activity of such vessel at the time of its seizure. (22 U.S.C. 1972 (a) and 1973 (1970)).

The Department of State determines that in the Gemini case there had not been, in fact, a seizure of the vessel by Peruvian authorities on account of its activities on the basis of its rights or claims in territorial waters or the high seas which are not recognized by the United States prior to the payment of the amounts for the license fee and matricula. Such payment was not for the purpose of securing the prompt release of the vessel and crew. Payment by the captain of the Clipperton was for such purpose. Accordingly, the purchase of the license and matricula by the master of the Gemini did not come within the purview of the Fishermen's Protective Act. As specifically noted in the Certificate of the Captain of the Navy, Commandant of the First Naval Zone and Captain of the Port of Talara, such payment had been made to enable the Gemini to continue its fishing operations in waters under the jurisdiction of Peru and to regularize the situation in order to avoid the payment of a fine. The Secretary of State, therefore, is unable to certify the amount claimed to the Secretary of the Treasury for reimbursement to Gemini Enterprises, Inc.

Dept. of State File No. P74 0028-0006.

Mr. Felando, in a memorandum dated February 25, 1974, noted his assumption that the Department of State's position was that "the captain of the Gemini should have ignored the threat of seizure by the port captain and left port. Under this assumption, the Peruvian port captain would have then taken the challenge, seized the M/V Gemini, and the claim would have been processed under the Act. We believe that the position taken by the legal office of the Department of State imposes too great a risk for the vessel and crew to undertake." He added that "the ruling and precedent may cause an undesirable possibility of violence in future seizure cases."

Linwood Holton, Assistant Secretary of State for Congressional Relations, in a letter dated April 3, 1974, to Senator John V. Tunney, said that the Department's view was that it did "not have the authority to decide otherwise in the absence of a showing of actual seizure of the vessel." Citing the language of the Act, he said that "the sine qua non for reimbursements is a showing of actual seizure of the fishing vessel by a foreign government as set forth in the statute." He said that the relief sought "must be through amendatory legislation by the Congress and not by statutory construction."

Dept. of State File No. P74 0028-0003. The applicable sections of the Fishermen's Protective Act of 1967, as amended, read as follows:

In any case where

(a) a vessel of the United States is seized by a foreign country on the basis of rights or claims in territorial waters or the high seas which are not recognized by the United States; and

(b) there is no dispute of material facts with respect to the location or activity of such vessel at the time of seizure,

the Secretary of State shall as soon as practicable take such action as he deems appropriate to attend to the welfare of such vessel and its crew while it is held by such country and to secure the release of such vessel and crew." (22 U.S.C. 1972.)

In any case where a vessel of the United States is seized by a foreign country under the conditions of section 1972 of this title and a fine, license fee, registration fee, or any other direct charge must be paid in order to secure the prompt release of the vessel and crew, the owners of the vessel shall be reimbursed by the Secretary of the Treasury in the amount certified to him by the Secretary of State as being the amount of the fine, license fee, registration fee, or any other direct charge actually paid. (22 U.S.Č. 1973.)

On January 4, 1975, President Ford vetoed H.R. 13296, the Maritime Administration Appropriations Authorization bill. The bill, which was the annual appropriations authorization for certain activities of the Maritime Administration in the Department of Commerce, also contained a provision requiring the Federal Government to reimburse U.S.-flag fishing vessel owners for damage to their equipment by foreign flag ships. The bill would have required the Secretary of Commerce to provide interest free loans to fishermen to cover the property and the value of produce lost as a result of damage caused by foreign vessels operating in the area of the U.S. continental shelf. If an ensuing investigation proved the loss was caused solely by a foreign ship, the loan repayment would be cancelled and the United States would attempt to recover claims from the government of the foreign national involved. The program would be retroactive to January 1, 1972, for claims already filed. In his memorandum of disapproval, President Ford said, in relevant part:

*

This indemnity program would pose serious problems of administration because it would be difficult to establish responsibility for any damage caused. Furthermore, since the bill provides no basis for advance review of the recipient's financial ability to repay a loan, the Commerce Department could find itself in the position of holding a group of "bad debts." At the same time, claims for damage would be difficult to validate and the result would essentially be a grant program with few effective restraints.

Moreover, this program sets a precedent for the Federal relief of private parties from the actions of foreign nationals. Currently, relief is extended only to fishermen whose vessels are the victims of actions by foreign governments beyond recognized territorial limits. International procedures now exist through which claims against foreign nationals can be asserted and adjudicated and these should be used in preference to a Federal indemnity program.

Weekly Compilation of Presidential Documents, Vol. 11, No. 2, Jan. 13, 1975, p. 22.

Conservation

On July 10, 1974, President Nixon approved an Act (P.L. 93-339, 88 Stat. 293) to amend the Northwest Atlantic Fisheries Act of 1950 (16 USC 981) to permit United States participation in international enforcement of fish conservation in additional geographic areas pursuant to the International Convention for the Northwest Atlantic Fisheries of 1949 (TIAS 2089; 1 UST 477; entered into force for the United States July 3, 1950).

The text of the 1974 Act is as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) section 2 of the Northwest Atlantic Fisheries Act of 1950 (16 U.S.Ć. 981) is amended by striking out subsection (d) and redesignating subsections (e), (f), (g), (h), (i), and (j) as subsections (d), (e), (f), (g), (h), and (i), respectively.

(b) The first sentence of section 4(a) of such Act (16 U.S.C. 983 (a)) is amended by striking out "of the convention area" each place it appears and inserting in lieu thereof in each such place "under regulation by the Commission."

(c) Section 4(b) of such Act (16 U.S.C. 983 (b)) is amended by striking out "may" and inserting "shall" in lieu thereof.

(d) Section 7(d) of such Act (16 U.S.C. 986(d)) is amended by striking out "that portion of the convention area" and inserting in lieu thereof "any area inhabited by species of fish which are regulated by the Commission."

(e) Section 7(e) of such Act (16 U.S.C. 986 (e)) is amended by striking out "any portion of the convention area except such portions" and inserting in lieu thereof "any area inhabited by species of fish which are regulated by the Commission except any such area."

(f) Section 9 (c) of such Act (16 U.S.C. 988 (c)) is amended by striking out "the convention area" and inserting in lieu thereof "any area inhabited by species of fish which are regulated by the Commission."

(g) Subsection (b) of section 4 of the Act of September 27, 1950 (64 Stat. 1068), is amended by adding the following sentence to the end thereof: "The Secretary of State shall submit an annual report to the Congress of the costs incurred in reimbursing travel and per diem expenses of members of the advisory committee pursuant to this subsection."

The primary purpose of the Act is to extend the scheme of international enforcement for the conservation regulations of the International Commission for the Northwest Atlantic Fisheries (ICNAF) to the region off the mid-Atlantic coast of the United States from Long Island to Cape Hatteras. Prior to the enactment of this legislation, the

United States was the only nation with a significant fishery in that region which was unable to participate in the ICNAF scheme.

The Senate Committee on Commerce, in a Report on the legislation dated June 3, 1974, gave the following statement of background and need for U.S. participation in the ICNAF conservation scheme in additional areas:

In view of the magnitude of fishing operations off the Atlantic coast of the United States, it is important that the most effective conservation measures be taken. The International Commission for the Northwest Atlantic Fisheries (ICNAF) seeks to adopt measures which are "designed to achieve the optimum utilization of the stocks of those species of fish which support international fisheries in the Convention Area," as defined in the Convention. These conservation objectives cannot be achieved if the ICNAF conservation scheme initiated in 1971 is limited only to the Convention area, without being able to take into consideration the migratory habits of some species of fish which move in and out of the area. Expansion of the area for international enforcement is needed so that stocks are not subjected to unlimited fishing when they cross the Convention line. Accordingly, the ICNAF members agreed last year that international conservation enforcement should be extended to cover the area southward from Rhode Island to North Carolina (known in ICNAF as statistical area 6).

Amendment of domestic law is necessary in order for the United States to participate outside the Convention area. Although the extension of the ICNAF conservation scheme took effect for all member nations on January 17, 1974, the United States informed the other members that, until the Northwest Atlantic Fisheries Act of 1950 is further amended, the new provisions would have to be applied on a voluntary basis. Other member nations in the same situation are Canada, Portugal, the Federal Republic of Germany, and the United Kingdom. The scheme is being applied on a mandatory basis for the vessels of Bulgaria, Italy, Japan, Poland, Romania, Spain and the Soviet Union.

The Committee hopes that enactment of H.R. 14291 will result in more effective measures to arrest the serious depletion of fish stocks off the Atlantic coast through overfishing in recent years. It is in the direct interest of the hard-pressed U.S. fishing industry to restrict fishing by all nations to levels which will produce a sustainable yield at the optimum level. Since the ICNAF scheme requires vessels of member nations to accept U.S. and other ICNAF inspectors in the extended area as well as in the Convention Area proper, the United States-as the nation nearest the area in question-is in a particularly good position to promote foreign compliance.

Sen. Rept. No. 93-893, 93d Cong., 2d Sess., June 3, 1974, p. 2.

The validity of the Tuna Conventions Act of 1950, as amended, 16 U.S.C. 951-961, and the delegation of authority thereunder to the

Secretary of the Interior to promulgate regulations reflecting recommendations made under the Convention for the Establishment of an Inter-American Tropical Tuna Commission (TIAS 2044; 1 UST 230; entered into force March 3, 1950) were upheld by the United States District Court for the Southern District of California on October 15, 1974, in United States v. Approximately 633.79 Tons of Yellowfin Tuna, 383 F.Supp. 659 (1974). In denying a motion to dismiss an action for an alleged violation of the Act, the Court rejected defendant's contention that the Act was invalid as an overbroad delegation of legislative power. The Court cited both the preamble to the Act and 16 U.S.C. 955 (c), delegating regulatory authority to the Secretary of the Interior, as reflecting a congressional purpose to establish a "flexible conservation program for the preservation of an international resource." The Court stated:

The argument that the courts must compel Congress to state an intelligible principle to guide all exercise of delegated power incorrectly assumes that the only wisdom to be found in the various organs of government is entirely concentrated in the legislative body. The difficulty and complexity of some types of policy determination requires that Congress should be allowed to provide for a broad range of administrative discretion. When dealing with the variables associated with the tuna resource a broad delegation of authority, as found in this Act, is perfectly reasonable and is consistent with existing case law. . . .

The Court also dealt directly with the issue of delegation of power in the regulation of foreign relations:

... The statutes in question were enacted to implement the provisions of an international convention. The problems associated with delegation of power in the regulation of foreign relations were considered in United States v. Curtiss-Wright Export Corp., 299 U.S. 304... (1936). There the Court indicated that the separation of powers standard of delegation, applied to domestic affairs in Panama [Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)] and Schechter [A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)], does not apply in the foreign affairs sphere. This does not mean that simply because a statute deals with foreign relations, it can grant the executive totally unrestricted freedom of choice. Zemel v. Rusk, 381 U.S. 1, 17 . . . (1965). But it does suggest that, when considering a delegation of authority to engage in international negotiations, only the most clear abuse or true congressional abdication or a violation of individual constitutional rights should lead to the invalidation of the legislation by the courts. Here no such infirmities can be found.