Statute in Full:
*4144 P.L. 92-522, MARINE MAMMAL PROTECTION ACT OF 1972
House Report (Merchant Marine and Fisheries Committee) No. 92-707,
Dec. 4, 1971 (To accompany H.R. 10420)
Senate Report (Commerce Committee) No. 92-863,
June 15, 1972 (To accompany S. 2871)
House Conference Report No. 92-1488,
October 2, 1972 (To accompany H.R. 10420)
Cong. Record Vol 117 (1971)
Cong. Record Vol. 118 (1972)
DATES OF CONSIDERATION AND PASSAGE
House December 6, 1971; March 9, October 10, 1972
Senate July 26, October 11, 1972
The House bill was passed in lieu of the Senate bill. The House Report and the
House Conference Report are set out.
HOUSE REPORT NO. 92-707
Dec. 4, 1971
THE Committee on Merchant Marine and Fisheries, to whom was referred the bill (H.R. 10420) to protect marine mammals; to establish a Marine Mammal Commission; and for other purposes, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.
PURPOSE OF THE LEGISLATION
The purpose of this legislation is to prohibit the harassing, catching and killing of marine mammals by U.S. citizens or within the jurisdiction of the United States, unless taken under the authority of a permit issued by an agency of the Executive Branch. The bill would also create an independent Commission to review the operation of the program and to recommend ways in which it might be improved.
Recent history indicates that man's impact upon marine mammals has ranged from what might be termed malign neglect to virtual genocide. These animals, including whales, porpoises, seals, sea otters, polar bears, manatees and others, have only rarely benefitted [sic] from our interest; they have been shot, blown up, clubbed to death, run down by boats, poisoned, and exposed to a multitude of other indignities, all in the interests of profit or recreation, with little or no consideration *4145 of the potential impact of these activities on the animal populations involved.
Interest in the welfare of marine mammals is manifested throughout the world. Recent investigations into the intelligence of animals such as whales, porpoises and seals have spurred protests in Ottawa, New York, London, and Paris against their wanton killing. Groups have been formed with the express purpose of advocating stronger protective measures, and their memberships have mushroomed.
Some of these groups have been criticized as unrealistic: as failing to recognize that the principal significance of these animals lies in their usefulness to men and, by inference, that any use by man is therefore justifiable. This attitude, it seems to the committee, is no more realistic than that of those on the other end of the spectrum-- that animals must be left alone altogether. Both fail to recognize that man's thumb is already on the balance of Nature, and that solicitous and decent treatment for the animals may well also be in the long-term best interests of man.
A number of bills have been introduced in the House dealing with the general subject of marine mammal protection. The bills on which most of the testimony was directed were essentially two: bills to create a flat prohibition against the taking or importing of these marine mammals, with a few relatively minor exceptions, introduced by Mr. Pryor and by a number of other Members. This group of bills was opposed by the Executive Branch as too restrictive and unworkable.
Messrs. Anderson of California, Pelly and others introduced H.R. 10420 as an alternative proposal, designed to give the Department of the Interior more flexible authority to permit the taking of marine mammals under circumstances which might be more closely controlled, and subject to public review and independent oversight by an independent Marine Mammal Commission.
Both measures were before the Committee when the Subcommittee on Fisheries and Wildlife Conservation began hearings on the legislation on September 9. In all, four days were devoted to hearings on the issue. Subsequent to the hearings and extensive executive sessions, the Committee unanimously ordered reported the Anderson-Pelly bill, H.R. 10420, with an amendment.
The Committee was impressed by the wide support for the principle of broader and more adequate protection for marine mammals, expressed by representatives of conservation and environmental organizations, humane groups, independent scientists, state agencies and agencies of the Federal Government and others. As reported, the Committee believes the bill satisfies the needs of the animals concerned, and meets the expressed concerns of virtually every witness on the question.
H.R. 10420 takes the strong position that marine mammals and the marine ecosystems upon which they depend for survival require additional protection from man's activities. There can be no question of the constitutional power of the Congress to regulate traffic in these animals and their products, deeply involved as they are in interstate and foreign commerce.
In essence, the bill gives to the Secretaries of Interior and Commerce the authority and direction to establish general limitations upon the taking of all marine mammals, and within those limitations, to issue permits for their taking. Criminal and civil penalties are prescribed for *4146 violations of the act, and the importation of marine mammals and their products will be subject to strict regulation. The public is assured of the right to be informed of actions taken or proposed to be taken by the Secretaries, and must be told of the evidence upon which the Secretaries propose to base their decisions.
Faced with the decision of the proper location of this program, the Committee elected to maintain the present division of authority between the National Oceanic and Atmospheric Administration (NOAA) in the Department of Commerce, and the Department of the Interior. NOAA's involvement in marine mammals is derived from its subordinate agency, the National Marine Fisheries Service, formerly the Bureau of Commercial Fisheries. This agency has been assigned responsibilities for research and some management of cetaceans (whales, porpoises and dolphins), and seals, and H.R. 10420 assigns NOAA the continuing authority for the management and protection of such animals.
The other animals covered under the bill are walruses, sea otters, polar bears and manatees. The Department of the Interior presently has the authority that exists within the Federal government with respect to these animals, and will retain this authority under H.R. 10420. It might be added that the Committee is not satisfied that the jurisdictional split between agencies is helpful or useful; it retained the status quo largely upon the hope and expectation that a Department of Natural Resources would be shortly forthcoming, at which point the two programs would be merged into one. If such a Department is not created within the reasonable near future, the Committee is prepared to reexamine the question and to consider the virtues of consolidating the program within a single department.
Existing research and management programs within the Federal government dealing with marine mammals are quite small. Most of our present efforts are directed toward the Alaska fur seals, themselves the subjects of international treaties and supporting Federal legislation. HEW, the Department of the Navy and the National Science Foundation all have programs which affect marine mammals, and the present legislation does not touch upon these programs in any way. Interior and Commerce research and management programs for all other marine mammals have not exceeded $200,000 in the aggregate. H.R. 10420 would authorize the expenditure of $15.3 million over a five-year period in order to carry out the research and management responsibilities assigned to the management agencies, together with authority to engage in grant programs with the states; it would also authorize the sum of $5 million to the Marine Mammal Commission authorized to be created under Title II of the Act.
The Marine Mammal Commission would be a three-man group, with staggered three-year membership. Its primary function would be to review existing and proposed programs affecting marine mammals and to propose such changes to this program as may appear advisable. This Commission would be aided in its efforts by a nine-member Scientific Advisory Committee composed of members qualified to review management and research programs and, if necessary, to carry out its own search.
Mindful of the temptation to sue such a Commission as yet another bureaucracy, the Committee has taken the unusual step of recommending that its annual appropriations be restricted by permitting only *4147 up to one fourth of each year's appropriated funds to be used for operation and staffing of the Commission; the balance must be directed to developing the research deemed necessary by the Commission in order to carry out its responsibilities.
The Executive Branch of the government gave strong support to the principles of H.R. 10420, while recommending some revisions in specific language. To a large extent, the recommendations of these agencies were followed in the development of H.R. 10420 although those suggestions were not followed which the Committee felt would weaken the bill. The Committee did not feel, for example, that making the Commission a less independent agency would serve a useful purpose. Similarly, the Committee felt it to be of vital significance to include strong language exhorting the Department of State to develop more effective international treaties for the protection of these animals, which today have little or no protection.
In brief, the Committee feels that H.R. 10420, if enacted into law, would have the effect of placing the United States in the forefront of the development of effective meaningful measures for the protection of marine mammals.
BACKGROUND AND NEED FOR THIS LEGISLATION
Man has been involved with mammals of the sea since at least the beginning of recorded history, as sources of food, clothing and even of recreation. The dolphin was highly regarded in ancient Rome and there are even today parts of the world in which marine mammals are treated with reverence.
With few exceptions, this is not the case in the 'civilized world.'
Extensive hearings by the Subcommittee on Fisheries and Wildlife Conservation underscored the hazards and problems to which marine mammals are exposed today. Probably the most pervasive and threatening of these is the degradation of the environment upon which they depend. To some extent, this Committee has already begun to move to halt this degradation, in acting upon the Ocean Dumping bill (H.R. 9727) which recently passed the House. Ocean dumping is not, however, the only way in which marine ecosystems may be contaminated. Witnesses informed the Subcommittee that the incidence of pesticide and heavy metal contamination of the oceans seemed to be increasing, as indicated by biopsies on animals such as sea lions and sea otters. An additional problem is posed by man's increased take of fish stocks upon which these animals depend. The Alaska fur seals spend several months on and near their hauling grounds on the Pribilof Islands, and the females cannot venture far from their babies in order to feed themselves. Traditionally, the seal herd has depended upon an extensive Bering Sea herring population for food, and it appears that man's increasing herring fishing activities in the area may be presenting problems for the fur seals that they are poorly equipped to handle.
Still another problem to which marine mammals may be inadvertently exposed is the operation of high-speed boats. Manatees and sea otters have been crippled and killed by motorboats and at present the Federal government is essentially powerless to force these boats to slow down or to curtail their operations.
When to these hazards there is added the additional stress of deliberate taking, it becomes clear that many marine mammals may *4148 indeed be in urgent need of protection, such as would be available through passage of H.R. 10420. Man's taking alone, without these factors, might be tolerated by animal species or populations, but in conjunction with them, it could well prove to be the proverbial straw added to the camel's back.
Given the inadequacy of present knowledge, it is only conjecture-- but a case might be made that the failure of some whale stocks to recover in spite of a worldwide ban on their taking which has existed for several years, may be due to just such a combination of factors as these. It is, of course, also possible that the failure of the blue and humpback whales to respond to the ban on their taking may be due to still other factors, not yet clearly identified.
In the teeth of this lack of knowledge of specific causes, and of the certain knowledge that these animals are almost all threatened in some way, it seems elementary common sense to the Committee that legislation should be adopted to require that we act conservatively-- that no steps should be taken regarding these animals that might prove to be adverse or even irreversible in their effects until more is known. As far as could be done, we have endeavored to build such a conservative bias into the legislation here presented.
There was no division of opinion of testimony before the Committee that some legislation is required to provide additional protection and research authority to the executive branch with respect to marine mammals. There was considerable discussion as to the best means of bringing about an end that all considered desirable; the optimum protection of the marine mammals affected by the bill.
The hearings developed considerable information on the animals covered by the act. An extended discussion on these animals may be found at pp. 55-65 of the Committee hearings.
Very briefly, the bill covers all mammals who spend part or all of their lives in the sea. The largest category of animals covered also contains the largest members: the Cetaceans, or whales, including airbreathing dolphins and porpoises. U.S. citizens have never deliberately set out to kill these latter animals, although in recent years many have been caught by U.S. fishermen as an inadvertent consequence of commercial fishing for tuna with purse seines. It appears that many porpoises caught by tuna nets have been killed in the past-- general estimates vary from 200 to 400 thousand per year. They have been killed because they panicked when surrounded by the tuna nets and have attempted to escape by diving; diving, they have then become entangled and drowned.
Commerical [sic] fishermen testified that they have gone to considerable lengths to permit porpoises to escape unharmed, occasionally jumping into the water themselves to untangle the trapped animals. More recently, new techniques have been developed involving smaller mesh nets, and the industry is hopeful that the excessive kills of the past will now be stopped. The Committee took pains in its consideration of this bill to see that the legitimate needs of the tuna industry were not ignored, while accepting the clear requirement that porpoises be given every reasonable protection.
Another large category of animals covered under this legislation is seals, many species of which are hunted and killed for their skins. There has been great public concern and indignation over the annual seal 'hunt' off the Canadian coast, where thousands of baby harp *4149 seals have been killed each Spring, at less than a week old. Witnesses urged the Committee to establish an absolute ban on the U.S. import of skins from these animals, and the bill provides such a ban. Although it does not appear that the U.S. market is a significant portion of the world market for harp seal skins, to the extent that any of these skins are presently sold in this country the Committee was of the opinion that it should stop.
There was much testimony on the conduct of the Alaska fur seal program. Here the evidence is persuasive that, by and large, the program has operated to the advantage of the fur seal herd. As a result of uncontrolled killing by citizens of many nations in the last century, the world population of fur seals declined from several million to approximately 200,000 members. Accordingly, the United States, Japan, Great Britain (later Canada) and Russia developed a treaty in 1911 to regulate the taking of fur seals. As a result of this treaty, the herd has increased to a level of some 1.3 to 1.5 million, under what is generally considered to be a policy of enlightened and effective management.
This is not to say that the fur seal herd is free from problems. It appears that these numbers are not growing as fast as they should be, given the current permitted level of taking, and the reasons for this failure to increase are not clear. But it is also true that our level of knowledge and relatively benign management is far superior to that which presently exists with respect to all other species of marine mammals.
U.S. knowledge and research programs devoted to the rest of the seals, including the sea lions and the walruses, is tiny-- as have been our efforts to control significantly the activities of man affecting these animals. The management activities that have taken place to date have been almost exclusively handled by the states. Many of these state programs are soundly based, and should be encouraged. Other state management programs involved the payment of bounties on marine mammals of various types. There is, in brief, little semblance of any sort of integrated rational program for management of all marine mammals within the United States; given the divided nature of the regulatory structure which affects them, this is scarcely surprising.
The only American stocks of walruses are found off the Alaska coast in the Bering Sea. Walruses are not significantly taken by U.S. citizens other than Eskimos, although they are not thereby assured of protection. There are no hard figures, either of the size of the walrus herd, or of the extent of native taking. The most commonly used hunting technique, according to the evidence before the Committee, is for groups of Eskimos to float down upon a number of walruses on ice floes, and then to fire indiscriminately into the herd. Those walruses which escape into the sea are lost, while those who remain dead or immobile are taken. It also appears that the principal, or at least a principal, purpose of walrus hunting today is for their ivory tusks. Walrus meat had previously constituted a staple commodity for the Eskimos as a source of food for their dog teams, but since the dog teams have largely been replaced by snowmobiles, this incentive for killing has almost disappeared.
Sea otters are also covered by this legislation. Formerly hunted to a point of virtual extinction, the sea otters recovered after the *4150 slaughter was terminated as commercially impracticable, shortly after the close of the nineteenth century. The sea otter has recovered, and is now found in populations in the Aleutians, chiefly in the neighborhood of Amchitka Island, and in Southern California waters. It appears that pressures are beginning to build up for the commercial harvest of these animals, and so this need for more adequate protection becomes more pressing.
From every indication, the polar bear has reached a point where the additional protection which would be provided by H.R. 10420 has become almost essential. There is a scholarly dispute on the question of whether there are one or more subspecies of polar bears, but the uncontroverted testimony before the Committee is that the Alaskan members of the species are becoming scarcer. The major reason for this decline in numbers may be the method of hunting presently employed by Alaskan and other trophy hunters-- this involves hunting by airplane and has developed into a highly efficient method of reducing the Alaskan polar bear population.
There are little hard data on the effect of this type of hunting, but it does appear that the bears killed are becoming increasingly younger-- this, in turn, indicates that the hunters may be cutting deeply into the breeding stock of these animals. If so, the end may not be far away.
The Soviet Union has been attempting for years to have the United States and other circumpolar nations halt their hunting activities, and to declare a ban on the hunting of polar bears. The United States has resisted these overtures, chiefly on the basis that we did not yet have sufficient information to tell just what was happening to the bears. For the same reasons, we have also declined to put the bears on the endangered species list, pursuant to the Endangered Species Act. While this Committee is not in agreement with either this philosophy or this reading of the Act, it is not necessary to develop this issue further at this time since enactment of this bill will put the bears under more stringent federal protection and will clearly result in a de facto prohibition of trophy hunting for sufficient time for the bears to develop out of the depleted state in which they now exist.
The other principal category of animals covered by the bill is the Sirenians, the American members of which order are Florida manatees. These animals are protected from hunting by state law, although the testimony before the Committee indicated that the animals are still exposed to serious hazards. These hazards are principally a) the operation of powerboats in areas where the manatees are found, and b) the excessive use of herbicides in areas draining into these waters, which in turn destroys the habitat and food supply of the manatees. While H.R. 10420 would provide the Secretary of the Interior with adequate authority to regulate or even to forbid the use of powerboats in waters where manatees are found, the Committee did not feel that matters had yet reached the state where additional authority would be required to allow the Secretary to forbid the use of herbicides, when used with ordinary care and prudence. The definition of taking, however, includes the concept of harassment, and it is intended that this term be construed sufficiently broadly to allow the regulation of excessive or wanton use of these chemical compounds, as well as the operation of powerboats.
*4151 As approved by the Committee, the bill involves a number of basic concepts and techniques:
1. Before any marine mammal may be taken, the appropriate Secretary must first establish general limitations on the taking, and must issue a permit which would allow that taking. In every case, the burden is placed upon those seeking permits to show that the taking should be allowed and will not work to the disadvantage of the species or stock of animals involved. If that burden is not carried-- and it is by no means a light burden-- the permit may not be issued. The effect of this set of requirements is to insist that the management of the animal populations be carried out with the interests of the animals as the prime consideration.
2. The bill creates a strong regulatory responsibility in the agencies involved, coupled with a Congressional directive that far more adequate knowledge must be developed on what is actually happening to these animals.
3. The public is invited and encouraged to participate fully in the agency decision-making process. The agencies are further required to provide full information to interested members of the public on what the implications of the program and of any proposed agency actions may be.
4. The bill permits and indeed requires the development of an extensive management program in the agencies concerned, with full opportunity for cooperative federal-state management programs designed to carry out the purposes and policies of the act. There is no intention or desire within the Committee to remove any incentive from the states to carry out necessary research or to protect animals residing within their jurisdictions; in point of fact, the bill gives authority to the Secretaries to develop grant programs to further the objectives of the legislation, within broad federal guidelines.
5. The bill creates an independent Marine Mammal Commission, to be aided by a scientific advisory body, charged with responsibility for reviewing existing national and international programs affecting marine mammals, and given the authority to make recommendations to the responsible officials on ways in which those programs may be made more consistent with the purposes and policies of the Act.
6. The bill puts a strong injunction on the Department of State, which has not yet visibly taken an interest in more adequate protection for marine mammals, to begin to develop new arrangements for protection of these animals and of ocean ecosystems that are significant to their welfare; it also sets dates by which action must be taken in this regard. Should these dates not be met, the Committee reserves the option of developing new and less discretionary methods of reaching these objectives.
7. The bill provides wide authority and direction to the appropriate Secretaries to restrict or to prohibit the importation of marine mammals or animals taken by methods or in circumstances which would not be permitted to persons subject to U.S. jurisdiction.
8. The bill establishes reasonable protection for Alaskan natives taking marine mammals for purposes of food or clothing, where the primary purpose is not commercial sale. It couples this protection *4152 with adequate tools to allow the Secretaries to prevent abuse of these privileges or to limit the taking in order to protect endangered or depleted species or stocks.
In adapting the bill to the circumstances involved in the present taking of marine mammals, the Committee gave careful consideration to alternative legislation urged upon it by dedicated and sincere individuals and groups which would have provided a flat prohibition against the taking or importing of marine mammals, with a few relatively minor exceptions. The first day of hearings was dedicated almost exclusively to testimony from such individuals and groups endorsing the alternative proposal.
While the basic premises underlying this legislation are certainly appealing, on close examination of the issue the Committee simply found itself unable to accept the thesis that a flat ban would inevitably operate to the benefit of the animals concerned. Experienced, independent scientists, not representing hunters, entrepreneurs or other interest groups, argued persuasively that animal populations may indeed require management in order to prevent them from exceeding the carrying capacity of their environment and thus destroying it and themselves in the process. 'Nature's way' of regulating animal populations is very often less humane than man's way.
The scientists made the point that man's thumb is already on the balance of nature and that to remove it altogether might be far more cruel and damaging than would be the effects of a responsible management program. Witnesses called to the attention of the Committee the situation in the British-held Farne Islands, where a strict 'hands-off' policy has resulted in thousands of starving and disease-ridden seals. And it is unfortunately a fact of life that the class of animals which suffers the most in these circumstances is the young.
In these circumstances the Committee simply could not accept the philosophy that inaction in the circumstances is the best policy. Granted that our level of knowledge of these animals is in almost every case minimal, and that management action in the past with respect to many animal species has resulted in mismanagement-- such as the federal predator control program-- it is nonetheless the strong feeling of the Committee that the answers to these problems lie not in abolition of the concept of management, but rather in making the management that does take place more responsive to the true needs of the situation.
It is for this reason that the Committee endorsed the concept of wide public review of the activities of the federal management agencies, coupled with the creation of an independent Marine Mammal Commission charged with responsibility for reviewing the management activities. Abuses by the federal managers, if any, will be highly visible, both to the public in general and to the Commission. They will also be visible to this Committee, which proposes to maintain vigilant oversight on the program to see that it fulfills the high expectations of the Congress in bringing this program into existence.
It is undeniable that the levels of knowledge of scientists on marine mammals are very low. The situation must be changed, and H.R. 10420 provides a vehicle for doing so. It is not contemplated that the research authority provided to the Secretaries or to the Marine Mammal Commission will replace or supplant existing research authority in other organizations, such as the National Science Foundation, the *4153 U.S. Navy, or others. What is intended is that the research programs should be integrated and coordinated to the maximum extent possible consistent with their several purposes.
The programs contemplated by this bill are not long in duration, at least at their inception. The Committee feels that the five year period for which authorizations have been provided is sufficiently long to enable the development of adequate scientific programs, but not so long as to give the agencies what amounts to a blank check upon the Federal treasury. We do need more information if we are adequately to discharge our responsibilities to the animals affected, and this bill provides the vehicle for the beginning of our efforts to obtain that knowledge.
A sincere effort was made in the Committee deliberations to amend the bill by providing a two-year moratorium on the taking of most categories of marine mammals. The proposal was rejected, not because the Committee was unsympathetic with its objectives, but rather because it was felt that the situation of the animals demanded a more flexible means of handling problems that may arise. As a practical matter, with regard to practically all of the species and stocks involved, there will exist a de facto moratorium for at least two years, and very probably longer. The reasoning underlying this conclusion depends upon a number of elements of the bill:
1. the requirement that no marine mammal may be taken without a permit (Sec. 101(a));
2. the fact that no permit may be issued until the appropriate Secretary has issued appropriate limitations (Sec. 103(b));
3. the fact that such limitations must be based upon scientific evidence, and must be issued to insure that any taking is not to the disadvantage of the species or stock, and is consistent with the purposes and policies of the Act (Sec. 102(a));
4. the fact that, with respect to almost every species and stock of animals today, there is little evidence to indicate what should be done one way or the other, and that the development of this evidence will take time-- in most cases more than two years.
There is information on a number of these animals which will support fairly prompt activity on the part of the Secretary. The Alaska fur seal has been the subject of extended inquiry for years, and while more could and should be known, certainly enough is known at this date to support the development of a working permit program.
As to the question of the stocks of porpoises currently taken, and for the most part released by the commercial tuna fleet, it is the feeling of the Committee that there is little information today and that a great deal must be learned. It is the expectation of the Committee that the Secretary of Commerce will continue his current research efforts in cooperation with the fishing industry into more effective techniques for catching tuna which involve lessened hazards for the porpoises who are caught as an incident to their operations. At the current time, it appears to the Committee that the tuna fleet would be an appropriate recipient of general permits, under the authority of Section 103(i) Title I, keyed not to specific numbers of porpoises which might be taken but to the techniques that should be used in fishing operations. Certainly no one can disagree that the best available techniques should be used, in order to void or minimize damage to porpoises, and to its *4154 credit, the tuna industry has given every indication of its willingness to cooperate to achieve this objective. It is the Committee's view that the language of the bill will encourage the industry and the agencies of government to work together, and will impose no barriers to that work. If these expectations are not met, the Committee is prepared to take the necessary steps to see that they will be met. In its deliberations, the Committee gave careful thought to the possibility of imposing restrictions upon U.S. citizens and companies engaging in activities in foreign countries which would not be permitted to them in the United States. This was done as the result of suggestions made during the course of the hearings which indicated that there might be significant U.S. investments in companies taking animals from depleted or endangered species or stocks. Ultimately, the decision was made not to include the authority to require the repatriation of funds used for this purpose, largely on the basis that there was no solid information available on which a judgment might be made. The matter does continue to be of considerable interest, however, and it is the expectation of the Committee that the affected Departments of the government and the Marine Mammal Commission will look into this question and will report back on the need for legislation to plug what may or may not be a loophole in H.R. 10420.
SEC. 1. The Act may be cited as the 'Marine Mammal Protection Act of 1971'.
Findings and Declaration of Policy
SEC. 2. (1) This subsection makes the point that certain species and stocks of marine mammals may be threatened with depletion or extinction by man's uncontrolled activities.
(2) This subsection stresses the value and importance of marine mammals to the ecological stability of the oceans and makes the point that these animals should never be permitted to diminish beyond the point where they constitute a functioning element of marine ecosystems; if they do go below this point, efforts should be made to increase the stocks.
(3) This subsection states that not enough is known about virtually every species and stock of marine mammals and that more knowledge is essential.
(4) This subsection urges prompt negotiations for the development of more adequate international treaties for the protection of marine mammals.
(5) This subsection states that Congress has a legitimate interest in acting in this area since the animals are highly significant to interstate commerce.
(6) This subsection states that marine mammals are resources of great significance and that it is congressional policy that they should be protected and encouraged to develop consistent with sound policies of resource management. The primary objective of this management must be to maintain the health and stability of the marine ecosystem; this in turn indicates that the animals must be managed for their benefit and not for the benefit of commercial exploitation.
SEC. 3. This section defines the various terms used in the bill.
(1) 'Depletion' or 'depleted' refers to the situation in which species or stocks of animals have declined significantly or have reached a point at which their future may be in jeopardy. The concept is broader than that of 'endangered species' within the meaning of the Endangered Species Conservation Act of 1969. It provides the Secretaries of Interior and Commerce with authority to step in to protect animals from species and stocks which have declined significantly before they have become formally endangered or actually extinct.
(2) 'District Court of the United States' means the various U.S. District Courts.
(3) 'Humane' in the context of taking marine mammals means the method of taking which involves the least possible amount of pain and suffering which can be inflicted upon the animals involved. It is not a simple concept and involves factors such as minimizing trauma to groups of highly intelligent, social animals such as whales and porpoises where the taking of any member may be distressing to the group. In many cases, where an animal may not be taken humanely the bill will prevent that animal from being taken at all.
(4) 'Marine mammals' means mammals which are physiologically adapted to the oceans, such as sirenians (manatees and sea cows), cetaceans (whale, porpoises, and air breathing dolphins) and pinnipeds (seals, sea lions, walruses and others). The term also includes animals such as polar bears which are adapted to an intermittent land-sea environment. For the purpose of the Act, the term includes parts of marine mammals, including but not limited to their fur and skins.
(5) 'Marine mammal product' means processed or unprocessed merchandise made from marine mammals.
(6) 'Optimum sustained yield' means a sustained yield resulting in an optimum, usually close to maximum, number of animals, bearing in mind the primary goal of ecosystem health and productivity.
(7) 'Person' means individuals, corporate entities, or employees of any government.
(8) 'Population stock' involves a new concept, permitting and requiring the Secretaries to discriminate between different groups of animals distinguishable from other populations of the same species. The Alaskan polar bear, for example, is clearly a population stock within the general worldwide species classification for polar bears. (9) 'Secretary' within the context of this Act refers to the Secretaries of Interior or of Commerce, depending on the animals for which they are given responsibility. The Secretary of Commerce is given responsibility for all cetaceans and all pinnipeds, other than walruses; the Secretary of Interior is given responsibility for all other marine mammals.
(10) 'Sustained yield' means that point in which the animal recruitment to animal population equals the annual taking from that population.
(11) 'Take' is defined broadly by the Act, as including harassing, hunting capturing, or killing any marine mammal or attempting to do so. The act of taking need not be intentional; the operation of motor boats in waters in which these animals are found can clearly constitute harassment.
*4156 (12) 'United States' includes all lands over which the United States government has jurisdiction.
(13) 'Waters under the jurisdiction of the United States' means waters out to the twelve mile limit.
TITLE I-CONSERVATION AND PROTECTION OF MARINE MAMMALS
SEC. 101. (a) This section states that it is unlawful, without a permit or an exception as provided by Section 107 of the Act, for any person or vessel subject to the jurisdiction of the United States to take any marine mammal on the high seas or for any person or vessel, or other conveyance (such as an airplane) to take any marine mammal on waters or lands under the jurisdiction of the United States unless expressly provided for by an existing international agreement. The only such agreement of which this Committee is aware is a treaty between the United States and Japan referred to in the Department of State's comments on this legislation.
It is also unlawful for any person to use any port, harbor, or other place under the jurisdiction of the United States in any way connected with a prohibited act unless a permit has been obtained or the exceptions in Section 107 are applicable. The section further prohibits any person subject to United States jurisdiction from processing, transporting or attempting to sell any marine mammal taken unlawfully.
(b) This subsection makes it illegal to import any marine mammal within certain specified categories unless that mammal is imported for legitimate scientific research. These animals may not be imported for any commercial purposes. The categories are those animals which are (1) pregnant when taken, (2) nursing (either parent or young), or less than eight months old, whichever occurs later, (3) taken from a species or stock which has been designated by the appropriate Secretary as depleted or endangered or (4) taken inhumanely. This section will bar the import of skins taken from the baby Canadian harp seal, the slaughter of which has occasioned considerable and, in the opinion of the Committee, justified public criticism in recent years. It will also prevent capture of animals such as whales and porpoises, who are occasionally caught by capturing the baby in order to take the mother.
(c) This subsection poses an absolute and permanent ban on the importation of animals taken in violation of any law, of marine mammal products from such animals, or of marine mammals which may not be sold in their country of origin. It also prohibits the importing of fish caught outside of the United States where the fish were caught by techniques which the Secretary concludes are injurious to marine mammals. Fleets of tuna fishermen already catch tuna fish by catching porpoises in the process. This section will prohibit the importation of any tuna caught by this method once the Secretary has been informed that porpoises are being taken by methods which are deemed unreasonably injurious to those porpoises. If foreign fleets elect to continue to catch tuna fish by these methods, this section will close the United States market to the tuna fish caught in this fashion.
(d) This subsection limits the impact of the subsections banning importations to articles imported after this Act becomes operative and *4157 after the effective date of the events which make their importation illegal. It will serve to protect those with inventories of products at the time these actions become unlawful.
Limitations on Taking of Marine Mammals
Sec. 102. (a) This section establishes the basic, underlying theme of this Act. It states that the Secretaries of Interior and Commerce, once it is determined on the basis of scientific evidence that there is a need for such limitations, shall issue limitations on the taking of marine mammals to insure that such taking does not occur to the disadvantage of the species or stocks from which the animals are taken and that such taking would be consistent with the policies of the Act. It requires, in effect, that limitations be established which will be designed to act for the benefit of the animals in question. While clearly it is not to the benefit of an individual animal to be taken, the Committee was persuaded by overwhelming scientific evidence that there are, in fact, cases in which animal species or stocks may be benefited by removing excess members. In these cases, the Secretary will establish appropriate limitations which will permit the taking of these animals.
(b) This subsection lists the general criteria which may be considered by the Secretary in the process of prescribing limitations under the Act. These include a wide range of factors such as the effect of limitations on present and future animal populations. U.S. treaty requirements, ecological and environmental considerations, the conservation and development of fishery resources and economic and technological feasibility.
The Secretary, for example, in regulating the operations of the tuna industry with respect to the catching of porpoises must consider the technical capability of these fishermen to avoid injury to porpoises. It is not the intention of the Committee to shut down or significantly to curtail the activities of the tuna fleet so long as he is satisfied that the tuna fishermen are using the best available technology to assure minimal hazards to marine mammal populations.
(c) The limitations prescribed by the Secretary may include a number of factors: the number of animals to be taken, what animals may be taken, and when and where this taking may take place.
(d) This subsection requires the establishment of limitations to take place after full agency review open to public comment and hearing pursuant to the Administrative Procedure Act. In announcing his proposed limitations, the Secretary is required to make available to the public a number of documents: (1) his statement of the size of the population affected, (2) his statement describing the impact of his proposed limitations, (3) the evidence on which he proposes to act, and (4) any studies or recommendations relating to these limitations. At this point in the development of the permit program, the public is given the right and the necessary information to participate, and if it considers such action appropriate, to protest against the establishment of these limitations.
(e) This subsection permits and requires the Secretary to revise limitations under the Act as deemed necessary.
Sec. 103(a) This subsection allows the Secretary to issue permits authorizing the taking of any marine mammal. As already indicated, *4158 no one may take any marine mammal without such a permit, except natives in specified circumstances.
(b) This subsection requires permits issued under the authority of the Act to be consistent with the limitations prescribed in Sec. 102 and states that such permits must specify the various terms and conditions under which the animals may be taken. Wherever the reason for such taking is overpopulation, before issuing any such permit the Secretary must first consider the possibility of transporting excess members of this population to other areas which were formerly the habitat of such animals. It would, for example, require prior consideration to moving sea otters to any area within the Bering Sea or off the Pacific Coast before sea otters might be taken for commercial purposes. (c) Scientific research permits or permits for the display of marine mammals by profit and non-profit institutions must be issued by the Secretary subject to his supervision of the manner in which those animals may be captured, transported and cared for. There permittees must also report to the Secretary when required to do so, on the ways in which these requirements have been carried out. If the Secretary is not satisfied with these activities or these reports, he may take appropriate action, which includes the revocation of permits and assessment of penalties.
(d) This subsection authorizes the Secretary to prescribe procedures to carry out his permit authority. It requires him to make public notice of permit applications received and to invite comments from interested members of the public. Permit applicants carry the burden of showing that the taking of marine mammals will be consistent with the purposes of this Act as indicated above and with the limitations established under Sec. 102. The failure to sustain this burden must result in the denial of a permit. The subsection authorizes the Secretary to grant public hearings upon request of any interested party, if the request is made on a timely basis. The Secretary is instructed to act in an expeditious fashion and to make full public disclosure of his action in issuing or denying a permit requested. The subsection also authorizes permit applicants to obtain judicial review under the Administrative Procedure Act. (e) This subsection authorizes the Secretary to modify, suspend or revoke permits to make them consistent with revised limitations under Sec. 102, or where the permit has been violated. Such actions by the Secretary will take effect when the permittee is notified. The permittee may then apply for prompt hearing and review by the Secretary. Notice of such modification, suspension or revocation must be published in the Federal Register.
(f) This subsection requires permits issued by the Secretary to be in the possession of the authorized person during the process of the authorized taking or at any other time incidental to that taking. The copy of the permit must be physically attached to any container in which the marine mammal is placed.
(g) The Act prescribes a sixty day period following the issuance of limitations under Sec. 102, during which no permit may be issued. This will allow the Secretary sufficient time to obtain all permit applications and to judge which should be granted rather than forcing him to act on a first-come, first-served basis.
(h) This subsection authorizes the Secretary to charge a fee for permits issued, related to the cost of the permit program.
*4159 (i) This subsection authorizes the Secretary to issue general permits under appropriate regulations covering the use of such permits. Fishermen, Eskimos, and others who may have a continuing problem may thus obtain general permits from the Secretary covering situations in which it is anticipated that permission is required, subject to those regulations which the Secretary considers consistent with the purposes and policies of the Act.
Sec. 104. (a) This subsection authorizes the assessment of civil penalties by the appropriate Secretary for violation of the Act or permits or regulations issued under the Act, in the amount of not more than $10,000 for each violation. If the penalty is not paid, the Secretary is authorized to refer the matter to the Department of Justice for action.
(b) This subsection authorizes criminal action and fines up to $20,000 or up to one year imprisonment for any person who knowingly violates the Act or permits or regulations issued thereunder. The term 'knowingly violates' is intended to refer to a conscious act or a conscious omission of the offender which amounts to a violation of the law, regulation, or permit. It does not require that the offender know that the Act which he consciously commits or omits constitutes a violation. Should a fine be assessed following a conviction resulting from information supplied by any person other than one who has the legal duty to report such an incident, the person or persons furnishing the information are entitled to receive one-half of the assessed fine, or $2,500 whichever is less.
Sec. 105. This section makes vessels or other conveyances under U.S. jurisdiction subject to seizure and forfeiture when employed in any way in the unlawful taking of any marine mammal. Existing customs laws relating to seizure, forfeiture, and condemnation of vessels are applicable where appropriate.
Sec. 106. (a) The Secretaries of Interior or Commerce are charged with basic responsibilities for enforcement of Title I, except as otherwise provided. They may, however, utilize other federal agencies, such as the Coast Guard, for purposes of enforcement.
(b) The Secretaries are also authorized to designate state officers and employees as enforcement agents, although they are not so considered for purposes of federal employment laws.
(c) This subsection authorizes United States judges and magistrates to issue warrants or other process required for enforcement of the Act.
(d) The subsection authorizes appropriate officials to execute properly issued warrants or processes. It further authorizes those officials to arrest persons violating the law within their presence or view, with or without a warrant, and permits searches of vessels or conveyances with or without warrants with reasonable cause. Such officials may also seize vessels or other conveyances and appropriate additional equipment where such have been used in violation of the Act or reasonably appear to have been so used. Marine mammals taken in violation of the Act may also be seized and disposed of in accordance with appropriate regulations.
*4160 (e) This subsection requires the Secretary to expedite proceedings when a seizure has taken place. He is required to notify the owner or consignee of the seizure of these goods as soon as possible. Where appropriate, the Secretary may either hold marine mammals or products, or permit the person concerned to retain them after posting bond. After assessment of civil penalties, the subsection permits the Secretary to proceed against the marine mammals and products concerned and forfeited for appropriate disposition. The subsection requires marine mammals and products seized in connection with a criminal violation to be forfeited to the Secretary. It allows the forfeiture of property or other items taken in conjunction with the violation. Marine mammal products which have been seized must be returned to the owner or consignee, if (a) a civil penalty is assessed, but no action is taken to recover that penalty, or (b) if criminal action is unsuccessful and the Secretary has not thereafter commenced proceedings for the imposition of civil penalties.
Exceptions for Certain Natives
Sec. 107. (a) This section allows taking by Indians, Aleuts, or Eskimos dwelling on the coast of the North Pacific Ocean or the Artic Ocean, under certain circumstances. These natives may not take marine mammals from endangered species, but they may take marine mammals without permits if the taking is for subsistence purposes in accordance with traditional customs, is not done wastefully, and is not done for purposes of direct or indirect commercial sale. If a native kills a walrus for subsistence purposes, the bill does not prohibit the use of ivory from that walrus' tusks so long as his primary purpose for taking was that of subsistence. If, on the other hand, an Eskimo wishes to take a number of walruses primarily for the purpose of selling their tusks, he may not do so without a permit.
(b) This subsection authorizes the Secretary, in cases where he determines that species or stocks of marine mammals require protection from native taking, to prescribe appropriate limitations upon this taking. It was recommended as an additional management tool by the State of Alaska. Once the need for such limitations has been removed, as for example, following the regrowth of a depleted stock, the limitations must be removed.
Sec. 108. This section requires the Secretaries of Interior and Commerce, acting through the Secretary of State, to: (1) encourage the development of international laws and treaties for the protection of specific regions significant to marine mammals, such as the Antarctic Ocean and the Bering Sea, (2) encourage the strengthening of existing treaties which relate to marine mammals in order to make them consistent with the purposes of this Title. (An obvious case in point is the International Whaling Treaty which was entered into not for the benefit of the whales, but for the benefit of the companies exploiting them. This inadequate measure should clearly be strengthened.) (3) seek an international meeting, not later than June 1, 1973, for the purpose of signing international treaties for the protection of marine mammals, and implementing subparagraph (2) of the section, and (4) provide a full report to the Congress within a year of enactment of this Act on the results of efforts undertaken pursuant to this section.
*4161 Federal Preemption; Cooperation with States
Sec. 109. (1) This subsection preempts state laws and regulations relating to the taking of marine mammals, except as provided in subsection (b).
(b) This subsection authorizes the Secretary to develop effective working cooperative arrangements with state agencies and officials in order to carry out the purposes of this Act. It is not the intention of this Committee to foreclose effective state programs and protective measures such as sanctuaries; it is rather our intention to allow the development of a unified integrated system of management for the benefit of the animals and to encourage the states to take all actions which are consistent with this objective.
Marine Mammal Research Grants
Sec. 110. (a) This subsection authorizes the Secretary to make grants or to provide other appropriate financial assistance to state and other agencies in order to assist them in carrying out research on subjects relevant to the protection and management of marine mammals.
(b) This subsection authorizes the Secretary to make grants to states to enable them to develop programs for the protection of marine mammals which are consistent with the purposes and policies of this Title.
(c) This subsection authorizes the Secretary to establish such reasonable terms and conditions upon grants provided under the Act as may be deemed appropriate to protect the interests of the United States.
(d) This subsection authorizes, for the fiscal year in which the section takes effect and for the next four fiscal years, up to $500,000 each to the Secretaries of Interior and of Commerce, in order to carry out the purposes of this section of the Act. It appears to the Committee that this figure may well prove to be insufficient; as state and other agency research and administration programs are developed, implemented and expanded. If an increase in the authorization level proves necessary the Committee is prepared to take appropriate steps.
Sec. 111. (a) This subsection authorizes the Secretaries, in consultation with other appropriate federal agencies, if any, to adopt regulations to carry out the purposes of the Title.
(b) All federal agencies are authorized to cooperate on mutually agreeable terms with the Secretaries in carrying out the purposes of the Title.
(c) This subsection authorizes the Secretaries to enter into agreements, as necessary, with any person or agency of government in order to carry out the purpose of Title I of the Act.
(d) This subsection authorizes the Secretaries to review annually all programs in which the United States participates, involving the taking of marine mammals on land. If the U.S. activities are impaired by reason of a failure to own the necessary lands or interests therein, the Secretary must thereupon suspend the program and notify the Congress, recommending such additional legislation is deemed necessary.
Application to other Treaties and Conventions: Repeal
Sec. 112. This section makes it clear that the Act is to be applied as supplemental to and not in violation of existing international treaties *4162 or conventions which otherwise apply to marine mammals such as those applying to whaling and fur seals. It also repeals the proviso in the Act regarding the protection of sea lions in Alaskan waters.
Sec. 113. (a) This subsection authorizes an appropriation of $1.5 million for each of the five fiscal years after enactment of this Act to enable the Department of Commerce to carry out its responsibilities under Title I. This figure is consistent with budget estimates provided to the Congress by the Department of Commerce. (b) This subsection authorizes the sum of $700,000 for the first year after the date of enactment of the Act, and $525,000 for the next four years, to enable the Department of the Interior to carry out its responsibilities under Title I. This is consistent with budget estimates submitted by that Department.
Title II-MARINE MAMMAL COMMISSION
Establishment of Commission
Sec. 201. (a) Establishes the Marine Mammal Commission.
(b) The commission is composed of three members serving three year staggered terms, appointed by the President from a list submitted by the Chairman of the Council on Environmental Quality, of individuals who are knowledgeable in the fields of marine ecology and research management and who are not then or will be thereafter in a position to benefit from the taking of marine mammals. The section bars existing government employees from service as a member of the Commission. Members of the Commission may not be reappointed unless serving as a replacement to fill a vacancy.
(c) The President shall designate the Chairman of the Commission from among the members. (d) Members of the Commission shall be compensated on a daily rate equivalent of a GS-18 ($138.48 at this time) for each day the members are engaged in the actual performance of their duties. They are also entitled to reimbursement for travel expenses.
(e) The Title requires the appointment of an Executive Director who will be a full time employee of the Commission, paid at a rate not in excess of that established for a GS-18.
Duties of Commission
Sec. 202. (a) The Commission is required to do the following:
(1) Review existing federal laws and international treaties relating to marine mammals, including those dealing with whales and fur seals.
(2) Review existing information on the stocks of marine mammals and ways in which they may be managed consistent with the purposes of the Act and of the most humane possible ways of taking marine mammals; it shall also review the research programs carried out under the Act and all applications for research permits, authorized under Sec. 103.
(3) Carry out a necessary studies in connection with the protection and management of marine mammals.
(4) Recommend to the appropriate Secretary, and to other officials, such additional steps as it considers desirable in the interest of marine mammals.
*4163 (5) Recommend appropriate policies to the Secretary of State for strengthening existing international treaties and recommend additional measures for protection of marine mammals.
(6) Recommend to the Secretary of the Interior revisions to the Endangered Species List as they may affect marine mammals, and
(7) Recommend to the Secretary, other officials, and the Congress, measures deemed necessary or desirable to carry out the purposes of this Act, including those which it deems appropriate to protect Alaskan natives who may be adversely affected by the Act.
(b) The Commission is required to consult with the Secretaries at their request, and shall furnish its reports and recommendations before publication to them for comment.
(c) The Commission's reports and recommendations are specifically designated as public records, to be available to the public on reasonable terms and conditions. Other activities of the Commission are also matters of public record, subject to the provisions of the Freedom of Information Act.
(d) Where the Commission has made recommendations to federal officials, those officials must respond to those recommendations on a substantive basis within 120 days. Where those recommendations have not been followed or adopted, the appropriate official is required to return them to the Commission together with a detailed explanation of his reasons for his failure to follow these recommendations.
Committee of Scientific Advisors on Marine Mammals
Sec. 203. (a) This section authorizes and directs the establishment of a Scientific Committee of nine independent scientists knowledgeable in marine ecology and marine mammals affairs. The members of this Committee are to be appointed by the Chairman of the Commission, with the advice of the Director of the National Science Foundation, the Chairman of the National Academy of Sciences, and the Secretary of the Smithsonian Institution.
(b) The members of the Scientific Committee are to be compensated in like manner as the members of the Marine Mammals Commission.
(c) The Commission is required to consult with the Scientific Committee on studies and recommendations on research programs conducted under the authority of the Act and all applications for scientific research permits. Recommendations made by the Committee, or members of the Committee, to the Commission which are not adopted by the Commission must be transmitted to the appropriate federal agency and the Congress with an explanation of the Commission's reasons for not accepting such recommendations.
SEC. 204. This section requires the Commission to transmit to the Congress an annual report describing its activities, including findings and recommendations by and to the Commission, together with the responses to those recommendations.
Coordination with other Federal Agencies
SEC. 205. This section authorizes the Commission to have access to all federal studies and data relating to marine mammals. It authorizes the Commission to utilize the facilities of federal agencies, under cooperative arrangements, and directs the Commission to take *4164 every feasible step to avoid duplication of research and to carry out the purposes of this Act.
Administration of Commission
SEC. 206. This section authorizes the Commission to do the necessary things in order to carry out its administrative responsibilities under the Act. Its financial and administrative services are to be provided by the General Services Administration and appropriate reimbursement made therefor.
SEC. 207. This section authorizes the sum of not to exceed $1 million for the fiscal year in which Title II is enacted, and for the next four fiscal years thereafter. Not more than one-fourth of the total amount of any sums appropriated to the Marine Mammal Commission pursuant to this Title shall be expended on activities other than research and studies conducted under the authority of 202(a)(2) and 3. This limitation was added to minimize the temptation on the part of the Commission to develop another paper-shuffling bureaucracy. It is the express intent of the Committee that the administrative activities of the Committee be held to a irreducible minimum; the Commission is expected to make every effort to see that its program is carried out accordingly.
COST OF THE LEGISLATION
In the event that this legislation is enacted into law, the Committee estimates the maximum cost to the Federal Government, based on information supplied by Government agencies, to be as follows:
The Department of the Interior estimated its five-year cost of implementing Title I (other than marine mammal research grants under Section 110) to be $700,000 for the first fiscal year following the date of enactment of this legislation, and $525,000 for each of the next four fiscal years.
The Department of Commerce estimated its five-year cost of implementing Title I (other than marine mammal research grants under Section 110) to be $1,500,000 for each of the five fiscal years following the date of enactment of this legislation.
Marine mammal research grants, to be provided pursuant to Section 110, are authorized at not to exceed $1,000,000 for the fiscal year in which the Act takes effect and for each of the four fiscal years thereafter. Authorization for the Marine Mammal Commission is provided at not to exceed $1,000,000 for the fiscal year in which the Act takes effect and for each of the four fiscal years thereafter.
After reviewing the foregoing estimate of costs with respect to this legislation, the Committee has concluded that these costs are reasonable and that the costs incurred in carrying out this legislation will be consistent with those estimates.
The departmental reports on H.R. 10420, on which the hearings were held, are as follows:
U.S. CIVIL SERVICE COMMISSION,
Washington, D.C., September 16, 1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives.
DEAR MR. CHAIRMAN: This is in further response to your request for the views of the Civil Service Commission on H.R. 10420, a bill 'To protect marine mammals; to establish a Marine Mammal Commission; and for other purposes.'
The comments in this report are limited to recommendations for improving and clarifying certain personnel provisions in the bill.
Section 201 of H.R. 10420 establishes a Marine Mammal Commission which will be composed of three members appointed by the President. Each member will be paid $100 a day when he is engaged in the actual performance of duties of that Commission and will be reimbursed for travel expenses under the statutory provisions generally applicable to intermittent employees. An Executive Director will be appointed by the Chairman of the new Commission and paid at a rate not exceeding the rate for GS-18 (currently limited to $36,000).
The Civil Service Commission would not oppose the $100 a day rate for members of the proposed Commission. However, it should be noted that in recent legislation the daily rate or maximum rate for such intermittent services is generally expressed as the daily equivalent of the rate of GS-18 ($138.48). Use of a General Schedule rate, rather than a fixed dollar amount, provides greater flexibility by having the pay for the members adjust automatically when salaries for most regular full-time employees are changed.
With reference to the compensation for the Executive Director of the Marine Mammal Commission, there is no apparent justification for not applying the job evaluation and pay provisions of the General Schedule system which is generally applicable to Federal employees. We therefore recommend that the first sentence in section 201(e) be amended by deleting the part relating to compensation. This deletion will have the effect of making the General Schedule pay system applicable to the position of the Executive Director.
Section 203 of H.R. 10420 requires the Marine Mammal Commission to establish a Committee on Scientific Advisors on Marine Mammals which will consist of nine specially qualified scientists. There is no indication in the bill as to whether these scientists will serve on a full-time or on a part-time basis. If they are full-time employees, their salaries will be determined under the General Schedule job evaluation and pay provisions. If they are to serve on a part-time basis, the bill should so state and should include language about whether they are to be compensated and if so, what the per diem rate or maximum limitation is to be.
*4166 The Office of Management and Budget advises that from the standpoint of the Administrations' program there is no objection to the submission of this report.
By direction of the Commission:
(Signed) ROBERT E. HAMPTON,
GENERAL COUNSEL OF THE DEPARTMENT OF COMMERCE,
Washington, D.C., September 10, 1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN: This is in response to your request for comment on H.R. 10420, a bill to protect marine mammals; to establish a Marine Mammal Commission; and for other purposes.
This Department believes that regulations imposed on the taking of marine mammals should be based on data from careful studies of the population dynamics and other aspects of such mammals. We believe that with appropriate amendments, H.R. 10420 could provide for such study and at the same time grant the appropriate regulatory authority. To this end we enclose a revised version of the bill incorporating our suggested changes. Set forth below are some of the major problem areas we see in the present version of H.R. 10420: [FN1]
This Department takes exception to the assignment of program responsibility in section 3(3). The National Oceanic and Atmospheric Administration of the Department of Commerce is charged with a variety of responsibilities relating to the marine environment and the utilization and conservation of living marine resources pursuant to Reorganization Plan No. 4, October 3, 1970 (84 Stat. 2090). The allocation of authority over marine mammals embodied in this Plan should be maintained until such time as the proposal of this Administration for the creation of the Department of Natural Resources has been acted upon. Accordingly, the revised bill defines 'Secretary' in section 3(g) thereof so as to retain the present allocation of authority between the Secretary of Commerce and the Secretary of the Interior.
Section 3 defines the term 'marine mammal' in an artificial and undesirably narrow way. Section 3(1) should be more inclusive. The specific reference to an exotic species found only in the waters of Southeastern Asia, the dugong, which is related to the manatee, seems unnecessary. Similarly, there is a redundancy in the listing of whales, porpoises or dolphins since porpoises and whales are both cetaceans, and the term 'dolphin' is used either in referring to the bottle-nosed porpoise of North America, or any one of several European species of porpoise-- or a game fish of the genus Coryphaena. The definition of marine mammals should be more precise.
The exception to the meaning of the term 'take' in section 3(4) is overly broad, since it would apparently prevent any limitation on incidental catch of mammals. If studies, which we believe should be undertaken, indicate that some provisions to control such taking be instituted it would be advisable to have appropriate statutory authority to do so. *4167 Accordingly, in our revised bill we have changed the definitions of 'marine mammal' and 'taking' to accommodate the aforesaid criticisms. See Sections 3(a) and 3(e) of the revised bill.
Section 3(5)(A) would provide for Federal control over marine mammals in territorial waters. The political ramifications of modifying the explicit grant of jurisdiction over living marine resources in the territorial sea granted to the States by the Submerged Lands Act of 1953 (43 U.S.C. 1301), must be very carefully evaluated. One would have to inquire whether any extension of jurisdiction such as this bill contemplates would be politically advisable or would efficiently utilize Federal and State resources. Moreover, section 3(5)(A) appears to be unnecessary. Those States with resident populations of marine mammals already have in effect appropriate regulations governing the utilization and conservation of those mammals. In addition, they have the resources to implement these regulations on a sound scientific basis. The State of Alaska, for example, has a staff of biologists trained in marine mammal work which is second in size only to that of the National Marine Fisheries Service.
On the other hand, section 102(a) limits the Secretary's authority to promulgate regulations by confining the purpose of such regulations to the protection of marine mammals within the jurisdiction waters of the United States. We believe that this limitation is undesirable and that the Secretary should also have authority to issue regulations which would, to the extent feasible, effectuate the conservation and management of marine mammals found in both the contiguous fishery zone and the high seas.
In view of the foregoing, our revised bill has been amended to authorize the Secretary to issue regulations which would promote the conservation and management of marine mammals in both areas either by directly limiting the taking thereof or by regulating the importation into the United States of such mammals as well as dealing in such mammals within the United States. Our revised bill would also authorize regulation of dealings within the United States in, or the importation into the United States of, any other living marine resources the taking of which affects the conservation and management of marine mammals. See section 5 of the revised bill.
The procedures outlined in the subject bill with respect to the issuance of permits appear to be exceedingly cumbersome, and could lead to unnecessary litigation. From a procedural point of view, the Secretary could be required to hold three different hearings in a single case:
(a) A hearing under section 102 for the purpose of fact-finding and rule-making within the scope of his delegated authority;
(b) A hearing under section 103 in advance of the issuance of permits enabling the permittee to lawfully harvest marine mammals; and
(c) An additional hearing in the event of a modification, suspension or revocation of an outstanding permit.
We believe that hearings of the type mentioned in (a) above are appropriate and advisable at this time. However, we submit that hearings of the type referred to in (b) and (c) not be a mandatory requirement and that the Secretary be given discretion to institute such administrative procedures as he deems advisable under the circumstances to protect individual rights. Our revised bill therefore retains only the first type of hearing. See section 6(a) of the revised bill.
*4168 Although section 107(a) provides exceptions for aboriginal taking of marine mammals, it contains a requirement that such takings must be non-commercial thus eliminating a cottage industry based on ivory carving and fur sewing which plays a vital economic role in the lives of those people. This is a fragile economy at best and should not be discouraged. Although the Natives of the Bering Sea and Artic Ocean coasts, whose sole source of income derives from the marginal seas adjacent to their historic homes, could certainly qualify for permits under the provisions of section 102, the hearing procedures required in that section would militate against effective participation as a practical matter for a people with only limited contact with civilization or, for that matter, with the English language itself. We believe that existing State game management programs when supplemented in federally controlled areas by appropriate regulations (which can only be issued after sufficient study) would be the most satisfactory solution. Accordingly, our revised bill places no express limitations on Natives, as opposed to other persons, and section 6(b) directs the Secretary, in issuing regulations, to take account of the traditional activities of Natives.
Section 109 poses much the same jurisdictional problem which has already been discussed with respect to section 3(5)(A). It would be much more appropriate to authorize the Secretary to 'seek' cooperative arrangements with the States and our revised bill so provides in section 11.
Section 110 poses serious problems. If the Secretary were to follow the procedures outlined in this section, he would almost certainly abrogate the existing fur seal convention. This in turn would probably result in the resumption of high seas sealing for northern fur seals by several other countries thus reverting back to the unselective and destructive method of sealing which was utilized prior to the 1911 convention. Our revised bill provides in section 6(a) that the Secretary must obtain the concurrence of the Secretary of State in issuing any proposed regulations and further directs the Secretary of State, in section 12, to undertake the necessary steps to enter into new international arrangements and revise existing ones to conform with the purposes of the Act.
The Department supports the concept of a citizen-commission. However, such a commission should be of limited duration with a provision for statutory extension. A permanent commission could result in duplication of effort and might unnecessarily compete for management and research money. We submit that the purpose of a commission is to fill the short-term goal of reviewing existing policies and practices. In addition, the Department does not believe that the President should be limited in his selection of commission members, either through the nomination process, or as a result of limiting criteria in the subject legislation. The Department would suggest that the commission be enlarged and that the qualifications for membership be deleted so that the commission could be more broadly representative and section 9 of our revised bill so provides.
In summary, for the foregoing reasons we would favor the enactment of H.R. 10420 in the revised form enclosed.
*4169 We have been advised by the Office of Management and Budget that there would be no objection to the submission of our report to the Congress from the standpoint of the Administrations' program. Sincerely,
KARL E. BAKKE,
Acting General Counsel.
DEPARTMENT OF COMMERCE PROPOSED AMENDMENTS OF H.R. 10420
Strike all that follows the enacting clause and insert the following:
(a) The Congress finds that--
(1) Marine mammals have proven themselves to be resources of international significance, recreational, esthetic and economic;
(2) While substantial information has been obtained concerning certain species of marine mammals, there is a requirement for additional knowledge with respect to the population dynamics of marine mammals and the factors which bear upon their ability to reproduce themselves successfully;
(3) Negotiations should be undertaken, as appropriate, to further encourage the development of international arrangements for research concerning management and conservation of marine mammals. (b) The Congress declares that--
(1) It is the public policy of the United States to provide for the conservation and management of marine mammals in order to achieve an optimum ecological, recreational, esthetic and continuing economic benefit, and to assure that no species of marine mammals become threatened with extinction, and to take measures to restore the populations of marine mammals which may be substantially depleted or threatened with extinction.
(2) It is the sense of Congress that there be exercised by the Federal Government such regulatory authority as may be found to be necessary to advance the policy expressed herein. It is further the sense of Congress that such regulatory authority be exercised consonant with Federal concern for the livelihood and well-being of Natives, recreational and economic factors, the authority and responsibility of the several States for the conservation and management of marine mammals, and for implementation of the Convention on Fishing and Conservation of the Living Resources of the High Seas.
For the purposes of this Act:
(a) 'Marine mammal' shall mean any mammal which is morphologically adapted to the marine environment, including members of the orders Pinnipedia and Cetacea, sea otters, and manatees and any mammal which primarily inhabits the marine environment such as the polar bear, or any part, products, or offspring thereof, or the dead body or parts thereof.
(b) 'Person' means any individual, partnership, corporation, joint venture, joint stock company, unincorporated association or other organization subject to the jurisdiction of the United States.
*4170 (c) 'High seas' means the waters seaward of the territorial sea of the United States.
(d) The term 'taking' shall mean wounding, capturing or killing or hunting or pursuing with an intent to wound, capture or kill.
(e) 'Natives' shall mean any Indians, Aleuts, Eskimos, or other aborigines traditionally deriving their subsistence or livelihood, in whole or in part, by taking marine mammals.
(f) 'Secretary' shall mean the Secretary of Commerce or the Secretary of the Interior as appropriate in the context and as related to their functions with respect to the marine mammals over which they exercise regulatory authority as provided in section 4 hereof.
(a) The Secretary of Commerce shall exercise the regulatory and other authority granted by this Act over all cetaceans, seals, and sea lions.
(b) The Secretary of the Interior shall exercise the regulatory and other authority granted by this Act over all other marine mammals.
(c) The authority granted in this Act shall be in addition to other authorities relating to marine mammals exercised by the Secretaries, and, in the exercise of such other authorities for the conservation and management of marine mammals, the Secretaries of Commerce and Interior shall take into account the policies expressed herein.
(a) It shall be unlawful for any person, vessel, airplane or other conveyance to take any marine mammal on the high seas in violation of regulations issued by the Secretary pursuant to this Act.
(b) It shall be unlawful for any person, in violation of regulations issued by the Secretary pursuant to this Act, knowingly (i) to possess, transport, sell, offer for sale or process in the United States or (ii) to deliver, carry, import or receive into the United States any marine mammal taken on the high seas.
(c) It shall be unlawful for any person, in violation of regulations issued by the Secretary pursuant to this Act, knowingly (i) to possess, transport, sell, offer for sale or process in the United States or (ii) to deliver, carry, import or receive into the United States any living marine resource (or any portion or product thereof) if in the taking of such resource any marine mammal is taken on the high seas.
(d) No person shall fail to keep such records or to make such reports as may be required pursuant to regulations issued under this Act.
(e) No person shall (i) refuse to allow a duly authorized enforcement officer to board and inspect a vessel, airplane, or conveyance subject to the jurisdiction of the United States in order to enforce this Act, or (ii) in any other way interfere with enforcement of this Act.
(a) As soon as reasonably practicable following the enactment of this Act, the Secretary, with the concurrence of the Secretary of State and after notice and opportunity for public hearing, shall issue such regulations as he deems necessary and appropriate to carry out the purposes of this act. Such regulations may include, without limitation, (i) provisions for the issuance of general and particular licenses *4171 or permits for the conduct of activities described in section 5 of this Act; (ii) such limitations on the taking of any species of marine mammal as the Secretary deems necessary for the conservation or management of said species, including the taking of marine mammals incidental to commercial fishing operations; and (iii) provisions for controlling the use of vessels, airplane, and other conveyances in connection with the taking of marine mammals. In issuing such regulations the Secretary may, in addition to such other procedures as may be specified by law, consult and cooperate with the interested States.
(b) In issuing regulations under subsection (a) hereof, the Secretary shall take into account (i) the findings and purposes expressed in section 2 of this Act; (ii) whether or not affected species of marine mammals are threatened with extinction, or substantial depletion by natural or man-made causes; (iii) whether or not affected species of marine mammals can be managed on a sustained-yield basis; (iv) the results of studies, research and development undertaken pursuant to this Act; (v) the need for taking marine mammals for medical, scientific, and educational purposes; (vi) traditional activities of Natives; (vii) economic factors; (viii) whether or not regulation would be effective because of the activities of persons not subject to the jurisdiction of the United States; (ix) recreational factors; and (x) such other factors as may be relevant to the conservation and management of marine mammals.
(a) Any person who commits a violation specified in section 5 hereof (other than violations referred to in section 7(b) below) shall be assessed a civil penalty of not more than $2500 by the District Court of the United States for any district in which such person is found, resides or transacts business, enforcement of such penalty to be instituted by the Attorney General at the request of the Secretary.
(b) Any person who knowingly commits a violation specified in section 5(a), and any person who commits a violation specified in section 5(b) or (c), shall be guilty of a misdemeanor and shall be subject to a fine of up to $10,000.
(c) Any vessel, airplane or other conveyance subject to the jurisdiction of the United States that is employed in connection with a violation referred to in section 7(b) hereof including its tackle, apparel, furniture, appurtenances, cargo, and stores, shall be subject to forfeiture and all marine mammals taken or retained in violation of regulations issued pursuant to this Act and all living marine resources (or portion or product thereof) possessed, transported, sold, offered for sale, processed, delivered, carried, imported or received in violation of regulations issued pursuant to this Act or, in either case, the monetary value thereof shall be forfeited.
(d) All provisions of law relating to the seizure, summary, and judicial forfeiture, and condemnation of a vessel, airplane or other conveyance including its tackle, apparel, furniture, appurtenances, cargo, and stores, for violation of the customs laws, the disposition of such vessel, airplane or other conveyance including its tackle, apparel, furniture, appurtenances, cargo, and stores, or the proceeds from the sale thereof, and remission of mitigation of such forfeitures shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this Act, insofar as such provisions of law are applicable and not inconsistent with the provisions of this Act.
*4172 (e) Each violation of any regulations issued pursuant to this Act shall constitute a separate offense.
(a) This Act shall be enforced by the Secretaries of Commerce, Interior, Treasury, and the Department in which the Coast Guard is operating. The Secretaries may utilize, by agreement, the personnel, services, and facilities of any other Federal agency for purposes of enforcing this Act.
(b) The Secretaries may also designate officers and employees of any State or of any possession of the United States to enforce the provisions of this Act. When so designated, such officers and employees are authorized to function as Federal law enforcement agents for these purposes, but they shall not be held and considered as employees of the United States for the purposes of any laws administered by the Civil Service Commission.
(c) The judges of the United States district courts and the United States commissioners may, within their respective jurisdictions, upon proper oath or affirmation, showing probable cause, issue such warrants or other process as may be required for enforcement of this Act and any regulations issued thereunder.
(d) Any person authorized to enforce this Act may execute any warrant or process issued by any officer or court of competent jurisdiction for the enforcement of this Act.
(e) Such person so authorized may--
(1) With or without warrant or other process, arrest any person committing in his presence or view a violation of this Act or the regulations issued thereunder;
(2) with a warrant or other process, or without a warrant or other process if he has reasonable cause to believe that a vessel, airplane or other conveyance subject to the jurisdiction of the United States or any person on board is in violation of any regulation issued pursuant to this Act, search such vessel, airplane or other conveyance and arrest such person; any person arrested pursuant to this provision shall be immediately escorted to the nearest place at which sits a District Court of the United States for arraignment;
(3) Seize, whenever and wherever found, all marine mammals taken or retained in violation of any regulation issued pursuant to this Act and shall dispose of them in accordance with regulations prescribed by the Secretary.
(f) Any Customs Officer may refuse entry or require the exportation of any marine mammal whose entry into the United States is prohibited by regulations issued pursuant to this Act. Any person may appeal such refusal of entry or order of exportation to the Supervisory Customs Officer for the Customs District in question.
(a) There is hereby established a Marine Mammals Commission (hereinafter referred to as the Commission.) The Commission shall be composed of seven members who shall be appointed by, and serve at the pleasure of, the President. The President shall designate a Chairman of the Commission from among its members.
(b) The Commission shall meet in Washington, D.C., at least once every year, and shall meet at other times at the call of the Chairman. *4173 Thirty days after the third anniversary date of the establishment of the Commission it shall cease to exist unless otherwise extended by law. (c) Subject to applicable laws and regulations, the Commission shall have access to all studies and data compiled by Federal agencies regarding marine mammals.
(d) Members of the Commission, other than government employees, may each be compensated at the rate of $100 for each day such member is engaged in the actual performance of duties vested in the Commission. Each member shall be reimbursed for travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5, United States Code, for persons in Government service employed intermittently.
(e) The Commission may establish such staff, hire such consultants and contract for such studies as it deems necessary to carry out its functions.
(f) The Commission shall have an Executive Director who shall be appointed by the Chairman with the approval of the Commission and shall be paid at a rate not in excess of the maximum rate for GS-18 of the General Schedule under section 5332 of title 5, United States Code. The Executive Director shall have such duties as the Chairman may assign.
(a) The Commission shall:
(1) Undertake a comprehensive review and study of the activities of the United States pursuant to the Interim Convention on Conservation of North Pacific Fur Seals and the Fur Seal Act of 1966, and the International Convention for the Regulation of Whaling and the Whaling Convention Act of 1949, and report its findings and recommendations to the Secretaries of Commerce, Interior and State no later than June 1, 1972.
(2) Conduct a review of the condition of the species of marine mammals, and of humane methods for their management.
(3) Review and make recommendations regarding studies of marine mammals for the purpose of determining the need for conservation and management of such marine mammals.
(4) Recommend annually, or more frequently as appropriate, to the appropriate Federal agencies such additional measures, legislative, regulatory, or programmatic, as it deems necessary to further the policies of this Act. Thereafter such recommendations shall be made public.
(5) Consult with Natives with regard to formulation of Commission recommendations which affect them.
(6) Recommend to the Secretary of State appropriate policies regarding existing international arrangements for the conservation and management of marine mammals, and suggest appropriate international arrangements for the conservation and management of marine mammals.
(7) Recommend to the Secretary of the Interior revisions of the Endangered Species List authorized by the Endangered Species Conservation Act of 1969 pertaining to marine mammals.
(b) The Commission shall submit annually a report to the President, for transmittal to Congress, summarizing its activities, findings and recommendations.
*4174 (c) Copies of recommendations made pursuant to paragraphs 1, 4, 6, and 7 of subsection (a) of this section shall be furnished by the Commission to all appropriate Federal agencies.
The Secretary is authorized to seek cooperative arrangements with the appropriate officials of the several States for the conservation and management of marine mammals.
The Secretary of State, in consultation with the Secretaries, shall undertake steps when appropriate to revise existing international arrangements, or to establish new international arrangements for the conservation and management of marine mammals consonant with the purposes of this Act.
The Secretary is hereby authorized to institute such programs of research and development as he may deem necessary or appropriate to carry out the purposes of this Act.
The invalidity of any portion of this Act shall not affect any other portion.
There are hereby authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act.
GENERAL SERVICES ADMINISTRATION,
Washington, D.C., September 17, 1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives,
DEAR MR. CHAIRMAN: Your letters of August 10 and 17, 1971, requested the views of the General Services Administration on H.R. 6554, H.R. 6558, H.R. 7463, H.R. 10420, and H.R. 8183 relating to the protection of ocean mammals.
GSA defers to the agencies more directly concerned as to the merits of the proposed bills, but does offer the following technical comments on H.R. 10420.
1. It is not clear whether appointments to the Commission (Sec. 201(e) and Sec. 203) are to be made in accordance with or without regard to Civil Service rules and regulations and the Classification Act.
2. If the Commission is to employ experts and consultants, the following language should be added to Sec. 206:
'(5) May procure services of experts or consultants or an organization thereof as authorized under Section 3109, Title 5, U.S.C., but at rates for individuals not to exceed $-- per diem.'
*4175 The Office of Management and Budget has advised that, from the standpoint of the Administration's program, there is no objection to the submission of this report to your Committee.
HAROLD S. TRIMMER, Jr.,
U.S. DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D.C., September 8, 1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives,
DEAR MR. CHAIRMAN: This responds to your request for comment on H.R. 10420, a bill 'To protect marine mammals; to establish a Marine Mammal Commission; and for other purposes'.
H.R. 10420, which would be cited as the 'Marine Mammal Protection Act of 1971 ', contains a declaration of congressional purpose relative to the conservation of marine mammals, and would direct that the Secretary of the Interior undertake a comprehensive program for the regulation of taking all such animals on the high seas, within the territorial sea of the United States, and within the contiguous fisheries zone. Title I provides more specifically for the establishment of limitations on the numbers of each species which may be taken consonant with a need for its preservation, for the issuance of permits as a prerequisite of any taking, except by Indians, Aleuts, or Eskimos under certain circumstances, and for cooperative arrangements between the Secretary and the States that 'prescribe the circumstances under which marine mammals which pass through or reside within the territorial waters of any State may be taken. ' The Secretary would also be directed to review management of the fur seal harvest on the Probilof Islands and to provide an alternate means for satisfaction of obligations under the International Convention for the Conservation of North Pacific Fur Seals, if he determines that the Pribilof harvest should be curtailed or terminated.
Title II would establish a Marine Mammal Commission composed of three members appointed by the President, and would, in turn, require that the Commission appoint a nine-member Committee of Scientific Advisors on Marine Mammals. In consultation with its advisory committee, the Commission would conduct a general survey of authorities and practices pertaining to marine mammals, advise the Secretary of such matters, and furnish to the Congress an annual report of its activities. There would be authorized to be appropriated such sums as may be necessary to carry out the purposes of Title I, and such additional sums, not to exceed $1 million annually for two years, as may be needed to finance activities of the Commission and its advisory committee under Title II.
This Department recognizes the need expressed by H.R. 10420 for a coordinated approach to the protection, conservation and management of marine mammals, and agrees that additional regulatory authority would, if properly conceived, contribute to the preservation of those species subject to a variety of natural and man-made incursions. As *4176 the Committee is aware, we now have Federal Program responsibility under the Fish and Wildlife Act of 1956 for only the polar bear, walrus and sea otter of those species identified by H.R. 10420. Reorganization Plan No. 4 of 1970 (84 Stat. 2090) transferred to the Department of Commerce those authorities formerly exercised by this Department through the Bureau of Commercial Fisheries. These include management activities and research related to fur seals, whales and sea lions.
Enactment of this Administration's proposal for a Department of Natural Resources, now pending in the House of Representatives as H.R. 6959, would effect a consolidation of existing authorities relative to marine mammals. Thus, we recommend against the partial realignment of program responsibilities contemplated by H.R. 10420, and urge prompt action to establish the Department of Natural Resources. With respect to those provisions of H.R. 10420 which most directly affect its conduct or programs assigned by Reorganization Plan No. 4 of 1970, we defer to the Department of Commerce. That Department is best able to discuss, for instance, the impact of H.R. 10420 on its management of the Pribilof fur seal harvest pursuant to the Fur Seal Act of 1966. We have addressed the need for research and additional regulatory authority to strengthen our polar bear, walrus and sea otter programs in a separate report on H.R. 6#0.
The Office of Management and Budget has advised that there is no objection to the presentation of this report from the standpoint of the Administration's program.
W. T. PECORA,
Under Secretary of the Interior.
OFFICE OF THE DEPUTY ATTORNEY GENERAL,
Washington, D.C., Oct. 1, 1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives,
DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice on H.R. 10420, a bill 'To protect marine mammals; to establish a Marine Mammal Commission; and for other purposes.'
This bill would protect specified species of marine mammals by prohibiting their taking except as authorized under permit of the Secretary of the Interior. The prohibition would apply to all persons and vessels subject to the jurisdiction 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 to 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 *4177 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 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 13-14) 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 210(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 210(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 believe that the President's discretion in selecting appointees should be limited to those on a list prepared by a subordinate officer in the Executive Branch.
*4178 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 information 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 disclousre nine categories of information, including, for example, personnel files, the disclousre 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 *4179 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 'commissioners' on page 10, line 17 of the bill, in accordance with Pub. L. 90- 478, 28 U.S.C. 631-639.
In Section 106(e), for 'authorized' 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.
RICHARD G. KLEINDIENST,
Deputy Attorney General.
NATIONAL SCIENCE FOUNDATION,
OFFICE OF THE DIRECTOR,
Washington, D.C., October 28, 1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
U.S. House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN: This is in further reference to your letter of August 11, 1971, seeking the views of the National Science Foundation on H.R. 10420, a bill 'To protect marine mammals and to establish a Marine Mammal Commission.'
The Foundation is in complete agreement with the purposes of this bill. Worldwide pressure on several species of marine mammals, particularly whales, threatens them with extinction. We would, therefore, be very glad for the United States to establish strict controls over its own citizens and their ships and to take strong initiative in seeking international agreements to protect marine mammals worldwide.
We also approve of the establishment of a Marine Mammal Commission, as provided in Title II of the bill, with only one or two minor modifications. I think that the President, in selection of members of the Marine Mammal Commission, would benefit from a somewhat wider source of nominations.
*4180 My only other comment is that the maximum limitation of $1,000,000.00 on appropriations in each of the first three years of the Commission's existence may seriously hamper its effectiveness. The Commission is directed to undertake sweeping studies and maintain quite extensive records of animal populations on a continuing basis. While it is very difficult to estimate with any degree of accuracy the cost of these activities, no useful purpose is seen in predetermining their scope to the extent of imposing a fixed monetary ceiling on them. It is suggested, therefore, that Section 207 be changed to remove the maximum limitation on appropriations at least for the second and third fiscal years of the Commission's existence.
The Office of Management and Budget has advised us that there is no objection to the submission of this report from the viewpoint of the Administrations' program.
W. D. McELROY, Director.
SMALL BUSINESS ADMINISTRATION,
OFFICE OF THE ADMINISTRATOR,
Washington, D.C., August 19, 1971.
Hon. EDWARD A. GARMATZ,
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 limitation 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 interest 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.
THOMAS S. Kleppe, Administrator.
*4181 SMITHSONIAN INSTITUTION,
Washington, D.C., September 22, 1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
U.S. House of Representatives, Washington, D.C.
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.
S. DILLION RIPLEY, Secretary.
DEPARTMENT OF STATE,
Washington, D.C., September 9, 1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN: Your letter of August 10, 1971 requested the Department's comments on H.R. 10420 'To protect marine mammals; to establish a Marine Mammal Commission; and for other purposes.'
The Department is in sympathy with the motives underlying H.R. 10420. In particular, we believe that the statement of findings in Section *4182 2 provides an excellent basis for the further development of such international arrangements as may be necessary or desirable for the effective conservation and management of marine mammals.
In connection with Sec. 2(4) of the bill, the Department notes that the bill takes cognizance in Section 202(a)(1) of the International Convention for the Regulation of Whaling and the Interim Convention on the Conservation of North Pacific Fur Seals, both of which contain provisions for research and conservation. In addition, the International Convention for the Northwest Atlantic Fisheries provides for research on and conservation of harp and hood seals in the northwest Atlantic, the provisions of the Convention having been extended to cover these marine mammals by the Protocol of July 15, 1963. It may also be of interest that the Department will convene in Washington, D.C., next April, in cooperation with the Department of the Interior, an international plenipotentiary conference for the purpose of concluding a convention on the conservation of rare and endangered species of the world's wildlife.
The basic working document of the conference will be the draft Convention on the Export, Import and Transit of Certain Species of Wild Animals and Plants, prepared by the International Union for the Conservation of Nature and Natural Resources. The present draft convention would prohibit the import and export of all species of Sirenia (dugongs, manatees, etc.) except for scientific purposes and would regulate trade in polar bears, sea otters, the Guadelupe fur seal and the walrus by requiring export permits.
Section 101(2) of H.R. 10420 would make it unlawful, except as provided in Sections 102, 107 and 109, for any person or vessel to take any marine mammal in waters under the jurisdiction of the United States, which waters are defined by Section 3(5)(B) to include the nine-mile fisheries zone established pursuant to the Act of October 14, 1966. In this connection, the Agreement of December 11, 1970 between the United States and Japan on Certain Fisheries off the Coast of the United States of America provides that Japanese nationals and vessels may conduct certain fishing operations within the nine-mile fisheries zone off our coast, including whaling in certain waters of the zone off the coast of Alaska. At the same time Japan provides certain concessions of benefit to American fishermen on the high seas seaward of the nine-mile zone. This Agreement, negotiated under the provisions of Public Law 88-308 and Public Law 89-658, expires December 31, 1972, unless extended by the two Parties. In the circumstances the Department suggests that in Section 101(2) immediately after the words 'United States' there be inserted the following: ', except as expressly provided by an international agreement to which the United States is a party.'.
We believe that the intent of Section 108 of the bill might be made more clear by incorporation of a reference to the principles upon which the proposed international program would be based. We believe also that the principal responsibility for advancement of such international program should rest with the Secretary of State. Accordingly, it is suggested that the Committee may wish to consider, as a substitute for the present language, a rewording of Section 108 along the following lines: 'The Secretary, in cooperation with the Secretary of State and other appropriate Federal officers and agencies, shall develop an international program for the conservation of marine mammals in accordance *4183 with the findings of Section 2 of this Act. The Secretary of State shall take every feasible step to encourage the adoption of international arrangements which would be appropriate for effectuating such program.'
The provisions of Section 110 of H.R. 10420 could bring into question the fulfillment by the United States of its treaty obligations. The Interim Convention on Conservation of North Pacific Fur Seals is not simply a device for compensating certain other countries for their action in refraining from taking fur seals on the high seas. A primary objective of the treaty is to bring the fur seal populations to and maintain them at 'the levels which will provide the greatest harvest year after year, with due regard to their relation to the productivity of other living marine resources of the area . . . ' In order to determine and to put into effect the measures required to achieve this objective the treaty also provides for adequate scientific research on the fur seal resources and for coordination of research and management plans through the North Pacific Fur Seal Commission, composed of one member from each party.
The size and composition of the annual commercial kill from the herds is based on recommendations of the Commission made in accordance with the Convention's provisions, which require that such recommendations be based in turn on the findings obtained from the coordinated research programs. The Convention also specifies that decisions and recommendations of the Commission shall be made by unanimous vote, provided that only those parties sharing in the sealskins from a particular herd shall vote with respect to any recommendations regarding the size and composition of the commercial kill from that herd.
Section 110 of the bill appears to contemplate the possibility of action by the United States to terminate or substantially curtail the taking of fur seals on the Pribilof Islands without reference to the findings and recommendations of the North Pacific Fur Seal Commission. In the Department's view, such action without, at the least, consultation with the other parties to the Convention would not be consistent with United States treaty obligations. The Department therefore suggests that consideration be given to a modification of the language of the second sentence of Section 110, perhaps along the following lines: 'If, as a result of such review the Secretary determines that such activities should be significantly curtailed or terminated, then he shall request the Secretary of State to consult with the other parties to the Interim Convention on Conservation of North Pacific Fur Seals with a view to effectuation of such curtailment or termination and to arrangements whereby, during the period between the date of such curtailment or termination and the date of the expiration of the Convention, Canada and Japan would each be given the opportunity to select one of the following options in lieu of receiving the share of fur sealskins which such country would otherwise be entitled to receive under the provisions of the Convention-- . . . '
Subject to the foregoing comments, the Department sees no objection to H.R. 10420 from the standpoint of the foreign relations of the United States. With respect to other aspects of the bill, the Department defers to the views of the Departments of Commerce and the Interior.
*4184 The Office of Management and Budget advises that from the standpoint of the Administrations' program there is no objection to the submission of this report.
DAVID M. ABSHIRE,
Assistant Secretary for Congressional Relations.
THE GENERAL COUNSEL OF THE TREASURY,
Washington, D.C., September 17, 1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN: Reference is made to your request for the views and recommendations of this Department on H.R. 10420, a bill 'To protect marine mammals; to establish a Marine Mammal Commission; and for other purposes.'
Section 2 of the bill would find that certain species and population stocks of marine mammals are, or may be, in danger of disappearance as a result of man's activities; since marine mammals have proven to be resources of great international significance, it would declare it to be the sense of Congress that they should be protected to the greatest possible extent commensurate with sound policies of resource management.
Sections 101-103 of Title I of the bill would make it unlawful, with certain exceptions, for any person or vessel subject to the jurisdiction of the United States to take any marine mammal, use places under United States jurisdiction in violation of the bill, or for any person to possess, transport, sell, or offer for sale in interstate commerce, or import into the United States, any marine mammals or part thereof. Certain limitations on, and permits for, the taking of ocean mammals would be prescribed and issued by the Secretary of the Interior. Exceptions would be made for traditional, non-commercial taking by Indians, Aleuts and Eskimos. The Secretary of the Interior would be authorized to consent to the capture of marine mammals by qualified persons for public display or educational purposes, or for legitimate scientific or medical research, as well as under cooperative arrangements with States.
Section 104 of the bill would provide for personal violators a civil penalty which may be compromised by the Secretary of the Interior; criminal liabilities of a fine or imprisonment for knowing violators are also provided.
Section 105 would provide that vessels and equipment used in violation of the proposed law, as well as marine mammals or parts, or the monetary value thereof, shall be forfeited, as for violation of the Customs laws.
Section 106 would provide that the Secretary of the Interior shall enforce the provisions of Title I and states that 'any person authorized by the Secretary to enforce this title' may execute any pertinent warrant or process or make relevant arrests, searches or seizure.
In addition to directing the development of an international protective program, the bill would direct a review of current activities under the North Pacific Fur Seal Convention.
*4185 Title II of the bill would establish a Marine Mammal Commission which would study the marine mammal situation generally, make appropriate recommendations, and coordinate activities with, and use facilities of other Federal agencies.
This Department takes no position on the merits of the bill. The primary administrative and enforcement interests would seem to be in the Departments of the Interior, State, and Commerce, although officers of the Bureau of Customs would assist at ports of entry. The Department anticipates no unusual administrative or enforcement responsibilities which cannot be fulfilled in cooperation with the other interested Departments. Similar bills (H.R. 6554; H.R. 6558; H.R. 7463; H.R. 8183; S. 1315), would identify a joint responsibility of the Secretary of the Treasury, among others, with respect to enforcement measures. Since Treasury (Customs) officers have considerable search, seizure and arrest powers under existing tariff and related laws, we suggest that the Committee consider a reference to the joint responsibility of the several Departments likely to be involved, and include the language 'in addition to any other authority' when referring to persons authorized to enforce the bill's provisions.
It is suggested that section 111 of Title I of the bill be extended so as to authorize regulations to be prescribed by the Secretary of the Treasury in fulfillment of the Department's enforcement responsibility.
The Department anticipates that the seizure and forfeiture provisions of the bill, involving Customs dispositions of violating vessels, cargos and related property, foreseeably will add to the existing Customs enforcement workload.
The Department has been advised by the Office of Management and Budget that there is no objection from the standpoint of the Administration's program to the submission of this report to your Committee.
ROY T. ENGLERT,
Acting General Counsel.
SUPPLEMENTAL VIEWS OF CONGRESSMAN PETER N. KYROS
While H.R. 10420 constitutes a much-needed and unquestionably well-intentioned effort to preserve and protect the marine mammal population of the world, that effort ought to have been-- and could reasonably have been-- strengthened in at least two vital areas.
First and foremost, the sixty-day moratorium provided by the bill on the taking of marine mammals is insufficient, and should have been established for at least two years for the following good reasons:
(1) As the bill itself states, 'The Congress finds that there is inadequate knowledge of the population dynamics of such marine mammals and of the factors which bear upon their ability to reproduce themselves successfully.' We simply do not know enough about these animal species, neither with regard to their levels of intelligence nor how useful they may be to man. More important, we do not know how many animals can be killed before we do irreparable damage to our ecological system; the risk is not worth the taking.
*4186 (2) Most, if not all, animal species need a chance to replenish their stocks. Man is fast making diminishing species out of almost all animals; for whatever purpose-- whether scientific research or morality and humaneness-- we might give animal stocks the chance to replenish.
(3) The economic repercussions of a two-year moratorium could hardly be deemed serious. In view of the fact that we do not know what long-range harm we might be doing to our ecological system, the reasonable and conservative thing to do-- in our own best interests-- is to accelerate our research and study during a sufficiently length period of time in which no further killing is permitted.
(4) Man's decimation of the environment is placing the animal world under great stress. We spoil our fresh waters with pollutants, and cover our foliage with pesticides which are then transported by birds to far-reaching areas-- all with devastating effects upon the animal world. A moratorium would allow us to determine the specific effects of toxic and non-toxic pollutants on marine mammals. This would, of course, include not only living adult animals, but also their eggs or unborn young.
In short, exploitation of our marine mammals must first depend upon an adequate study of the living animals and their ecological relationships. Only then can sound management practices ensue.
The second area in which H.R. 10420 ought to have been strengthened is in the import restrictions and limitations it provides. While the bill establishes certain categories of endangered species or products therefrom which may not be imported into this country, I suggest that an across-the-board ban on importation, possession, or transportation of these animals or their products-- except for scientific research under the expressed terms of the Act-- would be both tenable and entirely legitimate.
The reasons for this are abundantly clear. Again, we do not know enough about these animals and their place in the ecological system to sanction their excessive and unnecessary killing or use in this country. The word 'unnecessary' is used advisedly-- for there is no indication whatever that the products from any of these marine mammals are in any way needed by American citizens. Indeed, by discouraging the use of luxury furs from animals in danger of becoming extinct, the United States would have the opportunity of setting a precedent and example for the entire world. The issue here is simply humaneness, and it ought not to be overlooked.
In conclusion, I would like to commend our Chairman John D. Dingell of the Subcommittee on Fisheries and Wildlife Conservation, for exercising fairness throughout these long proceedings and patience in seeing that all viewpoints were heard from, and, indeed, for setting the entire framework whereby some of the things I have discussed here might be put into effect in the near future.
FN1 All references in the following discussion are to H.R. 10420 as introduced unless expressly stated otherwise.
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