S. Rept. 111-124 - 111th Congress (2009-2010)

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Senate Report 111-124 - THE SHARK CONSERVATION ACT OF 2009

[Senate Report 111-124]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 270
111th Congress 
 2d Session                      SENATE                          Report
                                                                111-124
_______________________________________________________________________

                                     

                                                       

 
                   THE SHARK CONSERVATION ACT OF 2009

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                 S. 850




                                     


                February 4, 2010.--Ordered to be printed

       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                     one hundred eleventh congress

                             second session

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota        JOHN ENSIGN, Nevada
BARBARA BOXER, California            JIM DeMINT, South Carolina
BILL NELSON, Florida                 JOHN THUNE, South Dakota
MARIA CANTWELL, Washington           ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey      GEORGE S. LeMIEUX, Florida
MARK PRYOR, Arkansas                 JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri           DAVID VITTER, Louisiana
AMY KLOBUCHAR, Minnesota             SAM BROWNBACK, Kansas
TOM UDALL, Colorado                  MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
                     Ellen Doneski, Chief of Staff
                   James Reid, Deputy Chief of Staff
                     Bruce Andrews, General Counsel
             Ann Begeman, Acting Republican Staff Director
              Brian Hendricks, Republican General Counsel
                Todd Bertoson, Republican Senior Counsel
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-124

======================================================================




                   THE SHARK CONSERVATION ACT OF 2009

                                _______
                                

                February 4, 2010.--Ordered to be printed

                                _______
                                

     Mr. Rockefeller, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                                 REPORT

                         [To accompany S. 850]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 850) to amend the High Seas 
Driftnet Fishing Moratorium Protection Act and the Magnuson-
Stevens Fishery Conservation and Management Act to improve the 
conservation of sharks, having considered the same, reports 
favorably thereon with an amendment (in the nature of a 
substitute) and recommends that the bill (as amended) do pass.

                          Purpose of the Bill

  S. 850, the Shark Conservation Act of 2009, would clarify the 
intended scope of application of the Shark Finning Prohibition 
Act of 2000. It would also equip Federal fisheries enforcement 
authorities with new tools to better detect and deter the 
unlawful practice of finning sharks.

                          Background and Needs

  There are well over 400 known species of sharks whose 
habitats may be found throughout the world's oceans and seas. 
Although many of these species dominate their natural habitats 
as apex predators or mesopredators, they are also prone to 
higher mortality rates due to their slow growth, late age of 
maturity, and low fecundity. This higher mortality has been 
compounded in recent decades by increased human exploitation of 
the oceans' living marine resources, most notably through 
incidental taking of sharks as bycatch in pelagic longline 
fisheries from the 1960s onward, and the targeting of sharks in 
directed fisheries, which expanded rapidly in the 1980s and 
continues to the present day.\1\ The impact on shark 
populations is staggering--for example, a 2003 scientific 
analysis of shark populations in the Northwest Atlantic 
included an estimate that all recorded shark species there, 
with the exception of mako sharks, had declined by more than 50 
percent in the prior eight to fifteen years.\2\ This trend is 
not limited to the Northwest Atlantic. Similar declines have 
been detected in other oceans and seas throughout the world.\3\ 
This trend is particularly troubling when considered in the 
context of the broader, indirect effects resulting from their 
removal. The impacts of eliminating apex predators can be far-
reaching, and can include the release of mesopredator prey 
populations from predatory control and the induction of 
subsequent cascades of indirect trophic interactions.\4\ In 
response to these very real concerns about dwindling shark 
populations, the United States has taken a leadership role in 
recent years in the implementation of conservation measures.
---------------------------------------------------------------------------
    \1\ Julia K. Baum et al., Collapse and Conservation of Shark 
Populations in the Northwest Atlantic, Science, Jan. 17, 2003, at 389 
(citing R. Bonfil, Overview of World Elasmobranch Fisheries, FAO 
Fisheries Technical Paper 341 (Rome, 1994); and D. Rose, An Overview of 
World Trade in Sharks and Other Large Cartilaginous Fishes, Traffic 
Network (Cambridge, UK, 1996).
    \2\ Id.
    \3\ See, e.g., Ransom A. Myers and Boris Worm, Rapid Worldwide 
Depletion of Predatory Fish Communities, Nature, May 25, 2003; 
Francesco Ferretti, Loss of Large Predatory Sharks from the 
Mediterranean Sea, 22 Conservation Biology 4, 952-964 (2008); and 
Travis D. Shepherd and Ransom A. Myers, Direct and Indirect Fishery 
Effects on Small Coastal Elasmobranchs in the Northern Gulf of Mexico, 
Ecology Letters, 1095-1104 (2005).
    \4\ Ransom A. Myers et al., Cascading Effects of the Loss of Apex 
Predatory Sharks from a Coastal Ocean, Science, Mar. 30, 2007, at 1846.
---------------------------------------------------------------------------
  Under the Magnuson-Stevens Fishery Conservation and 
Management Act (``MSA''),\5\ as amended by the Shark Finning 
Prohibition Act of 2000,\6\ it is unlawful to: (1) remove the 
fins of sharks and discard their carcasses; (2) have custody, 
control, or possession of any such fin aboard a fishing vessel 
without the corresponding carcass; or (3) land any such fin 
without the corresponding carcass.\7\ There is a rebuttable 
presumption that a violation of these prohibitions has occurred 
if the total weight of shark fins found aboard a fishing vessel 
or landed is greater than five percent of the total weight of 
shark carcasses found aboard the vessel or landed.\8\ The MSA 
defines the term ``fishing vessel'' broadly to include not only 
vessels used for fishing, but also vessels used to assist other 
vessels at sea in the performance of any activity related to 
fishing.\9\ Such fishing-related activities include, but are 
not limited to, ``...preparation, supply, storage, 
refrigeration, transportation, or processing.''\10\
---------------------------------------------------------------------------
    \5\ 16 U.S.C. Sec. 1801 et seq.
    \6\ Pub. L. 106-557, 114 Stat. 2772.
    \7\ 16 U.S.C. Sec. 1857(1)(P).
    \8\ Id. Sec. 1857(1).
    \9\ Id. Sec. 1802(18).
    \10\ Id. Sec. 1802(18)(B) (emphasis added).
---------------------------------------------------------------------------
  Despite the broad range of vessels to which the shark finning 
and other provisions of the MSA are meant to apply, the United 
States Court of Appeals for the 9th Circuit held in March, 
2008, that the shark finning prohibitions and related 
implementing regulations promulgated by the National Marine 
Fisheries Service (``NMFS'') do not apply to certain vessels 
even though they are performing fishing-related activities.\11\ 
In that 9th Circuit case, the government brought a civil 
forfeiture action against a cargo of shark fins seized from a 
United States vessel operating under a Registry endorsement 
(and, before that, under a Fishery endorsement), allowing it to 
engage in foreign trade. The vessel had been chartered by a 
Hong Kong seafood products company to rendezvous with foreign 
fishing vessels on the high seas, purchase shark fins from 
those vessels, and transport the shark fins to Guatemala where 
the Hong Kong company planned to accept delivery. Applying the 
law to the facts of the case, the court determined that the 
statutory definition of ``fishing vessel'' did not offer fair 
notice to the chartering company that the vessel's activities 
(i.e., engaging in the at-sea purchase and transfer of shark 
fins) would render it a ``fishing vessel'' subject to the shark 
finning laws. As a result, the court held that applying the 
shark finning prohibitions to the vessel and its charterer 
violated due process.\12\
---------------------------------------------------------------------------
    \11\ See United States v. Approx. 64,695 Pounds of Shark Fins, 520 
F.3d 976 (9th Cir. 2008).
    \12\ Id. at 983.
---------------------------------------------------------------------------
  The Committee is aware of the economic concerns that a fins-
attached requirement may raise in certain States and United 
States territories where fisheries have developed in accordance 
with cultural norms that value the entire shark as a food fish, 
and separating fin from shark has been a normal step in the 
practice of pre-processing the shark for higher value at the 
time of commercial sale. Since these Pacific fisheries present 
special challenges for legislation aimed at prohibiting the 
abusive practice of finning sharks and discarding the 
carcasses, the Committee urges the Secretary, in consultation 
with the appropriate regional fishery management councils, to 
determine whether additional regulations are warranted to make 
allowance for regional and cultural differences in the shark 
fisheries. The Committee recognizes that fishing opportunities 
in the Pacific, especially in Guam and the Northern Marianas 
Islands, are being increasingly restricted through the 
designation of the Marianas Trench National Marine Monument and 
the pending military build-up in Guam. While it is important 
for the United States to remain an international leader in 
conservation, part of that leadership role means understanding 
regional variations in fishing practices, the cultural 
dimensions of demand for ocean products, and the relative 
health of the ecosystems that support fisheries.
  These economic concerns are not limited to the Pacific. 
Similar concerns have been raised regarding commercial smooth 
dogfish fisheries along the mid-Atlantic coast of the United 
States. The Committee understands that, although this 
commercial fishing activity generally occurs less than five 
miles offshore, the fisheries catch is harvested in nearly 
equal amounts from State waters and the Federal Exclusive 
Economic Zone. The Committee recognizes that this commercial 
fishing activity is unique among shark fishing operations, and 
does not involve ``shark finning'' as that term is defined 
under current law. Unlike large coastal sharks, whose fins 
account for 80 percent or more of their value, it is the flesh, 
not the fins, of smooth dogfish which accounts for 75 percent 
or more of their value (when the flesh is of a high quality). 
Moreover, while the fins of many sharks can carry a value of 
hundreds of dollars per pound, smooth dogfish fins are 
typically valued at less than $2 per pound. The Committee is 
informed that, because the flesh of smooth dogfish is 
especially prone to spoilage, the fish must be partially 
processed at sea before returning to shore in order to ensure a 
high quality product. This practice involves the removal of the 
fins as well as other parts of the fish. The Committee urges 
the Secretary, in consultation with the appropriate regional 
fishery management councils and the Atlantic States Marine 
Fisheries Commission, to determine appropriate allowances under 
the provisions of S. 850 to avoid undue burdens on commercial 
smooth dogfish fishing.

                         Summary of Provisions

  S. 850 would clarify that the shark finning prohibitions of 
the Magnuson-Stevens Act apply not only to fishing vessels, but 
also to non-fishing vessels involved in transferring or 
receiving shark fins at sea. The bill would also strengthen 
Federal fisheries enforcement capabilities related to shark 
finning in two important ways. First, it would require that 
sharks caught in Federal waters or under a Federal fishing 
permit must be taken and landed with all fins at least 
partially attached to their corresponding carcasses. Second, it 
would amend the High Seas Driftnet Fishing Moratorium 
Protection Act, 16 U.S.C. 1826(d)-(k), to provide the United 
States with the ability to take action against countries that 
catch sharks if those countries lack comparable shark 
conservation laws.

                          Legislative History

  S. 850 was introduced on April 22, 2009, by Senator Kerry and 
was referred to the Committee on Commerce, Science, and 
Transportation. A budget and oversight hearing on National 
Oceanic and Atmospheric Administration (NOAA) issues, including 
fish conservation and management issues, was held by the 
Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard 
on June 11, 2009. As a part of that hearing, questions were 
asked for the record regarding the Administration's views on 
the need for additional shark conservation legislation and on 
the provisions of S. 850. On November 19, 2009, the Committee 
met in open executive session and by voice vote ordered that S. 
850 be reported with an amendment in the nature of a 
substitute.

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                                  December 1, 2009.
Hon. John D. Rockefeller IV,
Chairman, Committee on Commerce, Science and Transportation,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 850, the Shark 
Conservation Act of 2009.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jeff LaFave.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 850--Shark Conservation Act of 2009

    Summary: S. 850 would prohibit certain activities that may 
involve shark finning (the practice of removing a shark's fins 
and discarding its carcass). The bill also would direct the 
National Oceanic and Atmospheric Administration (NOAA) to 
identify foreign nations that do not sufficiently regulate 
fishing practices that harm sharks.
    Based on information from NOAA and assuming appropriation 
of the necessary amounts, CBO estimates that implementing S. 
850 would cost $5 million over the 2010-2014 period. Enacting 
the legislation would not affect revenues or direct spending.
    S. 850 contains no intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA) and would not affect 
the budgets of state, local, or tribal governments.
    S. 850 would impose private-sector mandates, as defined in 
UMRA, by requiring that shark fins aboard fishing vessels, 
transferred or received at sea, or landed at a U.S. port be 
naturally attached to the carcass. CBO estimates that the cost 
of complying with the mandates would fall well below the annual 
threshold established in UMRA for private-sector mandates ($139 
million in 2009, adjusted annually for inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 850 is shown in the following table. The 
costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                  By fiscal year, in millions of dollars--
                                                          ------------------------------------------------------
                                                                                                          2010-
                                                             2010     2011     2012     2013     2014     2014
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level............................        1        1        1        1        1         5
Estimated Outlays........................................        1        1        1        1        1         5
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that S. 
850 will be enacted early in calendar year 2010 and that the 
necessary amounts will be appropriated for each fiscal year.
    S. 850 would amend the Magnuson-Stevens Fishery 
Conservation and Management Act to prohibit fishing vessels 
from possessing shark fins that are not naturally attached to a 
carcass. The bill also would require NOAA to identify any 
nation that permits fishing vessels to catch sharks without 
also having adopted a conservation program for sharks that is 
similar to that of the United States. Based on information from 
NOAA, CBO estimates that the agency would need $1 million for 
each of fiscal years 2010 through 2014 to expand existing 
reports on fishing practices, to enforce new prohibitions on 
possessing shark fins, and to help foreign nations improve 
their shark conservation efforts.
    Estimated impact on state, local, and tribal governments: 
S. 850 contains no intergovernmental mandates as defined in 
UMRA and would not affect the budgets of state, local, or 
tribal governments.
    Estimated impact on the private sector: S. 850 would impose 
private-sector mandates as defined in UMRA. The bill would make 
it unlawful to possess shark fins aboard fishing vessels, to 
transfer or receive shark fins at sea, or to land shark fins at 
a U.S. port without the fin naturally attached to the carcass. 
CBO estimates that the cost to comply with the mandates would 
fall well below the annual threshold established in UMRA for 
private-sector mandates ($139 million in 2009, adjusted 
annually for inflation).
    Current law prohibits the possession of a shark fin on a 
fishing vessel and the landing of a shark fin at a U.S. port 
without the corresponding carcass. By requiring fins to be 
naturally attached to the shark, the bill would impose an 
additional mandate on owners and operators of those vessels. 
Because the National Marine Fisheries Service has issued a 
final rule with the same requirement for sharks harvested in 
the Atlantic Ocean, the mandate would apply only to vessels in 
the Pacific Ocean. If the requirement for Pacific sharks is 
implemented in a manner similar to the rule for Atlantic 
sharks, leaving fins attached by a flap of skin would be 
considered naturally attached and would comply with the 
mandate. Compared with leaving the fins completely attached, 
that process would provide for easier storage aboard the vessel 
and removal of the fin once landed. CBO expects that the 
mandate in the bill would be enforced in this manner and thus 
would not impose significant additional costs on owners and 
operators of fishing vessels.
    The bill also would impose a mandate on the owners and 
operators of certain U.S. vessels by prohibiting the vessels 
from receiving shark fins at sea that are not naturally 
attached to the carcass. The cost would be any loss in net 
income to the owners and operators of those vessels. CBO 
estimates that such costs would not be significant in relation 
to the threshold established in UMRA.
    Estimate prepared by: Federal costs: Jeff LaFave; Impact on 
state, local, and tribal governments: Ryan Miller; Impact on 
the private sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       NUMBER OF PERSONS COVERED

  S. 850 as reported by the Committee includes several 
provisions which, if enacted and signed into law, would 
strengthen the implementation and enforcement of the Shark 
Finning Prohibition Act of 2000 (SFPA). The bill would clarify 
in statute what was already popularly understood to be the 
scope of application of the SFPA prior to the 2008 ruling by 
the Federal Court of Appeals for the 9th Circuit, discussed 
supra. Furthermore, the bill would simplify how shark finning 
is defined by conforming that definition with fins-partially-
attached requirements which already exist under Federal fishery 
management plans for sharks and other highly migratory species 
in the Exclusive Economic Zone in the Atlantic and the Gulf of 
Mexico. Accordingly, the only foreseeable regulatory impacts of 
S. 850 will be: (1) to substantially lessen the likelihood that 
law-abiding persons will be wrongly accused of shark finning; 
and (2) to enhance the ability of Federal fisheries law 
enforcement authorities to identify successfully and prosecute 
shark finning violations.

                            ECONOMIC IMPACT

  The Committee foresees no negative economic impact associated 
with S. 850 other than those relating specifically to 
commercial shark fishing activity in the Pacific and off the 
coast of Virginia and possibly some neighboring mid-Atlantic 
States, discussed in the Section-by-Section Analysis, infra.

                                PRIVACY

  The reported bill would have little, if any, impact on the 
personal privacy of individuals.

                               PAPERWORK

  The reported bill should not increase significantly paperwork 
requirements for individuals or businesses.

                   Congressionally Directed Spending

  In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides the 
following identification of congressionally directed spending 
items contained in the bill, as reported:

                      Section-by-Section Analysis


Section 1. Short title

  This section would provide that the legislation may be cited 
as the Shark Conservation Act of 2009.

Section 2. Amendment of High Seas Driftnet Fishing Moratorium 
        Protection Act

  This section would make several amendments to the High Seas 
Driftnet Fishing Moratorium Protection Act to enable the 
Secretary of Commerce, in consultation with the Secretary of 
State, to pursue the adoption by international fishery 
management organizations and members thereof of shark 
conservation measures comparable to those of the United States, 
and to take action against countries whose fishing vessels 
target or incidentally take sharks if those countries lack a 
shark conservation program comparable to that of the United 
States. The Committee wishes to make clear that the provisions 
of this section are intended to be construed in a manner 
consistent with United States obligations as a member of the 
World Trade Organization and under all other applicable 
international agreements.
  Subsection (a) of this section would amend section 608 of the 
High Seas Driftnet Fishing Moratorium Protection Act, 16 U.S.C. 
1826i, to require the Secretary of Commerce, in consultation 
with the Secretary of State and in cooperation with the 
relevant fishery management councils and advisory committees, 
to take actions to improve the effectiveness of international 
fishery management organizations of which the United States is 
a member by: (1) urging such organizations to adopt shark 
conservation measures, including measures to prohibit removal 
of any of the fins of a shark (including the tail) and 
discarding the carcass of the shark at sea; and (2) urging such 
organizations and the members thereof to adopt or expand 
market-related measures requiring conservation of sharks, 
including measures comparable to those of the United States to 
prohibit removing any of the fins of a shark (including the 
tail) and discarding the carcass at sea, taking into account 
different conditions.
  Subsection (b) of this section would amend section 609 of the 
High Seas Driftnet Fishing Moratorium Protection Act, 16 U.S.C. 
1826j, to include shark conservation measures among the 
statutory guidelines which must be used by the Secretary of 
Commerce to define ``illegal, unreported, or unregulated 
fishing'' for purposes of the identification and prohibition 
requirements of that Act.
  Subsection (c) of this section would amend section 610 of the 
High Seas Driftnet Fishing Moratorium Protection Act, 16 U.S.C. 
1826k, to authorize the Secretary of Commerce to identify and 
list a nation under that Act if: (1) fishing vessels of that 
nation are engaged, or have been engaged during the preceding 
calendar year, in fishing activities or practices in waters 
beyond any national jurisdiction that target or incidentally 
catch sharks; and (2) that nation has not adopted a regulatory 
program to provide for the conservation of sharks, including 
measures to prohibit removal of any of the fins of a shark 
(including the tail) and discarding the carcass at sea, that is 
comparable to that of the United States, taking into account 
different conditions. This subsection would also require the 
Secretary of Commerce to begin making the identifications 
required under paragraph (2) of section (6)(a) of the High Seas 
Driftnet Fishing Moratorium Protection Act, as amended by this 
Act, not later than one year after the date of enactment of 
this Act.

Section 3. Amendment of Magnuson-Stevens Fishery Conservation and 
        Management Act

  This section would amend subparagraph (1)(P) of section 307 
of the MSA to simplify and strengthen the existing prohibition 
on shark finning. It would eliminate the second element of the 
crime of shark finning under current law, which requires that 
the carcass of a shark be discarded at sea (after one or more 
fins are removed) in order for a violation to have occurred, 
and provides simply that it is unlawful to remove any of the 
fins of a shark, including the tail, at sea. This section would 
also enhance the prohibitions against having custody, control, 
or possession of a shark fin aboard a fishing vessel without 
the corresponding carcass, or landing such a fin without the 
corresponding carcass, by requiring that the fins remain 
naturally attached to the corresponding carcass in such 
instances. Finally, this section would address the 9th Circuit 
Court of Appeals ruling regarding vessels to which the shark 
finning prohibition applies by specifying that it is unlawful 
to transfer a shark fin from one vessel to another vessel at 
sea, or to receive a shark fin in such a transfer, without the 
fin being naturally attached to the corresponding carcass.
  This section of S. 850 would also revise the current 
rebuttable presumption language of section 307(1) of the MSA, 
16 U.S.C. 1857(1). It provides that: (1) if any shark fin, 
including the tail, is found aboard a vessel other than a 
fishing vessel without being naturally attached to the 
corresponding carcass, there is a rebuttable presumption that 
the fin was transferred in violation of the new prohibition 
against vessels transferring or receiving fins at sea 
established by this section; or (2) if, after landing, the 
total weight of shark fins, including the tail, landed from any 
vessel is greater than five percent of the total weight of 
shark carcasses landed, there is a rebuttable presumption that 
such fins were taken, held, or landed in violation of 
subparagraph (1)(P) of Section 307 as amended by this section.

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill, 
as reported, are shown as follows (existing law proposed to be 
omitted is enclosed in black brackets, new material is printed 
in italic, existing law in which no change is proposed is shown 
in roman):

          HIGH SEAS DRIFTNET FISHING MORATORIUM PROTECTION ACT

SEC. 608. ACTION TO STRENGTHEN INTERNATIONAL FISHERY MANAGEMENT 
                    ORGANIZATIONS.

                           [16 U.S.C. 1826i]

  The Secretary, in consultation with the Secretary of State, 
and in cooperation with relevant fishery management councils 
and any relevant advisory committees, shall take actions to 
improve the effectiveness of international fishery management 
organizations in conserving and managing fish stocks under 
their jurisdiction. These actions shall include--
          (1) urging international fishery management 
        organizations to which the United States is a member--
                  (A) to incorporate multilateral market-
                related measures against member or nonmember 
                governments whose vessels engage in illegal, 
                unreported, or unregulated fishing;
                  (B) to seek adoption of lists that identify 
                fishing vessels and vessel owners engaged in 
                illegal, unreported, or unregulated fishing 
                that can be shared among all members and other 
                international fishery management organizations;
                  (C) to seek international adoption of a 
                centralized vessel monitoring system in order 
                to monitor and document capacity in fleets of 
                all nations involved in fishing in areas under 
                an international fishery management 
                organization's jurisdiction;
                  (D) to increase use of observers and 
                technologies needed to monitor compliance with 
                conservation and management measures 
                established by the organization, including 
                vessel monitoring systems and automatic 
                identification systems; [and]
                  (E) to seek adoption of stronger port state 
                controls in all nations, particularly those 
                nations in whose ports vessels engaged in 
                illegal, unreported, or unregulated fishing 
                land or transship fish; and
                  (F) to adopt shark conservation measures, 
                including measures to prohibit removal of any 
                of the fins of a shark (including the tail) and 
                discarding the carcass of the shark at sea;
          (2) urging international fishery management 
        organizations to which the United States is a member, 
        as well as all members of those organizations, to adopt 
        and expand the use of market-related measures to combat 
        illegal, unreported, or unregulated fishing, 
        including--
                  (A) import prohibitions, landing 
                restrictions, or other market-based measures 
                needed to enforce compliance with international 
                fishery management organization measures, such 
                as quotas and catch limits;
                  (B) import restrictions or other market-based 
                measures to prevent the trade or importation of 
                fish caught by vessels identified 
                multilaterally as engaging in illegal, 
                unreported, or unregulated fishing; and
                  (C) catch documentation and certification 
                schemes to improve tracking and identification 
                of catch of vessels engaged in illegal, 
                unreported, or unregulated fishing, including 
                advance transmission of catch documents to 
                ports of entry; [and]
          (3) seeking to enter into international agreements 
        that require measures for the conservation of sharks, 
        including measures to prohibit removal of any of the 
        fins of a shark (including the tail) and discarding the 
        carcass of the shark at sea, that are comparable to 
        those of the United States, taking into account 
        different conditions; and
          [(3)] (4) urging other nations at bilateral, 
        regional, and international levels, including the 
        Convention on International Trade in Endangered Species 
        of Fauna and Flora and the World Trade Organization to 
        take all steps necessary, consistent with international 
        law, to adopt measures and policies that will prevent 
        fish or other living marine resources harvested by 
        vessels engaged in illegal, unreported, or unregulated 
        fishing from being traded or imported into their nation 
        or territories.

SEC. 609. ILLEGAL, UNREPORTED, OR UNREGULATED FISHING.

                           [16 U.S.C. 1826j]

  (a) Identification.--The Secretary shall identify, and list 
in the report under section 607, a nation if fishing vessels of 
that nation are engaged, or have been engaged at any point 
during the preceding 2 years, in illegal, unreported, or 
unregulated fishing--
          (1) the relevant international fishery management 
        organization has failed to implement effective measures 
        to end the illegal, unreported, or unregulated fishing 
        activity by vessels of that nation or the nation is not 
        a party to, or does not maintain cooperating status 
        with, such organization; or
          (2) where no international fishery management 
        organization exists with a mandate to regulate the 
        fishing activity in question.
  (b) Notification.--An identification under subsection (a) or 
section 610(a) is deemed to be an identification under section 
101(b)(1)(A) of the High Seas Driftnet Fisheries Enforcement 
Act (16 U.S.C. 1826a(b)(1)(A)), and the Secretary shall notify 
the President and that nation of such identification.
  (c) Consultation.--No later than 60 days after submitting a 
report to Congress under section 607, the Secretary, acting 
through the Secretary of State, shall--
          (1) notify nations listed in the report of the 
        requirements of this section;
          (2) initiate consultations for the purpose of 
        encouraging such nations to take the appropriate 
        corrective action with respect to the offending 
        activities of their fishing vessels identified in the 
        report; and
          (3) notify any relevant international fishery 
        management organization of the actions taken by the 
        United States under this section.
  (d) IUU Certification Procedure.--
          (1) Certification.--The Secretary shall establish a 
        procedure, consistent with the provisions of subchapter 
        II of chapter 5 of title 5, United States Code, for 
        determining if a nation identified under subsection (a) 
        and listed in the report under section 607 has taken 
        appropriate corrective action with respect to the 
        offending activities of its fishing vessels identified 
        in the report under section 607. The certification 
        procedure shall provide for notice and an opportunity 
        for comment by any such nation. The Secretary shall 
        determine, on the basis of the procedure, and certify 
        to the Congress no later than 90 days after the date on 
        which the Secretary promulgates a final rule containing 
        the procedure, and biennially thereafter in the report 
        under section 607--
                  (A) whether the government of each nation 
                identified under subsection (a) has provided 
                documentary evidence that it has taken 
                corrective action with respect to the offending 
                activities of its fishing vessels identified in 
                the report; or
                  (B) whether the relevant international 
                fishery management organization has implemented 
                measures that are effective in ending the 
                illegal, unreported, or unregulated fishing 
                activity by vessels of that nation.
          (2) Alternative procedure.--The Secretary may 
        establish a procedure for certification, on a shipment-
        by-shipment, shipper-by-shipper, or other basis of fish 
        or fish products from a vessel of a harvesting nation 
        not certified under paragraph (1) if the Secretary 
        determines that--
                  (A) the vessel has not engaged in illegal, 
                unreported, or unregulated fishing under an 
                international fishery management agreement to 
                which the United States is a party; or
                  (B) the vessel is not identified by an 
                international fishery management organization 
                as participating in illegal, unreported, or 
                unregulated fishing activities.
          (3) Effect of certification.--
                  (A) In general.--The provisions of section 
                101(a) and section 101(b)(3) and (4) of this 
                Act (16 U.S.C. 1826a(a), (b)(3), and (b)(4))--
                          (i) shall apply to any nation 
                        identified under subsection (a) that 
                        has not been certified by the Secretary 
                        under this subsection, or for which the 
                        Secretary has issued a negative 
                        certification under this subsection; 
                        but
                          (ii) shall not apply to any nation 
                        identified under subsection (a) for 
                        which the Secretary has issued a 
                        positive certification under this 
                        subsection.
                  (B) Exceptions.--Subparagraph (A)(i) does not 
                apply--
                          (i) to the extent that such 
                        provisions would apply to sport fishing 
                        equipment or to fish or fish products 
                        not managed under the applicable 
                        international fishery agreement; or
                          (ii) if there is no applicable 
                        international fishery agreement, to the 
                        extent that such provisions would apply 
                        to fish or fish products caught by 
                        vessels not engaged in illegal, 
                        unreported, or unregulated fishing.
  (e) Illegal, Unreported, or Unregulated Fishing Defined.--
          (1) In general.--In this Act the term ``illegal, 
        unreported, or unregulated fishing'' has the meaning 
        established under paragraph (2).
          (2) Secretary to define term within legislative 
        guidelines.--Within 3 months after the date of 
        enactment of the Magnuson-Stevens Fishery Conservation 
        and Management Reauthorization Act of 2006, the 
        Secretary shall publish a definition of the term 
        ``illegal, unreported, or unregulated fishing'' for 
        purposes of this Act.
          (3) Guidelines.--The Secretary shall include in the 
        definition, at a minimum--
                  (A) fishing activities that violate 
                conservation and management measures required 
                under an international fishery management 
                agreement to which the United States is a 
                party, including catch limits or quotas, 
                capacity restrictions, [and] bycatch reduction 
                requirements[;], and shark conservation 
                measures;
                  (B) overfishing of fish stocks shared by the 
                United States, for which there are no 
                applicable international conservation or 
                management measures or in areas with no 
                applicable international fishery management 
                organization or agreement, that has adverse 
                impacts on such stocks; and
                  (C) fishing activity that has an adverse 
                impact on seamounts, hydrothermal vents, and 
                cold water corals located beyond national 
                jurisdiction, for which there are no applicable 
                conservation or management measures or in areas 
                with no applicable international fishery 
                management organization or agreement.
  (f) Authorization of Appropriations.--There are authorized to 
be appropriated to the Secretary for fiscal years 2007 through 
2013 such sums as are necessary to carry out this section.

SEC. 610. EQUIVALENT CONSERVATION MEASURES.

                           [16 U.S.C. 1826k]

  (a) Identification.--The Secretary shall identify, and list 
in the report under section [607, a nation if] 607--
          (1) a nation if--
                  [(1)] (A) fishing vessels of that nation are 
                engaged, or have been engaged during the 
                preceding calendar year in fishing activities 
                or practices;
                          [(A)] (i) in waters beyond any 
                        national jurisdiction that result in 
                        bycatch of a protected living marine 
                        resource; or
                          [(B)] (ii) beyond the exclusive 
                        economic zone of the United States that 
                        result in bycatch of a protected living 
                        marine resource shared by the United 
                        States;
                  [(2)] (B) the relevant international 
                organization for the conservation and 
                protection of such resources or the relevant 
                international or regional fishery organization 
                has failed to implement effective measures to 
                end or reduce such bycatch, or the nation is 
                not a party to, or does not maintain 
                cooperating status with, such organization; and
                  [(3)] (C) the nation has not adopted a 
                regulatory program governing such fishing 
                practices designed to end or reduce such 
                bycatch that is comparable to that of the 
                United States, taking into account different 
                conditions[.]; and
          (2) a nation if--
                  (A) fishing vessels of that nation are 
                engaged, or have been engaged during the 
                preceding calendar year, in fishing activities 
                or practices in waters beyond any national 
                jurisdiction that target or incidentally catch 
                sharks; and
                  (B) the nation has not adopted a regulatory 
                program to provide for the conservation of 
                sharks, including measures to prohibit removal 
                of any of the fins of a shark (including the 
                tail) and discarding the carcass of the shark 
                at sea, that is comparable to that of the 
                United States, taking into account different 
                conditions.
  (b) Consultation and Negotiation.--The Secretary, acting 
through the Secretary of State, shall--
          (1) notify, as soon as possible, other nations whose 
        vessels engage in fishing activities or practices 
        described in subsection (a), about the provisions of 
        this section and this Act;
          (2) initiate discussions as soon as possible with all 
        foreign governments which are engaged in, or which have 
        persons or companies engaged in, fishing activities or 
        practices described in subsection (a), for the purpose 
        of entering into bilateral and multilateral treaties 
        with such countries to protect such species;
          (3) seek agreements calling for international 
        restrictions on fishing activities or practices 
        described in subsection (a) through the United Nations, 
        the Food and Agriculture Organization's Committee on 
        Fisheries, and appropriate international fishery 
        management bodies; and
          (4) initiate the amendment of any existing 
        international treaty for the protection and 
        conservation of such species to which the United States 
        is a party in order to make such treaty consistent with 
        the purposes and policies of this section.
  (c) Conservation Certification Procedure.--
          (1) Determination.--The Secretary shall establish a 
        procedure consistent with the provisions of subchapter 
        II of chapter 5 of title 5, United States Code, for 
        determining whether the government of a harvesting 
        nation identified under subsection (a) and listed in 
        the report under section 607--
                  (A) has provided documentary evidence of the 
                adoption of a regulatory program governing the 
                conservation of the protected living marine 
                resource that is comparable to that of the 
                United States, taking into account different 
                conditions, and which, in the case of pelagic 
                longline fishing, includes mandatory use of 
                circle hooks, careful handling and release 
                equipment, and training and observer programs; 
                and
                  (B) has established a management plan 
                containing requirements that will assist in 
                gathering species-specific data to support 
                international stock assessments and 
                conservation enforcement efforts for protected 
                living marine resources.
          (2) Procedural requirement.--The procedure 
        established by the Secretary under paragraph (1) shall 
        include notice and opportunity for comment by any such 
        nation.
          (3) Certification.--The Secretary shall certify to 
        the Congress by January 31, 2007, and biennially 
        thereafter whether each such nation has provided the 
        documentary evidence described in paragraph (1)(A) and 
        established a management plan described in paragraph 
        (1)(B).
          (4) Alternative procedure.--The Secretary shall 
        establish a procedure for certification, on a shipment-
        by-shipment, shipper-by-shipper, or other basis of fish 
        or fish products from a vessel of a harvesting nation 
        not certified under paragraph (3) if the Secretary 
        determines that such imports were harvested by 
        practices that do not result in bycatch of a protected 
        marine species, or were harvested by practices that--
                  (A) are comparable to those of the United 
                States, taking into account different 
                conditions, and which, in the case of pelagic 
                longline fishing, includes mandatory use of 
                circle hooks, careful handling and release 
                equipment, and training and observer programs; 
                and
                  (B) include the gathering of species-specific 
                data that can be used to support international 
                and regional stock assessments and conservation 
                efforts for protected living marine resources.
          (5) Effect of certification.--The provisions of 
        section 101(a) and section 101(b)(3) and (4) of this 
        Act (16 U.S.C. 1826a(a), (b)(3), and (b)(4)) (except to 
        the extent that such provisions apply to sport fishing 
        equipment or fish or fish products not caught by the 
        vessels engaged in illegal, unreported, or unregulated 
        fishing) shall apply to any nation identified under 
        subsection (a) that has not been certified by the 
        Secretary under this subsection, or for which the 
        Secretary has issued a negative certification under 
        this subsection, but shall not apply to any nation 
        identified under subsection (a) for which the Secretary 
        has issued a positive certification under this 
        subsection.
  (d) International Cooperation and Assistance.--To the 
greatest extent possible consistent with existing authority and 
the availability of funds, the Secretary shall--
          (1) provide appropriate assistance to nations 
        identified by the Secretary under subsection (a) and 
        international organizations of which those nations are 
        members to assist those nations in qualifying for 
        certification under subsection (c);
          (2) undertake, where appropriate, cooperative 
        research activities on species statistics and improved 
        harvesting techniques, with those nations or 
        organizations;
          (3) encourage and facilitate the transfer of 
        appropriate technology to those nations or 
        organizations to assist those nations in qualifying for 
        certification under subsection (c); and
          (4) provide assistance to those nations or 
        organizations in designing and implementing appropriate 
        fish harvesting plans.
  (e) Protected Living Marine Resource Defined.--In this 
section the term ``protected living marine resource''--
          (1) means non-target fish, sea turtles, or marine 
        mammals that are protected under United States law or 
        international agreement, including the Marine Mammal 
        Protection Act, the Endangered Species Act, the Shark 
        Finning Prohibition Act, and the Convention on 
        International Trade in Endangered Species of Wild Flora 
        and Fauna; but
          (2) does not include species, except sharks, managed 
        under the Magnuson-Stevens Fishery Conservation and 
        Management Act, the Atlantic Tunas Convention Act, or 
        any international fishery management agreement.
  (f) Authorization of Appropriations.--There are authorized to 
be appropriated to the Secretary for fiscal years 2007 through 
2013 such sums as are necessary to carry out this section.

        MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT

SEC. 307. PROHIBITED ACTS.

                            [16 U.S.C. 1857]

  It is unlawful--
          (1) for any person--
                  (A) to violate any provision of this Act or 
                any regulation or permit issued pursuant to 
                this Act;
                  (B) to use any fishing vessel to engage in 
                fishing after the revocation, or during the 
                period of suspension, of an applicable permit 
                issued pursuant to this Act;
                  (C) to violate any provision of, or 
                regulation under, an applicable governing 
                international fishery agreement entered into 
                pursuant to section 201(c);
                  (D) to refuse to permit any officer 
                authorized to enforce the provisions of this 
                Act (as provided for in section 311) to board a 
                fishing vessel subject to such person's control 
                for purposes of conducting any search or 
                inspection in connection with the enforcement 
                of this Act or any regulation, permit, or 
                agreement referred to in subparagraph (A) or 
                (C);
                  (E) to forcibly assault, resist, oppose, 
                impede, intimidate, or interfere with any such 
                authorized officer in the conduct of any search 
                or inspection described in subparagraph (D);
                  (F) to resist a lawful arrest for any act 
                prohibited by this section;
                  (G) to ship, transport, offer for sale, sell, 
                purchase, import, export, or have custody, 
                control, or possession of, any fish taken or 
                retained in violation of this Act or any 
                regulation, permit, or agreement referred to in 
                subparagraph (A) or (C);
                  (H) 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;
                  (I) to knowingly and willfully submit to a 
                Council, the Secretary, or the Governor of a 
                State false information (including, but not 
                limited to, 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 Council, Secretary, or Governor 
                is considering in the course of carrying out 
                this Act;
                  (J) to ship, transport, offer for sale, sell, 
                or purchase, in interstate or foreign commerce, 
                any whole live lobster of the species Homarus 
                americanus, that--
                          (i) is smaller than the minimum 
                        possession size in effect at the time 
                        under the American Lobster Fishery 
                        Management Plan, as implemented by 
                        regulations published in part 649 of 
                        title 50, Code of Federal Regulations, 
                        or any successor to that plan 
                        implemented under this title, or in the 
                        absence of any such plan, is smaller 
                        than the minimum possession size in 
                        effect at the time under a coastal 
                        fishery management plan for American 
                        lobster adopted by the Atlantic States 
                        Marine Fisheries Commission under the 
                        Atlantic Coastal Fisheries Cooperative 
                        Management Act (16 U.S.C. 5101 et 
                        seq.);
                          (ii) is bearing eggs attached to its 
                        abdominal appendages; or
                          (iii) bears evidence of the forcible 
                        removal of extruded eggs from its 
                        abdominal appendages;
                  (K) to steal or attempt to steal or to 
                negligently and without authorization remove, 
                damage, or tamper with--
                          (i) fishing gear owned by another 
                        person, which is located in the 
                        exclusive economic zone,
                          (ii) fish contained in such fishing 
                        gear;
                  (L) to forcibly 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 the 
                National Marine Fisheries Service or under 
                contract to any person to carry out 
                responsibilities under this Act;
                  (M) to engage in large-scale driftnet fishing 
                that is subject to the jurisdiction of the 
                United States, including use of a fishing 
                vessel of the United States to engage in such 
                fishing beyond the exclusive economic zone of 
                any nation;
                  (N) to strip pollock of its roe and discard 
                the flesh of the pollock;
                  (O) to knowingly and willfully fail to 
                disclose, or to falsely disclose, any financial 
                interest as required under section 302(j), or 
                to knowingly vote on a Council decision in 
                violation of section 302(j)(7)(A);
                  [(P)(i) to remove any of the fins of a shark 
                (including the tail) and discard the carcass of 
                the shark at sea;
                          [(ii) to have custody, control, or 
                        possession of any such fin aboard a 
                        fishing vessel without the 
                        corresponding carcass; or
                          [(iii) to land any such fin without 
                        the corresponding carcass;]
                  (P)(i) to remove any of the fins of a shark 
                (including the tail) at sea;
                  (ii) to have custody, control, or possession 
                of any such fin aboard a fishing vessel unless 
                it is naturally attached to the corresponding 
                carcass;
                  (iii) to transfer any such fin from one 
                vessel to another vessel at sea, or to receive 
                any such fin in such transfer, without the fin 
                naturally attached to the corresponding 
                carcass; or
                  (iv) to land any such fin that is not 
                naturally attached to the corresponding 
                carcass, or to land any shark carcass without 
                such fins naturally attached;
                  (Q) to import, export, transport, sell, 
                receive, acquire, or purchase in interstate or 
                foreign commerce any fish taken, possessed, 
                transported, or sold in violation of any 
                foreign law or regulation; or
                  (R) to use any fishing vessel to engage in 
                fishing in Federal or State waters, or on the 
                high seas or in the waters of another country, 
                after the Secretary has made a payment to the 
                owner of that fishing vessel under section 
                312(b)(2).
          [For purposes of subparagraph (P) there is a 
        rebuttable presumption that any shark fins landed from 
        a fishing vessel or found on board a fishing vessel 
        were taken, held, or landed in violation of 
        subparagraph (P) if the total weight of shark fins 
        landed or found on board exceeds 5 percent of the total 
        weight of shark carcasses landed or found on board.]
          For purposes of subparagraph (P), there shall be a 
        rebuttable presumption that if any shark fin (including 
        the tail) is found aboard a vessel, other than a 
        fishing vessel, without being naturally attached to the 
        corresponding carcass, such fin was transferred in 
        violation of subparagraph (P)(iii) or that if, after 
        landing, the total weight of shark fins (including the 
        tail) landed from any vessel exceeds five percent of 
        the total weight of shark carcasses landed, such fins 
        were taken, held, or landed in violation of 
        subparagraph (P). In such subparagraph, the term 
        ``naturally attached'', with respect to a shark fin, 
        means attached to the corresponding shark carcass 
        through some portion of uncut skin.
          (2) for any vessel other than a vessel of the United 
        States, and for the owner or operator of any vessel 
        other than a vessel of the United States, to engage--
                  (A) in fishing within the boundaries of any 
                State, except--
                          (i) recreational fishing permitted 
                        under section 201(i);
                          (ii) fish processing permitted under 
                        section 306(c); or
                          (iii) transshipment at sea of fish or 
                        fish products within the boundaries of 
                        any State in accordance with a permit 
                        approved under section 204(d);
                  (B) in fishing, except recreational fishing 
                permitted under section 201(i), within the 
                exclusive economic zone, or for any anadromous 
                species or Continental Shelf fishery resources 
                beyond such zone, unless such fishing is 
                authorized by, and conducted in accordance 
                with, a valid and applicable permit issued 
                pursuant to section 204(b), (c), or (d); or
                  (C) except as permitted under section 306(c), 
                in fish processing (as defined in paragraph 
                (4)(A) of such section) within the internal 
                waters of a State (as defined in paragraph 
                (4)(B) of such section);
          (3) for any vessel of the United States, and for the 
        owner or operator of any vessel of the United States, 
        to transfer at sea directly or indirectly, or attempt 
        to so transfer at sea, any United States harvested fish 
        to any foreign fishing vessel, while such foreign 
        vessel is within the exclusive economic zone or within 
        the boundaries of any State except to the extent that 
        the foreign fishing vessel has been permitted under 
        section 204(d) or section 306(c) to receive such fish;
          (4) for any fishing vessel other than a vessel of the 
        United States to operate, and for the owner or operator 
        of a fishing vessel other than a vessel of the United 
        States to operate such vessel, in the exclusive 
        economic zone or within the boundaries of any State, 
        if--
                  (A) all fishing gear on the vessel is not 
                stored below deck or in an area where it is not 
                normally used, and not readily available, for 
                fishing; or
                  (B) all fishing gear on the vessel which is 
                not so stored is not secured and covered so as 
                to render it unusable for fishing; unless such 
                vessel is authorized to engage in fishing in 
                the area in which the vessel is operating; and
          (5) for any vessel of the United States, and for the 
        owner or operator of any vessel of the United States, 
        to engage in fishing in the waters of a foreign nation 
        in a manner that violates an international fishery 
        agreement between that nation and the United States 
        that has been subject to Congressional oversight in the 
        manner described in section 203, or any regulations 
        issued to implement such an agreement; except that the 
        binding provisions of such agreement and implementing 
        regulations shall have been published in the Federal 
        Register prior to such violation.