places. For example, H.R. 12603 does not include processing in Sec. 307(2), where foreign fishing in the territorial waters of the United States is prohibited. Seemingly, H.R. 12603 would control processing operations in the 200-mile zone but would not control them in the 3-mile zone. This is one example, there are many more. I believe it is a far This is I believe your legislation will give NOAA the guidance and clear authority to assure the full development of the entire U.S. industry, however, the stakes are enormously high and I would not be surprised if foreign interests develop new and different methods to circumvent our laws and prevent full utilization of the Nation's fishery resources and full development of the U.S. industry. I would hope that you will continue to monitor the implementation of the FCMA to assure that U.S. industry is given a fair opportunity to compete against its State aided foreign rivals. today. Thank you for the opportunity to appear before you (Committee Note-In the interest of economy in printing, the attachments to Mr. Furia's statement have been placed in the subcommittee files.) June 7, 1978 Honorable Robert L. Leggett Dear Congressman Leggett: Enclosed are additional comments regarding the legality of the application of BR. 12805 to existing permits under the FCMA, as a supplement to the testimony of Edward W. Furia on June 7, 1978. Thank you for your invitation to supply this supplementary material. As the previous testimony has reflected, the operation of foreign processing vessels within the 200 mile zone during the period prior to the effective date of HR. 12805 is of critical importance to members of the United States seafood processing industry. Those members of the industry which have made substantial capital investments in new plants and processing facilities in reliance upon the expectation of a full supply of fish product would suffer a severe set back at the outset of their operations if this supply is siphoned off by foreign processing vessels. The immediate application of HR. 12805 to existing permits, insuring the supply of product to domestic processors who have shown the courage and foresight to make an early investment in the American industry would work no hardship on the holders of foreign permits. For example, the optimum yield of pollock in the Gulf of Alaska is 168,000 metric tons. The Korean application for processing of pollock is for 51,460 metric tons. The optimum yield for hake off the coast of Oregon and California is 130,000 metric tons. The applications by the U.S.S.R. request 10,000 metric tons. The amount necessary to meet the American processors requirements has been estimated by Terry Leitzell, Assistant Administrator for Fisheries of NOAA to be approximately 10,000 metric tons. Thus, a full supply to the U.S. processing industry can be insured, and the full request of the Korean and Russian applications satisfied, without even approaching the optimum yield.. HR. 12805 is a rational approach to the foreign processing question that has arisen under the FCMA. It is an excellent piece of legislation, as evidenced by the support of it by the Russians, Koreans, U.S. fishermen and their organizations on both coasts, the domestic businesses interested in joint ventures, and the United States fish processing industry. Indeed, Mr. Wally Pereyra, testifying at the hearings on behalf of the Russian interests, has stated that they would have no objection to the immediate effectiveness of the bill. Since this legislation has received the support of virtually all of those diverse interests effected by it, we feel that the intent and spirit of this important amendment would be thwarted if existing permit holders, who received their permits well after the introduction of this legislation were able to avoid the law. We believe a ready mechanism exists for implementing the bill immediately upon passage. The National Marine Fisheries Service can quickly determine by survey the capacity of the United States processing industry to process fish for which foreign permits are outstanding or sought, and conditions on permits, implementing insurance of supply to the U.S. industry can be proposed, notice and comment period afforded to the permit holders, and any conditions adopted, in a relatively brief period, if appropriate language setting forth this procedure is included in your bill. During the period of comment and notice the permits would remain in full force and effect so that this provision would not have the result of further delaying the issuance of the permits, but instead would merely provide conditions that would insure that the criteria in your bill would apply to outstanding permits. For the reasons expressed in the enclosed memorandum, we believe that no legal problems result from this approach. As has been the case throughout the history of the 200-mile law, you have been at the Vanguard in developing a law which fairly meets the needs of all interested parties. We trust that you will be able to continue to do so by bringing HR. 12805 into effect in a timely manner to avoid economic dislocation in the American seafood industry. CC: Thank you for your many fine efforts in this behalf. Sincerely, Elinaloan Edward W. Furia, Esq. North Pacific Ocean Mr. Ned Everett, Counsel to the Subcommittee OUTLINE OF PROPOSED PROVISIONS 1. Any permits presently outstanding would be subject to the provisions of the Act as amended. 2. The Department of Commerce would review all presently outstanding permits to insure that they were in compliance with the Act and would impose any condition necessary to bring the permits in compliance within 15 days of the effective date of the Amendment. 3. The Department of Commerce would provide at least 15 days notice to the holders of any outstanding permits, of any proposed conditions which they would impose on those permits and would allow the holders of those parmits to comment on those conditions within 15 days of the receipt of notice before those conditions would be made effective. 4. During this period of notice and comment any ́permits which have already been granted would remain in full force and effect. Therefore the effect of the Amendment would be to add conditions to the permits implementing the criteria of the Act without in any way further delaying their issuance. MEMORANDUM REGARDING THE APPLICATION OF S. 3050 The question has arisen whether the application of S. 3050 or H.R. 12805 to existing permits under the FCMA might give rise to the argument that the legislation was being given an unconstitutionally retroactive application. For the reasons which follow, we respectfully urge that the legislation is not being given retroactive application when made applicable to existing permits, and that even if it were so construed, such an application would be both constitutional and properly within the power of Congress. For purposes of convenience, we will refer to the bill by Senate number. . Our analysis necessarily begins with the question of whether, if S. 3050 is made to apply, immediately upon passage, to existing permits, that application is "retroactive". The general concept of retroactivity, as it appears in the cases, has to do with the application of a substantive limitation or sanction applied to conduct which took place before the operative date of the law in question. S. 3050, obviously, would not have that application. From the point in time at which permits for foreign fishing were issued, up to the point in time when S. 3050 became effective, any fishing under those permits would not be in any way limited by S. 3050 or made subject to any legislative sanction. Only after the operative date of S. 3050, and any administrative period for the imposition of permit conditions consistent therewith, which might be required to implement the bill, |