[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 267 Reported in Senate (RS)]
Calendar No. 291
113th CONGRESS
2d Session
S. 267
[Report No. 113-132]
To prevent, deter, and eliminate illegal, unreported, and unregulated
fishing through port State measures.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 11, 2013
Mr. Rockefeller (for himself, Mr. Begich, Ms. Murkowski, Mr. Schatz,
Ms. Cantwell, Mr. Whitehouse, Mr. Wyden, Ms. Hirono, Mr. Merkley, Mr.
Nelson, Mr. Blumenthal, and Mr. Markey) introduced the following bill;
which was read twice and referred to the Committee on Commerce,
Science, and Transportation
January 8, 2014
Reported by Mr. Rockefeller, without amendment
_______________________________________________________________________
A BILL
To prevent, deter, and eliminate illegal, unreported, and unregulated
fishing through port State measures.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Pirate Fishing
Elimination Act''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Purpose.
Sec. 3. Definitions.
Sec. 4. Application.
Sec. 5. Duties of the Secretary.
Sec. 6. Advance notice of vessel arrival, authorization, or denial of
port entry.
Sec. 7. Denial of port services.
Sec. 8. Inspections.
Sec. 9. Prohibited acts.
Sec. 10. Enforcement.
Sec. 11. International cooperation and assistance.
Sec. 12. Relationship to other laws.
Sec. 13. Authorization of appropriations.
SEC. 2. PURPOSE.
The purpose of this Act is to implement the Agreement on Port State
Measures to Prevent, Deter and Eliminate Illegal, Unreported and
Unregulated Fishing, done at the Food and Agriculture Organization of
the United Nations in Rome, Italy on November 22, 2009.
SEC. 3. DEFINITIONS.
In this Act:
(1) Agreement.--The term ``Agreement'' means the Agreement
on Port State Measures to Prevent, Deter and Eliminate Illegal,
Unreported and Unregulated Fishing, done at the Food and
Agriculture Organization of the United Nations in Rome, Italy
on November 22, 2009.
(2) Authorized officer.--The term ``authorized officer''
means--
(A) any commissioned, warrant, or petty officer of
the United States Coast Guard;
(B) any special agent or fishery enforcement
officer of National Marine Fisheries Service; or
(C) any officer designated by the head of any
Federal or State agency that has entered into an
agreement with the Secretary to enforce the provisions
of the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1801 et seq.), or any other
statute administered by the National Oceanic and
Atmospheric Administration.
(3) Conservation and management measures.--The term
``conservation and management measures'' means binding measures
to conserve and manage living marine resources adopted by an
RFMO.
(4) Container vessel.--The term ``container vessel'' means
a self-propelled ocean-going vessel constructed or adapted
primarily to carry ocean freight containers.
(5) FAO.--The term ``FAO'' means the Food and Agriculture
Organization of the United Nations.
(6) Fish.--The term ``fish'' includes all species of living
marine resources, whether processed or not.
(7) Fishing.--The term ``fishing'' means searching for,
attracting, locating, catching, taking, or harvesting fish or
any activity which can reasonably be expected to result in the
attracting, locating, catching, taking, or harvesting of fish.
(8) Fishing-related activity.--The term ``fishing-related
activity'' means any operation in support of, or in preparation
for, fishing, including--
(A) the landing, packaging, processing,
transshipping, or transporting of fish that have not
been previously landed at a port or place; and
(B) the provision of personnel, fuel, gear, and
other supplies at sea.
(9) Foreign vessel.--The term ``foreign vessel'' means any
vessel except for a vessel of the United States.
(10) Illegal, unreported, and unregulated fishing or iuu
fishing.--The term ``illegal, unreported, and unregulated
fishing'' or ``IUU fishing'' means any activity--
(A) conducted by a national or foreign vessel in
waters under the jurisdiction of a nation without the
permission of that nation, or in contravention of its
laws and regulations, including an activity that has
not been reported or has been misreported to the
relevant national authority of that nation in
contravention of its laws and regulations;
(B) conducted by a vessel flying the flag of a
nation that is a member of an RFMO in contravention of
the conservation and management measures adopted by the
RFMO and by which that nation is bound, including an
activity that has not been reported or has been
misreported in contravention of the reporting
requirements of that RFMO;
(C) conducted by a vessel flying the flag of a
nation that is a cooperating non-member of an RFMO that
is inconsistent with the commitments undertaken by that
nation as a cooperating non-member of that RFMO,
including an activity that has not been reported or has
been misreported in a manner that is inconsistent with
those commitments; or
(D) conducted in the area of application of an RFMO
by a vessel without nationality, or by a vessel flying
the flag of a nation that is not a member nor a
cooperating non-member of that RFMO and that undermines
the effectiveness of the conservation and management
measures of that RFMO.
(11) Landing.--The term ``landing'' means to begin to
offload fish or to offload fish from any vessel in port or at a
dock, berth, beach seawall or ramp, but does not include
transshipment.
(12) Listed iuu vessel.--The term ``listed IUU vessel''
means a vessel that is included in a list, adopted by a
regional fisheries management organization, of vessels having
engaged in IUU fishing or fishing-related activities in support
of IUU fishing.
(13) Party.--The term ``Party'' means a government or
regional economic integration organization for which the
Agreement is in force.
(14) Person.--The term ``person'' means any individual
(whether or not a citizen or national of the United States),
corporation, partnership, association, or other entity (whether
or not organized or existing under the laws of any State) and
any Federal, State, local, or foreign government or any entity
of any such government.
(15) Port.--The term ``port'' includes a roadstead, an
offshore terminal, and any other installation or place for
landing, transshipping, packaging, processing, refueling, or
resupplying.
(16) Previously landed.--The term ``previously landed''
means landed in a port or at a dock, berth, beach seawall, or
ramp and subsequently loaded onto a container or other carrier
vessel.
(17) Processing.--The term ``processing'' means the
preparation or packaging of fish to render the fish suitable
for human consumption, retail sale, industrial uses, export, or
long-term storage, including cooking, canning, smoking,
salting, drying, filleting, packaging, freezing, or rendering
into meal or oil.
(18) Regional fisheries management organization or rfmo.--
The term ``regional fisheries management organization'' or
``RFMO'' means an intergovernmental fisheries organization or
arrangement, as appropriate, that has the competence to
establish conservation and management measures.
(19) Secretary.--The term ``Secretary'' means the Secretary
of Commerce or the Secretary of Commerce's designee.
(20) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, American Samoa, the Virgin Islands, Guam, the Northern
Mariana Islands, and any other Commonwealth, territory, or
possession of the United States.
(21) Transshipment.--The term ``transshipment'' means to
offload and onload or otherwise transfer fish or a fish product
from one vessel to another vessel.
(22) Vessel.--The term ``vessel'' means any vessel, ship,
or boat used, equipped, or intended for fishing or a fishing-
related activity.
(23) Vessel of the united states.--
(A) In general.--The term ``vessel of the United
States'' means--
(i) a vessel documented under chapter 121
of title 46, United States Code, or numbered in
accordance with chapter 123 of title 46, United
States Code; or
(ii) a vessel owned in whole or in part
by--
(I) the United States;
(II) a State or political
subdivision of a State;
(III) a citizen or national of the
United States; or
(IV) a corporation created under
the laws of the United States or any
State.
(B) Exclusions.--The term ``vessel of the United
States'' does not include a vessel that has been
granted the nationality of a foreign nation consistent
with international law and a claim of nationality or
registry for the vessel has been made by the master or
individual in charge at the time of the enforcement
action by an officer or employee of the United States
authorized to enforce applicable provisions of the
United States law.
SEC. 4. APPLICATION.
(a) In General.--This Act shall apply to--
(1) each foreign vessel seeking entry to or in a port
subject to the jurisdiction of the United States;
(2) each vessel of the United States seeking entry to or in
a port subject to the jurisdiction of another Party to the
Agreement; and
(3) each person subject to the jurisdiction of the United
States.
(b) Exclusions.--Notwithstanding subsection (a), this Act shall not
apply to--
(1) a container vessel that is not carrying fish; or
(2) a container vessel that--
(A) is carrying only fish that have been previously
landed; and
(B) the Secretary has no clear grounds to suspect
has been engaged in IUU fishing or fishing-related
activities in support of IUU fishing.
SEC. 5. DUTIES OF THE SECRETARY.
(a) Regulations.--The Secretary may promulgate such regulations, in
accordance with section 553 of title 5, United States Code, as may be
necessary to carry out the purposes of this Act.
(b) Procedures.--The Secretary, in consultation with the Secretary
of State and the Secretary of the department in which the Coast Guard
is operating, shall develop procedures for making determinations and
notifications as may be necessary to carry out the purposes of this
Act.
(c) Foreign Vessel Entry.--
(1) In general.--The Secretary (in consultation with the
Secretary of Homeland Security or if the Coast Guard is not
operating in the Department of Homeland Security, in
consultation with the Secretary of the department in which the
Coast Guard is operating) may designate and publicize each port
to which a vessel described in section 4 may seek entry. The
Secretary shall not designate a port under this subsection
unless the port is designated as a port of entry for customs
reporting purposes under section 433 of the Tariff Act of 1930
(19 U.S.C. 1433).
(2) List of designated ports.--The Secretary shall provide
a list of each port designated under paragraph (1) to FAO.
(d) Electronic Exchange of Information.--In order to implement the
requirements of the Agreement regarding electronic exchange of
information, the Secretary is authorized to designate a point of
contact and notify FAO of that designation. The Secretary may
cooperate, including by providing financial assistance, in efforts to
establish an information-sharing mechanism and to facilitate the
exchange of information with existing databases relevant to the
Agreement.
(e) Information on Available Recourse.--The Secretary shall
maintain information regarding any legal remedy available to a person
who is affected by an action under this Act. The Secretary shall make
the information publicly accessible and, upon written request, shall
provide the information to the owner, operator, master, or
representative of a vessel.
SEC. 6. ADVANCE NOTICE OF VESSEL ARRIVAL, AUTHORIZATION, OR DENIAL OF
PORT ENTRY.
(a) Advance Notice of Vessel Arrival.--Each vessel described in
section 4(a) shall submit to the Secretary of the department in which
the Coast Guard is operating information required under the Agreement
in advance of the vessel's arrival in a port. The Secretary shall, in
consultation with the Secretary of the Department in which the Coast
Guard is operating and the Secretary of State, promulgate regulations
to establish a procedure that requires each foreign vessel seeking
entry into a U.S. port to submit, at a minimum, the information
required under the Agreement in advance of the vessel's arrival in a
port. The procedure shall utilize, to the maximum extent possible,
existing reporting mechanisms maintained and operated by the department
in which the Coast Guard is operating.
(b) Authorization or Denial of Port Entry.--
(1) In general.--In conformance with the procedures under
section 5(b) the Secretary shall--
(A) decide whether to authorize or deny port entry;
and
(B) communicate the decision to the vessel or its
representative in accordance with the procedure under
subsection (a).
(2) Denial of entry.--The Secretary may deny entry to--
(A) any listed IUU vessel;
(B) any vessel that the Secretary has reasonable
grounds to believe has engaged in IUU fishing or
fishing-related activities in support of IUU fishing;
or
(C) any vessel that the Secretary has reasonable
grounds to believe has violated this Act.
(3) Permissible entry.--Notwithstanding paragraph (2), the
Secretary may allow a vessel entry into port--
(A) for the purpose of rendering assistance to a
vessel or person in danger or distress;
(B) for the scrapping of the vessel, as
appropriate; or
(C) for inspection or other enforcement action.
(c) Notice.--If entry is denied under subsection (b), the Secretary
shall provide notice of the decision to the flag nation of the vessel
and, as appropriate, to each relevant coastal nation, RFMO, and other
international organization.
SEC. 7. DENIAL OF PORT SERVICES.
(a) In General.--A vessel that has been granted authorization to
enter port under section 6 or that is otherwise in a port subject to
the jurisdiction of the United States shall be denied, by the
Secretary, the use of the port for landing, transshipment, packaging
and processing of fish, refueling, resupplying, maintenance, and
drydocking, if--
(1) the vessel entered port without authorization under
section 6;
(2) the vessel is a listed IUU vessel;
(3) the Secretary has reasonable grounds to believe that
the vessel lacks valid authorizations to engage in fishing or
fishing-related activities as required by its flag nation or
the relevant coastal nation;
(4) the Secretary has reasonable grounds to believe that
the fish on board the vessel were taken in violation of foreign
law or in contravention of any conservation and management
measures;
(5) the Secretary requested confirmation from the flag
nation that the fish on board were taken in accordance with
applicable conservation and management measures, and the flag
nation failed to provide confirmation in accordance with
regulations promulgated under this Act; or
(6) the Secretary has reasonable grounds to believe that
the vessel has engaged in IUU fishing or fishing-related
activities in support of IUU fishing, including in support of a
listed IUU vessel, unless the vessel can establish that--
(A) the vessel was acting in a manner consistent
with applicable conservation and management measures;
or
(B) in the case of the provision of personnel,
fuel, gear, and other supplies at sea, the vessel
provisioned was not, at the time of provisioning, a
listed IUU vessel.
(b) Permissible Use of Port Services.--Notwithstanding subsection
(a), the Secretary may allow the use of port services---
(1) if the vessel has established that the services are
essential to the safety or health of the crew or safety of the
vessel;
(2) for the scrapping of the vessel, as appropriate; or
(3) for inspection or other enforcement action.
(c) Notice.--If use of port services is denied under subsection
(a), the Secretary, acting through the Secretary of State, shall
provide notice of the decision to the flag nation of the vessel and, as
appropriate, to each relevant coastal nation, RFMO, and other
international organization.
(d) Withdrawal of Denial.--The Secretary shall withdraw denial of
the use of port services if the Secretary determines that the grounds
on which the use was denied were inadequate, erroneous, or no longer
applicable. The Secretary shall provide notification of the withdrawal
promptly to each person that was notified under subsection (c).
SEC. 8. INSPECTIONS.
(a) Inspections.--The Secretary and the Secretary of the department
in which the Coast Guard is operating shall conduct vessel inspections,
as necessary, for the purposes of the Agreement and this Act. In
conducting a vessel inspection, the Secretary may utilize by agreement,
on a reimbursable or nonreimbursable basis, the personnel services,
equipment (including aircraft and vessels), and facilities of any other
Federal agency (including all elements of the Department of Defense),
and of any State agency. The Secretary shall prioritize vessel
inspections based on--
(1) whether a vessel has been denied entry or use of a port
in accordance with the Agreement;
(2) a request from another relevant Party, State, or RFMO
that a certain vessel be inspected, particularly if the request
is supported by evidence of IUU fishing or fishing-related
activities in support of IUU fishing by the vessel in question;
and
(3) whether there are clear grounds to suspect that a
vessel has engaged in IUU fishing or fishing-related activities
in support of IUU fishing.
(b) Transmittal of Inspection Results.--The Secretary shall
transmit the results of an inspection under this Act to the flag nation
of the inspected vessel and, as appropriate, to--
(1) each relevant Party and nation, including a relevant
coastal nation and the nation of which the vessel's master is a
national;
(2) each relevant RFMO;
(3) the FAO; and
(4) any other relevant international organization.
(c) Actions Following Inspection.--If, following an inspection, the
Secretary has reasonable grounds to believe that a foreign vessel has
engaged in IUU fishing or fishing-related activities in support of IUU
fishing--
(1) the Secretary may take enforcement action under this
Act or other applicable law; and
(2) the Secretary shall--
(A) acting through the Secretary of State, promptly
notify the flag nation of the vessel and, as
appropriate, each relevant coastal nation, RFMO, and
other international organization, and the nation of
which the vessel's master is a national; and
(B) deny the vessel the use of port services, in
accordance with section 7.
SEC. 9. PROHIBITED ACTS.
It is unlawful for any person--
(1) to violate any provision of this Act or any regulation
promulgated thereunder;
(2) to refuse to permit an authorized officer to board,
search, or inspect any vessel, conveyance, or shoreside
facility that is subject to the person's control, for the
purpose of conducting any search, investigation, or inspection
in connection with the enforcement of this Act or any
regulation promulgated thereunder;
(3) to forcibly assault, resist, oppose, impede,
intimidate, or interfere with any authorized officer in the
conduct of any search, investigation, or inspection described
in paragraph (2);
(4) to resist a lawful arrest for any act prohibited by
this Act;
(5) to interfere with, delay, or prevent, by any means, the
apprehension, arrest, or detection of another person, knowing
that such person has committed any act prohibited by this
section;
(6) to submit any false information pursuant to any
requirement under this Act or any regulation promulgated under
this Act;
(7) to forcibly assault, resist, oppose, impede,
intimidate, sexually harass, bribe, or interfere with any
observer or any data collector employed or under contract to
carry out responsibilities under this Act or any Act
administered by the Secretary;
(8) to import, export, transport, sell, receive, acquire,
or purchase in interstate or foreign commerce any fish or fish
product taken, possessed, transported, or sold in violation of
any foreign law or treaty addressing the conservation or
management of living marine resources, or any conservation and
management measures (as defined in section 3); or
(9) to make or submit any incomplete, invalid, or false
record, account, or label for, or any false identification of,
any fish or fish product (including false identification of the
species, harvesting vessel or nation, or the date or location
where harvested) that has been, or is intended to be imported,
exported, transported, sold, offered for sale, purchased, or
received in interstate or foreign commerce except where such
making or submission is prohibited by section 307(1)(I) of the
Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1857(1)(I)).
SEC. 10. ENFORCEMENT.
(a) Responsibility.--The Secretary and the Secretary of the
department in which the Coast Guard is operating shall enforce the
provisions of this Act. In enforcing this Act, the Secretary and the
Secretary of the department in which the Coast Guard is operating may
utilize, by agreement and on a reimbursable or nonreimbursable basis
the personnel, services, equipment (including aircraft and vessels),
and facilities of any other Federal agency (including all elements of
the Department of Defense), or of any State agency. The Secretary and
the Secretary of the department in which the Coast Guard is operating
shall authorize officers to enforce the provisions of this Act
(including any regulation promulgated under this Act). The head of any
Federal or State agency that has entered into an agreement with either
the Secretary or the Secretary of the department in which the Coast
Guard is operating under this section may (if the agreement so
provides) authorize officers to enforce the provisions of this Act
(including any regulation promulgated under this Act).
(b) Powers of Authorized Officers.--
(1) In general.--An authorized officer under subsection (a)
may, with or without a warrant or other process--
(A) arrest a person if the officer has probable
cause that the person has committed an act prohibited
under section 9;
(B) board and search or inspect any vessel that is
subject to this Act;
(C) seize any vessel (together with its fishing
gear, furniture, appurtenances, stores, and cargo) used
or employed in, or with respect to which it reasonably
appears that such vessel was used or employed in, the
violation of any provision of this Act (including any
regulation promulgated under this Act);
(D) seize any fish (wherever found) imported,
exported, transported, sold, received, acquired, or
purchased in any manner, in connection with or as a
result of the violation of any provision of this Act;
(E) seize any other evidence related to any
violation of any provision of this Act (including any
regulation promulgated under this Act);
(F) search or inspect any facility or conveyance
used or employed in, or which reasonably appears to be
used or employed in, the storage, processing,
transport, or trade of fish or fish products;
(G) inspect records pertaining to the storage,
processing, transport, or trade of fish or fish
products;
(H) detain, for a period not to exceed 14 days, any
shipment of fish or fish products that is related to
any violation of any provision of this Act (including
any regulations promulgated under this Act) and that
was imported into, landed on, introduced into, exported
from, or transported within the jurisdiction of the
United States, or, if such fish or fish product is
deemed to be perishable, sell and retain the proceeds
for a period not to exceed 14 days;
(I) search and seize, in accordance with any
guidelines issued by the Attorney General;
(J) execute and serve any subpoena, arrest warrant,
search warrant issued in accordance with rule 41 of the
Federal Rules of Criminal Procedure, or other warrant
or civil or criminal process issued by any officer or
court of competent jurisdiction;
(K) access, directly or indirectly, for enforcement
purposes any data or information required to be
provided under this Act (including any regulations
promulgated under this Act), including data from vessel
monitoring systems, automatic identification systems,
long-range identification and tracking systems, or any
similar system; and
(L) exercise any other lawful authority.
(2) Felonies.--An authorized officer under subsection (a)
may carry, in accordance with any guidelines issued by the
Attorney General, firearms and may make an arrest for any
offense under the laws of the United States committed in the
officer's presence or for the commission of any felony under
the laws of the United States if the officer has probable cause
that the person to be arrested has committed or is committing a
felony.
(c) Issuance of Citations.--If an authorized officer under
subsection (a) finds that a person or vessel is engaging or has been
engaged in a violation of any provision of this Act, the officer may
issue a citation to the owner or operator of the vessel in lieu of
proceeding under subsection (f), (g), or (i). The Secretary shall
maintain a record of all citations issued under this subsection.
(d) Subpoenas.--
(1) In general.--For the purposes of conducting any
investigation or hearing under this Act, or any other Act
administered by the Secretary, the Secretary may--
(A) issue subpoenas for the attendance and
testimony of witnesses and the production of relevant
papers, photographs, records, books, and documents in
any form, including those in electronic, optical, or
magnetic form; and
(B) administer oaths.
(2) Witness fees.--Witnesses summoned shall be paid the
same fees and mileage that are paid to witnesses in the courts
of the United States.
(3) Contempt.--In case of contempt or refusal to obey a
subpoena served upon any person under this subsection, the
district court of the United States for any district in which
such person is found, resides, or transacts business, upon
application by the United States and after notice to such
person, shall have jurisdiction to issue an order requiring
such person to appear and give testimony before the Secretary
or to appear and produce documents before the Secretary, or
both, and any failure to obey such order of the court may be
punished by such court as a contempt thereof.
(e) District Court Jurisdiction.--
(1) In general.--The several district courts of the United
States shall have jurisdiction over any actions arising under
this section. For the purpose of this section, for 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--
(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.
(2) Each violation separate offense.--Each violation shall
be a separate offense. 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 as authorized by law.
(3) Offenses not committed in any district.--Any offense
not committed in any district is subject to the venue
provisions of section 3238 of title 18, United States Code.
(f) Civil Enforcement.--
(1) Civil administrative penalties.--
(A) In general.--Any person who is found by the
Secretary (after notice and opportunity for a hearing
in accordance with section 554 of title 5, United
States Code) to have committed an act prohibited under
section 9 shall be liable to the United States for a
civil penalty. The amount of the civil penalty shall
not exceed $250,000 for each violation. Each day of a
continuing violation shall constitute a separate
offense. The amount of such civil penalty shall be
assessed by the Secretary, by written notice. In
determining the amount of such penalty, the Secretary
shall take into account the nature, circumstances,
extent, and gravity of the prohibited act committed
and, with respect to the violator, the degree of
culpability, any history of prior offenses, and other
matters as justice may require. In assessing such
penalty the Secretary may also consider any information
provided by the violator relating to the ability of the
violator to pay if the information is served on the
Secretary not later than 30 days prior to an
administrative hearing.
(B) Compromise or other action by secretary.--The
Secretary may compromise, modify, or remit, with or
without conditions, any civil administrative penalty
which is or may be imposed under this subsection and
that has not been referred to the Attorney General for
further enforcement action.
(2) Civil judicial penalties.--Any person who violates any
provision of this Act (including any regulation promulgated or
permit issued thereunder) shall be subject to a civil judicial
penalty not to exceed $300,000 for each such violation. Each
day of a continuing violation shall constitute a separate
violation. The Attorney General, upon the request of the
Secretary, may commence a civil action in an appropriate
district court of the United States. The district court shall
have jurisdiction to award civil penalties and such other
relief as justice may require. In determining the amount of a
civil penalty, the district court shall take into account the
nature, circumstances, extent, and gravity of the prohibited
act committed and, with respect to the violator, the degree of
culpability, any history of prior violations, and such other
matters as justice may require. In imposing such penalty, the
district court may also consider information related to the
ability of the violator to pay.
(3) In rem jurisdiction.--A vessel (including its fishing
gear, furniture, appurtenances, stores, and cargo) used in the
commission of an act prohibited by section 9 shall be liable in
rem for any civil penalty assessed for such violation under
this section and may be proceeded against in any district court
of the United States having jurisdiction thereof. Such penalty
shall constitute a maritime lien on such vessel. The maritime
lien on the vessel may be recovered in an action in rem in the
district court of the United States having jurisdiction over
the vessel.
(4) Collection of administrative penalties.--If a person
fails to pay an assessment of a civil penalty under paragraph
(1) after it has become a final and unappealable order, the
Secretary shall refer the matter to the Attorney General. The
Attorney General shall recover the amount assessed (plus
interest at current prevailing rates from the date of the final
order) in any appropriate district court of the United States.
In such action, the validity and appropriateness of the final
order imposing the civil penalty shall not be subject to
review. Any person who fails to pay, on a timely basis, the
amount of an assessment of a civil penalty shall be required to
pay (in addition to such amount and interest, attorney's fees,
and costs for collection proceedings) a quarterly nonpayment
penalty for each quarter during which such failure to pay
persists. Such nonpayment penalty shall be in an amount equal
to 20 percent of the aggregate amount of such person's
penalties and nonpayment penalties that are unpaid as of the
beginning of such quarter.
(g) Forfeiture.--
(1) Criminal forfeiture.--A person who is convicted of an
offense in violation of this Act shall forfeit to the United
States--
(A) any property, real or personal, constituting or
traceable to the gross proceeds taken, obtained, or
retained, in connection with or as a result of the
offense, including, without limitation, any fish (or
the fair market value thereof); and
(B) any property, real or personal, used or
intended to be used, in any manner, to commit or
facilitate the commission of the offense, including,
without limitation, any vessel (including the vessel's
equipment, stores, catch and cargo), vehicle, aircraft,
or other means of transportation. Pursuant to section
2461(c) of title 28, United States Code, the provisions
of section 413 of the Controlled Substances Act (21
U.S.C. Sec. 853) except for subsection (d) of that Act
shall apply to criminal forfeitures under this section.
(2) Civil forfeiture.--The property set forth below shall
be subject to forfeiture to the United States in accordance
with the provisions of chapter 46 of title 18, United States
Code, and no property right shall exist in it:
(A) Any property, real or personal, constituting or
traceable to the gross proceeds taken, obtained, or
retained in connection with, or as a result of, a
violation of this Act, including, without limitation,
any fish (or the fair market value thereof).
(B) Any property, real or personal, used or
intended to be used, in any manner, to commit or
facilitate the commission of a violation of this Act,
including, without limitation, any vessel (including
the vessel's equipment, stores, catch, and cargo),
vehicle, aircraft, or other means of transportation.
(3) Application of the customs laws.--All provisions of law
relating to seizure, summary judgment, and judicial forfeiture
and condemnation for violation of the customs laws, the
disposition of the property forfeited or condemned or the
proceeds from the sale thereof, the remission or mitigation of
such forfeitures, and the compromise of claims shall apply to
seizures and forfeitures incurred, or alleged to have been
incurred, under the provisions of this Act, insofar as
applicable and not inconsistent with the provisions hereof. For
seizures and forfeitures of property under this section by the
Secretary, such duties as are imposed upon the customs officer
or any other person with respect to the seizure and forfeiture
of property under the customs law may be performed by such
officers as are designated by the Secretary or, upon request of
the Secretary, by any other agency that has authority to manage
and dispose of seized property.
(4) Presumption.--For the purposes of this section there is
a rebuttable presumption that all fish, or components thereof,
found on board a vessel that is used or seized in connection
with a violation of this Act (including any regulation
promulgated under this Act) were taken, obtained, or retained
as a result of IUU fishing or fishing-related activities in
support of IUU fishing.
(h) Criminal Enforcement.--
(1) Any person (other than a foreign government agency, or
entity wholly owned and controlled by a foreign government) who
knowingly commits any act prohibited by section 9 of this Act
shall be imprisoned for not more than 5 years or fined not more
than $500,000 for individuals or $1,000,000 for an
organization, or both; except that if in the commission of any
such offense the individual uses a dangerous weapon, engages in
conduct that causes bodily injury to any officer authorized to
enforce the provisions of this Act, or places any such officer
in fear of imminent bodily injury, the maximum term of
imprisonment is not more than 10 years.
(2) Any person (other than a foreign government agency, or
entity wholly owned and controlled by a foreign government) who
violates paragraph (2), (3), (4), (5) or (6) of section 9, and
who, in the exercise of due care should know that such person's
conduct violates such subsections, shall be fined under title
18, United States Code, or imprisoned not more than 1 year, or
both.
(i) Payment of Storage, Care, and Other Costs.--Any person assessed
a civil penalty for, or convicted of, any violation of this Act
(including any regulation promulgated under this Act) and any claimant
in a forfeiture action brought for such a violation, shall be liable
for the reasonable costs incurred by the Secretary in storage, care,
and maintenance of any property seized in connection with the
violation.
SEC. 11. INTERNATIONAL COOPERATION AND ASSISTANCE.
(a) In General.--To the greatest extent possible, consistent with
existing authority and the availability of funds, the Secretary 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 Agreement.
(b) Use of Resources.--In carrying out subsection (a), the
Secretary may, by agreement, on a reimbursable or nonreimbursable
basis, utilize the personnel, services, equipment, and facilities of
any individual, corporation, partnership, association, or other entity,
and any Federal, State, local, or foreign government or any entity of
any such government.
(c) Transfer of Funds.--The Secretary is authorized to transfer
funds, subject to the limits of available appropriations, to any
foreign government and any international, non-governmental, or
intergovernmental organization for purposes related to carrying out the
international responsibilities of subsection (a) or any statute
administered by the Secretary.
SEC. 12. RELATIONSHIP TO OTHER LAWS.
(a) Statutory Construction.--Nothing in this Act shall be construed
to displace any requirements imposed by the customs laws of the United
States or any other laws or regulations enforced or administered by the
Secretary of Homeland Security. Where more stringent requirements
regarding port entry or access to port services exist under other
Federal law, the more stringent requirements shall apply. Nothing in
this Act shall affect a vessel's entry into port, in accordance with
international law, for reasons of force majeure or distress.
(b) Statutory Interpretation.--This Act shall be interpreted and
applied in accordance with United States obligations under
international law.
SEC. 13. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to the Secretary such sums
as are necessary for each of fiscal years 2013 through 2017 to carry
out the provisions of this Act.
Calendar No. 291
113th CONGRESS
2d Session
S. 267
[Report No. 113-132]
_______________________________________________________________________
A BILL
To prevent, deter, and eliminate illegal, unreported, and unregulated
fishing through port State measures.
_______________________________________________________________________
January 8, 2014
Reported without amendment