FISHING IN U.S. TERRITORIAL WATERS

FRIDAY, SEPTEMBER 6, 1963

U.S. SENATE,

COMMITTEE ON COMMERCE,

MERCHANT MARINE AND FISHERIES SUBCOMMITTEE,

Washington, D.C. The subcommittee met, pursuant to notice, at 9:30 a.m., in room 5110, New Senate Office Building, Hon. E. L. Bartlett presiding. Senator BARTLETT. The committee will be in order.

The committee will continue consideration this morning of S. 1988, with the first witness being William C. Herrington, Special Assistant to the Under Secretary for Fisheries and Wildlife, Department of State.

STATEMENT OF WILLIAM C. HERRINGTON, SPECIAL ASSISTANT FOR FISHERIES AND WILDLIFE TO THE UNDER SECRETARY OF STATE; ACCOMPANIED BY MR. WILLIAM L. SULLIVAN, JR., FOREIGN AFFAIRS OFFICER

Senator BARTLETT. I understand that we have to get to you in a hurry, before you leave for Tokyo.

Mr. HERRINGTON. I have with me this morning Mr. Sullivan of my office.

Senator BARTLETT. We are glad to have Mr. Sullivan here too. Mr. HERRINGTON. Thank you.

I appear before this committee to support the purposes of S. 1988. Indeed, the Department of State fully approves of the purposes of this bill and sees no objection to it from the standpoint of the foreign relations of the United States.

With increasing frequency foreign fishing, and whaling, vessels have been reported to be fishing in the territorial sea of the United States, particularly off Alaska. This development has been the outgrowth of the vast expansion of foreign fishing activities on the high seas off the coasts of the United States since World War II. These waters, especially off New England and the Aleutian chain, are today fished by great numbers of foreign vessels and this has set the stage for frequent illegal incursions into the U.S. territorial sea. This development has been accompanied by demands by fishermen and State officials that the U.S. Government initiate forceful action to deal with the offenders. Unfortunately, however, existing Federal law is, for the most part, ineffectual for the purpose.

While general authority of Federal law exists to apprehend foreign fishing and whaling vessels found illegally in the territorial sea of the United States, such authority is, in practical effect, limited to expul

sion of the vessel from the territorial sea, thus providing no real deterrent to violations. Only in cases where the violation involves fishing for certain species of marine life are the penalties reasonably stringent; these derive from certain conservation treaties to which the United States is a party.

The resultant situation confronted the Department with the necessity of looking to possible remedies. 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 and 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 is to be followed with respect to foreign fishing vessels without discrimination. Moreover, the Commandant was 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. Hence, the Department is pleased to support the purposes of S. 1988. The reference in section 1 of the bill to fisheries resources of the Continental Shelf would seem to be premature. There are difficult and complex problems of enforcement in this connection which have never before faced the United States and these should be worked out carefully beforehand. If, however, the committee deems it desirable to retain such a reference in the bill it is suggested that, for the purposes of clarification, the language of section 1, after the word "Shelf" in line 8, be changed to read: "which appertains to the United States pursuant to the Convention on the Continental Shelf adopted at Geneva, April 29, 1958, except as provided by an international agreement to which the United States is a party.'

The Department would suggest the inclusion of a provision in the bill which would authorize the Secretary of the Treasury to permit foreign vessels to engage in fishing in the territorial sea, or for resources of the Continental Shelf which appertain to the United States, and to land their catch in a U.S. port, in certain exceptional circumstances. The need for such a provision can best be explained by reference to a specific instance in which such need has arisen.

The United Nations Special Fund has undertaken to conduct a fisheries research project in the Caribbean in which the United States will participate on behalf of Puerto Rico. The project contemplates that the research vessels will fish freely in the territorial waters of the participating countries in furtherance of the research and sell their catch locally to help defray expenses. The government of Puerto Rico favors this idea. However, U.S. law (46 U.S.C. 251) precludes fishing operations by foreign fishing vessels in the territorial sea of the United States as well as the landing of fish in a port of the United States by such vessels directly from the fishing grounds. It is not believed that the Congress intended to prohibit the operation of foreign fisheries research vessels in U.S. waters when any such operations would be of benefit to U.S. fisheries and were approved by the U.S. Government, or the landing of fish caught by such vessels in the course of this research work. The basic provision against the operation of foreign vessels in American waters derives from American shipbuilding interests; foreign-built vessels which are customarily

cheaper to build may not be documented for fishing operations in American waters.

The prohibition against landing of fish in an American port directly from the fishing grounds was designed to protect American fishermen against direct competition from foreign fishermen. Neither of these factors is present here. Accordingly, it is recommended that the following subsection be added to section 1 of S. 1988:

(b) Notwithstanding any other provision of law, the Secretary of the Treasury may permit foreign vessels to engage in fishing within the territorial sea, or for resources of the Continental Shelf which appertain to the United States as referred to in subsection (a) of this section, and to land their catch in a U.S. port, for limited periods, upon certification by the Secretary of State and the Secretary of Interior that such permission would be in the national interest: Provided, however, That any such permission shall be granted only to vessels owned or operated by a government, or international organization to which the United States is a party, which are engaged in research or training the results of which are to be made available in full to the United States.

The safeguards inserted in this suggested language should allay any fears of the U.S. fishing industry that the authority might be abused to its detriment.

No comment is made on those provisions of the bill which relate to the enforcement responsibilities of other departments of the Govern

ment.

This completes my statement.

Senator BARTLETT. Mr. Herrington, you were in the room yesterday when Admiral Roland, Commandant of the Coast Guard suggested certain amendments.

Do you have any opinion regarding those?

Mr. HERRINGTON. No, sir; I have no comment at this point, no objection to the proposals he made.

Senator BARTLETT. I am just wondering, and you may not have an answer to this, but under this general authority of Federal law to which you alluded, a vessel of the U.S. Government can expel a foreign vessel from the territorial seas.

Has there ever been any instance, to your knowledge, where this was sought to be done and the foreigner didn't flee, didn't obey the orders?

Mr. HERRINGTON. No, sir; I know of no instance where the foreign vessel has refused to leave on instructions from the Coast Guard. Senator BARTLETT. Have there been many occasions to your knowledge?

Mr. HERRINGTON. To my knowledge there have been only a few occasions where boats have been boarded in U.S. waters.

Senator BARTLETT. Now, of course, I have several questions to ask you regarding what you said about the Continental Shelf. You started out by saying the reference in section 1 of the bill, to fisheries resources of the Continental Shelf would seem to be premature. Why?

Mr. HERRINGTON. Mr. Chairman, there are a number of problems involved in any implementation of this.

One, a fishing boat operating on the shelf, gets a variety of species of fish. One of the problems is that when fishing for a fish such as haddock, cod, herring, and so on, it might take some of the resources that would appertain to the United States as a result of the Geneva Convention and it would require some time to work out how these problems can be handled.

There are some other problems involved in this, which I would like to discuss with the committee in closed session.

Senator BARTLETT. This committee very rarely finds itself in a situation where it has to go into executive session to consider security matters. I am rather gratified by the suggestion. And I can understand, in all seriousness, that in this instance there are considerations of the State Department that perhaps ought not to be disclosed publicly.

Would you be available this afternoon?

Mr. HERRINGTON. Yes, Mr. Chairman.

Senator BARTLETT. Because the committee has an urgent desire to complete all possible testimony on this bill, as soon as possible, we will meet in executive session at 3 o'clock.

Mr. HERRINGTON. All right, sir.

Senator BARTLETT. Now does the Federal Government or any officer of the Federal Government at this time have authority over fishing operations of foreign or domestic vessels in the territorial sea strictly in reference to fishing?

Mr. HERRINGTON. Mr. Chairman, I referred to implementing legislation, flowing from three of our international fisheries conventions. In this respect, the North Pacific Halibut Act of 1937, there is such authority to seize and to issue penalties. In connection with the act, the Continental Shelf Convention, there is also authority, and in connection with the International Whaling Convention there is authority to penalize foreign vessels.

Senator BARTLETT. Let us assume that the laws of the State of Washington absolutely prohibited fishing of any kind by foreigners with the territorial limits under the control of the State. Would the proposal that the State Department has offered in your testimony, mean that the Secretary of the Treasury could override State law and permit fishing for the purposes which you have described here?

Mr. HERRINGTON. Mr. Chairman, I would have to check that. Certainly the State would be consulted as in the case of Puerto Rico. We are seeking this at the request of the Government of Puerto Rico.

So that the case of any State, I am sure the Secretary of the Interior and Secretary of State, would consult with the State authorities, with regard to whether or not such an exception was desired.

Senator BARTLETT. Notwithstanding, would you say the proposal made here, would you go to the extent that if the Governor of the State said "No," the language contemplated would allow the Secretary of the Treasury or the Secretary of Interior to override the judgment decision of State officials?

Mr. HERRINGTON. Subject to checking with our lawyers, my view is it probably would.

Senator BARTLETT. I suggest there is going to be quite an uproar over this suggestion.

I have no further questions now, but will at 3 o'clock.

Mr. HERRINGTON. Mr. Chairman, if I may check what I just stated, I will inform the committee as to whether the lawyers agree with my view.

Senator BARTLETT. If you can get the lawyers to agree with that within the next 5 hours, very good.

Mr. HERRINGTON. Yes. Thank you.

Senator BARTLETT. Mr. McKernan, Director of the Bureau of Commercial Fisheries, Department of Interior.

STATEMENT OF DONALD L. McKERNAN, DIRECTOR, BUREAU OF COMMERCIAL FISHERIES, U.S. DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY WILLIAM TERRY, DIRECTOR OF THE OFFICE OF INTERNATIONAL ACTIVITIES

Mr. McKERNAN. Mr. Chairman, I am accompanied by Mr. William Terry, Director of the Office of International Activities of the Office of the Commissioner of Fish and Wildlife, Department of Interior.

Senator BARTLETT. We are glad to have you both here.

Mr. MCKERNAN. Thank you, Mr. Chairman.

Mr. Chairman, I have a statement which I would appreciate submitting for the record and then perhaps I can summarize it. Senator BARTLETT. Well, Mr. McKernan, if you don't mind, it is not a long statement, why don't you just read it?

Mr. McKERNAN. Your pleasure, Mr. Chairman.

Mr. Chairman and members of the committee, the Department of the Interior favors the enactment of legislation which will prohibit, except in certain circumstances, foreign-flag vessels from engaging in fishing within the territorial waters of the United States and which will also provide adequate criminal sanctions for fishing by such vessels in violation of these conditions.

We believe that the first sentence of existing law, 46 U.S.C. 251, presently prescribes an absolute prohibition against foreign fishing in the territorial waters of the United States. This sentence states 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.

It will be noted, however, that the quoted language is not expressly prohibitive and that it lacks the directness which is desirable to make it clear that foreign-flag vessels may not engage in fishing in our territorial waters. Moreover, neither 46 U.S.C. 251, nor any other law of which we have knowledge, prescribes sanctions to serve as a deterrent to foreign fishing in our waters. The only deterring measure which currently may be followed is for the Coast Guard to stop and board any foreign fishing vessel found in territorial waters, other than in innocent passage. Whenever such a vessel does not have a valid reason for being in U.S. waters, the Coast Guard, following boarding and search, may merely direct the vessel to leave immediately and escort her to the high seas. Action of such limited nature, obviously, is inadequate to discourage wanton incursions upon our territorial seas or deliberate poaching of our coastal fishery resources by foreign-flag vessels.

The inadequacies of 46 U.S.C. 251 have not produced problems of any magnitude until fairly recently. Within the past 2 years, however, 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