PREFACE

This is a study of the legal authorities under which the U.S. Government is conducting and supporting marine science activities. It was prepared under a Federal Government contract awarded by the Commission on Marine Science, Engineering and Resources to the firm of Elliott & Naftalin, attorneys at law.

No attempt has been made to provide a catalog or inventory of the programs or activities themselves. Rather, the narrative portion of the study describes the range of programmatic authority. Its chapters are broken down according to functional, activity categories, and are based upon the compendium of statutory materials, organized by Federal departments and agencies, which appears in appendix A.

Scholars will quickly discover that, while amply footnoted, virtually all quotation marks have been omitted from this study. It may safely be assumed, however, that statutory language in the appendix is, for the most part, quoted directly. Most short sections are quoted in full; longer passages have been paraphrased to some extent or have been contracted by eliminating unrelated or superfluous material. The text is intended to be a convenient gathering together of citations of the relevant statutes and a general indication and explanation of their contents. In no sense is this text a substitute for the statutes themselves. Because of their importance, however, the Marine Resources and Development Act and the Sea Grant Colleges Act have been quoted in full.

Certain materials of unquestioned relationship to the conduct of marine science activities have been omitted from consideration in this report. These include contracting and procurement regulations, including those under which the respective departments and agencies accomplish or support extramural and independent research and development; virtually the entire body of laws, regulations and executive policy directives relating to rights in intellectual property, including patents and copyrights; personnel policies and land, facilities and equipment acquisition and management policies, laws and regulations; marine safety and navigation regulations; and criminal and tax provisions. Nor are the intricacies of foreign and of Federal-State relations analyzed in depth.

It should be stressed that the core of this study lies in its appendix of statutory materials which presents, for the first time, a comprehensive compendium of the statutory authority under which Federal departments and agencies conduct programs relating to marine sciences. The report might well have been organized in a variety of other ways. The method of organization employed was chosen to provide maximum assistance to the deliberations of the Commission. It is to be hoped, however, that the study will be of value to all who deal with marine science affairs.

August 1, 1968.

MICAH H. NAFTALIN
JOHN P. EARNER

Washington, D.C.

In general

CHAPTER 1. FISHERIES

The Department of Interior, and particularly the U.S. Fish and Wildlife Service, has the broadest and most sweeping statutory mandate to undertake and coordinate programs respecting fishing and fisheries. Intricacies of commercial fisheries authorities complicates the administration of a Federal policy.

Under the Fish and Wildlife Act of 1956, as amended,1 Congress established a comprehensive national policy on fish, shellfish and wildlife resources for the Nation. The declared purpose of the act is to increase public opportunities for recreational use of fish resources and to stimulate the development of a strong, prosperous and thriving fishery and fish processing industry.2 Essential to this mandate are programs of investigation and dissemination of information.3

While the Congress provided the Secretary of Interior with broad jurisdiction and authority with respect to a "comprehensive national policy," care should be taken not to infer from such policy more than was actually intended or accomplished. The statute does confer upon the Secretary of the Interior regulatory and conservation authority consistent with his responsibilities, particularly in the areas of conserving certain species of fish as identified from time to time in discrete statutes. Hence, there is authority to protect and conserve species of fish which are threatened by extinction; to study and recommend to the States measures for increasing shad resources on the Atlantic coast; to study means of promoting and propagating food fishes, to determine protective and prohibiting measures, and to conduct experiments to lessen damage to fisheries by dogfish and other predacious fish; to implement and enforce the several international fisheries conventions and agreements; and to aid and lend support to the various interstate fishery compacts.8

6

7

Congress did not, however, confer any general regulatory power over conservation and the fishing industry. On the contrary, it enunciated a policy of refraining from unreasonable and unnecessary controls in the interests of fostering a free and competitive private fishing industry." Nor, apparently, did Congress deem it necessary, in furtherance of a comprehensive policy, to consolidate fishing or fish conservation authorities under a unifying Fish and Wildlife Service umbrella. Rather, there are several other agencies whose authorities also affect fishing.

The Federal Water Pollution Control Administration (Interior) has some fish-related conservation functions.10 Fish also fall within the purview of the Department of Health, Education, and Welfare, both from the standpoint of the Public Health Service's general research authority which embraces marine health services, and Food and Drug Administration's regulatory jurisdiction with respect to

116 U.S.C. 742a, et seq., p. 15.

2 16 U.S.C. 742a, p. 15.

16 U.S.C. 742d, p. 81.

416 U.S.C. 668aa-ee. p. 83.

16 U.S.C. 759, p. 86.

16 U.S.C. 744, p. 88.

See p. 89, et seq.

8 See p. 92, et seq.

16 U.S.C. 742a (1), p. 80.

10 33 U.S.C. 466a, Reorganization Plan No. 2 of 1966, p. 99.

the purity of food products generally, and specifically with respect to the fish protein concentrate (FPC) and fish_flour programs.

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Both the Departments of State and Agriculture have authorities which support Interior's promotional function: State, in support of the FPC program (AID) and a prerogative role in the negotiation of international fishing agreements; 12 Agriculture, primarily in the area of cooperating with, and helping to facilitate, Interior's authority in the conduct of cooperative Federal-State research programs,13 but also in protecting fish and wildlife under its general land conservation authority 14 and its operation of programs respecting surplus agricultural commodities including fish products.15

Both the National Science Foundation, particularly under the Sea Grant College Act,16 and the quasi-governmental Smithsonian Institution have research and education authorities applicable to fish. The Department of Commerce grants funds to States to support programs of technological assistance under the State Technical Services Act,18 which assistance has included commercial fisheries programs. Financial assistance is available under loan and guarantee programs to small marine industries through the Small Business Administration 1o and to fish farmers through the Farmers Home Administration.20

Fish and Wildlife Act

The Fish and Wildlife Act of 1956 established the U.S. Fish and Wildlife Service with two separate bureaus: the Bureau of Commercial Fisheries and the Bureau of Sport Fisheries and Wildlife.21 The Bureau of Commercial Fisheries' authority relates primarily to commercial fisheries, whales, seals, sea lions, and related matters. The Bureau of Sport Fisheries and Wildlife is responsible for migratory birds, game, and wildlife management and preserves, sport fisheries, and sea mammals other than whales, seals and sea lions."

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In implementing the broad goals described above, the act vests in the Secretary of the Interior a number of powers including the conduct of research and experimentation,22 collection and dissemination of data,23 promotional, and lending programs.25 It gives the Secretary consulting authority with respect to international agreements relating to fishing (retaining negotiating authority in the Department of State) 26; and provides for a public advisory committee.27

Commercial applications and incentives

The promotion and stimulation of commercial applications and programs providing economic incentives in the area of fisheries have become matters of increasing attention. Recent legislation, for instance,

11 16 U.S.C. 778d-h, p. 88.

12 P. 62. See also ch. 6. 13 16 U.S.C. 778b, p. 87. 147 U.S.C. 1010, p. 102.

15 7 U.S.C. 1704. p. 100.

16 33 U.S.C. 1121-24, p. 131.

17 20 U.S.C. 79, p. 137.

18 15 U.S.C. 1351-68, p. 114.

19 15 U.S.C. 636, et seq., p. 135.

20 7 U.S.C. 1921, et seq., p. 101. 116 U.S.C. 742b, p. 81.

22 16 U.S.C. 742d, p. 81.

23 Ibid.

24 16 U.S.C. 742f, p. 82. 25 16 U.S.C. 742c, p. 81. 26 16 U.S.C. 742g, p. 82. 27 16 U.S.C. 749, p. 84.

has given the Department of Interior authority to conduct research and to develop processes for the manufacture of fish protein concentrate, including the operation of pilot manufacturing plants.28 This program contemplates promotional cooperation on the part of the Department of State (AID) and provides for regulatory supervision over FPC purity by the Food and Drug Administration.

Pursuant to its statutory mandate to explore the peaceful uses of atomic energy,29 the Atomic Energy Commission sponsors, as part of its Food Irradiation Program and in collaboration with the Department of Interior (Bureau of Commercial Fisheries), a fishery irradiation project designed to extend the marketable shelf-life and/or the distribution of fresh fish to areas of the country not heretofore serviced. Such research work is accomplished by means of both land-based and shipboard irradiators.

There is little Federal authority which specifically refers to aquaculture, mariculture, or aquatic husbandry other than the use of the term "aquaculture" in the National Science Foundation's sea grant legislation.30 Commercial ventures in this area are at present conducted exclusively in State waters.

While not specifically mentioning fisheries, the State Technical Services Act of 1965, administered by the Department of Commerce, provides a program of grants to States or State-designated agencies (normally educational or research institutions) to be used in studying, planning, and implementing programs for applying science and technology to the needs of economic improvement or recovery.31 Grants have been made under this program to improve local commercial fishing industries in certain coastal States.

There are programs of the Small Business Administration available to stimulate and encourage small business enterprises in fishery and other marine-related industries. These programs include business loans,32 technical and managerial counseling and advice, and research and development assistance 34-all under the Small Business Act; and financing help through stimulation of private equity capital and long-term loans under the Small Business Investment Act of 1958.35

The Farmers Home Administration of the Department of Agriculture administers loan programs for farmers and family farm enterprises 36 under which fish farming is an eligible activity.37 These include real estate loans and loan insurance,38 operating loans,39 and an emergency loan program, the last of which adds oyster planting to the definition of eligible activities.40

There are a number of other programs which provide incentives for the development and encouragement of fisheries and the fishing industry. Under the U.S. Fishing Fleet Subsidy Act, the Secretary of In

28 16 U.S.C. 778d-h, p. 88.

42 U.S.C. 2011, 2051. pp. 124-125.

30 33 U.S.C. 1121, p. 131.

31 15 U.S.C. 1351-68. p. 114.

32 15 U.S.C. 636, p. 135.

33 15 U.S.C. 637, p. 136.

34 15 U.S.C. 638, D. 136.

35 16 U.S.C. 661 et seq., p. 83.

36 7 U.S.C. 1921 et seq., p. 101.

377 U.S.C. 1991, p. 101.

88 7 U.S.C. 1921 et seq., p. 101. 7 U.S.C. 1941, et seq., p. 101. 40 7 U.S.C. 1961, p. 101.