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112th Congress Report
SENATE
2d Session 112-255
_______________________________________________________________________
Calendar No. 549
THE PIRATE FISHING ELIMINATION ACT
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 1980
December 19, 2012.--Ordered to be printed
-----------
U.S. GOVERNMENT PRINTING OFFICE
29-010 WASHINGTON : 2012
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred twelfth 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
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 JOHNNY ISAKSON, Georgia
MARK PRYOR, Arkansas ROY BLUNT, Missouri
CLAIRE McCASKILL, Missouri JOHN BOOZMAN, Arkansas
AMY KLOBUCHAR, Minnesota PATRICK J. TOOMEY, Pennsylvania
TOM UDALL, New Mexico MARCO RUBIO, Florida
MARK WARNER, Virginia KELLY AYOTTE, New Hampshire
MARK BEGICH, Alaska DEAN HELLER, Nevada
Ellen Doneski, Staff Director
James Reid, Deputy Staff Director
John Williams, General Counsel
Richard Russell, Republican Staff Director
David Quinalty, Republican Deputy Staff Director
Rebecca Seidel, Republican General Counsel
Calendar No. 549
112th Congress Report
SENATE
2d Session 112-255
======================================================================
THE PIRATE FISHING ELIMINATION ACT
_______
December 19, 2012.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 1980]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 1980) to prevent, deter, and
eliminate illegal, unreported, and unregulated fishing through
port State measures, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
Purpose of the Bill
The purpose of S. 1980, the Pirate Fishing Elimination Act is
to prevent, deter, and eliminate illegal, unreported, and
unregulated (IUU) fishing through the implementation of port
access control measures, as outlined under the Agreement on
Port State Measures to Prevent, Deter and Eliminate Illegal,
Unreported and Unregulated Fishing, adopted at the Food and
Agriculture Organization (FAO) of the United Nations (U.N.) in
Rome, Italy, on November 22, 2009.
Background and Needs
Many fish stocks around the world have become depleted in the
last several decades as a result of fleet overcapacity,
overfishing, and ineffective fisheries law enforcement regimes.
Coastal fishing nations are responsible for managing the stocks
that fall within their domestic waters, which extend 200
nautical miles from their coastline, also known as their
Exclusive Economic Zone (EEZ). Unfortunately, many of these
coastal nations do not manage for stock sustainability, enforce
their regulations effectively, or coordinate management of
shared stocks with other fishing nations.
Under the Magnuson-Stevens Fishery Conservation and
Management Act (MSA, 16 U.S.C. 1801 et seq.), the U.S.
government exercises sovereign rights and exclusive management
authority over fish and Continental Shelf fishery resources
within the U.S. EEZ. MSA authorizes the Secretary of Commerce
(Secretary), through the National Marine Fisheries Service
(NMFS) within the National Oceanic and Atmospheric
Administration (NOAA), to be responsible for the management of
these resources. MSA calls for Regional Fishery Management
Councils, and the Secretary as appropriate, to develop fishery
management plans, subject to the Secretary's approval, that
follow the MSA's requirements for rebuilding overfished stocks
and setting harvest levels according to science-based catch
limits.
The coordinated management of shared stocks harvested beyond
200 miles is accomplished by nations participating in Regional
Fisheries Management Organizations (RFMOs) or through
international fishery agreements created to guide and
coordinate the fisheries management activities of multiple
nations that target common stocks in specific regions. Each
nation that chooses to participate in RFMOs or international
fishery agreements retains its sovereignty, yet is expected to
develop domestic fisheries laws and regulations consistent with
each agreement. The United States follows this practice and
seeks to implement legislation and regulations to meet its
commitments in RFMOs and under international fishery
agreements. Short of such an agreement or implementing
legislation, U.S. fisheries managers seek discussions with
foreign counterparts to address concerns on interjurisdictional
stock management.
All U.S. international fishery enforcement activities are
coordinated closely between the Coast Guard, NMFS, and the
State Department. The Coast Guard and NMFS also provide input
for the State Department's negotiations of fishery treaties and
agreements and review foreign fishing vessel permit
applications. The Coast Guard and NMFS jointly conduct
fisheries enforcement patrols and investigations under a wide-
ranging memorandum of understanding. Additionally, the Coast
Guard and NMFS cooperate closely with individual States and
territories, and coordinate MSA enforcement in, and adjacent
to, State and territorial waters. Further, the Coast Guard
conducts international enforcement operations in close
coordination with the State Department, as required by
Presidential Directive 27.
FOREIGN ILLEGAL, UNREPORTED, AND UNREGULATED (IUU) FISHING
The term ``IUU fishing'' describes a range of fishing
activities, including misreporting or failing to report
catches, fishing without the permission of a coastal country,
reflagging vessels to countries that are either unwilling or
unable to adequately control their fishing activity, and not
complying with fishing gear and area rules. IUU fishing often
targets fish that traverse the waters of multiple nations and
international waters, affecting the ocean ecosystems and
fisheries of numerous coastal nations. It is a challenging
problem to quantify for a number of reasons. IUU fishing
activities generally are covert, making monitoring and
detection difficult. Furthermore, they tend to be dynamic,
adaptable, highly mobile, and are evolving in terms of their
level of sophistication.\1\
---------------------------------------------------------------------------
\1\Dep't of Commerce, Implementation of Title IV of the Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act of
2006: Biennial Report to Congress 12 (2011).
---------------------------------------------------------------------------
It is estimated that IUU fish harvests are worth between $10
billion and $23.5 billion annually\2\ and, despite a lack of
specific data, likely create significant ecological impacts and
present unfair market competition to fishermen and nations that
follow sustainable fishing practices. In an effort to generate
revenue, the governments of many developing coastal countries
have negotiated agreements that allow developed countries,
including European countries, China, and Russia, to harvest
their fisheries resources. In some cases, officials from
developing countries have oversold fishing rights, inflated
potential catches, and allowed pirate vessels and locals free
rein in breeding grounds. Fishing under these agreements can
lead to overexploitation, as many of these developing coastal
countries lack the capacity to conduct fish stock assessments,
define sustainable harvest levels, and monitor and enforce
regulations to guide fishing activity. This results in the
rapid decline of local fish stocks which, in turn, threatens
the livelihood of local fishermen. Worldwide, the amount of IUU
fishing appears to be increasing as IUU fishermen attempt to
avoid stricter fishing rules created to address declining fish
stocks.
---------------------------------------------------------------------------
\2\David J. Agnew et al., Estimating the Worldwide Extent of
Illegal Fishing, PLoS ONE, Feb. 2009, at 4.
---------------------------------------------------------------------------
Combating IUU fishing on the high seas is difficult due to
the vast areas of ocean to monitor, enforcement resource
limitations, and a high volume of operating fishing vessels. To
address the global problem of IUU fishing, marine policy
experts have recommended strengthening international fishery
agreements and member state adhesion to international
standards, removing incentives for flags of convenience,
balancing fleet capacity with fisheries resources, and
increasing the potential cost of IUU activities to pirate
fishermen.\3\ However, these measures require resources,
including funding, staff, technology, and expertise, that
remain largely unavailable in many developing countries. Many
foreign aid organizations, such as the World Bank, attempt to
direct foreign financial and technical assistance to improve
the sustainability of coastal nations' fisheries. The United
States has initiated limited efforts to assist developing
countries in targeting IUU fishing.
---------------------------------------------------------------------------
\3\Bertrand Le Gallic and Anthony Cox, An economic analysis of
illegal, unreported and unregulated (IUU) fishing: Key drivers and
possible solutions, Marine Policy, Volume 30, Issue 6, November 2006,
Pages 689-695
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THE AGREEMENT ON PORT STATE MEASURES
Coordinated international efforts to curtail IUU fishing are
mainly led through the U.N. FAO, and are primarily focused on
persuading individual nations to better control and manage
their fishing fleets. At the thirty-sixth session of the U.N.
Conference of the FAO in 2009, 92 participating nations took a
significant step towards curtailing IUU fishing by adopting the
Agreement on Port State Measures to Prevent, Deter, and
Eliminate Illegal, Unreported, and Unregulated Fishing
(Agreement on Port State Measures or Agreement). The Agreement
on Port State Measures, of which the United States was a
primary negotiator and one of its first signatories, is the
first global instrument focused specifically on combating IUU
fishing. It sets forth minimum standards for the conduct of
dockside inspections and training of inspectors and, most
significantly, would require parties to restrict port entry and
port services to foreign vessels known or suspected of having
been involved in IUU fishing, particularly those on the IUU
vessel list maintained by an RFMO. Since all fish must be
brought to port to enter into trade, closing ports to illegal
product is an effective way to prevent, deter, and eliminate
IUU fishing. The Agreement would also require information
sharing, including the sharing of inspection results, with
parties and other relevant actors to the Agreement when
evidence of IUU fishing is found during the course of an
inspection. On November 14, 2011, President Obama transmitted
the treaty to the Senate for its advice and consent. Broad
ratification and implementation of the Agreement was called for
at the U.N. General Assembly in December 2010 (Res. 65/38), at
the twenty-ninth meeting of the FAO's Committee on Fisheries in
February 2012, and at the Joint Meeting of the Tuna RFMOs in La
Jolla, CA in July 2012.
As a result of the reforms that were put in place with the
enactment of the Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act of 2006 (120 Stat. 3575), most
notably the science-based annual catch limits and accompanying
accountability measures which are now in place for every
federally-managed fishery, the United States has taken concrete
action to stop overfishing and guarantee the health and
abundance of the Nation's fisheries and the communities that
depend on them. It is now incumbent upon the United States to
promote and encourage comparable sustainable fishing practices
among the other nations of the world.
The Agreement on Port State Measures does exactly that. It
establishes legally-binding minimum standards for port States
to control port access by foreign fishing vessels, as well as
by foreign transport and supply ships that support fishing
vessels, in order to prevent IUU-caught fish from entering the
stream of commerce. It also encourages parties to the Agreement
to apply similar measures to their own vessels, as the United
States already does through the Coast Guard's Captain of the
Port statutory authorities and various Federal fishery
conservation and management statutes.
Summary of Provisions
S. 1980 would make the changes to domestic law necessary for
the United States to implement the Agreement on Port State
Measures. The Secretary would have primary responsibility for
promulgating regulations and developing procedures necessary to
carry out the purposes and requirements of the Act, with the
Coast Guard and NMFS serving as primary enforcement authorities
for the requirements of the Act and regulations promulgated
thereunder. The Act would authorize the Secretary, in
consultation with the Secretary of the department in which the
Coast Guard is operating, to: (1) designate ports to which
foreign-flagged fishing or fishing-related vessels may seek
entry, and establish uniform information-gathering and review
processes for granting or denying port entry and use of port
services to such vessels; (2) conduct inspections of such
vessels suspected of IUU fishing or related activities; (3)
deny port entry or port services to such vessels that have been
engaged in IUU fishing; and (4) provide notice, acting through
the Secretary of State, to relevant flag states, coastal
nations, RFMOs, and other nations and international
organizations regarding a vessel that is believed to have
engaged in IUU fishing or related activities or has been denied
port entry or port services.
Legislative History
S. 1980, the Pirate Fishing Elimination Act, was introduced
by Senator Inouye on December 12, 2011, with Senators Begich,
Rockefeller, and Snowe among its original cosponsors, and was
referred to the Committee on Commerce, Science, and
Transportation. On July 31, 2012, the Committee met in open
Executive Session and ordered S. 1980 reported favorably
without amendment.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 1980--Pirate Fishing Elimination Act
S. 1980 would authorize the National Oceanic and
Atmospheric Administration (NOAA) to implement an international
agreement to reduce illegal, unreported, and unregulated (IUU)
fishing. Under the bill, NOAA would be required to identify
ports that can be used by foreign vessels, coordinate
inspections of those vessels with the U.S. Coast Guard (USCG),
deny port entry to vessels that have engaged in IUU fishing,
and share information with foreign governments and other
entities regarding the results of inspections and any actions
taken if IUU fishing is discovered. S. 1980 also would
establish civil and criminal penalties for entities that
violate provisions in the bill.
Based on information provided by NOAA and the USCG, CBO
estimates that implementing the legislation would have no
significant impact on the federal budget. Implementing S. 1980
would not significantly affect the workload of NOAA and the
USCG because those agencies already carry out the activities
required under the bill. Enacting the legislation could
increase revenues (from civil and criminal penalties) and
associated direct spending; therefore, pay-as-you-go procedures
apply. However, CBO estimates that such increases would be
small and would offset each other in most years.
CBO has not reviewed S. 1980 for intergovernmental and
private-sector mandates because section 4 of the Unfunded
Mandates Reform Act excludes from the application of that act
any legislative provisions that are necessary for the
ratification or implementation of international treaty
obligations. CBO has determined that the bill falls within that
exclusion.
The CBO staff contacts for this estimate are Jeff LaFave
and Sarah Puro. The estimate was 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. 1980 would make refinements to NOAA and the Coast Guard's
existing statutory authorities to better enable them to limit
and regulate access to U.S. ports and port services in order to
curtail IUU fishing activity. It would authorize the Secretary
to designate ports to which foreign vessels involved in fishing
or fishing-related activity may request entry, and to require
such vessels to provide advance notice for such requests. It
generally would require the Secretary and the Secretary of the
department in which the Coast Guard is operating to deny port
entry to those vessels known to have engaged in or supported
IUU fishing, as well as to prohibit vessels already in U.S.
ports from landing, transshipping, packaging, or processing
fish where there is evidence they have engaged in or supported
IUU fishing. However, S. 1980 would not alter the United
States's obligation, consistent with international law, to
allow port access to distressed vessels. The Committee trusts
that the Coast Guard and NOAA will work with other nations to
ensure U.S. fishermen will be afforded the same access to a
foreign port as needed to protect life and property.
The provisions of the bill generally would apply with respect
to foreign vessels seeking entry to or in a port subject to the
jurisdiction of the United States, vessels of the United States
seeking entry to or in a port subject to the jurisdiction of
another party to the Agreement, and persons who are subject to
the jurisdiction of the United States.
ECONOMIC IMPACT
The legislation is not expected to have a negative impact on
the Nation's economy. IUU-caught fish significantly undercut
the value of legally, sustainably caught fish in the United
States and elsewhere around the world. Because S. 1980 would
substantially curtail the entry of IUU-caught fish into the
stream of commerce in the United States, it is expected to have
a positive economic impact on the domestic fishing and seafood
industries.
PRIVACY
The bill is not expected to have any adverse impact on the
personal privacy of individuals.
PAPERWORK
S. 1980 would require a vessel covered by the Act to submit
to the Coast Guard Captain of the Port certain basic
information about the vessel when it is requesting port entry.
However, much of the information (such as a vessel's name,
type, flag state, dimensions, destination, estimated date and
time of arrival, IMO ship identification number, international
radio call sign) already is reported and available to the Coast
Guard via automated information system transmissions, the Coast
Guard's Marine Information Safety and Law Enforcement System,
and other sources. Because the bill would require that the
procedure for submitting vessel information utilize existing
Coast Guard reporting mechanisms to the maximum extent
possible, S. 1980 is not expected to impose any new paperwork
requirements on private citizens or businesses.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short Title; Table of Contents.
This section would provide that this bill may be cited as the
Pirate Fishing Elimination Act, and sets forth the table of
contents of the bill.
Section 2. Purpose.
This section states that the purpose of this legislation is
to implement the Agreement on Port State Measures, done at the
FAO of the U.N. in Rome, Italy, on November 22, 2009.
Section 3. Definitions.
This section would define 23 terms used throughout the bill,
of which the following are worth noting in particular:
Fish.--The term ``fish'' includes all species of
living marine resources, whether processed or not.
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.
Fishing-related activity.--The term ``fishing-related
activity'' means any operation in support of, or in
preparation for, fishing, including: the landing,
packaging, processing, transshipping, or transporting
of fish that have not been previously landed at a port
or place; and the provision of personnel, fuel, gear,
and other supplies at sea.
Illegal, unreported, and unregulated fishing or IUU
fishing.--The term ``illegal, unreported, and
unregulated fishing'' or ``IUU fishing'' means any
activity conducted: (1) 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; (2) 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; (3) 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 (4) 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 or a
cooperating non-member of that RFMO and that undermines
the effectiveness of the conservation and management
measures of that RFMO.
Vessel.--The term ``vessel'' means any vessel, ship,
or boat used, equipped, or intended for fishing or a
fishing-related activity.
Section 4. Application.
This section would provide that the bill 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. The
bill would not apply to a container vessel that is not carrying
fish, or to a container vessel that is carrying only fish that
have been previously landed and which the Secretary has no
clear grounds to suspect has been engaged in IUU fishing or
fishing-related activities in support of IUU fishing.
Section 5. Duties of the Secretary.
This section would authorize the Secretary to promulgate
regulations, in accordance with section 553 of title 5, United
States Code, as may be necessary to carry out the purposes of
the bill. It would require the Secretary, in consultation with
the Secretary of the department in which the Coast Guard is
operating and the Secretary of State, to develop procedures for
making determinations and notifications as may be necessary to
carry out the purposes of the bill. It would authorize the
Secretary to designate and publicize each port to which a
vessel to which the bill would apply may seek entry. The
Secretary would only be allowed to designate a port under this
section if the port is designated as a port of entry for
customs reporting purposes under the Tariff Act of 1930 (19
U.S.C. 1202 et seq.), and would be required to provide a list
of designated ports to the FAO. In order to implement
obligations under the Agreement regarding electronic exchange
of information, this section would authorize the Secretary to
designate a point of contact and notify the FAO of that
designation, and to cooperate in efforts to establish an
information-sharing mechanism and facilitate the exchange of
information with existing databases relevant to the Agreement.
Finally, this section would require the Secretary to maintain
information regarding legal remedies available to persons
affected by an action under the bill, to make such information
publicly accessible, and, upon written request, provide the
information the owner, operator, master, or representative of a
vessel.
Section 6. Advance Notice of Vessel Arrival, Authorization, or Denial
of Port Entry.
This section would require each vessel to which the bill
would apply to 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. It
would direct the Secretary, in consultation with the Secretary
of the department in which the Coast Guard is operating and the
Secretary of State, to establish a procedure that would require
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. This procedure would
be required to utilize, to the maximum extent possible,
existing reporting mechanisms maintained and operated by the
department in which the Coast Guard is operating. The Secretary
would be required to decide whether to authorize or deny port
entry, and would be required to communicate the decision to the
vessel or its representative in accordance with established
procedure. The Secretary would be authorized to deny entry to:
any listed IUU vessel; 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 any
vessel that the Secretary has reasonable grounds to believe has
violated the provisions of the bill. The Secretary, however,
would have authority to allow a vessel entry into port: for the
purpose of rendering assistance to a vessel or person in danger
or distress; for the scrapping of the vessel, as appropriate;
or for inspection or other enforcement action. When a vessel is
denied port entry under this section, the Secretary would be
required to 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.
Section 7. Denial of Port Services.
This section would provide that 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 it was acting in a manner consistent with applicable
conservation and management measures or, in the case of the
provision of personnel, fuel, gear, and other supplies at sea,
the vessel was not, at the time of provisioning, a listed IUU
vessel). Notwithstanding these requirements, the Secretary
would be authorized to allow the use of port services if the
services are essential to the safety or health of the crew or
safety of the vessel; for the scrapping of the vessel, as
appropriate; or for inspection or other enforcement action. If
use of port services is denied under this section, the
Secretary, acting through the Secretary of State, would be
required to 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. The
Secretary would be required to withdraw a denial of services
under this section if the grounds of the denial were
inadequate, erroneous, or no longer applicable. The Secretary
would be required to provide prompt notification of such a
withdrawal to relevant persons.
Section 8. Inspections.
This section would require the Secretary and the Secretary of
the department in which the Coast Guard is operating to conduct
vessel inspections for the purposes of the Agreement and the
legislation. The Secretary would be required to prioritize
these inspections based on: (1) whether a vessel has been
denied entry or use of the port in accordance with the
Agreement; (2) a request from another relevant party to the
Agreement, State, or RFMO that a certain vessel be inspected;
and (3) whether there are clear grounds to suspect the vessel
has engaged in IUU fishing or related activities. The Secretary
would be required to transmit the results of an inspection to
the flag nation of the inspected vessel, and, as appropriate,
to each relevant party to the Agreement and nation, including a
relevant coastal nation and the nation of which the vessel's
master is a national, each relevant RFMO, the FAO, and any
other relevant international organization. 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, the Secretary
would be authorized to take enforcement action under the
provisions of the bill or other applicable law. The Secretary
would be required, acting through the Secretary of State, to
promptly notify the flag nation of the vessel and, as
appropriate, each relevant coastal nation, RFMO, other
international organization, and the nation of which the
vessel's master is a national. The Secretary would be required
to deny such a vessel the use of port services, in accordance
with the provisions of the legislation.
Section 9. Prohibited Acts.
This section would make it unlawful for any person to: (1)
violate any provision of the legislation or any regulation
promulgated thereunder; (2) 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 the
legislation or any regulation promulgated thereunder; (3)
forcibly assault, resist, oppose, impede, intimidate, or
interfere with any authorized officer in the conduct of any
search, investigation, or inspection under the legislation; (4)
resist a lawful arrest for any act prohibited by the
legislation; (5) 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) submit any false information
pursuant to any requirement under the legislation or any
regulation promulgated under the legislation; (7) 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
the legislation or any Act administered by the Secretary; (8)
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 that term is defined in the legislation; or (9)
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)).
Section 10. Enforcement.
Subsection (a) of this section would require the Secretary
and the Secretary of the department in which the Coast Guard is
operating to enforce the provisions of the bill and to
authorize officers to enforce the provisions of the bill.
Subsection (b) of this section would provide authorized
officers with a number of powers necessary to enforce the
prohibitions and requirements of the bill, as well as authorize
an officer to 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 on the basis of probable cause.
Subsection (c) of this section would empower authorized
officers to issue citations to owners and operators of vessels
for violations of the provisions of the bill. The Secretary
would be required to maintain a record of all citations issued
under this subsection.
Subsection (d) of this section would authorize the Secretary
to administer oaths and issue subpoenas for the attendance and
testimony of witnesses and the production of relevant
documents.
Subsection (e) of this section generally would provide that
the several district courts of the United States shall have
jurisdiction over any actions arising under this section. For
Hawaii or any possession of the United States in the Pacific
Ocean, it would provide that the appropriate court is the
United States District Court for the District of Hawaii, except
that in the case of Guam and Wake Island, the appropriate court
is the United States District Court for the District of Guam,
and 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.
Subsection (f) of this section would establish civil
administrative penalties and civil judicial penalties for
violations, establish vessel liability in rem for such
penalties, and authorize the Attorney General to recover unpaid
penalties in Federal district court.
Subsection (g) of this section would provide for criminal and
civil forfeiture of real and personal property of a person
convicted of an offense in violation of the provisions of the
bill.
Subsection (h) of this section would establish criminal
penalties the violation of acts prohibited by the bill.
Subsection (i) of this section would provide that any person
who is assessed a civil penalty for, or convicted of, a
violation under the legislation, and any claimant in a
forfeiture action brought for such a violation, shall be liable
for the reasonable costs incurred in the storage and care of
property seized in connection with the violation.
Section 11. International Cooperation and Assistance.
This section would require the Secretary to provide
appropriate assistance to the greatest extent possible,
consistent with existing authority and the availability of
funds, to developing nations and international organizations of
which such nations are members, to assist those nations in
meeting their obligations under the Agreement. In carrying out
this requirement, the Secretary would be permitted to 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, by agreement, on a
reimbursable or non-reimbursable basis. The Secretary also
would have the authority to transfer available funds, for
purposes related to carrying out international assistance under
this section.
Section 12. Relationship to other Laws.
This section would provide that nothing in this legislation
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. It would provide that, where more stringent
requirements regarding port entry or access to port services
exist under other Federal law, the more stringent requirements
shall apply, and that nothing in the bill shall affect a
vessel's entry into port, in accordance with international law,
for reasons of force majeure or distress. Further, it would
provide that this legislation shall be interpreted and applied
in accordance with United States obligations under
international law.
Section 13. Authorization of Appropriations.
This section would authorize to be appropriated to the
Secretary such sums as are necessary for each of fiscal years
2012 through 2016 to carry out the provisions of the bill.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, the Committee states that the bill as
reported would make no change to existing law.
