ductivity." Thus the Convention text provides safeguards, through the operation of the Standing Scientific Committee, to prevent the stocks of northern fur seals from diminishing due to overharvesting.

The Convention mandates extensive research responsibilities of the Party Governments to study fur seal habitat, migration, feeding habits, reproduction and other vital statistics. A harvest is allowed only after such a recommendation by the Standing Scientific Committee is accepted by Parties to the Convention. The Convention further allows the United States and the Soviet Union to alter or cease a harvest if it is determined by the Commission that such action is necessary to the well-being of the fur seal population.

The present Convention (Appendix B) is recognized by world wildlife management authorities as a model international conservation program for a migratory species. It has resulted in the recovery of the Pribilof fur seal population from a low of about 300,000 animals in the early 1900s to about 2.0 million in the 1950's and 871,000 today. There is, however, domestic opposition to the treaty because of the commercial harvest it allows. Recent data indicate that the fur seal herds are declining in numbers. In addition, a conviction exists among many citizens that killing fur seals and other wildlife for their pelts is unethical and immoral. There is, opposition, therefore to any action which would continue the United States harvest of northern fur seals on the Pribilof Islands.

B. Domestic Legislation

1. The Fur Seal Act of 1966

The Fur Seal Act of 1966 (16 U.S.C. 1151,et seq.) implemented the Convention in the United States. This Act provided, among other things, for the conservation, management and protection of Northern fur seals, and the administration of the Pribilof Islands as a special reservation. The Act allowed Indians, Aleuts and Eskimos who dwell on the coast of the North Pacific Ocean to take fur seals in traditional ways using canoes. The Act also provides authority for the Secretary of Commerce to take and use fur seal skins on the Pribilofs, to carry out other duties in connection with the harvest, and to provide certain services to the Aleut residents. One of the major purposes of the Act was to give the Secretary broader discretion in the administration of the Pribilof Islands, encourage self-government, and provide certain benefits for the residents of the islands.

Fur Seal Act Amendments of 1983 (P.L. 98-129) were passed in the 98th Congress to provide for the orderly termination of Federal administration of the Pribilof Islands and to ensure a commitment of resources ($20 million) by the Federal Government which will allow the natives of the Pribilof Islands to establish a stable, diversified economy, and to establish the Islands as a self-sustaining economic unit not dependent on sealing. The legislation, in addition to authorizing the creation of the fund, sets out the procedures by which the transfer of property and administration will occur. The treaty obligations of the United States under the Convention have not been altered by this legislation. It would, however, allow the government to contract with any public or private person for the taking of fur seals and/or the marketing of the skins, with the right of first refusal going to the village corporations of St. Paul and St. George Islands.

2. Alaska Native Claims Settlement Act

The Alaska Native Claims Settlement Act (43 U.S.C. 1601), in 1972, extinguished native claims to land in Alaska, authorized selection of certain lands and mineral rights, and established payments to native corporations. Under the terms of the Act, approxi

mately 94 percent of the land area on St. Paul and 97 percent of the land area on St. Geroge has been conveyed to the ownership of the Aleut residents. Ownership of the fur seal rookeries and a buffer zone around the rookeries was retained, along with some buildings and small areas, by the Federal government.

3. The Marine Mammal Protection Act of 1972, as amended (MMPA)

The MMPA (16 U.S.C. 1351-1407) is the major vehicle for the domestic management of marine mammals. It is a principal purpose of the MMPA, set out in Section 2, that "species and population stocks of marine mammals should not be permitted to diminish below their optimum sustainable population (OSP)" and "that the primary objective of their management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the carrying capacity of the habitat." OSP has been defined by the National Marine Fisheries Service (NMFS) as "a population size which falls within a range from the population level of a given species or stock which is the largest supportable within the ecosystem to the population level that results in maximum net productivity. Maximum net productivity is the greatest net annual increment in population numbers or biomass resulting from additions to the population due to reproduction and growth less losses due to natural mortality"(41 F.R. 55536, December 21, 1976). This definition received subsequent judicial approval in Committee for Humane Legislation v. Kreps, (D.D.C. Civ. Action No. 77-0564 Order of the Court dated June 30, 1977).

Management of fur seals, however, does not fall within the direct purview of the MMPA by virtue of Section 11, which provides that the MMPA shall not be considered to contravene the provisions of any existing international treaty or convention and its implementing legislation which applies to the taking of marine mammals. The exception created by Section 113, which clearly covers the Convention, ensures that the Fur Seal Act supercedes application of the MMPA. These views received recent judical approval in International Fund for Animal Welfare v. Baldrige, (D.D.C. Civ. Action No. 84-1838 Order of the Court dated June 28, 1984).

Other provisions of the MMPA, however, have been relevant to the management of fur seals under the Convention and the Fur Seal Act. Section 108(a)(4) of the MMPA noted that the Secretary was to "initiate the amendment of any existing international treaty for the protection and conservation of any species of marine mammal to which the United States is a party in order to make such treaty consistent with the purposes and policies of" the Act.

Section 108(b) required that the Secretary of Commerce undertake two studies by October 21, 1973, one relating to population trends and optimum sustainable population, the other relating to consistency of the Convention with the Act. Congressional policy, expressed in the statute, was that if certain findings resulted from the studies, negotiations to modify the Convention should be initiated, and if negotiations were unsuccessful, that the then-existing termination date of the Convention of October 14, 1976, should be extended. In the event of unsuccessful negotiations followed by a successful extension, Section 108(b) gives no specific Congressional guidance as to subsequent studies, findings, or renegotiating positions.

The Secretary transmitted the required studies to Congress on November 15, 1973, and they were published in the Federal Register on April 2, 1974 (39 F.R. 12051-12054). Although finding "no basic incompatibility" between the Convention and the Act, the

Secretary recommended negotiations under Section 108(b)(2)(B)(ii) to reconcile the differences in emphasis between the Convention and the MMPA.

Consequently, in 1975, the United States actively sought to renegotiate the Convention, calling for revisions which would allow the Parties to take biological and a variety of other factors into account in the conservation and management of fur seals. During the renegotiations, the U.S. delegation submitted a working paper on the concept of OSPbased management, noting U.S. concern about a management program based on single stock management.

The United States was unable to obtain agreement of the Parties to adopt an OSP based management scheme in a new Convention. Canada did not think that the OSP concept was a viable management tool for fur seals. Japan thought that the OSP concept required further refinement before being adopted. The Parties did, however, agree to a number of other changes to the Convention to take into account the health of the ecosystem and humane harvest measures.

The obligations of the Secretary under Section 108(b) have been fulfilled. The U.S. position on the future of the current Convention is, however, still subject to the guidance in Section 108(a)(4). The Convention is clearly an international treaty for the protection and conservation of a species of marine mammal to which the United States is a party, in which case Section 108 (a)(4) expresses Congressional desire that the Convention be amended, if necessary, to make it consistent with the purposes and policies of the Act. We must, therefore, evaluate whether, and to what extent, the Convention has advanced the Northern fur seal toward population levels consistent with the purposes and policies of the Act, and whether other arrangements, consistent with the Act, are required.

In the absence of the Convention, management of the northern fur seal within the U.S. exclusive economic zone (EEZ) would be governed by the MMPA. Management under the MMPA centers around a moratorium, during which no marine mammal, marine mammal parts, or products thereof, can, with certain limited exceptions, be imported into the United States or be taken by any person subject to the jurisdiction of the United States. One of the exceptions provided allows certain, limited takings by Alaskan Natives, so long as the taking is for subsistence or handicraft purposes, and not accomplished in a wasteful manner. As discussed above, OSP is the primary management tool under the MMPA.

The 1981 amendments to the MMPA (Pub.L. No. 97-58) do not have any direct effects on the Convention or fur seal management. The amendments do, however, set out a completely new approach for the transfer of management authority to states for marine mammals under their jurisdiction. If the Convention were to expire, management of fur seals would be subject to the provisions of the MMPA, including Section 109(b)(1) regarding transfer of management, in which case the State of Alaska could, if it chose, request to manage fur seals.

4. The Endangered Species Act of 1973, as amended, ("ESA")

The ESA (16 U.S.C. 1531-1543) provides the domestic mechanism for the preservation, protection and conservation of endangered and threatened species. It also implements U.S. obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The ESA places restrictions, with some exceptions, on the importation and taking of, and other activities involving, endangered species, and provides for the appropriate regulation of threatened species by the Secretary. "Endangered species" is defined by the ESA to mean any species which is in

danger of extinction throughout all or a significant portion of its range. "Threatened species" is defined to mean any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

The fur seal is not listed as endangered or threatened under the ESA. However, a petition has been filed, by the Humane Society of the United States, to have the northern fur seal listed as a threatened species, in accordance with Section 4 of the ESA. Should this species be designated as threatened, the Secretary would be charged under Section 4(d) to issue regulations "necessary and advisable to provide for the conservation of such species", and by regulation, may prohibit any act prohibited under Section 9(a)(1), which pertains to endangered species. The ESA has a subsistence exception which applies to Alaska Natives, as long as any subsistence takings are not accomplished in a wasteful manner. No provision exists in the ESA similar to Section 113 of the MMPA, establishing the primacy of pre-existing international agreements applying to the taking of marine mammals. As a result, once a species is listed, the provisions of the ESA apply.

On April 11, 1984, the NMFS published a notice in the Federal Register (49 F.R. 14416-14417) requesting information and comments on the status of the northern fur seal (C. ursinus). At the request of a number of interested parties, the comment period was extended through August 17, 1984, (49 F.R. 27808, July 6, 1984). Pursuant to Section 4 of the ESA, the NMFS is performing a review of the status of C. ursinus to determine if the petitioned action is warranted, i.e., whether or not this species meets the criteria of a threatened species under the ESA. A final determination on this petition is expected shortly.

5. The Magnuson Fishery Conservation and Management Act, as amended,

(Magnuson Act)

The Magnuson Act (16 U.S.C. 1801-1881), first promulgated in 1976, established a U.S. fishery conservation zone (FCZ), the inner boundary of which is a line coterminous with the seaward boundary of each of the coastal states, and the outer boundary of which is a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured. In 1976, Section 404 of the Magnuson Act was passed, extending the jurisdication of the MMPA to the boundaries defined above. The President's Proclamation of March 10, 1983, establishing an EEZ, does not change existing U.S policies concerning marine mammals.

II. ALTERNATIVES INCLUDING THE PROPOSED ACTION

A.

Convention Extension with Attached Statement (Proposed Action/Proposed Record of Decision)

The Statement attached to the 1984 Protocol (Appendix A) addresses issues which were originally proposed by the United States as requiring modification of the Convention's text. The U.S. proposed modifications, as outlined in the 1983 draft EIS on the Convention, included: (1) adding a provision to Article V of the Convention which would specifically provide for independent action by harvesting nations to modify the North Pacific Fur Seal Commission's (NPFSC) recommended harvest levels under emergency conditions; (2) new emphasis in international research under the Convention on the causes and the prevention of fur seal mortality at sea due to entanglement in discarded fishing nets and gear and other debris; and (3) additional obligations of the Parties to prohibit and prevent the disposal of fishing nets, gear, and other debris at sea which might lead to fur seal entanglement.

During the negotiations with the other Party Governments a consensus could not be reached on the specific U.S. proposals. While there was general agreement that the concerns which the United States was raising were serious and valid, the general belief was that these concerns could be fully accomodated by the existing Convention language, and therefore, there was no purpose to be served in amending the Convention. In order to clarify and memorialize this understanding the Party Governments agreed to execute the Statement concurrent with the signing of the Protocol.

The original proposal to extend the Convention for six years was modified as a result of comments received on the draft EIS. Therefore, the United States proposed the extension of the Convention for four years to the other Parties. This proposal was accepted.

The Statement expresses the shared concern of the Party Governments over the decline of the fur seal population, current economic conditions, and other problems of fur seal conservation and utilization. The Statement makes the following major points:

(1) in accordance with Article II of the Convention, additional research should be conducted concerning current aspects of fur seal conservation including the problem of entanglement of fur seals in lost or discarded fishing nets, gear, and other debris. This concern reflects the modification proposed by the United States to amend Article II to require additional research on the current population decline, with special emphasis on the problem of entanglement of fur seals at sea (Sections III.B.7 and III.B.9.). The Pribilof Island population of northern fur seals is declining at about 6.5 percent annually. A major part of this decline is thought to be due to mortality at sea due to entanglement in marine debris. The United States hosted an international scientific and technical workshop in November 1984 which should result in suggested avenues for directed research on this problem. The results of this workshop will aid in the formulation of new research efforts which can be included in scientific programs of the NPFSC.

(2) in accordance with Article X of the Convention, and in conformity with their national laws, the Governments will take appropriate measures to prohibit the disposal at sea in the Convention areas of synthetic materials, such as fishing nets, or parts thereof, fishing gear, ropes, packing bands, and other debris which might lead to the entanglement of fur seals, in accordance with the provisions of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other