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S. 1336 (114th): South Pacific Fisheries Convention Implementation Act


The text of the bill below is as of Apr 6, 2016 (Reported by Senate Committee).


II

Calendar No. 419

114th CONGRESS

2d Session

S. 1336

[Report No. 114–235]

IN THE SENATE OF THE UNITED STATES

May 13, 2015

(for himself and Mr. Sullivan) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

April 6, 2016

Reported by , without amendment

A BILL

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.

1.

Short title

This Act may be cited as the South Pacific Fisheries Convention Implementation Act.

2.

Definitions

In this Act:

(1)

Advisory Committee

The term Advisory Committee means the advisory committee established under section 3.

(2)

Commission

The term Commission means the South Pacific Fisheries Commission established under the South Pacific Fisheries Convention.

(3)

Commissioner

The term Commissioner means a U.S. Commissioner appointed under section 3.

(4)

Convention Area

The term Convention Area means—

(A)

the waters of the Pacific Ocean beyond areas of national jurisdiction and in accordance with international law, bounded by the 10° parallel of north latitude and the 20° parallel of south latitude and by the 135° meridian of east longitude and the 150° meridian of west longitude; and

(B)

the waters of the Pacific Ocean beyond areas of national jurisdiction and in accordance with international law—

(i)

east of a line extending south along the 120° meridian of east longitude from the outer limit of the national jurisdiction of Australia off the south coast of Western Australia to the intersection with the 55° parallel of south latitude; then due east along the 55° parallel of south latitude to the intersection with the 150° meridian of east longitude; then due south along the 150° meridian of east longitude to the intersection with the 60° parallel of south latitude;

(ii)

north of a line extending east along the 60° parallel of south latitude from the 150° meridian of east longitude to the intersection with the 67° 16′ meridian of west longitude;

(iii)

west of a line extending north along the 67° 16′ meridian of west longitude from the 60° parallel of south latitude to its intersection with the outer limit of the national jurisdiction of Chile; then along the outer limits of the national jurisdictions of Chile, Peru, Ecuador and Colombia to the intersection with the 2° parallel of north latitude; and

(iv)

south of a line extending west along the 2° parallel of north latitude (but not including the national jurisdiction of Ecuador (Galapagos Islands)) to the intersection with the 150° meridian of west longitude; then due north along the 150° meridian of west longitude to its intersection with 10° parallel of north latitude; then west along the 10° parallel of north latitude to its intersection with the outer limits of the national jurisdiction of the Marshall Islands; and then generally south and around the outer limits of the national jurisdictions of Pacific States and territories, New Zealand and Australia until it connects to the commencement of the line described in clause (i).

(5)

Council

The term Council means the Western Pacific Regional Fishery Management Council.

(6)

Exclusive economic zone of the United States

The term exclusive economic zone of the United States means the zone established by Presidential Proclamation Numbered 5030 of March 10, 1983 (16 U.S.C. 1453 note).

(7)

Fishery resources

(A)

In general

The term fishery resources means all fish within the Convention Area.

(B)

Inclusions

The term fishery resources includes mollusks, crustaceans, and other living marine resources as may be decided by the Commission.

(C)

Exclusions

The term fishery resources does not include—

(i)

sedentary species in so far as they are subject to the national jurisdiction of coastal States pursuant to Article 77 paragraph 4 of the 1982 Convention;

(ii)

highly migratory species listed in Annex I of the 1982 Convention;

(iii)

anadromous species;

(iv)

catadromous species;

(v)

marine mammals;

(vi)

marine reptiles; or

(vii)

sea birds.

(8)

Fishing

(A)

In general

The term fishing means—

(i)

the actual or attempted searching for, catching, taking, or harvesting of fishery resources;

(ii)

engaging in any activity that can reasonably be expected to result in the locating, catching, taking, or harvesting of fishery resources for any purpose;

(iii)

transshipment and any operation at sea in direct support of, or in preparation for, any activity described in this subparagraph; or

(iv)

the use of any vessel, vehicle, aircraft, or hovercraft, in relation to any activity described in clauses (i) through (iii).

(B)

Exclusions

The term fishing does not include any operation related to an emergency involving the health or safety of a crew member or the safety of a fishing vessel.

(9)

Fishing vessel

The term fishing vessel means any vessel used or intended for use for the purpose of fishing, including a support ship, a carrier vessel, or any other vessel directly involved in such fishing operations.

(10)

Panel

The term Panel means the Council’s Advisory Panel.

(11)

Person

The term person means—

(A)

any individual, whether or not a citizen or national of the United States;

(B)

any corporation, partnership, association, or other entity, whether or not organized or existing under the laws of any State; or

(C)

any Federal, State, local, tribal, or foreign government, or any entity of such government.

(12)

Secretary

The term Secretary means the Secretary of Commerce.

(13)

South Pacific Fisheries Convention

The term South Pacific Fisheries Convention means the Convention on the Conservation and Management of the High Seas Fishery Resources in the South Pacific Ocean (including any annexes, amendments, or protocols that are in force, or have come into force, for the United States), which was adopted at Auckland on November 14, 2009.

(14)

State

The term State means each of the several States of the United States, the District of Columbia, American Samoa, Guam, and any other commonwealth, territory, or possession of the United States.

(15)

Straddling stock

The term straddling stock means 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.

(16)

Transshipment

The term transshipment means the unloading of all or any of the fishery resources or fishery resources products derived from fishing in the Convention Area on board a fishing vessel to another fishing vessel either at sea or in port.

(17)

1982 Convention

The term 1982 Convention means the United Nations Convention on the Law of the Sea of 10 December 1982.

3.

Appointment of U.S. Commissioners

(a)

Appointment

(1)

In general

The United States shall be represented on the Commission by not more than 3 Commissioners. In making each appointment, the President shall select a Commissioner from among individuals who are knowledgeable or experienced concerning fishery resources in the South Pacific Ocean.

(2)

Representation

At least 1 of the Commissioners shall be—

(A)

serving at the pleasure of the President, an officer or employee of—

(i)

the Department of Commerce;

(ii)

the Department of State; or

(iii)

the United States Coast Guard; and

(B)

the chairperson or designee of the Council.

(b)

Alternate Commissioners

The Secretary of State, in consultation with the Secretary, may designate from time to time and for periods of time considered appropriate an alternate Commissioner to the Commission. An alternate Commissioner may exercise all powers and duties of a Commissioner in the absence of a Commissioner appointed under subsection (a).

(c)

Administrative matters

(1)

Employment status

An individual serving as a Commissioner, or as an alternate Commissioner, other than an officer or employee of the U.S. Government, shall not be considered a Federal employee, except for the purposes of injury compensation or tort claims liability as provided in chapter 81 of title 5, United States Code and chapter 171 of title 28, United States Code.

(2)

Compensation

An individual serving as a Commissioner or an alternate Commissioner, although an officer of the United States while so serving, shall receive no compensation for the individual’s services as such Commissioner or alternate Commissioner.

(3)

Travel expenses

(A)

In general

The Secretary of State shall pay the necessary travel expenses of a Commissioner or an alternate Commissioner in accordance with the Federal Travel Regulations and sections 5701, 5702, 5704 through 5708, and 5731 of title 5, United States Code.

(B)

Reimbursement

The Secretary may reimburse the Secretary of State for amounts expended by the Secretary of State under this paragraph.

(d)

Advisory committee

(1)

Establishment of permanent advisory committee

(A)

Membership

There is established an advisory committee which shall be composed of 7 members appointed by the Secretary, including—

(i)

a member engaging in commercial fishing in the management area of the Council;

(ii)

2 members from the indigenous population of the Pacific, including a Native Hawaiian and a native-born inhabitant of any State in the Pacific;

(iii)

a member that is a marine fisheries scientist and a member of the Council's Scientific and Statistical Committee;

(iv)

a member representing a non-governmental organization active in fishery issues in the Pacific;

(v)

a member nominated by the Governor of the State of Hawaii; and

(vi)

a member designated by the Council.

(B)

Terms and privileges

Each member of the Advisory Committee shall serve for a term of 2 years and shall be eligible for reappointment for not more than 3 consecutive terms. The Commissioners shall notify the Advisory Committee in advance of each meeting of the Commissioners. The Advisory Committee may attend each meeting and may examine and be heard on all proposed programs, investigations, reports, recommendations, and regulations of the Commissioners.

(C)

Procedures

The Advisory Committee shall determine its organization and prescribe its practices and procedures for carrying out its functions under this Act, the South Pacific Fisheries Convention, and the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). The Advisory Committee shall publish and make available to the public a statement of its organization, practices, and procedures. A majority of the members of the Advisory Committee shall constitute a quorum to conduct business. Meetings of the Advisory Committee, except when in executive session, shall be open to the public. Prior notice of each non-executive meeting shall be made public in a timely fashion. The Advisory Committee shall not be subject to the Federal Advisory Committee Act (5 U.S.C. App.).

(D)

Provision of information

The Secretary and the Secretary of State shall furnish the Advisory Committee with relevant information concerning fishery resources and international fishery agreements.

(2)

Administrative matters

(A)

Support services

The Secretary shall provide to the Advisory Committee in a timely manner such administrative and technical support services as are necessary to function effectively.

(B)

Compensation; status; expenses

An individual appointed to serve as a member of the Advisory Committee—

(i)

shall serve without pay; and

(ii)

shall not be considered a Federal employee, except for the purposes of injury compensation or tort claims liability as provided in chapter 81 of title 5, United States Code, and chapter 171 of title 28, United States Code.

(e)

Memorandum of understanding

For fishery resources in the Convention Area, the Secretary, in coordination with the Secretary of State, shall develop a memorandum of understanding with the Council that clarifies the role of the Council with respect to—

(1)

participation in U.S. delegations to international fishery organizations in the Pacific Ocean, including government-to-government consultations;

(2)

providing formal recommendations to the Secretary and the Secretary of State regarding necessary measures for both domestic and foreign fishing vessels;

(3)

coordinating positions with the U.S. delegation for presentation to the appropriate international fishery organization; and

(4)

recommending those domestic fishing regulations that are consistent with the actions of the international fishery organization, for approval and implementation under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.).

4.

Authority and responsibility of the Secretary of State

The Secretary of State may—

(1)

receive and transmit, on behalf of the United States, reports, requests, recommendations, proposals, decisions, and other communications of and to the Commission;

(2)

in consultation with the Secretary, approve, disapprove, object to, or withdraw objections to bylaws and rules, or amendments thereof, adopted by the Commission;

(3)

with the concurrence of the Secretary, approve or disapprove the general annual program of the Commission with respect to conservation and management measures and other measures proposed or adopted in accordance with the South Pacific Fisheries Convention; and

(4)

act upon, or refer to other appropriate authority, any communication under paragraph (1).

5.

Authority of the Secretary of Commerce

(a)

Promulgation of regulations

The Secretary, in consultation with the Secretary of State and, with respect to enforcement measures, the Secretary of the department in which the Coast Guard is operating, is authorized to promulgate such regulations as may be necessary to carry out U.S. international obligations under the South Pacific Fisheries Convention and this Act, including recommendations and decisions adopted by the Commission. If the Secretary has discretion in the implementation of 1 or more measures adopted by the Commission that would govern a straddling stock under the authority of the Council, the Secretary shall promulgate, to the extent practicable within the implementation schedule of the South Pacific Fisheries Convention and any recommendations and decisions adopted by the Commission, such regulations in accordance with the procedures established by the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.).

(b)

Rule of construction

Regulations promulgated under subsection (a) shall be applicable only to a person or a fishing vessel that is or has engaged in fishing, or fishery resources covered by the South Pacific Fisheries Convention under this Act.

(c)

Additional authority

The Secretary may conduct, and may request and utilize on a reimbursed or non-reimbursed basis the assistance, services, personnel, equipment, and facilities of other Federal departments and agencies in—

(1)

scientific, research, and other programs under this Act;

(2)

fishing operations and biological experiments for purposes of scientific investigation or other purposes necessary to implement the South Pacific Fisheries Convention;

(3)

the collection, utilization, and disclosure of such information as may be necessary to implement the South Pacific Fisheries Convention, subject to sections 552 and 552a of title 5, United States Code, and section 402(b) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1881a(b));

(4)

if recommended by the Commissioners, the assessment and collection of fees, not to exceed 3 percent of the ex-vessel value of fishery resources harvested by vessels of the United States in fisheries conducted in the Convention Area, to recover the actual costs to the United States of management and enforcement under this Act, which shall be deposited as an offsetting collection in, and credited to, the account providing appropriations to carry out the functions of the Secretary under this Act; and

(5)

the issuance of permits to owners and operators of U.S. vessels to engage in fishing in the Convention Area seaward of the exclusive economic zone of the United States, under such terms and conditions as the Secretary may prescribe, including the period of time that a permit is valid.

(d)

Consistency with other laws

The Secretary shall ensure the consistency, to the extent practicable, of fishery management programs administered under this Act, the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), the Tuna Conventions Act of 1950 (16 U.S.C. 951 et seq.), the South Pacific Tuna Act of 1988 (16 U.S.C. 973 et seq.), section 401 of Public Law 108–219 (16 U.S.C. 1821 note) (relating to Pacific albacore tuna), the Atlantic Tunas Convention Act of 1975 (16 U.S.C. 971 et seq.), and the Western and Central Pacific Fisheries Convention Implementation Act (16 U.S.C. 6901 et seq.).

(e)

Judicial review of regulations

(1)

In general

Regulations promulgated by the Secretary under this Act shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of title 5, United States Code, if a petition for such review is filed not later than 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register, as applicable.

(2)

Responses

Notwithstanding any other provision of law, the Secretary shall file a response to any petition filed in accordance with paragraph (1), not later than 30 days after the date the Secretary is served with that petition, except that the appropriate court may extend the period for filing such a response upon a showing by the Secretary of good cause for that extension.

(3)

Copies of administrative record

A response of the Secretary under paragraph (2) shall include a copy of the administrative record for the regulations that are the subject of the petition.

(4)

Expedited hearings

Upon a motion by the person who files a petition under this subsection, the appropriate court shall assign the matter for hearing at the earliest possible date.

6.

Enforcement

(a)

In general

The Secretary and the Secretary of the department in which the Coast Guard is operating—

(1)

shall administer and enforce this Act and any regulations issued under this Act, except to the extent otherwise provided for in the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.); and

(2)

may request and utilize on a reimbursed or non-reimbursed basis the assistance, services, personnel, equipment, and facilities of other Federal departments and agencies in the administration and enforcement of this Act.

(b)

Secretarial actions

Except as provided under subsection (c), the Secretary and the Secretary of the department in which the Coast Guard is operating shall prevent any person from violating this Act with respect to fishing or the conservation of fishery resources in the Convention Area in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though sections 308 through 311 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1858, 1859, 1860, 1861) were incorporated into and made a part of this Act. Any person that violates any provision of this Act is subject to the penalties and entitled to the privileges and immunities provided in the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) in the same manner, by the same means, and with the same jurisdiction, power, and duties as though sections 308 through 311 of that Act (16 U.S.C. 1858, 1859, 1860, 1861) were incorporated into and made a part of this Act.

(c)

Jurisdiction of the courts

(1)

In general

Subject to paragraphs (2) and (3), the district courts of the United States shall have exclusive jurisdiction over any case or controversy arising under the provisions of this Act, and any such court may at any time—

(A)

enter restraining orders or prohibitions;

(B)

issue warrants, process in rem, or other process;

(C)

prescribe and accept satisfactory bonds or other security; and

(D)

take such other actions as are in the interest of justice.

(2)

Hawaii and Pacific insular areas

In the case of Hawaii or any other State in the Pacific Ocean, the appropriate court is the United States District Court for the District of Hawaii, except that—

(A)

in the case of Guam and Wake Island, the appropriate court is the United States District Court for the District of Guam; and

(B)

in the case of the Northern Mariana Islands, the appropriate court is the United States District Court for the District of the Northern Mariana Islands.

(3)

Construction

Each violation shall be a separate offense and the offense shall 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. Any offense not committed in any district is subject to the venue provisions of section 3238 of title 18, United States Code.

(d)

Confidentiality

(1)

In general

Any information submitted to the Secretary in compliance with any requirement under this Act shall be confidential and may not be disclosed, except—

(A)

to a Federal employee who is responsible for administering, implementing, or enforcing this Act;

(B)

to the Commission, in accordance with requirements in the South Pacific Fisheries 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;

(C)

to a State or Council employee pursuant to an agreement with the Secretary that prevents public disclosure of the identity or business of any person;

(D)

when required by court order; or

(E)

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 in this paragraph, and such release does not violate other requirements of this Act.

(2)

Use of information

(A)

In general

Except as provided under subparagraph (B), the Secretary shall promulgate regulations regarding the procedures the Secretary considers necessary to preserve the confidentiality of information under this Act.

(B)

Exception

The Secretary may release or make public information submitted under this Act if the information is in any aggregate or summary form that does not directly or indirectly disclose the identity or business of any person.

(3)

Rule of construction

Nothing in this subsection shall be interpreted or construed to prevent the use for conservation and management purposes by the Secretary of any information submitted under this Act.

7.

Prohibited acts

It is unlawful for any person—

(1)

to violate any provision of this Act or any regulation or permit issued under this Act;

(2)

to use any fishing vessel to engage in fishing without, or after the revocation or during the period of suspension of, an applicable permit issued under this Act;

(3)

to 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 the South Pacific Fisheries Convention;

(4)

to 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 the South Pacific Fisheries Convention;

(5)

to resist a lawful arrest for any act prohibited by this Act or any regulation promulgated or permit issued under this Act;

(6)

to knowingly and willfully ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any fishery resources taken or retained in violation of this Act or any regulation or permit referred to in paragraph (1) or (2);

(7)

to 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)

to 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)

to assault, resist, oppose, impede, intimidate, sexually harass, bribe, or interfere with any observer on a vessel under this Act, or any data collector employed by or under contract to any person to carry out responsibilities under this Act;

(10)

to engage in fishing in violation of any regulation adopted under this Act;

(11)

to knowingly and willfully ship, transport, purchase, sell, offer for sale, import, export, or have in custody, possession, or control any fishery resources taken or retained in violation of such regulations;

(12)

to fail to make, keep, or furnish any catch returns, statistical records, or other reports required to be made, kept, or furnished under this Act;

(13)

to fail to stop a vessel upon being hailed and instructed to stop by a duly authorized official of the United States;

(14)

to import, in violation of any regulation promulgated under this Act, any fishery resources in any form of those species subject to regulation pursuant to a recommendation, resolution, or decision of the Commission, or any fishery resources in any form not under regulation but under investigation by the Commission, during the period the fishery resources have been denied entry in accordance with the provisions of this Act;

(15)

to make or submit any false record, account, or label for, or any false identification of, any fishery resources which have been, or are intended to be imported, exported, transported, sold, offered for sale, purchased, or received in interstate or foreign commerce; or

(16)

to refuse to authorize and accept boarding by a duly authorized inspector pursuant to procedures adopted by the Commission for the boarding and inspection of fishing vessels in the Convention Area.

8.

Cooperation in carrying out Convention

(a)

Federal and State agencies; private institutions and organizations

The Secretary may cooperate with any Federal department or agency, any public 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 South Pacific Fisheries Convention, in carrying out responsibilities under this Act.

(b)

Scientific and other programs; facilities and personnel

Each Federal department and agency is authorized, upon the request of the Secretary, to cooperate in the conduct of scientific and other programs and to furnish facilities and personnel for the purpose of assisting the Commission in carrying out its duties under the South Pacific Fisheries Convention.

(c)

Sanctioned fishing operations and biological experiments

Nothing in this Act, or in the laws of any State, prevents the Secretary or the Commission from—

(1)

conducting or authorizing the conduct of fishing operations and biological experiments at any time for purposes of scientific investigation; or

(2)

discharging any other duties prescribed by the South Pacific Fisheries Convention.

(d)

State jurisdiction not affected

Nothing in this Act shall be construed to diminish or to increase the jurisdiction of any State in the territorial sea of the United States.

9.

Territorial participation

The Secretary of State shall ensure participation in the Commission and its subsidiary bodies by American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands to the same extent provided to the territories of other nations.

10.

Exclusive economic zone notification

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 capable of communicating with U.S. enforcement authorities shall, prior to, or as soon as reasonably possible after, entering and transiting the exclusive economic zone of the United States seaward of the Convention Area—

(1)

notify the U.S. Coast Guard of the name, flag state, location, route, and destination of the vessel and of the circumstances under which it will enter the exclusive economic zone of the United States seaward of the Convention Area;

(2)

ensure that all fishing gear on board 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.

11.

Authorization of appropriations

(a)

In general

There are authorized to be appropriated to the Secretary and the Secretary of State such sums as may be necessary to carry out this Act and to pay the United States contribution to the Commission under Article 15 of the South Pacific Fisheries Convention.

(b)

International cooperation and assistance

(1)

In general

Subject to the limits of available appropriations and consistent with applicable law, the Secretary or the Secretary of State shall provide appropriate assistance, including grants, to developing nations and international organizations of which such nations are members to assist those nations in meeting their obligations under the South Pacific Fisheries Convention.

(2)

Transfer of funds

Subject to the limits of available appropriations and consistent with other applicable law, the Secretary and the Secretary of State are authorized to transfer funds to any foreign government, international, non-governmental, or international organization, including the Commission, for purposes of carrying out the international responsibilities under paragraph (1).

April 6, 2016

Reported without amendment