U.S. DEPARTMENT OF JUSTICE, Hon. HEBERT C. BONNER, Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. CHAIRMAN: This is in response to your requests for the views of the Department of Justice concerning H.R. 7954 and companion bill S. 1988, “To prohibit fishing in the territorial waters of the United States and in certain other areas by persons other than nationals or inhabitants of the United States." As passed by the Senate, S. 1988 would make it unlawful for foreign vessels to fish in the territorial waters of the United States, its territories and possessions, and the Commonwealth of Puerto Rico, or to take any Continental Shelf fishery resource which appertains to the United States except as provided by an international agreement to which the United States is a party. The Secretary of the Treasury would be authorized to issue licenses to foreign vessels to engage in fishing in certain circumstances. Section 2 of the bill would provide penalties for violations of the act and would provide that a vessel, and all fish taken or retained in violation of the act, may be forfeited. Section 3 would prescribe the methods for enforcing the provisions of the act, and section 4 would authorize the Secretary of the Treasury to issue such regulations as he determines are necessary to carry out its provisions. Since the Department of Justice is not responsible for the administration of such fisheries, we prefer to refrain from expressing any views on the merits of the bill. We note, however, that the Departments of State and of the Interior suggested to the Senate Committee on Commerce that consideration be given to eliminating the reference to the Continental Shelf fishery resources, on the ground that it presents complex problems of enforcement. See Hearings on Fishing in U.S. Territorial Waters Before the Merchant Marine and Fisheries Subcommittee of the Senate Committee on Commerce, 88th Congress, 1st session 82 (1963) and Senate Report 500, 88th Congress, 1st session 11 (1963), respectively. We agree that such problems are presented and that it may take some time and study to resolve them. There are some technical aspects of S. 1988 to which attention is invited. The prohibitions of section 1 of the bill would apply to any vessel, except "a vessel of the United States." The quoted phrase is not defined in the bill. It is variously defined in existing statutes. See, for example, title 18, United States Code, section 9, title 46, United States Code, sections 221, 251 (1958). Accordingly, we suggest that a suitable definition may clarify any question as to which vessels would be exempt from the provisions of the bill. It should also be noted that section 2(b) provides for forfeiture of both vessels and catch, but section 2(c) relates only to cargo in incorporating by reference the customs procedure for forfeiture. We are not aware of any reason for this limitation. In the absence of a suitable reason, it would be appropriate to insert the words "vessel and" before the word "cargo" in both places where it is used in section 2(c). The first sentence of section 3 (a) would provide: "Enforcement of the provisions of this Act is the joint responsibility of the United States Coast Guard, the United States Department of the Interior, and the United States Bureau of Customs." In its report on the general management of the executive branch, the first Hoover Commission on the Organization of the Executive Branch recommended that "there must be a clear line of authority reaching down through every step of the organization and no subordinate should have authority independent from that of his superior." House docket 55, 81st Congress, 1st session 34 (1949). For an example of the implementation of this recommendation under the Reorganization Act of 1949, see sections 1 and 2 of Reorganization Plan No. 26 of 1950, transferring to the Secretary of the Treasury, with exceptions not here material, all functions of all other officers of the Department of the Treasury and all functions of all agencies and employees of such Department; and authorizing him to delegate their performance by any other officer, agency, or employee of that Department, 64 Stat. 1280, material following 5 U.S.C. 133z-15 (1958). To preserve the authority of departmental heads and to provide for the contingency in which the Coast Guard may operate as a service of the Navy under the pro visions of 14 U.S.C. 3 and 5 (1958), for the first sentence of section 3(a) of the bill there may be substituted a provision along the following lines: "The Secretary of the Treasury, the head of the department in which the Coast Guard is operating, and the Secretary of the Interior shall enforce the provisions of the Act." The remainder of section 3 (a) would provide: "In addition, the Secretary of the Interior may designate officers and employees of the States of the United States, of the Commonwealth of Puerto Rico, and of any territory or possession of the United States to carry out enforcement activities hereunder. When so designated, such officers and employees are authorized to function as Federal law enforcement agents for these purposes." We note that the report of the Comptroller General to the Senate Committee on Commerce on S. 1988 pointed out that some confusion could attend such designations in the absence of a clarifying pronouncement by Congress whether persons so designated should, while performing such duties, be afforded rights accruing to Federal employees. See Senate report 500, supra, at 13. Accordingly, the committee may wish to obtain the views of the Civil Service Commission on the matters to which he referred. The Bureau of the Budget has advised that there is no objection to the submission of this report from the standpoint of the administration's program. Sincerely yours, NICHOLAS DEB. KATZENBACH, Deputy Attorney General. DEPARTMENT OF STATE, Washington, November 1, 1963. Hon. HERBERT C. BONNER, Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. CHAIRMAN: Your letter of October 7, 1963, previously acknowledged, requested the Department's views and recommendations on S. 1988, a bill to prohibit fishing in the territorial waters of the United States and in certain other areas by persons other than nationals or inhabitants of the United States. After a round of consultations with other interested agencies in 1962, the Department informed the Commandant of the U.S. Coast Guard in January of this year that it supported a general policy of stopping or boarding foreign fishing vessels found in the territorial sea, not in innocent passage, for the purpose of examining the vessel's papers, checking for violations of U.S. laws or ordering the vessel to leave the territorial sea; such policy to be followed with respect to foreign fishing vessels without discrimination. The Commandant was also advised that the Department of State approved and would support efforts by the Department of the Interior to clarify and strengthen U.S. laws prohibiting fishing in the territorial sea by foreign vessels. In accordance with this established policy, the Department fully approves the purposes of S. 1988, and sees no objection thereto from the standpoint of the foreign relations of the United States. The Department also approves of the provisions of the bill which would permit fishing in the territorial sea or for resources of the Continental Shelf by foreign vessels when this would be in the interests of the United States. No comment is made on those provisions of the bill which relate to the enforcement responsibilities of other Departments of the Government. The Bureau of the Budget advises that from the standpoint of the administration's program there is no objection to the submission of this report. Sincerely yours, FREDERICK G. DUTTON, Assistant Secretary, (For the Secretary of State). Hon. HERBERT C. BONNER, THE GENERAL COUNSEL OF THE TREASURY, Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: Reference is made to your request for the views of this Department on S. 1988, to prohibit fishing in the territorial waters of the United States and in certain other areas by persons other than nationals or inhabitants of the United States. The proposed legislation would make it unlawful for any vessel, other than a vessel of the United States, or for the master or other person in charge of such vessel, to engage in the fisheries within the territorial waters of the United States, its territories and possessions, and the Commonwealth of Puerto Rico, or to engage in the taking of any fishery resources of the Continental Shelf claimed by the United States absent and international agreement to which the United States is a party. Violation of the prohibition would subject the vessel and her catch to forfeiture and the master or other person in charge to fine and imprisonment. The bill would make enforcement of its provisions the joint responsibility of the Coast Guard, the Bureau of Customs, and the Department of the Interior. The Department believes that the proposed legislation would be a valuable addition to the conservation laws of the United States and recommends its enactment. There are, however, several amendments which the Department believes should be made in the bill. Section 2(c) of the bill provides that all provisions of law relating to seizure, judicial forfeitures, and condemnation for violation of the customs laws shall be applicable to cargo seized under the provisions of the act. The Department believes that these provisions of law should be applicable not only to the cargo of an offending vessel but also the vessel itself and that provisions relating to summary forfeiture for violations of the customs laws should apply. In order to accomplish this, it is suggested that the words "summary and" be inserted before "judicial" in line 18, page 2 of the bill and that the word “cargo" in lines 19 and 20, page 2 of the bill, be deleted and the following substituted therefor: "vessel, including its tackle, apparel, furniture, appurtenances, cargo, and stores,". Section 3(a) makes enforcement of the act the joint responsibility of the Coast Guard, the Bureau of Customs, and the Department of the Interior. It is recommended that the first sentence of that section be amended to read: “Enforcement of the provisions of this Act is the joint responsibility of the Secretary of the Interior, the Secretary of the Treasury, and the Secretary of the Department in which the Coast Guard is operating." Section 3 (f) of the bill provides for the disposition pursuant to court order of any fish seized in accordance with section 3(g). To make this clear, it is suggested that the words "pursuant to the provisions of subsection (g) of this section" be inserted after “jurisdiction” in line 20, page 4 of the bill. It should be pointed out that the title of the bill does not accurately describe its purpose. This could be corrected by inserting after the word "areas" the words "by vessels other than vessels of the United States, and". Finally, the Department believes that inclusion in the bill of those provisions relating to the fishery resources of the Continental Shelf may be premature. We understand these provisions may create problems of enforcement on the high seas which have not been entirely resolved. The Department of State would be a more appropriate agency to comment on this. Because of the urgent need for the measures in the bill relating to the territorial seas, Congress might consider the advisability of enacting these measures and defer acting on the measures relating to the Continental Shelf until a later date. Should Congress choose to retain the provisions relating to the Continental Shelf, we believe it would be advantageous to rewrite the section dealing with the fishery resources appertaining to the United States to embrace the language of the Convention on the Continental Shelf (Geneva 1958). We also believe that the bill should designate an officer of the Federal Government, most appropriately the Secretary of the Interior, to determine what species of marine life would qualify under the bill. We believe that in the absence of such a determination prosecution of violators might be difficult. The Department has been advised by the Bureau of the Budget that there is no objection from the standpoint of the administration's program to the submission of this report to your committee. Sincerely yours, G. D'ANDELOT BELIN, General Counsel. Hon. HERBERT C. BONNER, THE GENERAL COUNSEL OF THE TREASURY, Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. CHAIRMAN: Reference is made to your request for the views of this Department on H.R. 7954, to prohibit fishing in the territorial waters of the United States and in certain other areas by persons other than nationals or inhabitants of the United States. The proposed legislation would make it unlawful for any vessel, other than a vessel of the United States, or for the master or other person in charge of such vessel, to engage in the fisheries within the territorial waters of the United States, its territories, and possessions, or to engage in the taking of any fishery resources of the Continental Shelf claimed by the United States absent an international agreement to which the United States is a party. Violation of the prohibition would subject the vessel and her catch to forfeiture and the master or any other person in charge to fine and imprisonment. The bill would make enforcement of its provisions the joint responsibility of the Coast Guard, the Bureau of Customs, and the Department of the Interior. The Department believes that the proposed legislation would be a valuable addition to the conservation laws of the United States and recommends its enactment. There are, however, a number of amendments which the Department believes should be made in the bill in order to strengthen it from the point of view of enforcement. The attached memorandum sets forth in detail the amendments which the Treasury Department recommends be made in H.R. 7954. The Department has been advised by the Bureau of the Budget that there is no objection from the standpoint of the administration's program to the submission of this report to your committee. Sincerely yours, G. D'ANDELOT BELIN, General Counsel. MEMORANDUM TO ACCOMPANY TREASURY DEPARTMENT REPORT ON H.R. 7954 1. Section 2(b) could be broadened to include all the equipment of a vessel in the forfeiture penalty and to render mandatory the forfeiture of fish taken or retained in violation of the act. We believe that forfeiture of fish stolen from the United States should be mandatory, although forfeiture of a vessel should remain a matter for the discretion of the court. It is suggested that section 2(b) be amended to read: "Every vessel employed in any manner in connection with violation of this Act including its tackle, apparel, furniture, appurtenances, cargo, and stores shall be subject to forfeiture and all fish taken or retained in violation of this Act or the monetary value thereof shall be forfeited." 2. Section 2(c) of the bill makes all provisions of law relating to seizure, judicial forfeiture, and condemnation for violation of the customs laws applicable to the cargo of a vessel. The Department believes that the provisions should also be applicable to the vessel itself and that the provisions relating to summary forfeiture for violations of the customs laws should apply. This could be accomplished by inserting the words "summary and" before "judicial" in line 7, page 2 of the bill and by substituting for the word "cargo" in lines 8 and 9, page 2 of the bill, the following: "vessel, including its tackle, apparel, furniture, appurtenances, cargo, and stores.' This provision is necessary to insure justice to persons who have financial interests in a vessel, for example, liens, and who are not involved in the commission of the offense for which the vessel has become subject to forfeiture. 3. The power to make seizure of vessels is not presently included in section 3, although the power to make seizures of the catch and arrest of violators is enumerated. It is suggested that present section 3 (e) be renumbered as section 3(f), and the following new section 3 (e) be added: "Such person so authorized may seize any vessel, together with its tackle, apparel, furniture, appurtenances, cargo, and stores, used or employed contrary to the provisions of this Act or the regulations issued hereunder or which it reasonably appears has been used or employed contrary to the provisions of this Act or the regulations issued hereunder." 4. Section 3(a) makes enforcement of the act the joint responsibility of the Coast Guard, the Bureau of Customs, and the Department of the Interior. It is recommended that the first sentence of that section be amended to read: "En forcement of the provisions of this Act is the joint responsibility of the Secretary of the Interior, the Secretary of the Treasury, and the Secretary of the Department in which the Coast Guard is operating." 5. Section 3 (e) provides for disposition of seized fish "pursuant to the order of a court of competent jurisdiction or, if perishable, in a manner prescribed by regulations of the Secretary of the Treasury." Section 3 (f) provides the accused the further rights to post bond for the value of such fish and the power to sell such fish at his discretion. These added rights permit the court to shift the responsibility for disposal of seized fish to the violator, if he so desires. This should minimize the risk of claims against the United States. But section 3(f) goes too far when it stays the execution of a warrant of arrest or other process in rem upon the receipt of a bond for the value of the fish only (lines 8-12, p. 4). This provision might be read to enable a violator of the act to escape U.S. jurisdiction in the vessel on which process had been issued, since apparently all process is stayed upon posting of a bond for the fish only. Extradition would not always be available for an offense described in H.R. 7954. Thus, section 3 (f) should be amended to provide that only the fish catch is released from execution of process upon receipt of sufficient bond. 6. Section 3(e) provides for the disposition of any seized fish pursuant to the order of a court of competent jurisdiction in accordance with section 3 (f). To make this clear, it is suggested that the words "pursuant to the provisions of subsection (f) of this section" be inserted after "jurisdiction" in line 4, page 4. 7. It appears that problems might arise in obtaining admiralty process such as a warrant for the arrest of a vessel from a U.S. commissioner, under section 3(b), since no authority to issue such process appears in the general powers of such commissioners granted in title 18, United States Code. U.S. commissioners could be helpful in seizure procedures in remote areas such as in Alaska. It is suggested that the phrase ", including warrants or other process issued in admiralty proceedings in Federal district courts," be inserted after the word "process" in section 3 (b), page 3, line 8. 8. Section 4311, Revised Statutes, as amended (46 U.S.C. 251), provides that vessels enrolled and licensed or licensed pursuant to the laws of the United States, and no others, shall be deemed vessels of the United States entitled to the privileges of vessels employed in the fisheries. In order to avoid any possible conflict between the proposed legislation and section 4311 of the Revised Statutes. the following new section 5 is proposed: "Nothing in this Act shall be construed to amend or repeal the provisions of section 4311 of the Revised Statutes, as amended, 46 U.S.C. 251." 9. It should be pointed out that the title of the bill does not accurately describe its purpose. This could be corrected by inserting after the word "areas" the words "by vessel other than vessels of the United States, and”. Finally, the Department believes that inclusion in the bill of these provisions relating to the fishery resources of the Continental Shelf may be premature. We understand these provisions may create problems of enforcement on the high seas which have not been entirely resolved. The Department of State would be a more appropriate agency to comment on this. Because of the urgent need for the measures in the bill relating to the territorial seas, Congress might consider the advisability of enacting these measures and defer acting on the measures relating to the Continental Shelf until a later date. Should Congress choose to retain the provisions relating to the Continental Shelf, we believe it would be advantageous to rewrite the section dealing with the fishery resources appertaining to the United States to embrace the language of the Convention on the Continental Shelf (Geneva 1958). We also believe that the bill should designate an officer of the Federal Government, most appropriately the Secretary of the Interior, to determine what species of marine life would qualify under the bill. We believe that in the absence of such a determination prosecution of violators might be difficult. |