DEPARTMENT OF THE NAVY, Hon. HERBERT C. BONNER, OFFICE OF THE SECRETARY, Chairman, Committee on Merchant Marine and Fisheries, MY DEAR MR. CHAIRMAN: Your request for comment on S. 1988, an act 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, has been assigned to this Department by the Secretary of Defense for the preparation of a report thereon expressing the views of the Department of Defense. This act would make it unlawful for a foreign vessel, or any person in charge of such vessel, to engage in the fisheries within the territorial waters of the United States, its territories and possessions, and of Puerto Rico or to engage in the taking of any Continental Shelf fishery resources which appertain to the United States except as provided by an international agreement to which the United States is a party. Further, the act would permit the Secretary of the Treasury to issue a license authorizing a foreign vessel to engage in fishing in the prohibited waters, upon certification by the Secretary of the Interior that such permission would be in the national interest, provided there is concurrence by any State, commonwealth, or territory directly affected. The act also provides for enforcement and penalties for violations thereof. It has become apparent in connection with recent study of the problems raised by foreign fishing vessels being in U.S. territorial waters that U.S. domestic law in this regard is inadequate. Under international law, it is clear, the United States has a right to prohibit foreign vessels from fishing in its territorial sea; however, there is an area of doubt whether or not U.S. law specifically prohibits such fishing. The provisions of section 251 of title 46, United States Code, the only statute of general application which could be regarded as a prohibition, are not clear in this respect. Assuming that section 251 of this title does prohibit foreign fishing in the territorial sea, there are no penalties at present for violation. A naked prohibition is not much use as a deterrent to foreign fishing. The Department of the Navy, on behalf of the Department of Defense, supports enactment of S. 1988, provided the act is amended, as recommended by the Department of the Interior, to require concurrence of the Secretary of Defense before certifying a foreign vesel for license to engage in fishing within the territorial waters of the United States or for resources of the Continental Shelf which appertain to the United States. This report has been coordinated within the Department of Defense in accordance with procedures prescribed by the Secretary of Defense. The Bureau of the Budget advises that, from the standpoint of the administration's program, there is no objection to the presentation of this report on S. 1988 for the consideration of the committee. Sincerely yours, Hon. HERBERT C. BONNER, C. R. KEAR, Jr., Captain, U.S. Navy, Deputy Chief (For the Secretary of the Navy). COMPTROLLER GENERAL OF THE UNITED STATES, Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. CHAIRMAN: By letter dated February 24, 1964, you requested our comments on S. 1988, as passed by the Senate. The stated purpose of this measure is "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." Our Office has no special information which would assist in determining the need for such measure. However, we note that subsection 3 (a) would authorize the Secretary of the Interior to designate officers and employees of the various States, the Commonwealth of Puerto Rico, and the territories and possessions of the United States, to aid in the enforcement of the proposed measure. When so designated, such officers and employees would be authorized to function as Federal law-enforcement agents. While it is not our intention to suggest that those persons, while performing such duties, should be afforded the rights accruing Federal employees under various statutes, we would like to point out that without a clarifying pronouncement by the Congress, some confusion could attend the designations provided for in subsection 3 (a). By way of specific example as to how the Congress has met a similar situation, the act of August 2, 1956 (ch. 878, 70 Stat. 934), provides for the exchange of employees of the U.S. Department of Agriculture and employees of State political subdivisions or educational institutions. Subsection 7(b) of the act of August 2, 1956, provides that State employees assigned or appointed to the Department of Agriculture, shall-under stated conditionsbe treated, for the purpose of the Federal Employees' Compensation Act, as amended (5 U.S.C. 790), as though they were employees as defined in the Federal Employees' Compensation Act. We feel that the Congress should make it clear whether employees designated under subsection 3(a) shall be considered Federal employees for the purpose of to Federal Employees' Compensation Act, as amended, and other statutes administered by the U.S. Civil Service Commission. It should be pointed out that while our Office made the same recommendation in our report on S. 1988 of September 10, 1963, to the chairman of the Senate Committee on Commerce, the Senate did not take action to carry out our recommendation in its consideration of S. 1988. Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C. DEAR MR. BONNER: This responds to your request for a report on H.R. 7954, 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." We recommend that the bill be enacted, if amended as suggested below. Legislation of this nature will fill a much needed gap in existing law by providing effective sanctions for unlawful fishing by foreign-flag vessels within the territorial waters of the United States. Within the past 2 years, there has been a tremendous increase in the exploitation of the fishing grounds adjacent to the United States by the fishing fleets of foreign nations. These fleets are highly self-sufficient, consisting of large numbers of fishing vessels employing the most modern methods of finding and catching fish. Accompanying factory ships process the catches of the fishing vessels; tank vessels supply fuel, water, and food to the fleet; passenger vessels replace the crews on station; repair vessels make emergency repairs at sea; and cargo vessels transport the processed fishery products to home ports of the nations conducting the fishing operations. Fishermen of the United States have difficulty competing with these large-scale, subsidized operations on the high seas and are in danger of being forced off fishing grounds they have traditionally considered to be their own. The competition for fishing grounds on the high seas alone is ample cause for concern, but during the past year there have been several reports of violations of the U.S. territorial sea by foreign fishing vessels. With the continuing expansion of foreign fishing in waters adjacent to our territorial sea, there is every reason to believe that unless positive action is taken additional incursions upon our territorial waters inevitably will occur. Under existing law the only inhibition against foreign fishing in the territorial waters of the United States is found in the first sentence of 46 U.S.C. 251, which provides that only vessels licensed or enrolled pursuant to applicable laws of the United States "shall be deemed vessels of the United States entitled to the privileges of vessels employed in the coasting trade or fisheries." The quoted language is not expressly prohibitive, and it lacks the directness that is essential to make it abundantly clear that foreign-flag vessels are denied the privilege of fishing in the territorial waters of the United States. An even more serious shortcoming is the fact that existing law provides no effective sanctions to serve as a deterrent to foreign fishing in our waters. The only recourse available is for the Coast Guard to stop and board any foreign fishing vessel found in territorial waters, other than in innocent passage. Whenever a fishing vessel does not have a valid reason for being in U.S. waters, the Coast Guard, following boarding and search, can only direct the vessel to leave immediately and escort her to the high seas. Obviously, such limited action is a wholly inadequate deterrent to guard against careless incursions upon our territorial sea or deliberate poaching of our coastal fishery resources by foreign-flag vessels. The proposal to prohibit fishing by foreign-flag vessels within our territorial waters and to prescribe suitable penalties for violations has a sound basis in existing international law since the freedom of fishing as of right is confined to the high seas (cf. par. 5, art. 14 of the Convention on the Territorial Sea and the Contiguous Zone). With regard to the provisions of the bill relating to the Continental Shelf, we are mindful that the Convention on the Continental Shelf would recognize that a coastal nation has sovereign rights for the purpose of exploiting its natural resources on the Continental Shelf; such natural resources being defined to include living organisms "which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil." We agree that legislation to implement this Convention is desirable. However, we anticipate a number of complex problems concerning such implementation which will require further study. The committee may therefore wish to consider deletion of this reference to the fishery resources of the Continental Shelf in order that the complex problems involved in this aspect of the matter can be considered fully at a more propitious time. The need for legislation expressly to prohibit fishing by foreign-flag vessels in our territorial waters is clear and there is no occasion for delay in this aspect of the matter. We also believe that the prohibition against fishing in territorial waters except to the extent provided by international agreement is too inflexible. We believe that fishing should also be permitted when licensed by the Secretary of the Treasury with the concurrence of the affected States. This suggestion is prompted by the possibility that underutilized coastal fishery resources may exist in the future which, because of economic or other considerations would not be of interest to our fishermen, but could be harvested to the advantage of a coastal State by foreign fishing vessels. The requirement for obtaining the concurrence of the affected States recognizes the existing jurisdiction of our coastal States over fishery resources in territorial waters. The specific amendments which we recommend are: This is purely technical. 1. On page 1, line 4, after "States" insert a comma. 2. On page 1, line 6, after "United States" insert a comma and delete "and". On line 6, after "possessions" insert ", and the Commonwealth of Puerto Rico,". This is for purposes of clarity and conformity with section 3. 3. On page 1, lines 7 and 8, delete "or to engage in the taking of any fishery resource of the Continental Shelf claimed by the United States". 4. On page 1, line 10, delete the period and add "or as permitted by a license which the Secretary of the Treasury may issue with the concurrence of the affected State or States". 5. On page 2, line 11, after "forfeitures" insert "shall". This is purely technical. Your attention is directed to a typographical error on page 3, line 19. The word "research" apparently should read "search". The Bureau of the Budget has advised that there is no objection to the presentation of this report from the standpoint of the administration's program. Sincerely yours, 30-021-64- 2 FRANK P. BRIGGS, Assistant Secretary of the Interior. U.S. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, Washington, D.C., February 18, 1964. Hon. HERBERT C. BONNER, Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, DEAR MR. BONNER: Your committee has requested this 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, which passed the Senate on October 1, 1963. We recommend that the Senate-passed bill be enacted, if amended as suggested herein. Our suggested amendments are principally technical, but we believe they are necessary if we are to administer the bill properly. Section 1 of the Senate-passed bill makes it unlawful for foreign-flag vessels to take fish within the territorial waters of this country and its possessions or to take any of the fishery resources of the Continental Shelf. There are two specific exceptions to this prohibition. The first exception recognizes the fact that the United States may find it desirable to permit such taking through international agreements. The second exception authorizes the Secretary of the Treasury to permit the taking of this resource and the landing thereof under license issued by him in his discretion and upon the certification of this Department and the affected State. Section 2 of the bill provides penalty provisions for persons violating the provisions of section 1 of the bill. It also authorizes the seizure and forfeiture of any vessel and its catch when found to be violating the provisions of the act. Section 3 provides for the joint enforcement of the act by this Department and the Treasury Department. It also provides for the issuing of warrants and for the disposition of fish seized as a result of any violation under the act. Finally, section 4 authorizes the Secretary of the Treasury to issue regulations necessary to administer the act properly. With regard to the provisions of S. 1988, as passed by the Senate, relating to the Continental Shelf, we are mindful that when the Convention on the Continental Shelf is ratified by 22 nations it will recognize that a coastal nation has sovereign rights over the shelf for the purpose of exploring it and exploiting its natural resources. Those are defined to include some fishery resources. We anticipate a number of complex problems in regard to the Outer Continental Shelf which will require further study. In addition, the prohibition in the Senate-passed bill concerning the fishery resources of the Continental Shelf raises problems of enforcement on the high seas as against foreign-flag vessels. The committee may therefore wish to consider deletion of this reference to the fishery resources of the Continental Shelf in order that the complex problems involved in this aspect of the matter can be considered fully. If such action is not taken, we strongly recommend the changes suggested herein. The need for legislation expressly to prohibit fishing by foreign-flag vessels in our territorial waters is clear and there are no peculiarly complex problems associated with enforcement. Thus, there is no need for delay in this aspect of the matter. Legislation of this nature will fill a serious gap in existing law by providing effective sanctions for unlawful fishing by foreign-flag vessels within the territorial waters of the United States. Within the past 2 years, there has been a tremendous increase in the exploitation of the fishing grounds adjacent to the United States by the fishing fleets of foreign nations. These fleets are highly self-sufficient, consisting of large numbers of fishing vessels employing the most modern methods of finding and catching fish. Accompanying factory ships process the catches of the fishing vessels; tank vessel supply fuel, water, and food to the fleet; passenger vessels replace the crews on station; repair vessels make emergency repairs at sea; and cargo vessels transport the processed fishery products to home ports of the nations conducting the fishing operations. Fishermen of the United States have difficulty competing with these large-scale, subsidized operations on the high seas and are in danger of being forced off fishing grounds they have traditionally considered to be their own. The competition for fishing grounds on the high seas alone is ample cause for concern, but during the past year there have been several reports of violations of the U.S. territorial sea by foreign fishing vessels. With the continuing expansion of foreign fishing in waters adjacent to our territorial sea, there is every reason to believe that unless positive action is taken, additional incursions upon our territorial waters inevitably will occur. Under existing law the only inhibition against foreign fishing in the territorial waters of the United States is found in the first sentence of Revised Statutes 4311, as amended (46 U.S.C., sec. 251), which provides that only vessels licensed or enrolled pursuant to the applicable laws of the United States "shall be deemed vessels of the United States entitled to the privileges of vessels employed in the coasting trade or fisheries." The quoted language is not expressly prohibitive, and it lacks the directness that is essential to make it abundantly clear that foreign-flag vessels are denied the privilege of fishing in the territorial waters of the United States. An even more serious shortcoming is the fact that existing law provides no effective sanctions to serve as a deterrent to foreign fishing in our waters. The only recourse available is for the Coast Guard to stop and board any foreign fishing vessel found in territorial waters, other than in innocent passage. Whenever a fishing vessel does not have a valid reason for being in U.S. waters, the Coast Guard, following boarding and search, can only direct the vessel to leave immediately and escort her to the high seas. Obviously, such limited action is a wholly inadequate deterrent to guard against careless incursions upon our territorial sea or deliberate poaching of our coastal fishery resources by foreign-flag vessels. The proposal to prohibit fishing by foreign-flag vessels within our territorial waters and to prescribe suitable penalties for violations has a sound basis in existing international law since the freedom of fishing as a right is confined to the high seas (cf. par. 5, art. 14 of the Convention on the Territorial Sea and the Contiguous Zone). The technical amendments to S. 1988, as it passed the Senate, which we believe are necessary and the reasons therefor are: 1. On page 1, line 9, after "as provided" insert "in this Act or as expressly provided". This amendment is designed to indicate clearly that there are other expressed exceptions to the general prohibitions contained in section 1 of the bill than a provision for international agreements. 2. Amend line 1, after the word "party" through line 9 on page 2 of the bill to read as follows: "The Secretary of the Treasury may issue a license authorizing a vessel other than a vessel of the United States to engage in the fisheries within the territorial waters of the United States, or to engage in the taking of any Continental Shelf fishery resource within such waters which appertains to the United States, upon certification by the Secretary of the Interior that the issuance of a license would be in the public interest, upon the concurrence of the Secretary of Defense, and upon the concurrence of any State, Commonwealth, territory, or possession having jurisdiction over the fisheries and fishery resources within such waters. The Secretary of the Interior, upon concurrence of the Secretary of Defense, and upon concurrence of any State having jurisdiction over any Continental Shelf fishery resource, may issue a license authorizing a vessel other than a vessel of the United States to engage in the taking of any such fishery resource which appertains to the United States and which is beyond the territorial waters of the United States, whenever he finds such action to be in the public interest. The Secretary of the Treasury with the concurrence of the Secretaries of the Interior and Defense may, by regulations, permit vessels other than vessels of the United States to engage in the fisheries within the territorial waters of the United States for recreational purposes without a Federal license." This Department has previously recommended that the Secretary of the Treasury, with the concurrence of the affected States, be authorized to license foreign-flag vessels to engage in the fisheries within our territorial waters. In our opinion, this discretionary authority is desirable, as it will permit the harvesting of underutilized fishery resources under circumstances which are found not to be inimical to our commercial fishermen. Similarly, if provisions concerning the Continental Shelf fishery resource are to be included in the bill, the licensing authority should be extended to this resource also. Presently, however, the provisions of section 1 of the Senate-passed bill are susceptible to the interpretation that the States must concur in the issuance of a license for foreignflag vessels to take the fishery resources of that portion of the Continental Shelf that is beyond the territorial waters as well as to engage in the fisheries of our territorial waters. |