(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.

82

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.

To accomplish this mission, with the permission of the respective host governments, DEA representatives are assigned to many countries. The purpose of this paper is to present guidelines and functions for DEA representatives stationed abroad.

I. GUIDELINES FOR DEA FOREIGN ACTIVITIES A. Directions from United States Ambassadors.

1. General direction. DEA representatives, like all other official U.S. personnel abroad (excepting certain military commands), are under the full authority of the Ambassador. The Ambassador is expected to assist and give policy guidance to DEA activities in such a way as to assure that the DEA mission is realized to the maximum extent possible. He may also seek to minimize publicity involving the presence of DEA representatives in the host country. The Narcotics Control Program is a high priority issue, and the U.S. Government supports as vigorous an approach as possible. However, each country presents its own unique situation in this respect.

2. Daily operations controlled by DEA. Day-by-day DEA operations in foreign countries are under the chain of command of DEA. Regional directors and country attaches will operate within the policies established by the Ambassador in that country. Whenever a planned DEA activity could jeopardize host country relations with the United States, the decision of the Ambassador shall be determinative; however, any major difference with the Ambassador will be referred to DEA headquarters.

B. Agreements with Host Governments.

1. Historical perspective. The vast majority of host countries and their police agencies have set forth informal guidelines and parameters for the activities of DEA. Other host countries have formal agreements with DEA. Ambassadors at posts where DEA representatives serve have been requested to establish guidelines for DEA personnel under their authority. DEA representatives are required to inform themselves of all these guidelines.

2. No unilateral enforcement operations. DEA representatives will not engage or participate in unilateral enforcement operations or activities outside the scope of the agreement developed between the United States and the host government without the approval of a responsible host government official.

3. Determination of authority of host country officials. On or before September 1, 1976, all DEA Regional Directors in foreign. countries shall establish and maintain on a continuous basis a list of the officials in host countries who are empowered by their governments to permit DEA representatives to function in the host countries under these guidelines.

C. DEA Personnel Assignments in Foreign Countries. DEA foreign activities differ from and are more sensitive than those normally carried out in the United States. Consequently, DEA will select and assign personnel who have demonstrated the ability, particular skills, and adaptability necessa for such assignments. Since regional directors and country attaches are members of the

Mission staff, and must work closely with the Ambassador, DEA will provide biographical data for those persons in a timely manner to the State Department, prior to the assignment of SAICS [Special Agent in Charge] and above. These assignments will be made following advice and the concurrence of the Ambassador.

D. DEA Conduct in Foreign Countries.

1. Low profile. DEA involvement in foreign countries will be limited to a low profile role consistent with maximum effectiveness. This role encompasses matters ranging from assuring minimum adequate investigational staffing to the exercise of great care should the occasion arise to release to the news media information relating to DEA activities and conditions relating to drugs in the country. On the latter point, any dealings by DEA personnel with news media representatives should be with the guidance of the Ambassador and the advice of the Mission's Public Affairs Officer.

2. No violations of U.S. or foreign laws. No DEA representative shall carry out any activity prohibited by United States laws, regulations or Executive orders. Additionally, no DEA representative shall engage in any activities prohibited by the host government.

3. DEA exclusive employer. DEA representatives shall not be employed by any other agency, organization or service, and shall not be directed by any other agency, organization or service to undertake any action which would be in conflict with the orders, instructions and policies of DEA.

E. Focus on Major Trafficking. To achieve maximum impact, DEA representatives will focus their enforcement and intelligence efforts on those high-level traffickers believed to be involved in the international narcotic traffic affecting the United States. DEA personnel should avoid becoming involved in investigations strictly of a local nature, except in response to special requests from host country officials for on-the-job training or other investigative expertise warranting an exception to the rule.

F. DEA Representatives Precluded from Engaging in Direct Police Arrest Actions. On June 30, 1976, Public Law 92-329 was enacted. The bill "International Security Assistance and Arms Export Act of 1976", provides in section 504 as follows:

(c) (1) Notwithstanding any other provision of law, no officer or employee of the United States may engage or participate in any direct police arrest action in any foreign country with respect to narcotics control efforts.

1. Application in strict sense. The Congress intends that this provision be applied in its strict sense and that DEA representatives shall not accompany host country police officials in any situation where the DEA representative will be present and directly involved in any foreign police arrest action.

2. No presence if violence is foreseen. Further the Congress intends to preclude DEA representatives from intentionally becoming involved in any activity in a foreign country in which