[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 2455 Introduced in Senate (IS)]

103d CONGRESS
  2d Session
                                S. 2455

   To establish a system of licensing, reporting, and regulation for 
         vessels of the United States fishing on the high seas.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

           September 22 (legislative day, September 12), 1994

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

_______________________________________________________________________

                                 A BILL


 
   To establish a system of licensing, reporting, and regulation for 
         vessels of the United States fishing on the high seas.

    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:
            (1) The term ``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) The term ``FAO'' means the Food and Agriculture 
        Organization of the United Nations.
            (3) The term ``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) The term ``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) The term ``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 and recognized by the United States. Such measures may 
        be adopted by global, regional, or sub-regional fisheries 
        organizations, subject to the rights and obligations of their 
        members, or by treaties or other international agreements.
            (6) The term ``length'' means--
                    (A) for any high seas 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 is 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 high seas fishing vessel built before 
                July 18, 1982, registered length as entered on the 
                vessel's documentation.
            (7) The term ``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) The term ``Secretary'' means the Secretary of Commerce 
        or a designee.
            (9) The term ``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
                    (C) 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.
            (10) The terms ``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) In 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, and 
                the 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 may 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 305 
        of the Magnuson Fishery Conservation and Management Act (16 
        U.S.C. 1855).
            (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 
        level of fees charged under this paragraph shall not exceed the 
        administrative costs incurred in issuing such licenses. 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 by paragraph (1) shall be collected 
        and credited to the Operations, Research and Facilities account 
        of the National Oceanic and Atmospheric Administration. Any 
        fees collected shall be available until expended for the 
        purpose of implementing this Act, 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 U.S. 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 subsection (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 high 
seas 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 high seas 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 high seas 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--
            (1) to use a high seas fishing vessel on the high seas in 
        contravention of international conservation and management 
        measures described in section 5(e);
            (2) to use a high seas fishing vessel on the high seas, 
        unless the vessel has on board a valid license issued under 
        section 4;
            (3) to use a high seas fishing vessel in violation of the 
        conditions or restrictions of a license issued under section 4;
            (4) 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;
            (5) to refuse to permit an authorized officer to board a 
        high seas 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;
            (6) to forcibly assault, resist, oppose, impede, 
        intimidate, or interfere with an authorized officer in the 
        conduct of any search or inspection described in paragraph (5);
            (7) to resist a lawful arrest or detention for any act 
        prohibited by this section;
            (8) 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;
            (9) 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 violation of this 
        Act or any regulation or license issued under this Act; or
            (10) 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, or 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; or
                            (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 
high seas 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 of the United States 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 of the United States 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 subsection, 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 
        subsection 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 subsection 
        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 subsection, the district court 
of the United States for any district in which such person is found, 
resides, or transacts business, upon application by the United States 
and after notice to such person, shall have jurisdiction to issue an 
order requiring such person to appear and give testimony before the 
Secretary or to appear and produce documents before the Secretary, or 
both, and any failure to obey such order of the court may be punished 
by such court as a contempt thereof.
    (d) Judicial Review.--Any person against whom a civil penalty is 
assessed under subsection (a) or against whose vessel a license 
sanction is imposed under subsection (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 30 days 
from the date of such penalty or sanction. The Secretary shall promptly 
file in such court a certified copy of the record upon which such 
penalty or sanction was 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 
        subsection (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(6), (7), (8), or (9).
    (b) Punishment.--Any offense described in subsection (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 10 years, or both.

SEC. 10. FORFEITURES.

    (a) In General.--Any high seas 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 subsection (a) and any action provided for under 
subsection (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, 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 are 
presumed to have been taken or retained in violation of this Act, but 
the presumption can be rebutted by an appropriate showing of evidence 
to the contrary.

SEC. 11. EFFECTIVE DATE.

    This Act shall take effect 6 months after the entry into force of 
the Agreement, or 6 months after the date of enactment of this Act, 
whichever is later.
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