[Senate Report 113-315]
[From the U.S. Government Publishing Office]
Calendar No. 622
113th Congress } { Report
2d Session } SENATE { 113-315
_______________________________________________________________________
SOUTH PACIFIC FISHERIES CONVENTION IMPLEMENTATION ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 2484
December 12, 2014.--Ordered to be printed
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON:2014
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred thirteenth congress
second session
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
BARBARA BOXER, California JOHN THUNE, South Dakota
BILL NELSON, Florida ROGER F. WICKER, Mississippi
MARIA CANTWELL, Washington ROY BLUNT, Missouri
MARK PRYOR, Arkansas MARCO RUBIO, Florida
CLAIRE McCASKILL, Missouri KELLY AYOTTE, New Hampshire
AMY KLOBUCHAR, Minnesota DEAN HELLER, Nevada
MARK BEGICH, Alaska DANIEL COATS, Indiana
RICHARD BLUMENTHAL, Connecticut TIM SCOTT, South Carolina
BRIAN SCHATZ, Hawaii TED CRUZ, Texas
ED MARKEY, Massachusetts DEB FISCHER, Nebraska
CORY BOOKER, New Jersey RON JOHNSON, Wisconsin
JOHN WALSH, Montana
Ellen Doneski, Staff Director
John Williams, General Counsel
David Schwietert, Republican Staff Director
Nick Rossi, Republican Deputy Staff Director
Rebecca Seidel, Republican General Counsel
Calendar No. 622
113th Congress } { Report
2d Session } SENATE { 113-315
======================================================================
SOUTH PACIFIC FISHERIES CONVENTION IMPLEMENTATION ACT
_______
December 12, 2014.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 2484]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 2484) to implement the
Convention on the Conservation and Management of the High Seas
Fishery Resources in the South Pacific Ocean, as adopted at
Auckland on November 14, 2009, and for other purposes, having
considered the same, reports favorably thereon with an
amendment (in the nature of a substitute) and recommends that
the bill (as amended) do pass.
Purpose of the Bill
The purpose of S. 2484 is to implement the Convention on
the Conservation and Management of the High Seas Fishery
Resources in the South Pacific Ocean, as adopted at Auckland on
November 14, 2009, and for other purposes.
Background and Needs
International Fisheries Management
Many fish stocks around the world have become depleted in
the last several decades as a result of fleet overcapacity,
overfishing, and ineffective fisheries law enforcement regimes.
Coastal fishing nations are responsible for managing the stocks
that fall within their domestic waters, which extend 200 miles
from their coastline, also known as their Exclusive Economic
Zone (EEZ). Unfortunately, many of these coastal nations do not
manage for stock sustainability, enforce their regulations
effectively, or coordinate management of shared stocks with
other fishing nations.
Under the Magnuson-Stevens Fishery Conservation and
Management Act (MSA; 16 U.S.C. 1801 et seq.), the U.S.
Government exercises jurisdiction over the management of
commercial fisheries within the U.S. EEZ. The MSA authorizes
the Secretary of Commerce (Secretary), through the National
Marine Fisheries Service (NMFS) within the National Oceanic and
Atmospheric Administration (NOAA), to be responsible for the
management of living marine resources. The MSA authorizes
Regional Fishery Management Councils to develop management
plans, subject to the Secretary's approval, that follow the
MSA's requirements for rebuilding overfished stocks and setting
harvest levels according to science-based catch limits.
Sustainable fisheries management on the high seas or that
which occurs under the jurisdiction of multiple nations can be
difficult due to the vast areas of ocean that must be
monitored, limited enforcement resources, and high volumes of
operating fishing vessels. The coordinated management of shared
stocks harvested beyond 200 miles is accomplished by nations
participating in Regional Fisheries Management Organizations
(RFMOs), international commissions established by multilateral
agreements to guide and coordinate the fisheries management
activities of multiple nations that target common stocks in
specific regions. Each nation that chooses to participate in
RFMOs retains its sovereignty, yet is expected to develop
domestic fisheries laws and regulations consistent with each
agreement. The United States follows this practice and seeks to
implement legislation and regulations to meet its commitments
under RFMOs and international fisheries agreements. Short of
such an agreement or implementing legislation, U.S. fisheries
managers seek discussions with foreign counterparts to address
concerns on interjurisdictional stock management. In 2004, the
United Nations General Assembly unanimously adopted Resolution
59/25, which calls for nations to cooperate in the
establishment of new RFMOs for areas and resources where no
such relevant organization or arrangement exists.\1\ Since that
time, a number of new RFMOs have been formed by international
agreement.
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\1\ Resolution 59/25, adopted by the General Assembly on 17
November 2004 (http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/477/70/
PDF/N0447770.pdf?OpenElement).
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All U.S. international fishery enforcement activities are
coordinated closely between the U.S. Coast Guard, NMFS, the
State Department, and the Coast Guard. NMFS and the Coast Guard
also provide input for the State Department's negotiations of
fishery treaties and agreements, in addition to reviewing
foreign fishing vessel permit applications. The Coast Guard
conducts international fisheries enforcement patrols and
investigations as part of its 11 statutory missions in close
coordination with the State Department, as required by
Presidential Directive 27. Additionally, NMFS and the Coast
Guard cooperate closely with individual U.S. States and
territories, and coordinate MSA enforcement in and adjacent to
State and territorial waters.
The South Pacific Fisheries Convention
In response to growing international concern over the
negative impact of certain high seas bottom fishing activities,
delegations from Australia, Chile, and New Zealand met in 2005
to begin negotiations on an agreement to address deep sea
fishing practices occurring outside areas of national
jurisdiction on sea mounts, hydrothermal vents, deep sea and
cold water coral communities, sponge fields, and other unique
and endemic deep-sea marine ecosystems collectively referred to
as vulnerable marine ecosystems. Soon thereafter, a number of
other countries and entities, including the United States,
Belize, China, Denmark (with respect to the Faroe Islands),
Ecuador, the European Union, Korea, Russia, Peru, several
Pacific Island States, and Taiwan (as the fishing entity of
Chinese Taipei) joined the negotiations, the scope of which,
with U.S. encouragement, grew to include not only bottom
fisheries but pelagic fish stocks not otherwise subject to
international management. These discussions culminated on
November 14, 2009, with the adoption of the Convention on the
Conservation and Management of the High Seas Fishery Resources
in the South Pacific Ocean (Convention). The Convention
established the South Pacific Fishery Commission (Commission),
through which parties to the Convention cooperate to facilitate
the long-term and sustainable use of fisheries that are not
managed under pre-existing international fisheries management
instruments\2\ in the area covered by the Convention
(Convention Area), which includes areas of the high seas
closest to the U.S. territory of American Samoa, and
immediately adjacent to the U.S. EEZ off a number of U.S.
Pacific possessions including Jarvis, Howland and Baker
Islands, Kingman Reef and Palmyra Atoll, as shown in Figure 1
below.
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\2\Other RFMOs, such as the Western and Central Pacific Fisheries
Commission and the Inter-American Tropical Tuna Commission, already
coordinate international management of Highly Migratory Species, such
as tunas, in the North Pacific.
The United States played an active and significant role in
the development of the Convention and the preparations for its
entry into force, which occurred on August 24, 2012. The United
States signed the Convention on January 31, 2011, and the U.S.
Senate provided its advice and consent in favor of ratification
on April 3, 2014. When the U.S. Senate Committee on Foreign
Relations reported the Convention favorably on March 13, 2014,
with the resolution of advice and consent to ratification, it
clarified that the Convention is not self-executing, meaning
that ratification requires implementing legislation to conform
U.S. domestic law to the requirements of the Convention.\3\
U.S. accession to the Convention is vital to ensuring that the
United States has a strong voice in managing fishing activities
outside the U.S. EEZ that could have a direct impact on
resources within waters under U.S. jurisdiction. Although U.S.
fishermen do not currently fish within the Convention's area of
application, U.S. accession will also ensure that U.S.
fisherman will have a legitimate right to participate in
fisheries within the Convention Area on an equitable basis now
and in the future.
---------------------------------------------------------------------------
\3\Senate Executive Report 113-1: Convention on the Conservation
and Management of High Seas Fishery Resources in the South Pacific
Ocean, done at Auckland, New Zealand, November 14, 2009 (http://
www.gpo.gov/fdsys/pkg/CRPT-113erpt2/pdf/CRPT-113erpt2.pdf).
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Currently, the Convention has 12 contracting parties, and
its Commission has met twice in January 2013 and January 2014.
At these meetings, the Commission adopted measures for the
management of jack mackerel and bottom fishing. Because the
United States has not yet formally deposited its instrument of
ratification with the Commission, it participated in these
meetings as an observer, arguably wielding significantly less
influence on the Commission's decisions than if the United
States had been a full member.
Summary of Provisions
S. 2484, the South Pacific Fisheries Convention
Implementation Act, would make changes to domestic law
necessary to implement the Convention. The bill would provide
the authority for the President to nominate not more than 3
Commissioners to represent U.S. interests at the Commission, as
well as establish an advisory panel of experts and stakeholders
that will inform the Commissioner's decisions. The Secretary
would have primary responsibility for promulgating regulations
and developing procedures necessary to carry out the purposes
and requirements of the Convention and the Act, with the Coast
Guard and NOAA's NMFS serving as primary enforcement
authorities for the requirements of the Act and regulations
promulgated thereunder. S. 2484 would further authorize the
Secretary to conduct fishing operations and experiments for
purposes of scientific investigation, issue fishing permits to
U.S. vessels to fish in the Convention's area of jurisdiction,
and to request and use the services personnel, and equipment of
other Federal agencies, foreign governments, intergovernmental
or international organizations, or other agencies for the
purposes of the Act. The bill would authorize to be
appropriated such sums as may be necessary to carry out the Act
and to pay the United States' contribution to the Commission, a
requirement for parties to the Convention.
Legislative History
S. 2484 was introduced by Senator Schatz on June 17, 2014,
and referred to the Committee on Commerce, Science, and
Transportation. On September 17, 2014, the Committee met in
open Executive Session and, by a voice vote, ordered S. 2484 to
be reported favorably with an amendment in the nature of a
substitute.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 2484--South Pacific Fisheries Convention Implementation Act
S. 2484 would implement the Convention on the Conservation
and Management of High Seas Fishery Resources in the South
Pacific Ocean (Convention). CBO estimates that implementing the
legislation would cost less than $500,000 a year over the 2015-
2019 period, assuming appropriation of the necessary amounts.
Because enacting the legislation would not affect direct
spending or revenues, pay-as-you-go procedures do not apply.
Under the bill, all parties to the Convention would be
required to apply specific conservation and management
principles and approaches to promote the conservation and
sustainable use of fisheries resources located in the South
Pacific Ocean between South America and Australia. Based on
information provided by the National Oceanic and Atmospheric
Administration, the U.S. Coast Guard, and the Department of
State, CBO estimates that carrying out the new Convention would
cost less than $500,000 a year over the 2015-2019 period. Those
funds would be used to cover costs for annual dues, staff time,
travel, and programmatic activities.
CBO has not reviewed S. 2484 for intergovernmental or
private-sector mandates. Section 4 of the Unfunded Mandates
Reform Act excludes from the application of that act any
legislative provisions that are necessary for the ratification
or implementation of international treaty obligations. CBO has
determined that the bill falls within that exclusion because it
would implement the South Pacific Fisheries Convention.
The CBO staff contacts for this estimate are Jeff LaFave
(for federal costs), Jon Sperl (for intergovernmental
mandates), and Amy Petz (for private-sector mandates). The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
number of persons covered
S. 2484 as reported does not create any new programs or
impose any new regulatory requirements, and therefore will not
subject any individuals or businesses to new regulations.
economic impact
Enactment of S. 2484 is not expected to have any
inflationary or adverse impact on the Nation's economy.
privacy
S. 2484 will not impact the personal privacy of
individuals.
paperwork
S. 2484 will have no impact in paperwork requirements for
individuals or businesses.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title.
This section would provide that this Act may be cited as
the ``South Pacific Fisheries Convention Implementation Act''.
Section 2. Definitions.
This section would define the following terms: ``Advisory
Committee;'' ``Commission;'' ``Commissioner;'' ``Convention
Area;'' ``Council;'' ``Exclusive Economic Zone;'' ``fishery
resources;'' ``fishing;'' ``fishing vessel;'' ``panel;''
``person;'' ``Secretary;'' ``South Pacific Fisheries
Convention;'' ``State;'' ``straddling stock;''
``transshipment;'' and ``1982 Convention.''
Section 3. Appointment of United States commissioners.
This section would authorize the President to nominate not
more than 3 Commissioners to represent the United States on the
Convention's governing Commission. It would require that
individuals appointed as Commissioners be knowledgeable or
experienced concerning the fisheries resources in the South
Pacific Ocean.
Subsections (b) and (c) of this section would authorize the
Secretary of State, in consultation with the Secretary of
Commerce, to designate an alternate Commissioner when
considered appropriate, and would specify certain details
regarding Commissioners' and alternate Commissioners'
employment status, compensation, and travel expenses.
Subsection (d) of this section would authorize an Advisory
Committee and would establish its composition, status, terms,
and responsibilities. Subsection (e) of this section would
provide for the development of a memorandum of understanding
among the Secretary of Commerce, the Secretary of State, and
the Western Pacific Regional Fishery Management Council,
setting forth a clear understanding of the role of the Council
in international fishery management discussions relating to
stocks under Council jurisdiction, as well as with respect to
development of domestic fishing regulations for such stocks
that are consistent with international management actions.
Section 4. Authority and responsibility of the Secretary of State.
This section would authorize the Secretary of State, in
consultation with the Secretary of Commerce, to approve or
disapprove acts of the Commission and act on them either
directly or by referral to the appropriate authority.
Section 5. Authority of the Secretary of Commerce.
This section would authorize the Secretary of Commerce, in
consultation with the Secretary of State and the Secretary of
the department in which the Coast Guard is operating, to
implement and enforce the provisions of this Act. Consistent
with practice in other regions of the country, implementation
of any discretionary provisions of the Convention relating to
stocks under Council jurisdiction could be made, to the extent
practicable and within necessary timelines, under procedures
used in the MSA. Such regulations would be applicable only to a
person, a fishing vessel, or fisheries resources covered by the
Convention or this Act. This section also would provide for
judicial review of any regulations promulgated under this Act.
Section 6. Enforcement.
This section would authorize the Secretary of Commerce and
the Secretary of the department in which the Coast Guard is
operating to administer and enforce this Act and any
regulations issued under this Act, except to the extent
otherwise provided for in the MSA. It would authorize the
Secretary of Commerce and the Secretary of the department in
which the Coast Guard is operating to request and utilize on a
reimbursed or non-reimbursed basis the assistance, services,
personal, equipment, and facilities of other Federal
departments and agencies (e.g., the Department of State) in the
administration and enforcement of this Act.
Subsection (b) of this section would provide that all
violations of the Act shall be prosecuted in the same manner,
by the same means, and with the same powers provided to the
Secretary of Commerce under the MSA. Any person that violates
any provision of this Act would be subject to the penalties and
entitled to the privileges and immunities provided in the MSA.
Subsection (c) of this section would designate the district
courts of the United States as having exclusive jurisdiction
over any case or controversy arising under the provisions of
this Act, notwithstanding section 311(d) of the MSA (16 U.S.C.
1861(d)). In the case of Hawaii or any possession of the United
States in the Pacific Ocean, the appropriate court is the
United States District Court for the District of Hawaii, except
that in the case of Guam and Wake Islands, and in the case of
the Northern Mariana Islands, the appropriate courts are the
United States District Courts for the District of Guam and the
Northern Mariana Islands, respectively. These provisions would
address a long-standing problem in vessel forfeiture cases
where seized vessels have had to be escorted longer distances
than would otherwise be necessary due to the venue provisions
in the MSA.
Subsection (d) of this section would provide that any
information submitted to the Secretary of Commerce as required
under this Act shall be confidential and may not be disclosed,
except: (1) to a Federal employee who is responsible for
administering, implementing, and enforcing this Act; (2) to the
Commission, in accordance with requirements in the Convention
and decisions of the Commission, and, insofar as possible, in
accordance with an agreement with the Commission that prevents
public disclosure of the identity or business of any person;
(3) to State or Marine Fisheries Commission employees pursuant
to an agreement with the Secretary that prevents public
disclosure of the identity or business or person; (4) when
required by court order; or (5) when the Secretary has obtained
written authorization from the person submitting such
information to release such information to another person for a
reason not otherwise provided for, and such release does not
violate other requirements of this Act. This section would
provide an exception to the aforementioned confidentiality and
disclosure requirements should the information be released in
any aggregate or summary form that does not directly or
indirectly disclose the identity or business of any person. Any
information submitted to the Secretary under this Act would be
available for use for conservation and management purposes.
Section 7. Prohibited acts.
This section would make it unlawful for any person to: (1)
violate any provision of this Act or any regulation or permit
issued pursuant to this Act; (2) use any fishing vessel to
engage in fishing activities after the revocation, or during
the period of suspension, on an applicable permit issued
pursuant to this Act; (3) refuse to permit any officer
authorized to enforce the provisions of this Act to board a
fishing vessel subject to such person's control for the
purposes of conducting any search, investigation, or inspection
in connection with the enforcement of this Act or any
regulation, permit, or the Convention; (4) assault, resist,
oppose, impede, intimidate, or interfere with any such
authorized officer in the conduct of any search, investigation,
or inspection in connection with the enforcement of this Act or
any regulation, permit, or the Convention; (5) resist a lawful
arrest for any act prohibited by this Act; (6) knowingly and
willfully ship, transport, offer for sale, sell, purchase,
import, export, or have custody, control, or possession of, any
fisheries resources taken or retained in violation of this Act
or any related regulation, permit, or agreement; (7) interfere
with, delay, or prevent, by any means, the apprehension or
arrest of another person, knowing that such other person has
committed any act prohibited by this section; (8) knowingly and
willfully submit to the Secretary false information (including
false information regarding the capacity and extent to which a
United States fish processor, on an annual basis, will process
a portion of the optimum yield of a fishery that will be
harvested by fishing vessels of the United States), regarding
any matter that the Secretary is considering in the course of
carrying out this Act; (9) assault, resist, oppose, impede,
intimidate, sexually harass, bribe, or interfere with any
observer on a vessel under this Act, or any data collector
employed or under contract to any person to carry out
responsibilities under this Act; (10) engage in fishing
activities in violation of any regulation adopted pursuant to
this Act; (11) knowingly and willfully ship, transport,
purchase, sell, offer for sale, import, export, or have in
custody, possession, or control any fisheries resources taken
or retained in violation of such regulations; (12) fail to
make, keep, or furnish any catch returns, statistical records,
or other reports required by regulations adopted pursuant to
this Act to be made, kept, or furnished; (13) fail to stop a
vessel upon being hailed and instructed to stop by a duly
authorized official of the United States; (14) import, in
violation of any regulation adopted pursuant to this Act, any
fisheries resources in any form of those species subject to
regulation pursuant to a recommendation, resolution, or
decision of the Commission, or any fisheries resources in any
form not under regulation but under investigation by the
Commission, during the period such fisheries resources have
been denied entry in accordance with the provisions of this
Act; (15) make or submit any false record, account, or label
for, or any false identification of, fisheries resources in or
intended for interstate or foreign commerce; or (16) refuse to
authorize and accept boarding by a duly authorized inspector of
fishing vessels in the Convention Area.
Section 8. Cooperation in carrying out Convention.
This section would authorize the Secretary of Commerce to
cooperate with any Federal, State, or private institution or
organization within the United States or abroad, and, through
the Secretary of State, a duly authorized official of the
government of any party to the Convention, in carrying out
responsibilities under this Act. Subsection (b) of this section
would authorize any Federal agency, upon the request of the
Secretary of Commerce, to cooperate in the conduct of
scientific and other programs and to furnish facilities and
personal for the purpose of carrying out this Act or
obligations under the Convention. Subsection (c) of this
section would clarify that nothing in this Act prevents the
Secretary of Commerce or the Commission from conducting or
authorizing fishing operation and biological experiences for
the purpose of scientific investigation or discharging any
other duties prescribed by the Convention. Subsection (d) of
this section would provide that nothing in this Act shall be
construed to diminish or increase the jurisdiction of any State
in the territorial sea of the United States.
Section 9. Territorial participation.
This section would direct the Secretary of State to ensure
participation by American Samoa, Guam, and the Commonwealth of
the Northern Mariana Islands to the same extent provided to the
territories of other nations.
Section 10. Exclusive Economic Zone notification.
This section would require foreign commercial fishing
vessels fishing under the management authority of the
Convention that do not carry vessel monitoring systems capable
of communicating with U.S. enforcement authorities, prior to or
as soon as reasonably possible after entering and transiting
the U.S. EEZ bounding the Convention Area, to: (1) notify the
Coast Guard of the name, flag state, location, route, and
destination of the vessel and of the circumstances under which
it will enter U.S. waters; (2) ensure that all fishing gear
onboard the vessel is stowed below deck or otherwise removed
from the place it is normally used for fishing and placed where
it is not readily available for fishing; and (3) if requested
by an enforcement officer, proceed to a specified location so
that a vessel inspection can be conducted.
Section 11. Authorization of appropriations.
This section would authorize to be appropriated to the
Secretary of Commerce and the Secretary of State such sums as
may be necessary to carry out this Act and to pay for the
United States' contribution to the Commission under Article 15
of the Convention.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
bill as reported would make no change to existing law.