humane methods of rendering the seal unconscious." S. 2639 and S. 2871 are similar to one another. Both bills contain a declaration of congressional purpose relative to the conservation of marine mammals, and would direct that the Secretary of the Interior undertake a comprehensive program for the regulation of taking all such animals on the territorial sea of the United States, and within the contiguous fisheries zone. Title I provides more specifically for the establishment of limitations on the numbers of each species which may be taken consonant with a need for its preservation, for the issuance of permits as a prerequisite of any undertaking, except by Indians, Aleuts, or Eskimos under certain circumstances, and for cooperative arrangements between the Secretary and the States that "prescribe the circumstances under which marine mammals which pass through or reside within the territorial waters of any State may be taken." S. 2871 goes beyond S. 2639 in section 110 which directs the Secretary to review management of the fur seal harvest on the Pribilof Islands and to provide an alternate means for satisfaction of obligations under the International Convention for the Conservation of North Pacific Fur Seals, if he determines that the Pribilof harvest should be curtailed or terminated. Title II of both bills establishes a Marine Mammal Commission composed of three members appointed by the President, and would, in turn, require that the Commission appoint a nine-member Committee of Scientific Advisors on Marine Mammals. Neither the Department of the Interior or the Department of Commerce would have any say in the composition of these two boards. In consultation with its advisory committee, the Commission would conduct a general survey of authorities and practices pertaining to marine mammals, advise the Secretary of such matters, and furnish to the Congress an annual report of its activities. The Commission would also be authorized to undertake research on marine mammals. There would be authorized to be appropriated such sums as may be necessary to carry out the purposes of Title I, and such additional sums, not to exceed $1 million annually for two years, as may be needed to finance activities of the Commission and its advisory committee under Title II. We defer to the Departments of State and Commerce on the international treaty aspects of protecting North Pacific fur seals. Our comments are restricted to the other aspects of these bills and are based on our broad experience and deep interest in effective protection and management of wildlife resources. From that vantage point we do not agree with what appears to be a basic premise of S. 2579 at least that the goal should be an absolute, permanent prohibition against killing any ocean mammal listed in that bill, regardless of whether the special population is increasing or declining. We support instead, the need, also recognized in S. 2579, S. 2639 and S. 2871, for a coordinated approach to the protection, conservation and management of ocean mammals, strengthened by appropriate enforcement provisions and regulatory authority. The aim of such a program should be the early detection of a population decline and the swift imposition of effective controls to prevent it from reaching dangerously low levels. As the Committee is aware, this Department now has Federal program responsibility under the Fish and Wildlife Act of 1956 for only the polar bear, walrus and sea otter of those species identified by these bills. As to those species under our present jurisdiction, we would favor additional research and regulatory authority. Reorganization Plan No. 4 of 1970 (84 Stat. 2090) transferred to the Department of Commerce those authorities formerly exercised by this Department through the Bureau of Commercial Fisheries. These include management activities and research related to fur seals, whales and sea lions. Enactment of this Administration's proposel for a Department of Natural Resources, now pending in the Senate as S. 1431, would effect a consolidation of existing authorities relative to marine mammals. We urge prompt action to establish the Department of Natural Resources. Although we support and make extensive use of advisory commissions, we feel that their role should be purely advisory and that the advisee should have discretion in appointing their members, and determining their duties and structure. This assures their responsiveness to the needs of the agency receiving the advise and avoids the danger of unwieldly bureaucracy and fragmenting management authority between it and the agency administering the program. In addition, we feel that independent research authority is inappropriate for an advisory commission and lead to an unnecessary diffusion of scarce funds. We view the Marine Mammal Commission that would be established under S. 2639 and S. 2871 as such an unwieldly and unnecessary bureaucracy. 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. Sincerely yours, CURTIS ROHLEN, Acting Assistant Secretary of the Interior. OFFICE OF THE DEPUTY ATTORNEY GENERAL, Hon. WARREN G. MAGNUSON, Chairman, Committee on Commerce, Washington, D.C. DEAR SENATOR: This is in response to your request for the views of the Department of Justice on S. 2579, a bill "To protect ocean mammals from being pursued, harassed, or killed, and for other purposes." Title I of the bill expressed a finding by the Congress that ocean mammals are being pursued, harassed, or killed both at sea and on land by hunters of many nations, and that many will become rare if not extinct unless steps are taken to stop their slaughter. The Congress would declare it to be the public policy of the United States to protect all ocean mammals, and to negotiate with foreign governments and through interested international organizations to obtain a worldwide ban on their slaughter. Title II contains broad prohibitions with respect to the taking, transportation, or possession, by any person or vessel subject to the jurisdiction of the United States, of any ocean mammals or parts of ocean mammals (defined as all seal, whale, walrus, manatee or sea cow, sea otter, sea lion, polar bear, porpoise, and dolphin). Exceptions would be made only for Indians, Aleuts, and Eskimos dwelling on the coasts of the North Pacific or Arctic oceans, who would be permitted to take mammals other than polar bears for their own use in accordance with traditions, and in accordance with regulations of the Secretary of the Interior for municipal and other non-profit zoos and for medical and scientific research. Vessels subject to the jurisdiction of the United States employed in a violation would be subject to forfeiture. Provision is made for issuance of regulations by the Secretaries of State, Treasury, Interior, Commerce, and Transportation to carry out the purposes of the title, for enforcement of the title and regulations thereunder, and for a fine of not more than $5,000 or imprisonment of not more than one year, or both, for the first offense, and of not more than $10,000 or imprisonment for not less than one nor more than three years, or both, for subsequent offenses. Title III would authorize and direct the Secretary of State to initiate worldwide negotiations for the purpose of obtaining an international agreement that would protect all ocean mammals by seeking to outlaw all killing of these mammals, and to report in full his efforts thereto twelve months from date of enactment of this proposal. Title IV would declare it to be the sense of the Congress that the North Pacific Seal Convention, signed February 9, 1957, which terminates in 1976, should not be continued beyond its termination date. In its place, the Secretary of State would be directed to initiate negotiations to obtain a treaty to ban all killings of North Pacific fur seals at sea or on land, such treaty to become effective immediately upon signing. Interim arrangements are made for honoring existing treaty provisions. Title IV would also allow renewal of the present North Pacific Fur Seal Convention if the above-mentioned proposed successor treaty had not been successfully negotiated prior to expiration of the Convention, so that any possible return to pelagic sealing that might otherwise result in a no-treaty vacuum would be prevented. The Pribilof Islands would be designated a National Seal Rookery Preserve and Bird Sanctuary. The President, with the advice and consent of the Senate, would be authorized to appoint a Commission, composed of named Federal officials, the Governor of Alaska, an unspecified number of Pribilof Aleut natives and two independent scientists in the fields of ocean biology and ecology. The Commission's functions would be to help in transforming the Pribilof Islands into a seal preserve, to help in promoting tourism, and to develop a substitute economy on the island for the Aleuts to replace their participation in the seal slaughter. Whether the bill should be enacted involves policy considerations concerning which the Department of Justice defers to the Departments of the Interior, Commerce and State. However, we do wish to make several technical comments. Section 203(b) of the bill refers to Alaskan natives who are employed "(under) title III of this Act . . ." The correct reference would appear to be to Title IV, sec. 406. In section 208, the penalty that would be authorized for first offenders omits the critical words "upon conviction." We recommend that section 208 be amended, on page 7, line 23, to add," upon conviction," following the word "shall." Also section 208 proposes imprisonment ("imprisoned") for first offenses but jailing ("jailed") for second and subsequent offenses. "Jailed" on page 8, line 2, should be changed to "imprisoned." On page 4, line 21, the appropriate word is "certifiable" rather than "certificable"; on page 5, line 18, we question whether "remission of mitigation" is what is meant to be said there, or whether it is "remission or mitigation"; and on page 6, line 12, eth word "magistrates" should be substituted for "commissioners." On page 6, line 4, the word "relates" should be changed to "relate." Also, two successive sections have been designated as "Sec. 208". Section 303 directs the Secretary of State to make a report, presumably to the Congress. We recommend that the words "to the Congress" be added following "report" on page 8, line 17. The last section of section 401, providing that a proposed treaty banning killing of North Pacific fur seals is to take effect upon signing, apparently is inconsistent with Article II, section 2, clause 2, of the Constitution, which requires that treaties have the "Advice and Consent" of two thirds of the Senators present. 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. Sincerely, RICHARD G. KLEINDIENST, Deputy Attorney General. GENERAL COUNSEL OF THE Department of COMMERCE, Hon. WARREN G. MAGNUSON, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: This is in reply to your request for the views of this Department with respect to S. 2579, a bill "To protect ocean mammals from being pursued, harassed, or killed, and for other purposes." S. 2579 would prevent the taking of any marine mammals by U.S. citizens; or the transportation, import, or offer for sale of ocean mammals or parts thereof. Section 203 would exempt Indians, Aleuts, and Eskimos of the North Pacific and Arctic who could take marine mammals (except for polar bear) for their own use but not for sale, provided this was done in accordance with customary traditions and as part of the native culture. Section 206 addresses itself to the enforcement of the Act and the penalties for violations. Title III deals with ocean mammal international treaties expressing the sense of Congress that the Secretary of State should negotiate agreements designed to protect all ocean mammals. Title IV deals with the North Pacific Fur Seal Convention specifically. Section 401 states that it is the sense of Congress that the treaty should be permitted to expire in 1976 and that the Secretary of State should open negotiations for a new treaty to ban all killings of Northern Pacific fur seals. Section 402 provides that the United States would no longer kill fur seals for its 70 percent share of skins under the treaty and between the enactment of the bill and the expiration of the convention would either make a cash payment to both Canada and Japan for their respective 15 percent of the harvest or would harvest that many seals for those countries if they preferred to receive the skins. Section 403 provides for the renewal of the existing treaty if a new total ban cannot be negotiated and section 404 would require the most humane harvesting methods if section 403 is implemented. Section 406 would designate the Pribilof Islands as a national seal rookery preserve and bird sanctuary under the Department of the Interior, and would provide that the Aleuts would be trained and employed for any jobs created thereunder. Section 407 would provide for a commission to help in promoting tourism and developing an economy for the Aleuts in place of the seal harvest. We recommend against enactment of S. 2579. We do not believe that a blanket ban on the taking of marine mammals by U.S. citizens and on the importation of marine mammals or their parts is either needed or a wise approach to the conservation of the animals involved. However, we recognize the legitimate concern of citizens for the proper conservation and management of all the species. Except for the Pribilof Islands fur seal, marine mammals off the coasts of the United States are actually little utilized by U.S. citizens. Few products of marine mammals are imported into the United States. In fact, fur sealskins, which at one time were used primarily in the United States, have found a greater acceptance in Europe and in recent sales over 80 percent of the skins were bought by European buyers. (The United States does import a quantity of whale products, but these imports are scheduled to cease by the end of 1971 under the provisions of the Endangered Species Conservation Act of 1969.) The relatively small take of marine mammals in the United States that does occur is primarily in Alaska. According to our information about 300 polar bears are taken annually by big-game hunters. Some walruses are taken by the Eskimos for food, skins and sale of carved ivory, and some hair seals are taken for food, clothing, and the sale of skins, or clothing (such as mukluks) made from the skins. The State of Alaska also conducts a small annual harvest of sea otters in some overpopulated colonies. A few whales are taken by the natives of Alaska for their own use and about 5,000 sea lions are harvested each year. The Secretary of Commerce announced on April 19, 1971, that whaling from the United States for species of whales on the Endangered Species List would be stopped as of December 31, 1971. Further sea mammal protection is also contained in the Fur Seal Act of 1966 which not only provides for management of the fur seals of the Pribilof Islands, but also provides for total protection of sea otters on the high seas beyond the territorial waters of the United States. Laws of the State of Alaska prevent the taking of sea otters inside the territorial waters, except for the State controlled program. A very small number of marine mammals are shot by fishermen who are protecting their catch and gear. While it is true that a few are shot by irresponsible individuals, in violation of either Federal or State laws, we believe the solution lies in improved enforcement of the existing laws rather than the enactment of legislation banning the taking of all marine mammals. In all these instances the numbers of animals involved are insignificant in terms of total populations. Some marine mammals are taken incidentally during commercial fishing operations. We believe that further research is needed to determine the significance of this incidental take. The enactment of S. 2579 would have the following effects: 1. Prevent the Aleuts, Eskimos, and Indians of several States, but primarily Alaska, from following their present practice of selling both the skins of hair seals and polar bears, and the carved walrus ivory which are excess to their immediate needs, for a cash income. In many cases this cash income is a large part of their total income. 2. Prevent the State of Alaska from conducting the State controlled harvest of the presently overpopulated colonies of sea otters. A number of Aleuts gain yearly employment during this harvest in catching, skinning, and giving primary treatment to the skins. This harvest has been carried out for about six years in various areas of the Aleutian Islands where research has shown that overpopulations of sea otters and resultant large dieoffs of these animals have occurred. 3. Prevent the protection by commercial fishermen of their catch and gear from the depredations of hair seals and sea lions. In several localities in Alaska and the Northwest, hair seals and sea lions often do considerable damage resulting in economic loss to fishermen by removing or damaging fish in their gear and by tearing large holes in fishermen's nets. 4. Prevent the harvest for food and profit of marine mammals, primarily harbor seals, by the non-aboriginal inhabitants of small coastal communities in Alaska and the Northwest. Historically all peoples living in these areas have made use of the local fish and wildlife for part of their subsistence and for a small cash income. 5. Negate the power of the several coastal States to regulate and manage marine mammal species which reside primarily in State waters. These species include sea otters, sea lions, and harbor seals. Title IV of the Act addresses itself entirely to the Pribilof fur seal and the Aleuts who reside there. The northern fur seal has been the subject of the world's outstanding example of international cooperation in conservation of living resources (Interim Convention on the Conservation of North Pacific Fur Seals, 8 PST 2283, effective October 14, 1957. Under the auspices of the convention first signed in 1911 the Pribilof fur seal herd has been brought from near extinction (less than 200,000 animals) to the present near optimum population of about 1.3 million. This recovery was the result of scientific management of the fur seal herd by prohibiting the harvest at sea (pelagic) and controlling the harvest on land. On land it is possible to follow specific scientific recommendations and procedures to maintain the fur seal population at its optimum level. At present, only 3-5 year old male seals excess to the reproductive needs of the herds are taken. At sea this kind of selectivity is not possible. There is no way to determine the age or sex of a seal when it is swimming in the ocean. If a female seal, with a pup back on the islands, is killed in the ocean, her pup will also die because no other female seal will take care of it. Also many seals are either wounded (to die later) or killed and not recovered from the ocean during the pelagic sealing operations. This bill, if passed, would end this outstanding international conservation effort, and probably lead to the decimation of the fur seal herd itself. If the 76-491 -72 pt. 1 11 |