Antarctic Seals

The U.S. Senate on September 15, 1976, gave its advice and consent to ratification of the Convention for the Conservation of Antarctic Seals, with Annex, done at London June 1, 1972 (S. Ex. K, 94th Congress, 1st Session). The primary objective of the convention is to protect the Antarctic seal population. See the 1975 Digest, p. 714, for a summary of the provisions of the convention.

In approving U.S. ratification of the convention, the Senate Committee on Foreign Relations expressed dissatisfaction with the lack of congressional and general public consultation prior to its negotiation, as well as the lack of adequate enforcement provisions in the convention despite the attempts of the U.S. negotiating team to obtain such provisions. The Committee urged that the Department of State utilize procedures set forth in article 6 of the convention to convene a meeting of the parties to establish an effective system of control, including inspection.

The Committee also urged the Department of State to persuade the parties to the convention or the Scientific Committee on Antarctic Research (SCAR) to undertake an investigation of the Antarctic seal herds to determine whether the quotas established in the convention are proper. It recommended that the Department accept no increase in quotas without congressional and public consultation.

See S. Ex. Rept. 94-35, 94th Cong., 2d Sess. The U.S. instrument of ratification, deposited on Jan. 17, 1977, was the fifth ratification deposited. Deposit of seven ratifications or acceptances is required to bring the Antarctic Seals Convention into force.

Fur Seals

On October 4, 1976, the United States deposited its ratification of the 1976 Protocol Amending the Interim Convention on Conservation of North Pacific Fur Seals, 1957 (TIAS 3948; 8 UST 2283), as amended. The 1976 Protocol entered into force on October 12, 1976 (TIAS 8368; 27 UST). It extends and modifies the 1957 convention for a period of four years, which may be further extended. The dual purpose of the protocol, as of the convention itself, is (1) to continue the prohibition now being observed by the four Governments party to the convention with respect to pelagic sealing, and (2) to provide a joint research program designed to furnish, as appropriate, factual data to prepare the groundwork for a more permanent arrangement among the parties to conserve the valuable fur seal herds of the North Pacific Ocean and to maintain these herds at the level of maximum sustainable productivity.

A comparative study by the Departments of State and Commerce of the Interim Convention on Conservation of North Pacific Fur Seals

and the provisions of the Marine Mammal Protection Act of 1972 (86 Stat. 1027; 16 U.S.C. 1361 et seq.) previously undertaken, resulted in recommendations to modify the Convention to take into account the difference of emphasis between the Interim Convention which emphasizes commercial exploitation, and the Act which is strongly oriented toward the welfare and conservation of marine mammals and the health and stability of the ecosystem. Attempts by the U.S. Delegation during the negotiations of the Protocol to obtain a new convention more in conformity with the Marine Mammal Protection Act were defeated. However, the situation was altered by the Fishery Conservation and Management Act of 1976 (90 Stat. 331; 16 U.S.C. 1801 et seq.; see ante, Ch. 7, § 4, p. 351). The Senate Foreign Relations Committee in its report favoring the 1976 Protocol stated:

During the hearing on this Protocol, it was pointed out that the situation with respect to North Pacific fur seals has changed as a result of the passage of the Fishery Conservation and Management Act of 1976. Consequently, as of March 1, 1977, the provisions of the Marine Mammal Protection Act will be extended to prohibit the taking of marine mammals within a 200-mile zone off U.S. islands and coastal territories. A major objective of the North Pacific Fur Seal Convention is to prevent pelagic sealing by other countries, particularly Japan. With the extension of U.S. jurisdiction out to 200 miles, it is unclear how much pelagic sealing other nations would be able effectively to undertake and what the adverse impact of such sealing would be. Consequently, the Committee urges the State Department to undertake a study of this situation and the possibility of negotiating a bilateral agreement with Canada on pelagic sealing which might be preferable to the present Convention.

The Committee also expressed the belief that the executive branch should make an annual report to the Senate on the implementation of the convention.

See S. Rept. 94-36, 94th Cong., 2d Sess.

Domestic Law and Regulation

Endangered Species

President Ford issued on April 13, 1976, Executive Order 11911 on preservation of endangered species, for the purpose of implementing the Convention on International Trade in Endangered Species of Wild Fauna and Flora (TIAS 8249; 27 UST 1087; entered into force for the United States July 1, 1975), and the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere

(TS 981; 56 Stat. 1354; entered into force for the United States April 30, 1942).

The President designated the Secretary of the Interior as Management Authority for the purposes of the Endangered Species Convention and established an Endangered Species Scientific Authority, composed of qualified representatives of six Federal agencies, with the Department of Interior representative as chairman. The Scientific Authority is charged with ascertaining the views and utilizing the expertise of governmental and nongovernmental scientific communities, State conservation agencies, humane groups, zoological and botanical institutions, recreational and commercial interests, and the conservation community. The Secretary of the Interior is charged with developing a simplified permit system for the international and interstate shipment of fauna and flora, and is to act on behalf of the United States in all regards under the Western Hemisphere Convention, supra.

Fed. Reg., Vol. 41, No. 73, Apr. 14, 1976, p. 15684.

On June 16, 1976, the Federal Register published proposed rules of the Fish and Wildlife Service, Department of the Interior, establishing an interim system for implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (TIAS 8249; 27 UST 1087). Public comment on the proposed regulations was invited. The proposal adds a new part 17 to title 50, Code of Federal Regulations, setting forth the purpose and scope of the regulations, the prohibitions imposed, procedures for issuance of permits, and the names of countries parties to the Convention.

The Embassy of India in Washington, in a note to the Department of State dated August 20, 1976, stated that one of the species whose importation and exportation from the United States would be restricted by the proposed regulations was the Asian elephant. The Embassy noted that almost the entire export trade in ivory products from India was made of imported African ivory or reworked old ivory already in existence in India. It requested that, in view of the safeguards in existence in India to protect the Asian elephant, the Department of State either modify the regulations and allow the import of ivory products from India made from the tusks of African elephants and products made of Asian ivory, or alternatively exempt exports of ivory products from India from the requirements of a certificate of origin of the ivory.

The Department of State replied by note dated October 8, 1976, that the Asian elephant had been placed on the list of wildlife in danger of extinction pursuant to the Endangered Species Act of 1973 (87 Stat. 884; 16 U.S.C. 1531 et seq.), thus banning importation of

Asian ivory into the United States. It pointed out that the U.S. legislation provides for stricter protective measures than does the Convention, and does not give the executive branch of the U.S. Government discretionary authority to make any exception for commercial importation of Asian ivory, new or old. The note added:

However, the Enforcement Division of the U.S. Fish and Wildlife Service will authorize the importation of consignments of ivory from India which are accompanied by a Government of India Certificate stating that the particular consignment consists of African ivory, or by export documentation proving the African origin of the ivory Such certification offers the only means for importing non-Asian-origin ivory from India into the United States.

Dept. of State File No. P76 0158-1495. For the proposed regulations for implementation of the Convention, see Fed. Reg., Vol. 41, No. 117, June 16, 1976, pp. 24367-24378. Final regulations on the subject were not issued during 1976.

In Delbay Pharmaceuticals, Inc. v. Department of Commerce, 409 F. Supp. 637 (1976), a drug manufacturer brought action challenging the constitutionality of the Endangered Species Act of 1973 (87 Stat. 884), as applied to endangered species legally imported pursuant to an economic hardship permit. Plaintiff sought to enjoin the enforcement of the Act to its interstate sale of a drug containing a substance (spermaceti) derived from an endangered species legally held in the United States in 1973 when the Act became effective.

The District Court for the District of Columbia decided on February 10, 1976, that an economic hardship permit allowing importation of a substance derived from an endangered species did not give the right to sell the substance in interstate commerce. Such substance was subject to the Endangered Species Act, and the government had a right to seize the substance and the drug manufactured from it. The Court denied the plaintiff's motion for a preliminary injunction, and granted the government's motion to dismiss.

It held that a rational basis existed for application of the 1973 Act to substances legally imported under an economic hardship permit. If plaintiff's spermaceti were allowed to enter interstate commerce, it said, the difficulties of enforcement would increase greatly, and might encourage the illegal taking of sperm whales to supply this market.

Whaling

On October 17, 1976, the President signed into law the Whale Conservation and Protection Study Act (P.L. 94-532; 90 Stat. 2491; 16 U.S.C. 917-917d). The Act authorizes the Secretary of Commerce

to conduct comprehensive studies of all whales found in waters subject to U.S. jurisdiction, including the fishery conservation zone as defined in section (3) (8) of the Fishery Conservation and Management Act (16 U.S.C. 1802(8) ), and to report to Congress the results of these studies by January 1, 1980. The Act provides further that the Secretary of Commerce through the Secretary of State will initiate negotiations with Mexico and Canada to develop appropriate bilateral agreements for the protection and conservation of whales. On signing the Act, President Ford issued a statement in which he said:

The United States has placed great emphasis on multilateral efforts with other nations through the International Whaling Commission to achieve effective conservation of whales throughout the world. The negotiations with Mexico and Canada directed by this bill will reinforce the efforts of our three nations within the Commission.

Weekly Compilation of Presidential Documents, Vol. 12, No. 43, Oct. 25, 1976, p. 1534. See also H. Rept. 94-1574.

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Health Affairs

Drug Control

Operating Guidelines

The Drug Enforcement Administration (DEA) of the Department of Justice, on July 30, 1976, issued revised Functions and Guidelines Relating to Operation in Foreign Countries. The guidelines on drug enforcement operations abroad discuss such matters as the authority of U.S. Ambassadors, agreements with host governments, conduct of DEA personnel in foreign countries, the restrictions in Public Law 94-329, approved June 30, 1976, on engaging in direct police actions abroad (see ante, Ch. 6, § 1, p. 279), presence at interviews following arrest, and the carrying of firearms. The text of the DEA directive follows:

INTRODUCTION

Since many of the serious drugs of abuse in the United States originate in foreign countries, DEA places a high priority on encouraging the greatest commitment from other governments to concentrate on all aspects of illicit production and distribution of drugs. The primary mission of the Drug Enforcement Administration in foreign countries is to assist host government officials in preventing supplies of illicit drugs from entering the illicit traffic affecting the United States.