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moratorium decision. So we are pursuing not only legislative sanctions on a worldwide basis, but also personal sanctions.

Mr. SMITH of New Jersey. You know, it has been suggested that Japan-and I think you made this point in your statement, Mr. Cheater-and some other whaling nations might try to avoid the IWC's ban on commercial whaling by attempting to get coastal whaling reclassified as noncommercial, subsistence whaling, or through the IWC's scientific permit system.

Do you think the whaling nations will succeed in this effort and would you amplify for the subcommittee the extent of this threat? Mr. CHEATER. I think it's a very real and serious threat. Whether it is successful hinges a great deal on U.S. leadership at the upcoming IWC meeting in actively opposing these proposals by the whaling nations. So I am certainly very concerned and we would ask the members of this subcommittee, as well as Congress as a whole, to provide written directives to the U.S. delegation at the IWC meeting this year, to specifically spearhead efforts to defeat any types of proposals to reclassify commercial whaling under the guise of either scientific research or coastal subsistence whaling.

Mr. PLOWDEN. If I might follow that up, one basis for our concern is not just hearing from the whaling countries themselves, but Norway specifically has been negotiating with the United States for the past several years after the moratorium vote passed and, in fact, last spring there was communication between the U.S. Government and other IWC members basically exploring how they would respond to an initiative by Norway or other countries to create this third category of whaling. So there is already a history of the United States even potentially supporting this type of move. So that is why we feel a real sense of urgency of getting it on paper that we aren't going to support this, because this has been very much behind the scenes.

Mr. SMITH of New Jersey. I see. I appreciate that.

When the IWC's ban on commercial whaling goes into effect, will other nations, in your opinion, seek to negotiate bilaterally with the United States to avoid certification as Japan has done already?

Mr. CHEATER. Absolutely. As Mr. Plowden mentioned, Norway has been interested in a deal similar to Japan's for a long period. There is no question in my mind that they would ask for something similar.

As I mentioned in my written statement, Iceland has also made moves to pursue a similar deal, and I have no doubts that the Brazilians as well as perhaps the other nations that are presently whaling in the IWC will ask for a similar deal.

Mr. SMITH of New Jersey. So you do see it as a very dangerous precedent?

Mr. CHEATER. Absolutely.

Mr. SMITH of New Jersey. Can you tell us how many nations, gentlemen, have been certified under the Pelly amendment or the Packwood-Magnuson amendment and in which cases sanctions were actually applied?

Mr. PLOWDEN. To my knowledge, this is actually the first time with the Soviets when they have been used. Back in 1974, the Soviets and Japanese were certified for their violation of the minke

quota. That certification was sufficient to prevent them from exceeding minke whale quotas for several years.

The next time countries were certified was in 1978, when Chile, Peru, and South Korea were certified for their continued whaling outside of the IWC. President Carter decided not to invoke sanctions at that point because all three countries stated their intent on joining the Commission by the time of the next meeting, which they did.

With Taiwan, there were hearings where we presented evidence about Taiwanese whaling outside the purview of the IWC, but again, a threat at that point was sufficient to get Taiwan out of whaling completely. So it has now brought us up to the present with the Soviet infraction.

Mr. SMITH of New Jersey. I do have one final question.

I think all of you know-and I have certainly read this enough times-that the Japanese often claim their whale stocks are not low enough to justify a complete moratorium on whaling. Could you give this subcommittee some background on the state of the whale stocks and what you foresee in the next 5, 10, or 15 years? When will true replenishment occur?

Mr. PLOWDEN. That again is an extremely difficult question to answer. In the case of certain whale populations which were vastly depleted-for instance, the gray whale it was knocked down to as low as an estimated 200 animals. But through strict protection and, at one point, negligence of the whalers, their population has built back quite nicely. With other populations such as the bowhead, the right whales, the blue whales, which were hunted also to the verge of extinction, quite literally, their populations have now been under various forms of protection for 20 to 50 years and there is very little evidence to show that their populations have come back at all.

So it is quite possible we would have a moratorium in effect and some populations might never recover. But, certainly, the chances of them recovering if hunting was resumed will be greatly reduced. Mr. SMITH of New Jersey. Thank you for your answers.

I yield back the balance of my time.

Mr. YATRON [presiding]. I want to thank you for taking over for me. I was called to the phone unexpectedly. I want to thank you all very much for testifying here today and giving us the benefit of your views. We look forward to working closely with you and have you back very soon again.

Thank you very much, gentlemen.

Now our last witness today is Mr. Robert J. McManus, general counsel of the National Oceanic and Atmospheric Administration. Mr. McManus, would you please come to the table. Whenever you are ready you may proceed.


Mr. MCMANUS. Thank you very much, Mr. Chairman. I appreciate the opportunity to appear before this subcommittee today on behalf of the administration.

I will say at the outset that I feel a little bit like the "fifth wheel." I understand from previous statements that have been submitted for the record, and the testimony that you have elicited, that Congressman Bonker has no doubt as to the outcome of the lawsuit which is now pending before the Court of Appeals for the District of Columbia. I understand that the panel of four experts in international whale conservation all disagree with the decision made by the Secretary of Commerce in November of last year. I understand from the tenor of the questions put heretofore by the panel that there may be some sentiment to that effect on the part of the Congressmen present also.

But I would say a couple of things by way of summary of my prepared remarks which, of course, have been submitted for the record, and also to comment briefly on what I have heard previously today during this hearing.

In the first place, a procedural point. Let me make very clear that I am not here to argue the case that has been argued most competently by Miss Diane Kelly of the Department of Justice and I have no doubt, will be argued competently in the court of appeals next week. As far as I am concerned, my purpose here today is not to give you the legal arguments which I have joined in forgingand my name is on the brief. Indeed, there would come a point of which it would be most improper for me, as a matter of the canons of ethics, to engage in public argumentation on what is admittedly a difficult question of law which is now before the courts, where it belongs.

Mr. YATRON. Mr. McManus, we certainly understand your situation, but we do welcome your being here to give us the benefit of your views and the input you are going to provide for the subcommittee.

Mr. MCMANUS. Thank you, Mr. Chairman.

The nonprocedural comment that I would make is, in listening to what I hope are my friends, who appeared on the former panel, I am struck by the absence of substantive disagreement. That may sound like a surprising thing for the administration witness to say. But if you eliminate words like "craven," "capitulate," "bullying by the Japanese" and so on and so forth, we find that the four gentlemen who have testified on the panel this afternoon think that the Secretary of Commerce made a bad deal. They are in favor of the moratorium on commercial whaling, as is the Secretary of Commerce, and they are very worried. They are worried about the future of the International Whaling Commission. They are worried about the administration's willingness to hold the line with respect to the implementation of the moratorium and other IWC regulations. They are worried about the administration's resolve to hold the line, as it has in the past, with respect to trade in whale products that have been taken in excess of IWC quotas.

The sum and substance, I would suggest, Mr. Chairman, of the presentations we have heard earlier today is that the Secretary of Commerce made a bad deal.

I believe it is unnecessary for me at this point in the proceedings to tell you what the deal was, although I will be happy, in the question-and-answer period, to explain for the record, as I have in my prepared remarks, what it is that the Secretary of Commerce

agreed to. And, by the way, we are, of course, submitting for the record all of the exchanges of letters between the Secretary of Commerce and the Japanese, those in November of 1984 and, most recently, those in April, of this year, that occurred in the wake of the decision adverse to the administration by Judge Richey of the District Court in Washington, DC.

I would be remiss in my summary if I did not highlight the administration's position on House Concurrent Resolution 54. The administration is opposed to House Concurrent Resolution 54, and I do not believe that comes as any surprise. We are opposed because, although we recognize its nonbinding nature, there are statements of law in House Concurrent Resolution 54 with which the administration disagrees. If we are wrong, we believe that the court of appeals and perhaps the Supreme Court will tell us so. Therefore, in that regard, we do not believe House Concurrent Resolution 54 is necessary.

Second, we note that House Concurrent Resolution 54 asks the administration to use the "basket clause"-I believe I characterize the resolution accurately-the basket clause in section 201 of the Magnuson Act, in order to induce nations which have maintained objections to the IWC moratorium to withdraw those objections.

Well, Mr. Chairman, as you know, should the administration prevail in the litigation now pending before the court of appeals, we think that would be moot with respect to Japan because the arrangement, the exchange of letters of November 13, 1984, would remain in effect. The Japanese would have agreed to get out of commercial whaling and there would be no need, unless the Japanese were to renege on their undertakings, to invoke the basket clause or certification.

Now, with respect to the Soviet Union, as you have heard earlier today, Mr. Chairman, the Secretary of Commerce has certified the Soviet Union for taking in excess of its fair share of the minke whale harvest under the quota established by the IWC in Buenos Aires last summer. Their fishery allocations have been cut.

With respect to the third nation which maintains an objection to the IWC's resolution, that being Norway, Norway does not at this time receive allocations to fish in the United States fishery conservation zone and, therefore, the basket clause would have no apparent applicability to Norway.

Finally, Mr. Chairman, I have been asked to address preparations for the upcoming meeting of the International Whaling Commission in Bournemouth, Mr. Chairman-it's no longer Brighton. Apparently the International Whaling Commission is looking for a more economic venue.

Dr. Barstow has testified as to some of the preparations that have been underway. As Dr. Barstow stated in his testimony, there was a working group which met in February. There is a draft report prepared by that working group on the future activities of the IWC which has been circulated to participants for comments. In addition, Mr. Chairman, I would just like to mention in closing, my discussion of this particular subject, that the positions of the United States on the agenda items for the International Whaling Commission meeting are developed under the leadership of the U.S. Commissioner to the International Whaling Commission and

with the assistance-on which the Commissioner quite seriously relies of an entity known as the IWC Interagency Committee, perhaps an unusual entity as a governmental structure. It is composed of representatives of various executive branch agencies. It includes staffers from the interested committees of the Congress and, in fact, it includes virtually any member of the public who cares to participate. All the individuals who preceded me at this table have regularly attended those meetings. The only restriction is that we do not permit attendance by representatives of foreign governments. It is at the IWC Interagency Committee meetings that the U.S. positions with respect to IWC's agenda items are discussed, we think in as open a forum as is reasonably possible, considering the fact that we are dealing with an international organization.

Mr. Chairman, that is all I have to say by way of summary of my statement. I understand that the full statement will be submitted for the record.

[Mr. McManus' prepared statement follows:]

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