[Senate Report 114-235]
[From the U.S. Government Publishing Office]
Calendar No. 419
114th Congress } { Report
SENATE
2d Session } { 114-235
_______________________________________________________________________
SOUTH PACIFIC FISHERIES CONVENTION IMPLEMENTATION ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 1336
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
April 6, 2016.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
59-010 WASHINGTON : 2016
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred fourteenth congress
second session
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida
ROY BLUNT, Missouri MARIA CANTWELL, Washington
MARCO RUBIO, Florida CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas ED MARKEY, Massachusetts
DAN SULLIVAN, Alaska CORY BOOKER, New Jersey
RON JOHNSON, Wisconsin TOM UDALL, New Mexico
DEAN HELLER, Nevada JOE MANCHIN, West Virginia
CORY GARDNER, Colorado GARY PETERS, Michigan
STEVE DAINES, Montana
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Rebecca Seidel, General Counsel
Kim Lipsky, Democratic Staff Director
Christopher Day, Democratic Deputy Staff Director
Clint Odom, Democratic General Counsel
Calendar No. 419
114th Congress } { Report
SENATE
2d Session } { 114-235
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SOUTH PACIFIC FISHERIES CONVENTION IMPLEMENTATION ACT
_______
April 6, 2016.--Ordered to be printed
_______
Mr. Thune, from the Committee on Commerce, Science, and Transportation,
submitted the following
R E P O R T
[To accompany S. 1336]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 1336) 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 without
amendment and recommends that the bill do pass.
Purpose of the Bill
The purpose of S. 1336, the South Pacific Fisheries
Convention Implementation Act, is to implement the Convention
on the Conservation and Management of the High Seas Fisheries
Resources in the South Pacific Ocean, as adopted at Auckland on
November 14, 2009, and for other purposes.
Background and Needs
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),\1\ the Federal Government exercises
jurisdiction over the management of commercial fisheries within
the U.S. EEZ. The MSA authorizes the Secretary of Commerce,
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 approval of the Secretary of
Commerce, that follow the MSA's requirements for rebuilding
overfished stocks and setting harvest levels according to
science-based catch limits.
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\1\16 U.S.C. 1801 et seq.
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Sustainable fisheries management which occurs on the high
seas or 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.\2\ Since that
time, a number of new RFMOs have been formed by international
agreement.
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\2\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 United States Coast Guard
(USCG), the NMFS, and the State Department. The NMFS and the
USCG also provide input for the State Department's negotiations
of fishery treaties and agreements, in addition to reviewing
foreign fishing vessel permit applications. The USCG conducts
international fisheries enforcement patrols and investigations
as part of its 11 statutory missions in close coordination with
the State Department. Additionally, the NMFS and the USCG
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\3\ 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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\3\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.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The United States has played an active and significant role
in the development of the Convention and the preparations for
its entry into force, which will occur 180 days following the
date that a fourth signatory ratifies the Convention. The
United States signed the Convention on May 2, 2012, and the
Senate provided its advice and consent in favor of ratification
on April 3, 2014. When the Committee on Foreign Relations of
the Senate 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
Federal law to the requirements of the Convention.\4\ 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.
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\4\U.S. Congress, Senate Committee on Foreign Relations, Convention
on the Conservation and Management of High Seas Fisheries Resources in
the South Pacific Ocean, report to accompany Treaty Doc. 113-1, 113th
Cong., 2nd sess., Exec. Rept. 113-2, November 14, 2009 (http://
www.gpo.gov/fdsys/pkg/CRPT-113erpt2/pdf/CRPT-113erpt2.pdf).
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Currently, the Convention has 13 contracting parties, and
its Commission has met 3 times in January 2013, January 2014,
and February 2015. 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. 1336, the South Pacific Fisheries Convention
Implementation Act, would make changes to domestic law
necessary for the implementation of the South Pacific Fisheries
Convention. The bill would establish the number of
Commissioners to represent the United States on the Commission,
and specify the requirements for appointment and selection. The
bill would establish a permanent advisory committee of
commercial, indigenous, and scientific individuals and members
nominated by the Governor of Hawaii that would help inform the
Commissioners' decisions. The Secretary of Commerce 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 USCG and
NOAA's NMFS serving as primary enforcement authorities for the
requirements of the Act and regulations promulgated thereunder.
S. 1336 would further authorize the Secretary of Commerce
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 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 appropriations at 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. 1336 was introduced by Senators Schatz and Sullivan on
May 13, 2015. On May 20, 2015, the Committee met in open
Executive Session and, by a voice vote, ordered S. 1336 to be
reported favorably. A nearly identical bill, S. 2484, passed
out of Committee last Congress.
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. 1336--South Pacific Fisheries Convention Implementation Act
S. 1336 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 2016-
2020 period, assuming availability of appropriated 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 2016-2020 period. Those
funds would be used to cover costs for annual dues, staff time,
travel, and programmatic activities.
CBO has not reviewed S. 1336 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.
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, Assistant Director for
Budget Analysis.
Regulatory Impact
Because S. 1336 does not create any new programs, the
legislation will have no additional regulatory impact, and will
result in no additional reporting requirements. The legislation
will have no further effect on the number or types of
individuals and businesses regulated, the economic impact of
such regulation, the personal privacy of affected individuals,
or the paperwork required from such individuals and 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 designate the short title of this bill
as the ``South Pacific Fisheries Convention Implementation
Act.''
Section 2. Definitions.
This section would define the following terms: ``Advisory
Committee'' as the advisory committee established under section
3; ``Commission'' as the South Pacific Fisheries Commission
established pursuant to the South Pacific Fisheries Convention;
``Commissioner'' as a U.S. Commissioner appointed under section
3; ``Convention Area'' as the waters of the South Pacific Ocean
excluding areas of national jurisdiction; ``Council'' as the
Western Pacific Regional Fishery Management Council;
``exclusive economic zone of the United States'' as the zone
established by Presidential Proclamation Numbered 5030 of March
10, 1983; ``Fishery Resources'' as all fish within the
Convention Area including mollusks, crustaceans, and other
living resources as may be decided by the Commission and
excluding sedentary species in so far as they are subject to
the national jurisdiction of coastal States, highly migratory
species, anadromous species, catadromous species, marine
mammals, marine reptiles, and sea birds; ``Fishing'' as the
actual or attempted searching for, catching, taking, or
harvesting of fishery resources and transshipments of fish, but
not any operation related to an emergency involving the health
or safety of a crew member or the safety of a fishing vessel;
``Fishing Vessel'' as any vessel used or intended for use for
or in support of the purpose of fishing; ``Panel'' as the
Western Pacific Regional Fishery Management Council's Advisory
Panel; ``Person'' as any individual, corporation, partnership,
association, or other entity, or Federal, State, local, tribal,
or foreign government or any entity of such government;
``Secretary'' as the Secretary of Commerce; ``South Pacific
Fisheries Convention'' as the Convention on the Conservation
and Management of the High Seas Fishery Resources in the South
Pacific Ocean; ``State'' as each of several States of the
United States, the District of Columbia, American Samoa, Guam,
and any other commonwealth, territory, or possession of the
United States; ``Straddling Stock'' as a stock of fishery
resources which migrates between, or occurs in, the exclusive
economic zone of 1 or more parties to the South Pacific
Fisheries Convention and the Convention Area; ``Transshipment''
as the unloading of fishery resources derived from fishing in
the Convention Area on board a fishing vessel to another
fishing vessel either at sea or in port; and ``1982
Convention'' as the United Nations Convention on the Law of the
Sea of 10 December 1982.
Section 3. Appointment of United States Commissioners.
This section would direct the President to appoint one
United States Commissioner who is knowledgeable or experienced
concerning fishery resources in the South Pacific Ocean. This
section would allow the Secretary of State, in consultation
with the Secretary of Commerce, to designate an alternate to
the Commission. In the absence of a Commissioner, the alternate
would have all powers and duties of a Commissioner.
If the Commissioner or employee is not an officer or
employee of the U.S. Government, he or she would not be
considered a Federal employee, except for the purposes of
injury compensation or tort claims liability. Under this
section the Commissioner and the alternate Commissioner would
receive no compensation, except for travel reimbursements. This
section would allow the Secretary of Commerce to reimburse the
Secretary of State for amounts expended by the Secretary of
State.
This section would establish a permanent advisory committee
of not less than 15 nor more than 20 individuals appointed by
the Secretary of Commerce. Advisory committee members would
represent groups concerned with the fishery resources covered
by the South Pacific Fisheries Convention and serve a term of
two years, with the possibility of reappointment. This section
would also require the advisory committee to determine its
organization and procedures for carrying out its functions.
The advisory committee would publish and make public a
statement of its organization, practices, and procedures.
Except when in executive session, advisory committee meetings
would be open to the public. The members of the advisory
committee would not be paid, but would be reimbursed for travel
expenses. They would not be considered Federal employees except
for the purposes of injury compensation or tort claims
liability.
This section would direct the Secretary of Commerce, in
coordination with the Secretary of State to develop a
memorandum of understanding with the Council for fishery
resources in the Convention Area describing the role of the
Council with respect to the participation of U.S. delegations
to international fishery organizations in the Pacific Ocean,
recommending to the Secretary of Commerce and the Secretary of
State necessary measures for domestic and foreign fishing
vessels, coordinating positions with the U.S. delegation, and
recommending domestic fishing regulations that are consistent
with the actions of the appropriate international fishery
organization.
Section 4. Authority and responsibility of the Secretary of State.
The section would give the Secretary of State the authority
to receive and transmit, on behalf of the United States,
various communications from and to the Commission. It would
allow the Secretary of State, in consultation with the
Secretary of Commerce, to approve, disapprove, object to, or
withdraw objections to bylaws and rules adopted by the
Commission. With the concurrence of the Secretary of Commerce,
the Secretary of State could approve or disapprove the general
annual program of the Commission, and act upon any
communication it receives.
Section 5. Rulemaking authority of the Secretary of Commerce.
This section would authorize the Secretary of Commerce, in
consultation with the Secretary of State and where relevant,
the Secretary of the department in which the Coast Guard is
operating, to promulgate such regulations as may be necessary
to carry out U.S. obligations under this Act. This section
would give the Secretary of Commerce the authority to
promulgate regulations applicable to all vessels and persons
subject to the jurisdiction of the United States. Regulations
promulgated by the Secretary of Commerce under this Act would
be subject to judicial review to the extent authorized by law.
Upon a motion by the person who files such a petition, the
appropriate court would expedite the matter.
Section 6. Enforcement.
This section would require the Secretary of Commerce and
the Secretary of the department in which the Coast Guard is
operating to administer and enforce this Act. It also would
give them the authority to request and utilize on a reimbursed
or non-reimbursed basis assistance and equipment from other
Federal departments and agencies. The Secretary of Commerce
could conduct scientific, research, and other programs under
this Act; conduct the fishery research necessary to implement
the South Pacific Fisheries Convention; collect, utilize, and
disclose necessary information to implement the Convention; if
recommended by the Commissioners or proposed by the Council
impose a fee not to exceed three percent of the ex-vessel value
of fish harvested by U.S. vessels under this Act; issue permits
to owners and operators of U.S. vessels to fish in the
Convention Area; and request and utilize on a reimbursed or
non-reimbursed basis assistance and equipment from other
Federal departments and agencies for such activities.
To the extent practicable, the Secretary of Commerce would
ensure that fishery management programs administered under this
Act are consistent with existing fishery laws. Except as
otherwise specified, this section would give the Secretary of
Commerce and the Secretary of the department in which the Coast
Guard is operating the authority to prevent any person from
violating this Act in the same manner, by the same means, and
with the same jurisdiction, powers, and duties as through
sections 308 through 311 of the MSA (16 U.S.C. 1858, 1859,
1860, 1861), which gives the Secretary of Commerce the
authority to assess fines.
This section would give the U.S. district courts exclusive
jurisdiction over any case or controversy arising under the
provisions of this Act. Under this section, each violation
would be a separate offense and the offense would be deemed to
have been committed not only in the district where the
violation first occurred, but also in any other district
authorized by law.
In general any information submitted to the Secretary of
Commerce in compliance with any requirement under this Act
would be confidential and may not be disclosed except to a
Federal employee who is responsible for administering,
implementing, and enforcing this Act, the Commission, the State
or Marine Fisheries Commission, when required by court order,
and when the Secretary of Commerce has obtained written
authorization from the person submitting the information.
Nothing in this section would prevent the information collected
by the Secretary of Commerce from being used for conservation
and management purposes.
Section 7. Prohibited acts.
This section would delineate the various prohibited
actions, with respect to this Act, including violation of any
provision or regulation or permit; refusing or interfering with
an authorized officer attempting to board and inspect a fishing
vessel; shipping, transporting, selling, purchasing, importing,
exporting, or possessing prohibited fisheries resources;
engaging in prohibited fishing activities; failing to make,
keep, and furnish required information; and failing to stop a
vessel when hailed by an authorized official of the United
States. This section would require those importing fish to
provide satisfactory proof that the fisheries resources are not
ineligible for entry under this Act.
Section 8. Cooperation in carrying out Convention.
This section would allow the Secretary of Commerce to
cooperate with any Federal agency or any organization in the
United States or abroad in carrying out this Act. This section
would allow Federal agencies to cooperate in conducting
research and to provide facilities and personnel in assisting
the Commission. Nothing in this Act would diminish or increase
the jurisdiction of any State in its territorial sea unless the
Secretary of Commerce determines the State has not enacted laws
that implement the recommendations of the Commission or that
the State is not enforcing such laws.
Section 9. Territorial participation.
This section would require the Secretary of State to ensure
that American Samoa and Guam can participate in the Commission
in the same manner as territories of other nations.
Section 10. Exclusive economic zone notification.
This section would require the masters of commercial
fishing vessels of nations fishing under the management
authority of the South Pacific Fisheries Convention that do not
carry vessel monitoring systems to, when entering the EEZ
bounded by the Convention Area, notify the USCG, ensure that
all fishing gear is stowed, and follow requests by an
enforcement officer.
Section 11. Authorizations of appropriations.
This section would authorize such sums as are necessary to
carry out this Act and to pay the United States' contributions
to the Commission.
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.
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