of the United States on the high seas and to anyone in waters under the jurisdiction of the United States or land appurtenant thereto. It would also establish a Marine Mammal Commission to review United States activity pursuant to existing laws and international agreements relating to marine mammals and make recommendations on additional measures for their protection. As written, the provisions of H.R. 10420 would be administered by the Secretary of the Interior. Section 1 of Reorganization Plan Number 4 of 1970 transferred the functions of the Bureau of Commercial Fisheries to the Secretary of Commerce. The protection of fisheries resources, including certain mammals, generally falls within the domain of that Bureau's successor, the National Marine Fisheries Service. It is therefore recommended that Section 3(3) of H.R. 10420 (page 3, lines 4-5) be amended to reflect the present allocation of authority between the Secretary of Commerce and the Secretary of the Interior. Section 103 of the bill would require notice and an opportunity for public hearings prior to the issuance of a permit to take mammals. This requirement might result in a significant administrative burden. Many Alaskans, for example, make items for the tourist trade from seal skin. Presumably they would not be exempted under Section 107(a) of the bill because of this commercial sale and the necessary permits, and potential hearings, could run into the thousands. Section 102 of the bill would provide for notice and an opportunity for public hearing prior to the Secretary's determination of how many mammals of each species could be taken each year, when, and how they could be taken. This hearing would appear to provide a sufficient opportunity for persons to be heard and avoid the necessity of having a hearing on each permit. Section 109 of the bill (page 13) would direct the Secretary to develop arrangements with the several States for the protection of marine mammals. It also would provide that mammals taken pursuant to such arrangements would be deemed to have been taken lawfully within the meaning of the bill. This policy appears to be desirable, since most marine mammals spend a majority of their time in state waters and have traditionally been managed by the States. However, the bill does not specify that the protections provided in its other sections should be applied to the state arrangements. Under the present wording the Secretary and state officials apparently would be free to set limits and seasons and issue permits without the public hearing that would be required if the Federal Government approached the problem alone. If this is the bill's intent it should be more clearly stated; if not, the language should be changed. Section 110 of H.R. 10420 (pages 13-15) would require the Secretary to “undertake an immediate review of the current activities involved in the taking of fur seals in the Pribilof Islands for the purpose of determining whether such activities are consistent with the purposes and policy of this Act." If he decided that they were not, the bill would give Canada and Japan the option of taking, in lieu of the skins to which they would be entitled under the International Convention for the Conservation of North Pacific Fur Seals, either the average value of such skins, or 9,000 seal skins. The Convention entitles Japan and Canada 15% of the annual harvest of skins. The bill's inconsistency with that treaty obligation involves a foreign policy question as to which the Department of Justice defers to the State Department. Section 201 (a) (page 15, lines 20-22) would establish a Marine Mammal Commission composed of three members appointed by and serving at the pleasure of the President. The second sentence of section 201(b) would require the President to make his selection from a list, submitted to him by the Chairman of the Council on Environmental Quality, of individuals knowledgeable in the fields of marine ecology and resource management. As a matter of policy we do not be lieve that the President's discretion is selecting appointees should be limited to those on a list prepared by a subordinate officer in the Executive Branch. Under Section 202(c) (page 18, lines 12-19) all of the Commission activities and papers in its files, including those from other governmental officers and agencies, scientists and specialists in private life, and the public at large would be matters of public record. Thus, for example, the Commission activities on purely internal "housekeeping" matters, such as personnel actions, and papers and correspondence from another governmental agency or a scientist or specialist in private life in regard to the reports and recommendations pursuant to section 202(a) and (b) would be matters of public record. Section 552 of Title 5, United States Code, codifies the Public Information Section of the Administrative Procedure Act, and is applicable to any federal agency, such as the Commission would be. That section prescribes the informa tion on the agency rules, opinions, orders, records, and proceedings which shall be available to the public, and provides for judicial aid in enforcing its provisions. Section 552(b) excepts from public disclosure nine categories of information, including, for example, personnel files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, and inter-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. We question whether there are adequate grounds for substituting for this statute of general applicability to any federal agency the provisions of the first sentence of section 202(c) of the bill in the case of the proposed Commission. It may be that 5 U.S.C. 552 would not require that all reports and recommendations which the Commission might make should be matters of public record. If so, and if they should be, the first sentence of section 202(c) may be amended to provide generally as follows: "The reports and recommendations which the Commission makes shall be matters of public record and shall be available to the public at all reasonable times." Section 202 (d) of H.R. 10420 (page 18, line 20 et seq.) would require the Secretary and other federal officials to respond to any Commission recommendations within 90 days after receipt thereof. This might well result in requiring priority in responding to Commission recommendations on comparatively minor matters, over other matters that might be more important in the public interest. Accordingly, it may be advisable to modify this requirement. The second sentence of section 203 (page 19, lines 8-13) would provide for a nine-man advisory scientific Committee to be appointed by the Commission Chairman "with the advice of" the specified officials. This might raise a question as to whether all of them must concur in any such appointment. To avoid any such question, we suggest that for the quoted words on page 19, line 10, there be substituted such words as "after consultation with". We also note that section 203 does not specify the term of office of a Committee member. We suggest that section 203 be amended to specify the tenure or method of removal of Committee members. Under the third sentence in section 203, any recommendations made by the nine scientists constituting the Committee of Scientific Advisers "or any of its members" which were not adopted by the Commission should be transmitted by it to the appropriate federal agency and to Congress with a written explanation of the Commission's reasons for not accepting such recommendations. We question whether the Commission should be subject to such a requirement in the case of a recommendation of any member of the Committee in which a majority of its members do not concur. However, this presents a policy question as to which we defer to the Department of Commerce. We also suggest the following specific amendments to the test: In Section 3(1) (page 2, line 24), after "dolphin" there should be added "(family Delphinidae)" to avoid any confusion with the finfish dolphin, family Coryphaenidae. We would amend the first line of section 101 (page 3, line 20) to add section 103 to the list of sections covering excepted situations. We recommend that Section 101 (2) be redrafted to avoid the apparent ambiguity as to antecedent and the uncertainty as to the scope of the words "appurtenant thereto." In Section 103 (e) the word 'with", following "which should accompany" on page 8, line 9 of the bill, should be omitted. In Section 105 (b), "remission of mitigation" on page 9, line 22, should be "remission or mitigation." Section 106 (c) should be amended by substituting "magistrates" for "com missioners" on page 10, line 17 of the bill, in accordance with Pub. L. 90-578, 28 U.S.C. 631-639. In Section 106(e), for "auhorized" on page 11, line 3, should be "authorized" and "of" on page 11, line 5, should be “or”. Whether this legislation should be enacted involves considerations as to which the Department of Justice defers to the Departments of State, Commerce and the Interior. The Office of Management and Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration's program. Sincerely, RICHARD G. KLEINDIENST, Hon. EDWARD A. GARMATZ, U.S. GOVERNMENT, SMALL BUSINESS ADMINISTRATION, Washington, D.C., August 19, 1971. Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: This is in response to your letters of March 30, April 28, April 30, May 11, and August 10, 1971, requesting the views of the Small Business Administration on a number of bills (H.R. 6554, H.R. 7463, H.R. 6558, H.R. 8183, and H.R. 10420) which, in various forms, call for total or partial bans on the taking of ocean mammals-that is to say, animals in the categories of seal, whale, walrus, sea cow, sea otter, sea lion, polar bear, porpoise or dolphin. There is reason to believe that the availability of products derived from the described animals is of prime importance to a substantial number of small concerns. Clearly, a significant reduction in this availability, such as might flow from the proposed prohibitions or limitations on takes, would have adverse effects on these concerns in the immediate future. On the other hand, the fear is widely expressed that a continuation of hunting on the present scale will lead to the eventual extinction of the animals. In the long view, therefore, the imposition of suitable restrictions might be to the best interests of the firms in question. However, we do not have sufficient factual knowledge to make a proper evaluation of the issues presented by the subject bills. Accordingly, we will not venture an opinion as to their merits. It is our understanding that hearings will soon be held on this legislation. We look forward to the resulting information. Sincerely, Hon. EDWARD A. GARMATZ, THOMAS S. KLEPPE, Administrator. SMITHSONIAN INSTITUTION, Washington, D.C., September 22, 1971. Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. CHAIRMAN: Thank you for the opportunity to comment upon H.R. 10420, a bill "To protect marine mammals; to establish a Marine Mammal Commission; and for other purposes." Essentially, the bill provides for the issuance of permits under the close supervision of the Secretary of the Interior for the collecting or hunting of various marine mammals. Collection of certain marine mammals for scientific purposes may be had upon proper application for waiver. The bill also provides for the establishment of a Marine Mammal Commission, the duties of which would include undertaking a comprehensive review and study of the activities of the United States pursuant to existing laws and international conventions relating to marine mammals. Members of the Commission would be appointed by, and serve at the pleasure of, the President. The Commission would be required to establish within three months of its inception a committee of scientific advisors on marine mammals. The Secretary of the Smithsonian Institution, in addition to the Director of the National Science Foundation and the Chairman of the National Academy of Sciences, would recommend to the Chairman of the Commission the names of nine scientists to serve on a committee of scientific advisors. The scientists must be knowledgeable in marine ecology and marine mammals affairs. Of course, the Smithsonian Institution will make its expertise available to such a Commission, and the Secretary of the Smithsonian would be pleased to assist in making appropriate recommendations for membership on a committee of scientific advisors. With respect to the most effective means for attaining the objectives set forth in H.R. 10420, the Smithsonian Institution defers to the views of the Department of the Interior, the Department of Commerce, and the Department of State. Smithsonian scientists have been in touch on a working basis with each of these Departments regarding the bill. Their views will be reflected to a certain degree in the reports of these Departments. The Office of Management and Budget has advised that there is no objection to the presentation of this report to the Congress from the standpoint of the Administration's program. Sincerely yours, S. DILLON RIPLEY, Secretary. Hon. EDWARD A. GARMATZ, DEPARTMENT OF STATE, Washington, D.C., September 9, 1971. Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, DEAR MR. CHAIRMAN: The Secretary has asked me to reply to your letters of March 30 and April 30 requesting respectively the Department's views on H.R. 6554 and H.R. 6558, identical bills "To protect ocean mammals from being pursued, harassed, or killed; and for other purposes." H.R. 6554 proposes that the Congress make a finding "that ocean mammals are being ruthlessly... killed... [and] that many ocean mammals will become rare, if not extinct, unless steps are taken to prevent their slaughter." On this basis, the bill would declare it to be the public policy of the United States that all ocean mammals should be protected from slaughter and that negotiations should be undertaken with a view to obtaining a world-wide ban on the further slaughter of such mammals. Further, the bill would express the sense of the Congress that the Interim Convention on Conservation of North Pacific Fur Seals, 1957, should be permitted to expire in 1976 and that the Secretary of State should initiate negotiations with the other parties to the Convention and any other interested states for the purpose of obtaining international agreement to ban all killing of North Pacific fur seals, whether at sea or on land. The Department recommends against the enactment of H.R. 6554 and H.R. 6558. The United States has consistently demonstrated by its actions, both domestic and international, that it stands ready to take positive measures, and to seek agreement of other nations to such measures, for the protection and conservation of marine animals and other wildlife. We have negotiated a number of treaties and agreements relating to the protection of living marine resources, including two treaties specifically addressed to certain species of ocean mammals. These agreements have been based on the concept of conservation, one definition of which is to be found in the Convention on Fishing and Conservation of the Living Resources of the High Seas, adopted by the United Nations Conference on the Law of the Sea, 1958. Article 2 of that Convention states: "As employed in this Convention, the expression 'conservation of the living resources of the high seas' means the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products." Thus, in terms of these agreements we have been dealing with marine animals as renewable resources to be used for the benefit of man. The United States has also been moving forward with measures for the protection of those species of wildlife which, on the basis of scientific evidence, are deemed to be endangered or rare. The Endangered Species Conservation Act of 1969 (P.L. 91-135) authorizes the Secretary of the Interior to protect in various ways species which he finds, on the basis of scientific evidence, to be threatened with worldwide extinction. Included with in the latest list of species prepared pursuant to the Act are certain species of whales, the Mediterranean monk seal, dugongs and the West Indian manatee. Further, the United States expects, dependent upon the appropriation of funds, to convene a world conference on protection of wildlife either in the fall of 1971 or the spring of 1972. A major objective of the conference will be to conclude a convention on this subject. For that purpose, the International Union for the Conservation of Nature and Natural Resources (IUCN) has prepared, in consultation with some 60 Governments, including that of the United States, a draft of such a convention which divides wildlife to be given special protection into two categories, those species which are threatened with extinction and those which are not yet so threatened but which require special measures to prevent "undue exploitation incompatible with their survival." No ocean mammals are listed in the first category; all species of otters, seals and sirenians (manatees, dugongs, etc.) are listed in the second category. The draft convention provides for additions to or amendments of the lists, based on the findings of competent scientists. The Department has serious doubts that the evidence available supports the findings proposed by H.R. 6554. Giving full weight to the present findings of the Secretary of the Interior and the IUCN, it appears that at present manatees and dugongs, one species of seals and some species of whales are endangered and that other species of seals and sea otters need special measures of protec tion. From this, it may be inferred that most species of ocean mammals are not threatened or in danger of becoming so, though the Department must obviously disclaim any special scientific competence in the matter. Since there appears to be no sound, scientific basis for a total ban on the killing of all marine mammals, we believe it quite unlikely that other Governments would be prepared to enter into negotiations to this end. The Department stands ready to seek international agreements for the conservation for rational use of species beneficial to man or for the protection of endangered species when a reasonable scientific case can be made that such measures are needed. We have found that other Governments are generally receptive to proposals of negotiations looking to agreements to cover such circumstances. On the other hand, whatever may be the ethical merits of the concept that a blanket prohibition on the killing of ocean mammals is a desirable end in itself, we believe that few, if any, other nations would at the present time be prepared to accept this concept as a basis for negotiations. In passing, we might note that the taking of five of the eight species of whales on the endangered list published by the Secretary of the Interior has been prohibited for some years under regulations of the International Whaling Commission, of which the United States and the major whaling countries are members. The United States is continuing to seek more effective measures by the Commission for the conservation of the remaining three species. Further, the killing of northern fur seals is controlled through the North Pacific Fur Seal Commission. Conservation of the harp and hood seals of the northwestern Atlantic Ocean is among the responsibilities of the International Commission for the Northwest Atlantic Fisheries. The 1957 Interim Convention on Conservation of North Pacific Fur Seals, the parties to which are the United States, Canada, Japan and the Soviet Union, is the successor to the 1911 treaty on this subject between the four countries. In the years prior to 1911 the fur seal herds had been decimated by indiscrimniate pelagic sealing-the killing of seals at sea. Since it was not possible to determine beforehand the sex or age of the animals, many females and immature seals were killed. Many animals were lost through wounding or sinking. By the time of conclusion of the 1911 treaty the herds on the Pribilof Islands had been reduced to perhaps 200,000 animals; the herds under Russian jurisdiction faced extinction. The 1911 treaty forbade pelagic sealing to the nationals and vessels of the four parties. In exchange, the taking of fur sealskins was shared in such a way that the countries controlling the rookeries retained 70 per cent of the skins and distributed 30 per cent among the others. The treaty was highly successful in restoring the seal populations, so much so in fact that the Japanese Government as early as 1926 suggested a conference for modification of the convention on grounds that the seals had become too numerous. No conference was held, however, and the treaty continued until 1941 when it was terminated by notice given by Japan, in connection with which it was alleged by that Government that both direct and indirect damage had been inflicted on the Japanese fisheries by the increase of the fur seal populations. The present Convention retains the prohibition on pelagic sealing and the basic features of the sharing formula. It also provides for research and for coordination of research and management plans through the North Pacific Fur Seal Commission, composed of one member from each party. The killing of the fur seals on the Pribilofs and the taking of the skins is conducted by the National Marine Fisheries Service, Department of Commerce, according to the management plan, which is addressed to the objective of bringing the herds to the level of maximum sustainable productivity and maintaining them at that level. We understand that the Pribilof population now numbers about a million and a half, with perhaps another half million from the Soviet rookeries. Termination of the 1957 treaty would expose the fur seals to the possibility of resumption of the wasteful practice of pelagic sealing and consequent overexploitation. It is not certain, of course, that other countries would permit the resumption of the hunting of these animals at sea. It appears very doubtful, however, that other Governments, for example, that of Japan, would be prepared without any tangible quid pro quo to restrain their nationals from taking the seals for their valuable furs, particularly when these animals have been accused of causing damage to the fisheries. Moreover, we believe that the existence of an international conservation agreement, generally regarded as highly successful, constitutes a significant deterrent to additional countries which are in a position to engage in pelagic sealing. Termination of the treaty would remove this deter |