[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4760 Introduced in House (IH)]

103d CONGRESS
  2d Session
                                H. R. 4760

  To implement the Agreement to Promote Compliance with International 
  Conservation and Management Measures by Fishing Vessels on the High 
      Seas, adopted by the Conference of the Food and Agriculture 
        Organization of the United Nations on November 24, 1993.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 14, 1994

 Mr. Studds (for himself and Mr. Manton) (both by request) introduced 
  the following bill; which was referred to the Committee on Merchant 
                          Marine and Fisheries

_______________________________________________________________________

                                 A BILL


 
  To implement the Agreement to Promote Compliance with International 
  Conservation and Management Measures by Fishing Vessels on the High 
      Seas, adopted by the Conference of the Food and Agriculture 
        Organization of the United Nations on November 24, 1993.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``High Seas Fisheries Licensing Act of 
1994''.

SEC. 2. PURPOSE.

    It is the purpose of this Act--
            (1) to implement the Agreement to Promote Compliance with 
        International Conservation and Management Measures by Fishing 
        Vessels on the High Seas, adopted by the Conference of the Food 
        and Agriculture Organization of the United Nations on November 
        24, 1993; and
            (2) to establish a system of licensing, reporting, and 
        regulation for vessels of the United States fishing on the high 
        seas.

SEC. 3. DEFINITIONS.

    As used in this Act, the term--
            (1) ``Agreement'' means the Agreement to Promote Compliance 
        with International Conservation and Management Measures by 
        Fishing Vessels on the High Seas, adopted by the Conference of 
        the Food and Agriculture Organization of the United Nations on 
        November 24, 1993;
            (2) ``FAO'' means the Food and Agriculture Organization of 
        the United Nations;
            (3) ``high seas'' means the waters beyond the territorial 
        sea or exclusive economic zone (or the equivalent) of any 
        nation, to the extent that such territorial sea or exclusive 
        economic zone (or the equivalent) is recognized by the United 
        States;
            (4) ``high seas fishing vessel'' means any vessel of the 
        United States used or intended for use--
                    (A) on the high seas;
                    (B) for the purpose of the commercial exploitation 
                of living marine resources; and
                    (C) as a harvesting vessel, as a mother ship, or as 
                any other support vessel directly engaged in a fishing 
                operation;
            (5) ``international conservation and management measures'' 
        means measures to conserve or manage one or more species of 
        living marine resources that are adopted and applied in 
        accordance with the relevant rules of international law as 
        reflected in the 1982 United Nations Convention on the Law of 
        the Sea--such measures may be adopted either by global, 
        regional, or subregional fisheries organizations, subject to 
        the rights and obligations of their members, or by treaties or 
        other international agreements;
            (6) ``length'' means--
                    (A) for any fishing vessel built after July 18, 
                1982, 96 percent of the total length on a waterline at 
                85 percent of the least molded depth measured from the 
                top of the keel, or the length from the foreside of the 
                stem to the axis of the rudder stock on that waterline, 
                if that be greater. In ships designed with a rake of 
                keel the waterline on which this length is measured 
                shall be parallel to the designed waterline; and
                    (B) for any fishing vessel built before July 18, 
                1982, registered length as entered on the vessel's 
                documentation;
            (7) ``person'' means any individual (whether or not a 
        citizen of or national of the United States), any corporation, 
        partnership, association, or other entity (whether or not 
        organized or existing under the laws of any State), and any 
        Federal, State, local, or foreign government or any entity of 
        any such government;
            (8) ``Secretary'' means the Secretary of Commerce or a 
        designee;
            (9) ``vessel of the United States'' means--
                    (A) a vessel documented under chapter 121 of title 
                46 or numbered in accordance with chapter 123 of title 
                46;
                    (B) a vessel owned in whole or part by--
                            (i) the United States or a territory, 
                        commonwealth, or possession of the United 
                        States;
                            (ii) a State or political subdivision 
                        thereof;
                            (iii) a citizen or national of the United 
                        States; or
                            (iv) a corporation created under the laws 
                        of the United States or any State, the District 
                        of Columbia, or any territory, commonwealth, or 
                        possession of the United States; unless the 
                        vessel has been granted the nationality of a 
                        foreign nation in accordance with article 92 of 
                        the 1982 United Nations Convention on the Law 
                        of the Sea and a claim of nationality or 
                        registry for the vessel is made by the master 
                        or individual in charge at the time of the 
                        enforcement action by an officer or employee of 
                        the United States authorized to enforce 
                        applicable provisions of the United States law; 
                        and
                            (v) a vessel that was once documented under 
                        the laws of the United States and, in violation 
                        of the laws of the United States, was either 
                        sold to a person not a citizen of the United 
                        States or placed under foreign registry or a 
                        foreign flag, whether or not the vessel has 
                        been granted the nationality of a foreign 
                        nation; and
            (10) ``vessel subject to the jurisdiction of the United 
        States'' and ``vessel without nationality'' have the same 
        meaning as in 46 U.S.C. App. 1903(c).

SEC. 4. LICENSING.

    (a) General.--No high seas fishing vessel shall engage in 
harvesting operations on the high seas, unless the vessel has on board 
a valid license issued under this section.
    (b) Eligibility.--(1) Any vessel of the United States is eligible 
to receive a license under this section, unless the vessel was 
previously authorized to be used for fishing on the high seas by a 
foreign nation, and
            (A) the foreign nation suspended such authorization because 
        the vessel undermined the effectiveness of international 
        conservation and management measures, which suspension has not 
        expired; or
            (B) the foreign nation, within the last three years 
        preceding application for a license under this section, 
        withdrew such authorization because the vessel undermined the 
        effectiveness of international conservation and management 
        measures.
    (2) The restriction in paragraph (1) does not apply where ownership 
of the vessel has changed since the vessel undermined the effectiveness 
of international conservation and management measures, and the new 
owner has provided sufficient evidence to the Secretary demonstrating 
that the previous owner or operator has no further legal, beneficial, 
or financial interest in, or control of, the vessel.
    (3) The restriction in paragraph (1) does not apply where the 
Secretary makes a determination that issuing a license would not 
subvert the purposes of the Agreement.
    (4) The Secretary will not issue a license to a vessel unless he or 
she is satisfied that the United States will be able to exercise 
effectively its responsibilities under the Agreement with respect to 
that vessel.
    (c) Application.--(1) The owner or operator of a high seas fishing 
vessel may apply for a license under this section by completing an 
application form prescribed by the Secretary.
    (2) The application form shall contain--
            (A) the vessel's name, previous names (if known), official 
        numbers, and port of record;
            (B) previous flag (if any);
            (C) international radio call sign (if any);
            (D) names and addresses of owners and operators;
            (E) where and when built;
            (F) type of vessel;
            (G) length; and
            (H) any other information the Secretary requires.
    (d) Conditions.--The Secretary shall establish such conditions and 
restrictions on each license issued under this section as are necessary 
and appropriate to carry out the obligations of the United States under 
the Agreement, including but not limited to the following:
            (1) The vessel shall be marked in accordance with the FAO 
        Standard Specifications for the Marking and Identification of 
        Fishing Vessels, or with regulations issued under section 1885 
        of title 16, United States Code;
            (2) The license holder shall report such information as the 
        Secretary by regulation requires, including area of fishing 
        operations and catch statistics. The Secretary shall promulgate 
        regulations concerning conditions under which information 
        submitted under this subsection may be released.
    (e) Fees.--(1) The Secretary may by regulation establish the level 
of fees to be charged for licenses issued under this section. The 
licensing fee shall be in addition to any fee required under any 
regional licensing regime applicable to high seas fishing vessels.
    (2) The fees authorized in subsection (e)(1) shall be collected, 
credited to the Operations, Research and Facilities appropriation, and 
available until expended for the purpose of implementing this Act, only 
to the extent and in the amounts provided in advance in appropriations 
Acts.
    (f) Duration.--A license issued under this section is valid for the 
period specified in regulations issued under section 5(d). A license 
issued under this section is void in the event the vessel is no longer 
eligible for United States documentation, such documentation is revoked 
or denied, or the vessel is deleted from such documentation.

SEC. 5. RESPONSIBILITIES OF THE SECRETARY

    (a) Record.--The Secretary shall maintain an automated file or 
record of high seas fishing vessels issued licenses under section 4, 
including all information submitted under section 4(c)(2).
    (b) Information to FAO.--The Secretary, in cooperation with the 
Secretaries of State and Transportation, shall--
            (1) make available to FAO information contained in the 
        record maintained under paragraph (a);
            (2) promptly notify FAO of changes in such information;
            (3) promptly notify FAO of additions to or deletions from 
        the record, and the reason for any deletion;
            (4) convey to FAO information relating to any license 
        granted under section 4(b)(3), including the vessel's identity, 
        owner or operator, and factors relevant to the Secretary's 
        determination to issue the license;
            (5) report promptly to FAO all relevant information 
        regarding any activities of high seas fishing vessels that 
        undermine the effectiveness of international conservation and 
        management measures, including the identity of the vessels and 
        sanctions imposed; and
            (6) provide the FAO a summary of evidence regarding any 
        activities of foreign vessels that undermine the effectiveness 
        of international conservation and management measures.
    (c) Information to Flag States.--The Secretary, in cooperation with 
the Secretary of State and the Secretary of Transportation, shall, 
where he or she has reasonable grounds to believe that a foreign 
fishing vessel has engaged in activities undermining the effectiveness 
of international conservation and management measures--
            (1) provide to the flag State information, including 
        appropriate evidentiary material, relating to those activities; 
        and
            (2) when such foreign fishing vessel is voluntarily in a 
        United States port, the Secretary shall promptly notify the 
        flag State. If requested by the flag State, the Secretary shall 
        make arrangements to undertake such lawful investigatory 
        measures as may be considered necessary to establish whether 
        the fishing vessel has been used contrary to the provisions of 
        the Agreement.
    (d) Regulations.--The Secretary, after consultation with the 
Secretary of State and the Secretary of Transportation, may promulgate 
such regulations, in accordance with section 553 of title 5, United 
States Code, as may be necessary to carry out the purposes of the 
Agreement and this Act. The Secretary shall coordinate such regulations 
with any other entities regulating high seas fishing vessels, to 
minimize duplication of license application and reporting requirements. 
To the extent practicable, such regulations shall also be consistent 
with regulations implementing fishery management plans under the 
Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801 et 
seq.).
    (e) Notice of International Conservation and Management Measures.--
The Secretary, in consultation with the Secretary of State, shall 
publish in the Federal Register, from time to time, a notice listing 
international conservation and management measures recognized by the 
United States.

SEC. 6. UNLAWFUL ACTIVITIES.

    It is unlawful for any person subject to the jurisdiction of the 
United States--
            (a) to use a high seas fishing vessel on the high seas in 
        contravention of international conservation and management 
        measures recognized by the United States;
            (b) to use a high seas fishing vessel on the high seas, 
        unless the vessel has on board a valid license issued under 
        section 4;
            (c) to use a high seas fishing vessel in violation of the 
        conditions or restrictions of a license issued under section 4;
            (d) to falsify any information required to be reported, 
        communicated, or recorded pursuant to this Act or any 
        regulation issued under this Act, or to fail to submit in a 
        timely fashion any required information, or to fail to report 
        to the Secretary immediately any change in circumstances that 
        has the effect of rendering any such information false, 
        incomplete, or misleading;
            (e) to refuse to permit an authorized officer 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 issued under this 
        Act;
            (f) to forcibly assault, resist, oppose, impede, 
        intimidate, or interfere with an authorized officer in the 
        conduct of any search or inspection described in paragraph (e);
            (g) to resist a lawful arrest or detention for any act 
        prohibited by this section;
            (h) to interfere with, delay, or prevent, by any means, the 
        apprehension, arrest, or detection of another person, knowing 
        that such person has committed any act prohibited by this 
        section;
            (i) to ship, transport, offer for sale, sell, purchase, 
        import, export, or have custody, control, or possession of, any 
        living marine resource taken or retained in volation of this 
        Act or any regulation or license issued under this Act; or
            (j) to violate any provision of this Act or any regulation 
        or license issued under this Act.

SEC. 7. ENFORCEMENT PROVISIONS.

    (a) Duties of Secretaries of Commerce and Transportation.--This Act 
shall be enforced by the Secretary of Commerce and the Secretary of 
Transportation. Such Secretaries may by agreement utilize, on a 
reimbursable basis or otherwise, the personnel, services, equipment 
(including aircraft and vessels), and facilities of any other Federal 
agency, and of any State agency, in the performance of such duties. 
Such Secretaries shall, and the head of any Federal or State agency 
that has entered into an agreement with either such Secretary under 
this section may (if the agreement so provides), authorize officers to 
enforce the provisions of this Act or any regulation or license issued 
under this Act.
    (b) District Court Jurisdiction.--The district courts of the United 
States shall have exclusive jurisdiction over any case or controversy 
arising under the provisions of this Act. In the case of Guam, and any 
Commonwealth, territory, or possession of the United States in the 
Pacific Ocean, the appropriate court is the United States District 
Court for the District of Guam, except that in the case of American 
Samoa, the appropriate court is the United States District Court for 
the District of Hawaii.
    (c) Powers of Enforcement Officers.--(1) Any officer who is 
authorized (by the Secretary, the Secretary of Transportation, or the 
head of any Federal or State agency that has entered into an agreement 
with such Secretaries under subsection (a) to enforce the provisions of 
this Act) may--
            (A) with or without a warrant or other process--
                    (i) arrest any person, if the officer has 
                reasonable cause to believe that such person has 
                committed an act prohibited by section 9(a);
                    (ii) board, and search or inspect, any high seas 
                fishing vessel;
                    (iii) seize any high seas fishing vessel (together 
                with its fishing gear, furniture, appurtenances, 
                stores, and cargo) used or employed in, or with respect 
                to which it reasonably appears that such vessel was 
                used or employed in, the violation of any provision of 
                this Act or any regulation or license issued under this 
                Act;
                    (iv) seize any living marine resource (wherever 
                found) taken or retained, in any manner, in connection 
                with or as a result of the commission of any act 
                prohibited by section 6; and
                    (v) seize any other evidence related to any 
                violation of any provision of this Act or any 
                regulation or license issued under this Act;
            (B) execute any warrant or other process issued by any 
        court of competent jurisdiction; and
            (C) exercise any other lawful authority.
    (2) Subject to the direction of the Secretary, a person charged 
with law enforcement responsibilities by the Secretary who is 
performing a duty related to enforcement of a law regarding fisheries 
or other marine resources may make an arrest without a warrant for an 
offense against the United States committed in his presence, or for a 
felony cognizable under the laws of the United States, if he has 
reasonable grounds to believe that the person to be arrested has 
committed or is committing a felony.
    (d) Issuance of Citations.--If any authorized officer finds that a 
fishing vessel is operating or has been operated in violation of any 
provision of this Act, such officer may issue a citation to the owner 
or operator of such vessel in lieu of proceeding under subsection (c). 
If a permit has been issued pursuant to this Act for such vessel, such 
officer shall note the issuance of any citation under this subsection, 
including the date thereof and the reason therefor, on the permit. The 
Secretary shall maintain a record of all citations issued pursuant to 
this subsection.

SEC. 8. CIVIL PENALTIES AND LICENSE SANCTIONS.

    (a) Civil Penalties.--(1) Any person who is found by the Secretary, 
after notice and opportunity for a hearing in accordance with section 
554 of title 5, United States Code, to have committed an act prohibited 
by section 6 shall be liable to the United States for a civil penalty. 
The amount of the civil penalty shall not exceed $100,000 for each 
violation. Each day of a continuing violation shall constitute a 
separate offense. The amount of such civil penalty shall be assessed by 
the Secretary by written notice. In determining the amount of such 
penalty, the Secretary shall take into account the nature, 
circumstances, extent, and gravity of the prohibited acts committed 
and, with respect to the violation, the degree of culpability, any 
history of prior offenses, and such other matters as justice may 
require.
    (2) The Secretary may compromise, modify, or remit, with or without 
conditions, any civil penalty that is subject to imposition or that has 
been imposed under this section.
    (b) License Sanctions.--(1) In any case in which--
            (A) a vessel has been used in the commission of an act 
        prohibited under section 6;
            (B) the owner or operator of a vessel or any other person 
        who has been issued or has applied for a license under section 
        4 has acted in violation of section 6; or
            (C) any amount in settlement of a civil forfeiture imposed 
        on a vessel or other property, or any civil penalty or criminal 
        fine imposed on a vessel or owner or operator of a vessel or 
        any other person who has been issued or has applied for a 
        license under any fishery resource statute enforced by the 
        Secretary, has not been paid and is overdue, the Secretary 
        may--
                    (i) revoke any license issued with respect to such 
                vessel or person, with or without prejudice to the 
                issuance of subsequent licenses;
                    (ii) suspend such license for a period of time 
                considered by the Secretary to be appropriate;
                    (iii) deny such license; or
                    (iv) impose additional conditions and restrictions 
                on any license issued to or applied for by such vessel 
                or person under this Act.
    (2) In imposing a sanction under this paragraph, the Secretary 
shall take into account--
            (A) the nature, circumstances, extent, and gravity of the 
        prohibited acts for which the sanction is imposed; and
            (B) with respect to the violator, the degree of 
        culpability, any history of prior offenses, and such other 
        matters as justice may require.
    (3) Transfer of ownership of a vessel, by sale or otherwise, shall 
not extinguish any license sanction that is in effect or is pending at 
the time of transfer of ownership. Before executing the transfer of 
ownership of a vessel, by sale or otherwise, the owner shall disclose 
in writing to the prospective transferee the existence of any license 
sanction that will be in effect or pending with respect to the vessel 
at the time of the transfer. The Secretary may waive or compromise a 
sanction in the case of a transfer pursuant to court order.
    (4) In the case of any license that is suspended under this 
paragraph for nonpayment of a civil penalty or criminal fine, the 
Secretary shall reinstate the license upon payment of the penalty or 
fine and interest thereon at the prevailing rate.
    (5) No sanctions shall be imposed under this paragraph unless there 
has been prior opportunity for a hearing on the facts underlying the 
violation for which the sanction is imposed, either in conjunction with 
a civil penalty proceeding under this section or otherwise.
    (c) Hearing.--For the purposes of conducting any hearing under this 
section, the Secretary may issue subpoenas for the attendance and 
testimony of witnesses and the production of relevant papers, books, 
and documents, and may administer oaths. Witnesses summoned shall be 
paid the same fees and mileage that are paid to witnesses in the courts 
of the United States. In case of contempt or refusal to obey a subpoena 
served upon any person pursuant to this paragraph, the district court 
of the United States for any district in which such person is found, 
resides, or transacts business, upon application by the United States 
and after notice to such person, shall have jurisdiction to issue an 
order requiring such person to appear and give testimony before the 
Secretary or to appear and produce documents before the Secretary, or 
both, and any failure to obey such order of the court may be punished 
by such court as a contempt thereof.
    (d) Judicial Review.--Any person against whom a civil penalty is 
assessed under paragraph (a) or against whose vessel a license sanction 
is imposed under paragraph (b) (other than a license suspension for 
nonpayment of penalty or fine) may obtain review thereof in the United 
States district court for the appropriate district by filing a 
complaint against the Secretary in such court within thirty days from 
the date of such order. The Secretary shall promptly file in such court 
a certified copy of the record upon which such violation was found or 
such penalty imposed, as provided in section 2112 of title 28, United 
States Code. The findings and order of the Secretary shall be set aside 
by such court if they are not found to be supported by substantial 
evidence, as provided in section 706(2) of title 5, United States Code.
    (e) Collection.--(1) If any person fails to pay an assessment of a 
civil penalty after it has become a final and unappealable order, or 
after the appropriate court has entered final judgment in favor of the 
Secretary, the matter shall be referred to the Attorney General, who 
shall recover the amount assessed in any appropriate district court of 
the United States. In such action, the validity and appropriateness of 
the final order imposing the civil penalty shall not be subject to 
review.
    (2) A high seas fishing vessel (including its fishing gear, 
furniture, appurtenances, stores, and cargo) used in the commission of 
an act prohibited by section 6 shall be liable in rem for any civil 
penalty assessed for such violation under paragraph (a) and may be 
proceeded against in any district court of the United States having 
jurisdiction thereof. Such penalty shall constitute a maritime lien on 
such vessel that may be recovered in an action in rem in the district 
court of the United States having jurisdiction over the vessel.

SEC. 9. CRIMINAL OFFENSES.

    (a) Offenses.--A person is guilty of an offense if the person 
commits any act prohibited by section 6 (f), (g), (h), or (i).
    (b) Punishment.--Any offense described in paragraph (a) is a class 
A misdemeanor punishable by a fine under title 18, United States Code, 
or imprisonment for not more than one year, or both; except that if in 
the commission of any offense the person uses a dangerous weapon, 
engages in conduct that causes bodily injury to any authorized officer, 
or places any such officer in fear of imminent bodily injury, the 
offense is a felony punishable by a fine under title 18, United States 
Code, or imprisonment for not more than ten years, or both.

SEC. 10. FORFEITURES.

    (a) General.--Any fishing vessel (including its fishing gear, 
furniture, appurtenances, stores, and cargo) used, and any living 
marine resources (or a fair market value thereof) taken or retained, in 
any manner, in connection with or as a result of the commission of any 
act prohibited by section 6 shall be subject to forfeiture to the 
United States. All or part of such vessel may, and all such living 
marine resources shall, be forfeited to the United States pursuant to a 
civil proceeding under this section.
    (b) Jurisdiction of District Courts.--Any district court of the 
United States shall have jurisdiction, upon application of the Attorney 
General on behalf of the United States, to order any forfeiture 
authorized under paragraph (a) and any action provided for under 
paragraph (d).
    (c) Judgment.--If a judgment is entered for the United States in a 
civil forfeiture proceeding under this section, the Attorney General 
may seize any property or other interest declared forfeited to the 
United States, which has not previously been seized pursuant to this 
Act or for which security has not previously been obtained. The 
provisions of the customs laws relating to--
            (1) the seizure, forfeiture, and condemnation of property 
        for violation of the customs law;
            (2) the disposition of such property or the proceeds from 
        the sale thereof; and
            (3) the remission or mitigation of any such forfeiture; 
        shall apply to seizures and forfeitures incurred, or alleged to 
        have been incurred, under the provisions of this Act, unless 
        such provisions are inconsistent with the purposes, policy, and 
        provisions of this Act.
    (d) Procedure.--(1) Any officer authorized to serve any process in 
rem that is issued by a court under section 7(b) shall--
            (A) stay the execution of such process; or
            (B) discharge any living marine resources seized pursuant 
        to such process;
upon receipt of a satisfactory bond or other security from any person 
claiming such property. Such bond or other security shall be 
conditioned upon such person delivering such property to the 
appropriate court upon order thereof, without any impairment of its 
value, or paying the monetary value of such property pursuant to an 
order of such court. Judgment shall be recoverable on such bond or 
other security against both the principal and any sureties in the event 
that any condition thereof is breached, as determined by such court.
    (2) Any living marine resources seized pursuant to this Act may be 
sold, subject to the approval of the appropriate court, for not less 
than the fair market value thereof. The proceeds of any such sale shall 
be deposited with such court pending the disposition of the matter 
involved.
    (e) Rebuttable Presumption.--For purposes of this section, it shall 
be a rebuttable presumption that all living marine resources found on 
board a high seas fishing vessel and which are seized in connection 
with an act prohibited by section 6 were taken or retained in violation 
of this Act.
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HR 4760 IH----2