Interim regulations to carry out the purposes of the Act and the Treaty became effective on February 13, 1974, and the final regulations (unchanged from the interim regulations) became effective July 22, 1974. The regulations deal with the following matters: 1. The agreement area, the shrimp species protected, the persons and property subject to the law and its penalties; 2. The issuance of a limited number of annual permits, establishes the costs for such permits to carry out the enforcement and administrative provisions of the Act (permits are issued on certain terms, subject to refusal or revocation after hearing by a final and binding decision of the Secretary); 3. Fishermen making prepayment of permit fees and for an Offshore Shrimp Fisheries Fund composed of permit fees, appropriated funds, minimum penalties imposed, and miscellaneous income, out of which the United States would pay enforcement expenses provided for by the treaty; 4. The master or vessel operator keeping a log of operations and making certain reports deemed necessary by the Secretary to carry out the purposes and objectives of the Act; 5. Fishing for shrimp without a permit in the agreement area, the transshipment of shrimp to a vessel without a permit within the area of agreement, the assaulting of a boarding officer, the fishing by more than 160 vessels within the area of agreement at any one time, fishing in contravention of the treaty, and the failing to keep, or the falsifying of logbooks; and 6. Establishing a new Part 245, Offshore Shrimp Fisheries. * * * * * See the Fed. Reg., Vol. 39, No. 31, Feb. 13, 1974, pp. 5491-5495; Id., No. 145, July 26, 1974, p. 27330. The regulations, found in 50 CFR 245, were issued by the National Marine Fisheries Service, National Oceanic and Atmospheric Administration of the Department of Commerce. On November 14, 1974, regulations became effective with respect to the maximum number of vessels allowed to be present in the area of agreement at any one time under section 8(a) (4) of the Act. The total limit is set at 160 vessels. The new regulations amend 50 CFR 245.10 by adding paragraphs (d) and (e) which require permit holding vessel owners to submit quarterly estimates of the number of vessels they will be employing in the agreement area. If the total estimate of vessels to be employed in the agreement area by all permit holding vessel owners is more than 160, then a ratio is established to determine what percentage of vessels an individual owner can employ in the agreement area. The ratio is calculated as follows: the number of vessels allowed for a particular owner equals his individual estimate multiplied by 160, with that total figure divided by the total estimate for all permit holders. Thus if an individual estimate is 12 and the total estimate of vessels is 240, then 12 x 160, divided by 240=8. The number of vessels allowed for the individual owner would be eight. For the full text of the regulations, see the Fed. Reg., Vol. 39, No. 223, Nov. 18, 1974, p. 40503. The 1972 Shrimp Fishing Agreement was originally scheduled to expire January 1, 1974, but on December 31, 1973, notes were exchanged in Brasilia extending the Agreement for a six-month period ending June 30, 1974 (TIAS 7770; 24 UST 2541; entered into force December 31, 1973). By means of another exchange of notes in Brasilia, dated June 24, 1974 (TIAS 7862; 25 UST 1284; entered into force June 24, 1974), the Agreement was extended until December 31, 1974, and the United States agreed to compensate Brazil $200,000, the annual compensation stipulated in the 1972 Agreement. The 1972 Agreement proved satisfactory to both parties and to the American distant water shrimp industry and it was intended that a similar agreement to cover future periods would be negotiated. In Dec. 1973, however, the Brazilian Government wished to leave such negotiations to the new administration to take office on Mar. 15, 1974. But neither party wanted an interim period after Jan. 1, 1974, not covered by an agreement, particularly in light of the Law of the Sea Conference scheduled for the summer of 1974. The United States proposed an extension of one year, during which a new agreement could be negotiated. The Government of Brazil agreed to a six-month extension, and this was done on Dec. 31, 1973. Brazil then suggested that it did not wish to negotiate a new agreement prior to the Law of the Sea Conference, recommended that negotiations begin after the Conference, and proposed a second six-month extension to cover the interim period. The second extension was accepted in the exchange of notes dated June 24, 1974. For background, see Dept. of State File L/T. U.S.-Canada The United States and Canada, on June 15, 1973, signed an agreement on reciprocal fishing privileges in certain areas off their coasts (TIAS 7676; 24 UST 1729; entered into force June 16, 1973) which permits the fishermen of both countries to fish in areas in which both the United States and Canada claim exclusive fishing jurisdiction. The purpose of the agreement was to avoid application of claims of fisheries jurisdiction to the fishermen of the two countries and thereby to avoid possible incidents of arrest and seizure of fishing vessels. The agreement defines the reciprocal fishing areas of each country, permits the continuation of fishing by nationals and vessels of each country within the reciprocal areas of the other, and sets forth certain species and catch limitations. It is provided that nationals and vessels of either country are not to initiate fisheries within the reciprocal fishing areas of the other country for species which are fully utilized by fishermen of the latter country. Initiation of fisheries for species not fully utilized may be agreed upon after consultations between the two governments. The agreement states that "Nothing in this agreement shall prejudice the claims or views of either of the parties concerning internal waters, territorial waters, or jurisdiction over fisheries or the resources of the continental shelf; further, nothing in this agreement shall affect either bilateral or multilateral agreements to which either government is a party." The 1973 agreement was to expire on April 24, 1974, but the two governments, after consultations, had mutually agreed that a one-year extension would be desirable. However, before an agreement to extend could be signed, the Ninth Circuit Court of Appeals affirmed the lower court decision in United States v. Alaska (see this Chapter, § 2, supra, pp. 289-293) which held that the waters of Cook Inlet in Alaska are historic internal waters of the United States. This decision would allow the State of Alaska to arrest Canadian vessels fishing in Cook Inlet although such vessels had been authorized to fish there under the 1973 agreement. Under these circumstances the Canadian Government was unwilling to extend the agreement on its existing terms since the Cook Inlet decision would change the circumstances under which the 1973 agreement was originally negotiated. However, Canada was prepared to agree to a brief extension to permit the U.S. Government to make arrangements which would avoid enforcement against Canadian vessels in Cook Inlet and thereby permit the provisions of the agreement to continue as before. An agreement to extend for fourteen days the 1973 agreement was therefore effected by exchange of notes at Ottawa on April 24, 1974. The arrangements referred to above having been made, on May 8, 1974, the agreement was extended to April 24, 1975 (TIAS 7818; 25 UST 653; entered into force May 8, 1974). U.S.-Japan On December 24, 1974, the United States and Japan signed two agreements dealing with fishing in the northeastern Pacific and the Bering Sea. The principal features of the agreement on fishing in the northeastern Pacific and eastern Bering Sea, and the accompanying report on the consultations, which are designed to establish better balances 569-769-75-23 between fishing and the condition and size of fishery resources in these areas, are as follows: 1. In order to protect declining pollock resources, the Japanese pollock catch in the eastern Bering Sea will be reduced to 1.1 million metric tons from the over 1.5 million metric tons of pollock Japan caught in 1973. 2. For conservation purposes, controls will also be placed on the harvest of other fin fisheries, such as Pacific Ocean perch, in both the Bering Sea and in the northeast Pacific Ocean in areas of special concern to the U.S. fisheries. These controls are being implemented by means of catch limitations, area and time closures. 3. The Agreement stipulates that Japan may fish within the contiguous zone of the United States and conduct loading and transfer operations in certain specified areas. In return, Japan has agreed to refrain from fishing in certain areas of the high seas during prescribed periods in order to avoid conflicts with American fishermen arising out of differences in types of fishing gear. 4. Japan has also agreed to adopt procedures and measures to reduce and control incidental catches of king and tanner crabs in their trawl fisheries. As one means of achieving this objective, Japanese fishermen will equip their trawl gear with bobbins during months when crabs are concentrated to reduce incidental crab catches. The second agreement involves fishing for king and tanner crabs in the eastern Bering Sea. Under the agreement, Japan's king crab quota is reduced from 700,000 to 300,000 crabs (953 metric tons). Japan's tanner crab quota (14 million in 1974) is reduced by a smaller percentage, but that portion of their total quota which can be taken in the traditional grounds, which are also fished by U.S. fishermen, was reduced by 70-80 percent. The United States will thus become the principal harvester of crab resources in the traditional grounds in the southeastern Bering Sea. The United States claims that both the king and tanner crabs are "creatures of the U.S. continental shelf" and that the U.S. has complete jurisdiction over these resources. The two countries also emphasized the need to take all possible measures to refrain from polluting the seas and to avoid dumping undesirable products into the water. Both governments agreed to inform each other of lost fishing gear which may create dangers to navigation. Dept. of State Press Release, No. 538, Dec. 18, 1974. Claims A claim for reimbursement in the amount of $14,620 paid to the Government of Peru with regard to the U.S. fishing vessel Gemini on January 17, 1973, raised the issue of a threatened (rather than actual) seizure of fishing vessels under the terms of the Fishermen's Protective Act of 1967, as amended, 22 U.S.C. 1972 (a) and 1973 (1970). According to the claimant, the Gemini entered the Port of Talara to obtain medical treatment for two of its crew members, whereupon the master of the vessel was informed that the boat would be seized and fined, unless he purchased a license, and the crew detained as soon as the vessel had cleared the port. The claimant said the master purchased the license and matricula under protest so that he could leave to continue the fishing voyage without further difficulty. The judgment and decree of the Captain of the Navy, Commandant of the First Naval Zone and Captain of the Port of Talara regarding the protest stated: ". . . in order to continue its fishing operations in waters under the jurisdiction of Peru, it is required to regularize the situation by payment of the required License and Matricula costs in order to avoid the payment of a fine." The claimant argued that his claim was based on the Clipperton case, in which the Department of State, on September 21, 1965, had certified certain amounts to the Secretary of the Treasury for payment. On February 12, 1974, Fabian A. Kwiatek, Department of State Assistant Legal Adviser for International Claims, wrote a letter to Mr. August Felando, General Manager of the American Tunaboat Association, denying the claim for the Gemini. The following is an excerpt from his letter: With regard to the Clipperton case, that fishing vessel also voluntarily entered the Port of Chimbote, Peru, on June 4, 1965, for repairs. However, in that case there was strong circumstantial evidence that the Clipperton had been engaged in fishing activities in claimed Peruvian territorial waters previous to its entry. There were on board 185 tons of fish which the master of the vessel claimed had been caught off the coasts of Ecuador and Colombia. The Peruvian authorities determined that the fish had been caught in Peruvian waters, and seized the vessel while at anchor in the port. The captain of the Clipperton acknowledged technical violations of Peruvian law, and in order to obtain the prompt release of the vessel and crew paid the fine in the amount of $7,128 and purchased a Peruvian fishing license for $3,564. In contrast thereto, the captain of the Gemini purchased a Peruvian fishing license and matricula, under protest so that he could leave to continue the fishing voyage without difficulty. . . ." There is no evidence that such purchases were to obtain the prompt release of the vessel and crew. The Fishermen's Protective Act of 1967, as amended, authorizes the Secretary of the Treasury to reimburse the owners of a U.S. fishing vessel any fines, license fees, registration fees or any other direct charges which were paid to secure the prompt release of the vessel and crew upon certification by the Secretary of State that such vessel had been seized on the basis of rights or claims in territorial waters or the high seas which are not recognized by the United States, and there is no dispute of material facts with respect to the location or |