[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
H.R. 69, ``ILLEGAL, UNREPORTED, AND UNREGULATED FISHING ENFORCEMENT
ACT OF 2013''; H.R. 2646, ``REFI PACIFIC ACT''; AND H.R.____, ``PIRATE
FISHING ELIMINATION ACT''
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON FISHERIES, WILDLIFE,
OCEANS AND INSULAR AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
Thursday, April 3, 2014
__________
Serial No. 113-66
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Rauul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Caardenas, CA
Paul A. Gosar, AZ Jared Huffman, CA
Rauul R. Labrador, ID Raul Ruiz, CA
Steve Southerland, II, FL Carol Shea-Porter, NH
Bill Flores, TX Alan S. Lowenthal, CA
Jon Runyan, NJ Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Steve Daines, MT Katherine M. Clark, MA
Kevin Cramer, ND Vacancy
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Bradley Byrne, AL
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
SUBCOMMITTEE ON FISHERIES, WILDLIFE, OCEANS
AND INSULAR AFFAIRS
JOHN FLEMING, LA, Chairman
GREGORIO KILILI CAMACHO SABLAN, CNMI, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Robert J. Wittman, VA Frank Pallone, Jr., NJ
Glenn Thompson, PA Madeleine Z. Bordallo, GU
Jeff Duncan, SC Pedro R. Pierluisi, PR
Steve Southerland, II, FL Carol Shea-Porter, NH
Bill Flores, TX Alan S. Lowenthal, CA
Jon Runyan, NJ Joe Garcia, FL
Vance M. McAllister, LA Peter A. DeFazio, OR, ex officio
Bradley Byrne, AL
Doc Hastings, WA, ex officio
------
CONTENTS
----------
Page
Hearing held on Thursday, April 3, 2014.......................... 1
Statement of Members:
Bordallo, Madeleine Z., a Representative in Congress from
Guam, Prepared statement of................................ 4
DeFazio, Hon. Peter, a Representative in Congress from the
State of Oregon............................................ 7
Fleming, Hon. John, a Representative in Congress from the
State of Louisiana......................................... 1
Prepared statement of.................................... 3
Herrera Beutler, Hon. Jaime, a Representative in Congress
from the State of Washington............................... 9
Huffman, Hon. Jared, a Representative in Congress from the
State of California........................................ 8
Sablan, Hon. Gregorio Kilili Camacho, a Representative in
Congress from the Commonwealth of the Northern Mariana
Islands.................................................... 4
Statement of Witnesses:
Balton, Ambassador David A., Deputy Assistant Secretary for
Oceans and Fisheries, Bureau of Oceans and International
Environmental and Scientific Affairs, Department of State.. 10
Prepared statement of.................................... 12
Questions submitted for the record....................... 13
Kraft, Mike, Vice President, Corporate Social Responsibility,
Bumble Bee Foods........................................... 44
Prepared statement of.................................... 46
Lagon, Mark P., Chair of the International Relations and
Security, MSFS Program, and Professor, Practice of
International Affairs, Georgetown University............... 37
Prepared statement of.................................... 39
Neva, James Gerald, Manager, Port of Ilwaco, Ilwaco,
Washington................................................. 35
Prepared statement of.................................... 36
Pettinger, Brad, Director, Oregon Trawl Commission........... 31
Prepared statement of.................................... 33
Smith, Russell, Deputy Assistant Secretary for International
Fisheries, National Oceanic and Atmospheric Administration,
Department of Commerce..................................... 16
Prepared statement of.................................... 18
Walsh, James P. ``Bud'', Davis Wright Tremaine, LLP.......... 49
Prepared statement of and letter submitted for the record 50
Additional Materials Submitted for the Record:
Federal Law Enforcement Officers Association, Letter of
support for H.R. 69 and H.R.____ ``Pirate Fishing
Elimination Act''.......................................... 71
International Law Offices of San Diego, Peter H. Flournoy,
Letter submitted for the record............................ 69
List of documents submitted for the record retained in the
Committee's official files................................. 72
Pew Charitable Trusts, Prepared statement of................. 69
LEGISLATIVE HEARING ON: H.R. 69, TO STRENGTHEN ENFORCEMENT
MECHANISMS TO STOP ILLEGAL, UNREPORTED, AND UNREGULATED
FISHING, TO AMEND THE TUNA CONVENTIONS ACT OF 1950 TO IMPLEMENT
THE ANTIGUA CONVENTION, AND FOR OTHER PURPOSES, ``ILLEGAL,
UNREPORTED, AND UNREGULATED FISHING ENFORCEMENT ACT OF 2013'';
H.R. 2646, TO DIRECT THE SECRETARY OF COMMERCE TO ISSUE A
FISHING CAPACITY REDUCTION LOAN TO REFINANCE THE EXISTING LOAN
FUNDING THE PACIFIC COAST GROUNDFISH FISHING CAPACITY REDUCTION
PROGRAM, ``REFI PACIFIC ACT''; AND H.R.____, TO PREVENT, DETER,
AND ELIMINATE ILLEGAL, UNREPORTED, AND UNREGULATED FISHING
THROUGH PORT STATE MEASURES, ``PIRATE FISHING ELIMINATION ACT''
----------
Thursday, April 3, 2014
House of Representatives
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 2:00 p.m., in
room 1324, Longworth House Office Building, Hon. John Fleming,
[Chairman of the Subcommittee] presiding.
Present: Representatives Fleming, Southerland, Sablan,
Garcia, and DeFazio (ex officio).
Also Present: Representatives Herrera Beutler, Huffman and
Hanabusa.
Dr. Fleming. The subcommittee will come to order.
The Chairman notes the presence of a quorum.
Before I begin my statement, I ask unanimous consent that
the Ranking Member of the Full Committee and ex officio member
of the subcommittee, Mr. DeFazio, be allowed to make an opening
statement, and that Mr. Huffman and Ms. Herrera Beutler be
allowed to participate in the hearing and make an opening
statement as well.
However, they have not arrived. So unless there is some
objection, we will allow them to provide an opening statement
at such time as they arrive.
And without objection, so ordered.
STATEMENT OF THE HON. JOHN FLEMING, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA
Dr. Fleming. Today the subcommittee will hear testimony on
three pieces of legislation, H.R. 69, the Illegal, Unreported,
and Unregulated Fishing Enforcement Act of 2013; H.R. 2646, the
Revitalizing the Economy of Fisheries in the Pacific Act; and a
discussion draft of a bill to implement the agreement on the
port State measures to prevent, deter, and eliminate illegal,
unreported and unregulated fishing, which is tentatively titled
the ``Pirate Fishing Elimination Act.''
Two of these bills deal with the issue of illegal fishing
and how the United States can take action to eliminate the
United States as a destination for illegally caught fish. These
bills would implement measures supporting international efforts
to stop not only the illegal fishing activities, but also
eliminate the markets for these illegally caught fish.
It is clear that illegal fishing is a worldwide problem. It
is also clear that the United States needs to do its part to
stop this activity. While I am not aware that there is a
significant problem with foreign vessels poaching fish in the
U.S. fisheries, I am aware that illegal fishing in high sea
fisheries that U.S. fishermen participate in will affect the
market price for U.S. fishermen that they can get for their
fish.
I am also aware that the illegal fishing on stocks in other
countries can affect U.S. fisheries. As an example, I
understand the illegal fishing of Russian crab has affected the
U.S. market for crab and has reduced the price U.S. fishermen
have been able to get for the sustainably managed U.S. crab.
While I support U.S. efforts to stop illegal fishing, as we
strive for compliance with international fishing rules, we need
to make sure we are not putting an onerous burden on U.S.
fishermen, processors and importers.
In addition, we should take a careful look at the laws that
are already on the books and determine where additional tools
are necessary rather than enacting new laws that may overlap or
conflict with existing authorities.
I am also interested in hearing more about what species of
fish are most likely to be harvested by IUU vessels and what
nations appear to be the worst actors. Focusing on the worst
nations and on the fisheries which are most likely to be
affected by IUU fishing would seem to be an effective start to
addressing this problem.
Finally, the subcommittee has already held a number of
hearings on the requirements of the Lacey Act that require U.S.
citizens to know and understand foreign laws and regulations
when buying or transporting fish, wildlife and wood products. I
am concerned the legislation before us would magnify that
unreasonable burden.
The third bill, H.R. 2646, introduced by our colleague from
Washington State, Ms. Herrera Beutler, would allow the West
Coast groundfish fishery to refinance a loan which was taken
out to reduce the capacity of the fleet in that fishery.
At the time of the loan the repayment terms were thought to
be reasonable, and the fleet willingly took on the
responsibility. However, the costs of managing the fishery have
changed and so have the prevailing interest rates. As I
understand it, after the loan was taken out, changes in the
management system for that fishery have imposed new costs on
the fishermen, including a management fee of 3 percent on the
value of all landings and a requirement that 100 percent of the
vessels in the fishery carry at-sea observers at a cost of
approximately $450 a day.
These new fees were imposed in addition to the 5 percent
fee on the value of all landings from the fishery to repay the
loan. These new fees in addition to the burden of the loan
repayment are threatening the economic viability of some
vessels in the fleet.
This legislation will allow the loan to be repaid over a
longer time period and would reduce the interest rate to one
more in line with today's interest rates. It would not negate
the requirement that fishermen repay the loan or reduce the
overall loan, but would allow the affected fishermen to afford
the increased management costs and repay the loan in a timely
manner.
I look forward to hearing from today's witnesses on all
three of these bills.
[The prepared statement of Dr. Fleming follows:]
Prepared Statement of the Hon. John Fleming, Chairman, Subcommittee on
Fisheries, Wildlife, Oceans and Insular Affairs
Good afternoon. Today, the subcommittee will hear testimony on
three pieces of legislation--H.R. 69, the Illegal, Unreported, and
Unregulated Fishing Enforcement Act of 2013, H.R. 2646, the
Revitalizing the Economy of Fisheries in the Pacific Act, and a
discussion draft of a bill to implement the Agreement on Port State
Measures to Prevent, Deter and Eliminate Illegal, Unreported and
Unregulated Fishing--which is tentatively titled the Pirate Fishing
Elimination Act.
Two of these bills deal with the issue of illegal fishing and how
the United States can take action to eliminate the United States as a
destination for illegally caught fish.
These bills would implement measures supporting international
efforts to stop not only the illegal fishing activities, but also
eliminate the markets for these illegally caught fish.
It is clear that illegal fishing is a worldwide problem. It is also
clear that the United States needs to do its part to stop this
activity. While I am not aware that there is a significant problem with
foreign vessels ``poaching'' fish in U.S. fisheries, I am aware that
illegal fishing in high seas fisheries that U.S. fishermen participate
in will affect the market price U.S. fishermen can get for their fish.
I am also aware that illegal fishing on stocks in other countries can
affect U.S. fisheries. As an example, I understand the illegal fishing
of Russian crab has affected the U.S. market for crab and has reduced
the price U.S. fishermen have been able to get for the sustainably
managed U.S. crab.
While I support U.S. efforts to stop illegal fishing, as we strive
for compliance with international fishing rules, we need to make sure
we are not putting an onerous burden on U.S. fishermen, processors, and
importers.
In addition, we should take a careful look at laws that are already
on the books and determine where additional tools are necessary rather
than enacting new laws that may overlap or conflict with existing
authorities. I am also interested in hearing more about what species of
fish are most likely to be harvested by IUU vessels and what nations
appear to be the worst actors. Focusing on the worst nations and on the
fisheries which are most likely to be affected by IUU fishing would
seem to be an effective start to addressing this problem.
Finally, this subcommittee has already held a number of hearings on
the requirements of the Lacey Act that require U.S. citizens to know
and understand foreign laws and regulations when buying or transporting
fish, wildlife, and wood products. I am concerned that legislation
before us would magnify that unreasonable burden.
The third bill, H.R. 2646, introduced by our Colleague from
Washington State, Mrs. Herrera Beutler, would allow the West Coast
groundfish fishery to refinance a loan which was taken out to reduce
the capacity of the fleet in that fishery. At the time of the loan, the
repayment terms were thought to be reasonable and the fleet willingly
took on the responsibility; however, the costs of managing the fishery
have changed and so have the prevailing interest rates.
As I understand it, after the loan was taken out, changes in the
management system for that fishery have imposed new costs on the
fishermen including a management fee of 3 percent on the value of all
landings and a requirement that 100 percent of the vessels in the
fishery carry at-sea observers--at a cost of approximately $450/day.
These new fees were imposed in addition to the 5 percent fee on the
value of all landings from the fishery to repay the loan. These new
fees in addition to the burden of the loan repayment are threatening
the economic viability of some vessels in the fleet.
This legislation would allow the loan to repaid over a longer time
period and would reduce the interest rate to one more in line with
today's interest rates. It would not negate the requirement that
fishermen repay the loan or reduce the overall loan, but would allow
the affected fishermen to afford the increased management costs and
repay the loan in a timely manner.
I look forward to hearing from today's witnesses on all three of
these bills.
______
Dr. Fleming. At this time I would like to recognize the
distinguished Ranking Member, Congressman Sablan, for any
statement he would like to make.
STATEMENT OF THE HON. GREGORIO KILILI CAMACHO SABLAN, A
REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF THE
NORTHERN MARIANA ISLANDS
Mr. Sablan. Thank you. Thank you very much, Mr. Chairman,
and welcome to all of our guests this morning.
Mr. Chairman, at the onset I would like to thank Ms.
Bordallo, my distinguished colleague from Guam, for introducing
one of the bills before us for which I am an original co-
sponsor, the ``Illegal, Unreported, and Unregulated (the IUU)
Fishing Enforcement Act of 2013.''
While Ms. Bordallo has to necessarily be on Guam and could
not be with us today, I ask unanimous consent to enter for the
record her statements on the bill.
Dr. Fleming. Without objection, so ordered.
[The prepared statement on H.R. 69 of Ms. Bordallo
follows:]
Prepared Statement of Madeleine Z. Bordallo, a Representative in
Congress from Guam
I thank Chairman John Fleming and Ranking Member Kilili Sablan for
calling this important legislative hearing to order. I appreciate that
the Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
meets this afternoon to hear testimony regarding H.R. 69, the Illegal,
Unreported, and Unregulated Fishing Enforcement Act of 2013, a bill I
introduced on the first legislative day of the 2nd session of the 113th
Congress.
The United States demonstrates strong leadership in fisheries
management both nationally and internationally. However, despite these
efforts, over 70 percent of major global marine fish stocks are
exploited or depleted, which is driven, in part, by the persistence of
illegal, unreported, and unregulated (IUU) fishing. Illegal fishing
threatens the economic and social infrastructure of fishing
communities, and threatens the security of the United States and our
allies around the world, by decreasing opportunities for legitimate and
conscientious fishermen. Additional action is needed from Congress if
we are to be successful in combating IUU fishing and the depletion of
fish stocks worldwide.
IUU fishing is estimated to have an annual global value of over $10
billion, or between 10 percent and 22 percent of the annual reported
global fish catch, severely undermining the U.S. fishing industry and
fisheries management efforts in the United States and in other
countries, according to studies by experts like Dr. David Agnew of
Imperial College London. Unsustainable fishing practices by foreign
fishing fleets adversely affect stocks that migrate between the U.S.
Exclusive Economic Zone (the EEZ) and the high seas. This problem can
be particularly acute in places like Guam and the Gulf Coast where the
EEZ is vast and borders other EEZs.
The loss of economic opportunity weakens our allies in the Pacific
and exacerbates resource conflicts in the region. The Coast Guard
estimates that over $1.7 billion is lost annually to IUU fishing in the
Pacific Islands. In the Gulf Coast, illegal fishing of sharks, spurred
by a demand from abroad, may account for more than half of U.S.
commercial shark quotas.
The United States' Pacific represents 43 percent of the entire
United States EEZ. In particular, Guam, the Northern Marianas, Hawaii,
and the other Pacific islands, host rich fisheries resources, including
pristine reefs, diverse communities of reef fish, and large populations
of sharks and valuable tuna; important economic and cultural assets for
the islands and the United States. IUU fishing threatens these
resources. There have been several incidents of foreign fishing vessels
operating within the United States' EEZ with impunity--a significant
national security and economic risk to our country. The Navy and Coast
Guard have recognized the economic and security threats posed by
illegal fishing in Oceania, and it is incumbent on the Administration
and Congress to strengthen enforcement measures against IUU fishing.
Increased enforcement increases stability among our allies in the
Western Pacific and up and down our coasts. Many nations depend upon
fishing as a vital component of their national economy. Protecting our
fishermen from illegal fishing enhances economic opportunities and
protects cultural and natural resources upon which our communities
rely. IUU fishermen are ``free riders'' who benefit unfairly from the
sacrifices made by U.S. fishermen and others for the sake of proper
fisheries conservation and management. IUU fishing when it depletes the
resources of small communities has the ability to create social
instability, which causes further security problems in the region. We
must do all that we can to help our allies avoid that from happening.
On March 5, 2013, Admiral Sam Locklear, Commander of U.S. Pacific
Command, testified before the House Armed Services Committee at an
annual posture hearing. In response to a question about IUU fishing, he
stated, ``Most of the nations, or most of the folks in Oceania--island
nations do not have the capability to properly--to adequately monitor
and understand what's happening in their economic zones. So the ability
for them to be taken advantage of to their economic detriment is
growing. The Coast Guard in the Pacific and the U.S. Navy in the
Pacific work closely together to support, where we can, programs that
allow us to help the nations monitor their economic zones for illegal
fishing. It's not comprehensive.'' We must support our allies, but more
can be done to enhance our ability to thwart IUU fishing.
The Illegal, Unreported, Unregulated Fishing Enforcement
Enhancement Act of 2013 further enhances the enforcement authority of
NOAA and the U.S. Coast Guard to regulate IUU fishing. This bill would
amend international and regional fishery management organization (RFMO)
agreements to incorporate the civil penalties, permit sanctions,
criminal offenses, civil forfeitures, and enforcement sections of the
Magnuson-Stevens Fishery Conservation and Management Act. It would
strengthen enforcement authority of NOAA and the U.S. Coast Guard to
inspect conveyances, facilities, and records involving the storage,
processing, transport and trade of fish and fish products, and to
detain fish and fish products for up to 5 days while an investigation
is ongoing.
This bill will also implement the Antigua Convention, an important
international agreement that provides critical updates to the
principles, functions, and processes of the Inter-American Tropical
Tuna Commission (IATTC) to manage fisheries in the eastern Pacific
Ocean. The Antigua Convention modernizes the IATTC and increases its
capacity to combat IUU fishing and illegal imports of tuna product.
Without implementing legislation, the United States does not have the
authorities necessary to satisfy its commitments under the Antigua
Convention, including addressing IUU in the eastern Pacific Ocean.
In addition, this bill makes technical adjustments allowing NOAA to
more effectively carry out current IUU identification mandates,
including extending the duration of time for identification of
violators from the preceding 2 years to the preceding 3 years. This
bill broadens data sharing authority to enable NOAA to share
information with foreign governments and clarifies that all information
collected may be shared with international organizations and foreign
governments for the purpose of conducting enforcement. This bill would
also establish an international cooperation and assistance program to
provide technical expertise to other nations to help them address IUU
fishing. This bill focuses on enhancing enforcement authority and does
not authorize new funding or appropriations.
I would like to thank my fellow subcommittee members, Mr. Sablan,
Mr. Pierluisi, Mr. Faleomavaega, Ms. Hanabusa, and Mr. Lowenthal, for
their co-sponsorship of H.R. 69. I also note that this bill has
bipartisan support; Mr. Grimm has joined as a cosponsor, and just last
month, I co-sponsored a briefing with Mr. Michael McCaul, Chair of the
Committee on Homeland Security, where IUU experts outlined the
realities and costs of IUU fishing. I look forward to continuing to
work with my colleagues on both sides of the aisle to advance this
important bill that will combat IUU fishing.
______
Mr. Sablan. Thank you.
The United States demonstrates strong leadership in
fisheries management both nationally and internationally.
Scientifically supported management standards are critical to
the sustainability of our fisheries and, therefore, to the
livelihoods of our fishermen.
The U.S. fishermen have worked hard to meet the standards
set forth in the Magnuson-Stevens Act, and their efforts are
paying off as we are seeing critical stocks rebuilt around the
country.
But despite these efforts, nearly 90 percent of global
marine fish stocks are fully exploited or depleted largely
because of persistent IUU fishing. With an annual global value
of as much as $23.5 billion, IUU fishing undermines the U.S.
fisheries management efforts and its fishermen who are forced
to compete for the same fish with people who do not play by the
same rules.
Unsustainable fishing practices by foreign fishing fleets
adversely affect stocks that migrate between the U.S. exclusive
economic zone and the high seas, and we will hear from our
witnesses today. IUU fishing has been linked to human
trafficking and drug running, making it a threat not just to
our economies but to our security as well.
The National Oceanic and Atmospheric Administration, NOAA,
and the U.S. Coast Guard are doing their best to stop this
illegal activity, but they can do better with our help. H.R. 69
would provide the additional tools critically needed to help
NOAA and the Coast Guard more effectively fight against IUU
fishing.
This bill would strengthen and improve enforcement
authorities and align them under the MSA with more stringent
penalties. It would also provide additional authority for the
United States to identify and penalize nations that do not
comply with the regional fisheries management organizations'
recommendations that U.S. fishermen follow.
These are just a few of the benefits prescribed in this
important legislation we will discuss today.
But trying to catch criminals in the act of illegal fishing
on the vast ocean is extremely difficult, especially in an area
like the Pacific Islands region which has an EEZ larger than
the continent of the United States and Alaska combined.
Resource limitations create another obstacle. U.S.
underwater fisheries enforcement capacity for Guam and the
Northern Mariana currently consists of a single small boat. For
those reasons, the unnumbered discussion draft we will take up
today that would implement the agreement on port State measures
to prevent, deter and eliminate illegal, unreported, and
unregulated fishing, or PSMA, is an important and necessary
complement to H.R. 69.
Parties to PSMA are bound to refuse port entry or services,
including landing and transshipment of fish, to foreign flag
vessels known to have engaged in IUU fishing. If these vessels
have nowhere to land their catch, then the catch is worthless
and there will be no incentive to continue fishing.
While the United States already follows many of these
procedures outlined in the PSMA, the U.S. ratification of the
agreement will send a strong message to other fishing nations
that we are serious about leading the way toward sustainable
fisheries management.
Finally, I would also like to voice my support for H.R.
2646, a bill that I know is important to our committee's
Ranking Member, Mr. DeFazio, as well as to my friend, Mr.
Huffman. We will hear more about this legislation from the both
of them.
And I thank each of the witnesses for joining us today, and
look forward to hearing from you.
Thank you, Ambassador and Mr. Sullivan's stand-in, Mr.
Smith.
Dr. Fleming. I thank the gentleman, and perhaps we should
adopt a rule today to just say ``NOAA'' and not try to----
Mr. Sablan. Yes.
Dr. Fleming. That is a very long word and it is hard for
all of us to get it out in a complete sentence.
At any rate, I thank the gentleman, the Ranking Member.
At this time I would like to recognize the distinguished
Ranking Member of the Full Committee, Mr. DeFazio for a
statement he would like to make.
STATEMENT OF THE HON. PETER DeFAZIO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. DeFazio. Thank you, Mr. Chairman.
Mr. Chairman, I very much appreciate your holding a hearing
today on these three measures. We actually have before us in a
bill that was introduced by our colleague, who is sitting on
the dais, something that is probably the rarest of things and
endangered in Washington, DC, which is a bicameral, my gosh,
bipartisan bill that solves a very real problem. I congratulate
the gentlelady for her introduction, and I am pleased to be a
sponsor of the legislation.
You already mentioned briefly so I will not be repetitive.
The bottom line is the buyout on the West Coast, it kind of
made me look at national marine fisheries in a little different
way. I am starting to look at them like a payday lender. You
know, first they charged an extortionate interest rate, which
was two points above prime, despite the government's borrowing
costs being much less.
And, second, they did not establish a repayment mechanism
for 18 months and kept running up the tab. I mean, the
fishermen were supposed to pay a share of their landing costs
to defray the loan, but this is like one of those catchy
mortgage loans that put a lot of people underwater back in
2008. And this is quite egregious. It is jeopardizing the
livelihoods of many fishermen and women on the West Coast.
And the other thing that is odd about it is in other cases,
for instance, New England, they got a $35 million buyout for
zero cost and no interest. But somehow we are being pegged at a
usurious rate and were running up a bill on interest because we
were not allowed to repay.
The bill would rectify this, refinance the loan, extend the
repayment period. The government would in the end come out
whole, and in fact, I think would come out ahead because these
people would continue to be able to work and pay taxes, and if
we do not do this, many may well have to give up fishing.
Then we also have, and already the gentleman, Mr. Sablan,
mentioned it at some length, Congresswoman Bordallo's bill, and
again, I will not be repetitive, but it would help us to deal
with pirate fishing or IUU fishing, you know, illegal,
unreported, and unregulated fishing if you want to be exact.
And then the second bill, which is a bill in discussion
draft form, and I would be happy to hear comments on it today
for potential changes before we formally introduce, which
Congresswoman Hanabusa and I drafted, which would use port
State measures to prevent, deter, again, pirate fishing. And in
a very, very effective way by denying people access to markets
and doing it in a regular and predictable way to get at those
who abuse the system.
With that, Mr. Chairman, I would also thank--I am going too
quickly here--the Congressman from California, Mr. Huffman, for
his sponsorship on the bipartisan, bicameral REFI bill.
Thank you, Mr. Chairman.
Dr. Fleming. I thank the gentleman.
Next the Chair recognizes Mr. Huffman for any statement he
would like to make.
STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Huffman. Thank you very much, Mr. Chair, and I want to
thank the Ranking Member as well for scheduling time in this
hearing for this important bipartisan, bicameral bill and a
sincere thanks to Representative Herrera Beutler for her
leadership and for working with me and my staff on this. Thanks
to my colleague, Peter DeFazio, as well.
The health of the coastal economy in my district and many
others represented on this committee is dependent, of course,
on the success of our local fishermen and the jobs that they
create. In my district, the groundfish fleet is a very
important player in the local economy, especially around our
small ports.
Groundfish fishermen buy fuel. They buy gear, and the fish
that they land support jobs at processing plants. In my
district alone on any given year there are more than a dozen
trawlers that contribute to over 100,000 metric tons of fish
that are caught along the West Coast, and the value of that
catch exceeds $80 million.
Beyond the economic contribution provided by our groundfish
fishermen, many are also playing a stewardship role on the
health of our fisheries. The industry supported Catch Share
Program that got started in 2011 has been very successful. It
has substantially reduced the bycatch of non-target species.
However, the viability of this industry, particularly for
small boat fleets, is at risk. As of February 14 of this year,
the West Coast ground fishery had paid over $20 million of the
interest on that original Federal loan, but they had made very
little progress on the principal balance.
Presently, over $27 million is still owed of that original
$35 million loan. Fishermen continue to diligently work to pay
this loan back, but they, as the Chair noted, are facing new
fees, and of course, they have rising fuel costs and other
pressures.
And that is why we have introduced this bipartisan REFI
legislation. It makes perfect sense to refinance this decades
old loan at today's low interest rates to help keep our
fishermen in business. If they go under, it is important to
note there will be nobody to pay back this loan because the
loan payments are based upon their landings. If there are no
landings and no money from those catches, this loan goes unpaid
and everybody loses.
Getting this commercial fishery back on its feet is just as
important as the progress we have made to get it on more stable
ecological and operational footing. So, Mr. Chair, this is a
simple refinancing bill.
Just as any other small business or homeowner would
refinance in this current low interest climate, we need to
provide that opportunity for this fishing fleet. It is a smart
bill. It is going to keep these folks fishing so that they can
create the jobs and provide the revenues that will help repay
this loan to the Federal Government.
And I want to thank again the committee for including this
bill in the hearing and yield back the remainder of my time.
Dr. Fleming. The gentleman yields his time, and the Chair
now recognizes Ms. Herrera Beutler for any statement she would
like to make.
STATEMENT OF THE HON. JAIME HERRERA BEUTLER, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF WASHINGTON
Ms. Herrera Beutler. Thank you, Chairman Fleming and
Ranking Member Sablan and Ranking Member of the Full Committee,
Mr. DeFazio.
I appreciate the opportunity to advocate on behalf of
revitalizing the economy of fisheries in the Pacific or the
REFI Act. I would like thank Congressman Huffman for playing a
critical role in the introduction of this legislation and
several members here today, Ranking Member DeFazio and
Congressman Young for their co-sponsorship, and it is not every
day that you get both Mr. DeFazio and Mr. Young on the same
piece of legislation, I would like to add.
I am very pleased that Jim Neva was willing to make the
trip across the country to testify. Jim has 20 years of
experience managing fishing ports on the Washington coast, and
most recently Jim managed the Port of Ilwaco, which serves as a
lifeline to businesses and coastal communities in southwest
Washington. So I am honored to have him here today.
Mr. Chairman, the fishermen off the West Coast of Oregon,
Washington, and California are struggling to sustain their
businesses, as we have heard. Coastal communities in my
district have not been immune to the economic downturn of the
last half decade, and in fact, many of those who have endured
some of the highest unemployment in the Nation deserve some
relief, and H.R. 2646, the REFI Act will provide that relief.
The West Coast groundfish fishery was declared an economic
disaster in 2000 because of the overcapitalization and
overfishing. In 2003, Congress authorized the buyback loans for
the fishery to decrease the fishing pressure and support a
Catch Share Program for the fishery.
These loans helped eliminate overfishing by buying out the
permits of fishermen who are willing to leave the fleet, and
Congress was responding to a very real need. But since, we have
learned that this program was set up in an unsustainable manner
as Mr. DeFazio so aptly described it.
Fishermen in the region have been diligently paying back
their loans. That is a key point, plus interest, but at its
current rate, it just unaffordable. So rather than watch these
small businesses go out and default, we want them to pay it
back. It is time to update the terms so the industry can
continue to do what they do best.
There are three aspects to this bill. It is going to
decrease the ex-vessel rate, which is the minimum payment on
each landing. It will allow a loan to be financed at current
interest rates, and it extends the term for another 10 years.
Mr. Chairman, this bill enjoys broad bipartisan support.
The Pacific Fishery Management Council, our governing body, has
noted that if we do not take action on these loans, economic
casualties in the fishery are feared. So this is a tremendous
opportunity to take that action, and I really appreciate your
willingness to hear the REFI Act and for your support.
With that I yield back.
Dr. Fleming. The gentlelady yields back, and we thank her
for her statement.
We will now hear from our first panel of witnesses, which
includes Ambassador David A. Balton, Deputy Assistant Secretary
for Oceans and Fisheries, Bureau of Oceans and International
Environmental and Scientific Affairs, Department of State; and
Mr. Russell Smith, Deputy Assistant Secretary for International
Fisheries, National Oceanic and Atmospheric Administration,
otherwise known as NOAA, Department of Commerce.
Your written testimony will appear in full in the hearing
record. So I ask that you keep your oral statements to 5
minutes as outlined in our invitation letter to you and under
Committee Rule 4(a).
Our microphones are not automatic. So be sure and press the
button when you get ready to speak, and make sure the tip is
close to your mouth.
And also with respect to our lights, you will be under
green light for the first 4 minutes, the yellow light for the
last minute. When it turns red, we ask that you conclude your
statement as quickly as possible so we can get right on to
questions.
And also just to note here, we expect votes any time. So
when that happens we will adjourn briefly. I do not expect the
vote series to be long, and we will be right back and we will
finish up.
So with that, Ambassador Balton, you are now recognized for
5 minutes, sir.
STATEMENT OF AMBASSADOR DAVID A. BALTON, DEPUTY ASSISTANT
SECRETARY FOR OCEANS AND FISHERIES, BUREAU OF OCEANS AND
INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC AFFAIRS, DEPARTMENT
OF STATE
Ambassador Balton. Mr. Chairman, members of the
subcommittee, thank you very much for the opportunity to
testify.
I will speak about two of the three measures under
consideration today, namely, H.R. 69 and the draft bill
tentatively titled ``The Pirate Fishing Elimination Act.''
These bills would, among other things, provide authority to
implement two significant international agreements in the field
of fisheries. These agreements are the Antigua Convention and
the Port States Measures Agreement. Ratification of these
agreements will allow the United States to reinforce its
leadership role at the international level with respect to
oceans issues in general and marine fisheries in particular.
These agreements have strong support from a broad range of
U.S. stakeholders, including representatives of the U.S.
fishing industry and the environmental and scientific
communities. Many of these representatives participated
actively in the negotiations that led to the adoption of these
agreements.
I would like to say a few words about each of the
agreements and the bills that would implement them. Title 2 of
H.R. 69 contains implementing legislation for the Antigua
Convention. This treaty supersedes the 1949 treaty that created
the Inter-American Tropical Tuna Commission, or IATTC. The
United States signed this convention in 2003, and the Senate
has already provided advice and consent to its ratification.
The Antigua Convention brings the 1949 IATTC treaty up to
date. It takes account of the many changes in international law
in the field of fisheries that have occurred since 1949, as
well as the changes that have occurred in fisheries management
since that time.
The Antigua Convention entered into force in 2010 and now
has 21 parties. Although the United States could implement much
of the Antigua Convention under existing statutory authority,
certain changes in domestic law are needed before the United
States can join this convention. H.R. 69 would make these
changes.
I will turn now to the Pirate Fishing Elimination Act draft
bill, which would implement the Port State Measures Agreement.
This treaty agreement is the first binding global instrument
specifically designed to combat illegal, unreported, and
unregulated, or IUU, fishing.
The United States took a leadership role in the development
of this agreement. We were among the first nations to sign the
agreement when it was adopted in 2009. The President
transmitted it to the Senate for advice and consent in 2011.
The Senate Foreign Relations Committee recently held a hearing
on this treaty and has already approved it.
IUU fishing, as many have already said today, undermines
efforts to conserve and manage shared fish stocks and threatens
the sustainability of all fisheries. Estimates of global losses
due to IUU fishing ranged from $10 billion a year to $23
billion a year.
Moreover, the very vessels and foreign companies involved
in illegal fishing activities are often involved in human
trafficking, drug trafficking, labor exploitation, and
environmental degradation. The U.S. ratification of the Port
State Measures Agreement will give us additional tools to
address these challenges.
Since IUU fisheries can operate anywhere, detecting
activities at sea is difficult and expensive, but all fish
caught at sea must ultimately come to port in order to enter
the stream of commerce. The Port State Measures Agreement
establishes standards and requirements for port States to
ensure that IUU caught fish will not be landed, transshipped,
packaged or processed in their ports.
Timely ratification would, again, underscore the commitment
of the United States to strengthening efforts at the global and
national levels to detect, deter, and eliminate IUU fishing.
In closing, I would simply reiterate the importance of
these agreements to advancing U.S. economic interests and
fisheries management objectives at the international level. We
look forward to working with committee staff as the legislation
moves forward.
And thank you very much, once again. I am happy to answer
any questions that you may have.
[The prepared statement of Ambassador Balton follows:]
Prepared Statement of Ambassador David A. Balton, Deputy Assistant
Secretary of State for Oceans and Fisheries
Mr. Chairman and members of the subcommittee, I am Ambassador David
Balton, Deputy Assistant Secretary of State for Oceans and Fisheries. I
am pleased to testify before you today on H.R. 69 and the draft bill
titled the ``Pirate Fishing Elimination Act.''
The agreements that would be implemented by these bills are the
Antigua Convention and the Port States Measures Agreement. These
international agreements advance our international goals and
objectives, including broad foreign policy objectives, and promote
responsible and sustainable use of our oceans resources. The agreements
represent significant progress in protecting U.S. interests, advancing
our international policies and priorities to conserve and manage shared
living marine resources, to protect the broader marine environment from
the effects of destructive fishing practices, and to prevent illegal
fishing activities from undermining our global and regional efforts
toward these ends. Both of these agreements have strong support from a
broad range of stakeholders, including representatives of the U.S.
fishing industry and the environmental and scientific communities, many
of whom participated actively in the negotiations.
H.R. 69 and the Antigua Convention
H.R. 69 contains implementing legislation for an agreement called
the Antigua Convention, which updates and is to supersede the 1949
Convention establishing the Inter-American Tropical Tuna Commission
(IATTC). In 2003, with invaluable assistance from the National Marine
Fisheries Service (NMFS) of the National Oceanic and Atmospheric
Administration, the Department of State led the negotiation of the
Antigua Convention and strongly supports the result of those
negotiations. The United States signed the Convention on November 14,
2003, and the Senate provided advice and consent to ratification on
November 17, 2005.
The negotiation and adoption of the Antigua Convention allowed the
United States and the other participating countries to modernize the
original Convention that established the IATTC in 1949 to reflect the
evolution of the practices of the IATTC and the international community
in managing highly migratory fish stocks, including moving from
managing just target species to incorporating some of the broader
effects of fishing on the marine ecosystem in management decisions.
The Antigua Convention also incorporates important changes in
international law governing the conservation and management of living
marine resources that have taken place since 1949, and provides for
membership in the IATTC of both the European Union and Taiwan. In
particular, the Antigua Convention incorporates many of the elements of
the 1995 United Nations Fish Stocks Agreement, including: coverage of
virtually all highly migratory fish species in the Convention Area, a
precautionary approach to conservation and management of the species
covered, provisions for conservation measures for non-fish species
affected by fishing operations for tunas, enhanced provisions for
monitoring, surveillance and enforcement, and other measures. The
United States is a party to the United Nations Fish Stocks Agreement--
we were the third country to ratify that Agreement, which now has 81
parties.
The Antigua Convention entered into force in 2010 and now has 21
parties. The United States remains a Member of the IATTC by virtue of
our being party to the 1949 Convention. Although the United States
could implement much of the Antigua Convention under existing statutory
authority, it is envisaged that certain changes in domestic law are
needed before the United States can deposit its instrument of
ratification. We look forward to working with committee staff on this
issue.
``Pirate Fishing Elimination Act'' Draft Bill and the Port State
Measures Agreement
The Pirate Fishing Elimination Act draft bill contains implementing
legislation for the Agreement on Port State Measures to Prevent, Deter
and Eliminate Illegal, Unreported and Unregulated Fishing (the Port
State Measures Agreement). This is a global agreement, and is in fact
the first binding global agreement specifically intended to combat
illegal, unreported, and unregulated--or IUU--fishing. The United
States signed the Port State Measures Agreement on November 22, 2009.
The President transmitted the Agreement to the Senate for advice and
consent November 14, 2011.
IUU fishing undermines efforts to conserve and manage shared fish
stocks and threatens the sustainability of all fisheries as well as
other living marine resources taken as bycatch. Estimates of global
losses due to IUU fishing range from $10 to $23 billion each year.\1\
The large number of developing States that depend on fisheries for food
security and export income are particularly vulnerable. A secondary
benefit to ratification of the Port State Measures Agreement and the
other treaties under consideration is that it will give the United
States additional tools to address illegal activities that are often
intertwined with IUU fishing, including drug and human trafficking,
labor exploitation, environmental degradation, and organized crime.
---------------------------------------------------------------------------
\1\ Review of Impacts of Illegal, Unreported and Unregulated
Fishing on Developing Countries (Marine Resources Assessment Group Ltd,
London, United Kingdom, June 2005; http://transparentsea.co/images/5/
58/Illegal-fishing-mrag-report.pdf).
---------------------------------------------------------------------------
Since IUU fishers can operate anywhere, detecting activities at sea
is difficult and expensive. But, in order to sell or trade their
illegal catch, they ultimately need to bring the fish to a port for
landing or transshipment. The Port State Measures Agreement establishes
standards and requirements for port States to ensure IUU-caught fish
will not be landed, transshipped, packaged, or processed in their
ports.
Here again, the Department of State and NMFS took a leadership role
in the development of this Agreement, hosting and chairing the initial
informal meetings that led to the Agreement to engage in formal
negotiations toward a legally binding instrument. Timely ratification
would again underscore the commitment of the United States to
strengthening efforts at the global and national levels to detect,
deter and eliminate IUU fishing. We look forward to working with
committee staff.
Conclusion
In closing, I would simply reiterate the importance of these
agreements to advancing U.S. economic interests and fisheries
management objectives at the international level.
Thank you very much. I am happy to answer any questions you may
have.
______
Questions Submitted for the Record by Chairman John Fleming to
Ambassador David A. Balton
Question. Mr. Kraft notes in his testimony that fishing vessels
flagged in Korea, Taiwan, China, and Belize are the biggest culprits.
If we already know this, what is being done to get these countries to
address the problems that are apparently a problem within those
countries?
Answer. In addition to the certification process under the
Magnuson-Stevens Fishery Conservation and Management Reauthorization
Act (MSRA) that is managed by the Department of Commerce's National
Oceanic and Atmospheric Administration (NOAA), the Department of State
(State), in coordination with NOAA, conducts consultations with foreign
affairs and fisheries representatives from countries and entities who
are suspected of illegal, unreported, and unregulated (IUU) fishing. We
do this primarily through fora such as Regional Fisheries Management
Organizations (RFMOs) in which we participate, which have procedures
for monitoring compliance and addressing issues as they are identified.
That process can also include bilateral consultations with a specific
member of the organization in question. For example, if we were
concerned about a fellow member of the Western and Central Pacific
Fisheries Commission (WCPFC), we would conduct bilateral consultations
on the margins of WCPFC meetings to discuss how they can work to better
comply with various WCPFC conservation and management measures, which
are legally binding commitments and have been implemented with the
intent of preventing and deterring IUU fishing. The United States also
works within the various RFMOs to take action against both members and
non-members whose vessels undermine these binding rules. Through U.S.
leadership, RFMOs are working to put in place schemes that impose a
range of multilateral actions against flag States that break the
rules--including loss of fishing rights or trade restrictions.
All of the RFMOs maintain lists of specific vessels found to have
engaged in IUU fishing, and the United States and other RFMO members
apply a range of sanctions against listed vessels, including keeping
them from entering ports, accessing port services, or landing any of
their catch and prohibiting imports of fish caught by these vessels.
The heart of the Port State Measures Agreement is to take these
measures and make them universal, so that all port States, not just the
members of a particular RFMO, can take action against these IUU
vessels.
Question. For years, the committee has heard concern about the IUU
harvest of Russian crab. This was a real-world example of the effect of
IUU fishing on the United States. Why was Russia not identified as an
IUU nation in the latest report to Congress?
Answer. We defer to the Department of Commerce for a response to
the question of why Russia is not listed in the most recent report to
Congress as they are the agency responsible for preparing that report.
We note, however, that we have repeatedly raised the issue of illegal
crab harvests with Russia in our bilateral engagements for many years.
Within the U.S.-Russia Intergovernmental Consultative Committee (ICC),
the bilateral forum for cooperation on fisheries issues, we have been
working to develop an agreement with Russia to address this and other
issues related to IUU fishing. Efforts to advance and conclude this
agreement have recently been complicated by events in Ukraine.
Question. Mr. Kraft's testimony notes that the Port States Measures
Agreement is modeled after the U.S. domestic IUU fishing laws. If the
Agreement is modeled after existing U.S. law, why is this legislation
necessary? What specific provisions of the Agreement are not currently
covered by existing law? What specific provisions in the draft
legislation would add additional authorities or requirements that are
not already in U.S. law?
Answer. We understand that the Department of Commerce has also
received these questions. We defer to Commerce for an appropriate
response to these questions.
Question. The Nicholson Act allows foreign fishing vessels to land
fish in limited ports in the territories. How will the legislation
affect fisheries trade at these ports? Is there concern that IUU
vessels are using these ports to introduce IUU fish into the U.S.
seafood market?
Answer. We understand that the Department of Commerce has also
received these questions. We defer to Commerce for an appropriate
response to these questions.
Question. Mr. Walsh notes that the Nicholson Act prohibits foreign-
flag vessels from landing fish in almost all U.S. ports, but that there
is an exemption for fish caught under a treaty which could allow such
landings by foreign-flag vessels. Can you tell us how many of these
treaties exist and what fisheries and regions these treaties affect?
Can you tell us the extent of foreign-flag vessels that these treaties
would allow to access U.S. ports? Do these treaties limit the vessels
that have access to U.S. ports and do we know exactly which vessels are
authorized to access U.S. ports under the treaty?
Answer. The Treaty Between the Government of the United States of
America and the Government of Canada on Pacific Coast Albacore Tuna
Vessels and Port Privileges (``Treaty'') is the subject of the
exemption included in the Nicholson Act for foreign-flagged vessels to
land fish in U.S. ports. This treaty relates to the albacore troll
fishery off the west coasts of California, Oregon, and Washington in
the United States and British Columbia in Canada. Annex B of the Treaty
elaborates specific ports in the United States and Canada in which
foreign vessels are allowed to land fish taken in the albacore troll
fishery. Pursuant to the 2013 fishing regime under the Treaty, no more
than 45 Canadian albacore troll vessels were allowed to land fish in
the specified ports. The 2014-2016 regime will remain at those levels.
Question. Under the Port States Measures Agreement, is there a
dispute mechanism for a country or a vessel to dispute being labeled as
an IUU vessel or country? A recent article noted that Korean fishermen
were accusing the European Union of using a double standard when
identifying vessels and countries on its IUU list. How can this type of
dispute be resolved under the Agreement?
Answer. Unlike the High Seas Driftnet Fishing Moratorium Protection
Act, neither the Port State Measures Agreement nor Representative
DeFazio's draft bill entitled ``Pirate Fishing Elimination Act''
provide for the identification of a nation as engaged in IUU fishing.
They do call for restrictions, with certain exceptions, on port entry
and access to port services for foreign vessels that have engaged in
IUU fishing, particularly vessels included on the IUU fishing vessel
list of an RFMO. Where the laws of the port State provide for potential
recourse to the owner, operator, master, or representative of a vessel
that has been the subject of a denial of port entry, denial of use of a
port, an inspection, or port State actions following an inspection, and
information about such recourse is public and requested in writing to
the port State, the Agreement requires the port State to provide such
information. In addition, Parties to the Agreement are bound by the
rather common dispute settlement provisions in Part 7 of the Agreement.
Finally, each of the RFMOs that have established an IUU fishing vessel
list has a process to introduce evidence of IUU fishing activity, and
for countering that information, before a vessel is placed on an IUU
fishing vessel list. Likewise, each of these RFMOs also has a process
for removing vessels from the list.
Question. The draft Port States Measures implementing legislation
would allow enforcement agents to conduct search and seizures with or
without warrants. Why is this necessary?
Answer. We understand that the Department of Commerce has also
received this question. We defer to Commerce for an appropriate
response to this question.
Question. The bill would also allow the Secretary of Commerce to
use personnel from almost any Federal or State agency (as long as there
is an agreement in place) to enforce this Act. It also gives these new
enforcement officers the ability to conduct search and seizures and
enforce any law of the United States. This seems to be a huge expansion
of enforcement authorities. Why is this necessary?
Answer. We understand that the Department of Commerce has also
received this question. We defer Commerce for an appropriate response
to this question.
Question. Mr. Walsh's testimony raises a concern that under the
legislation being considered today, even a minor violation of the
Magnuson-Stevens Act could result in that vessel being labeled as an
IUU vessel by another country. Is this an accurate reading of the
legislation? If so, that may be overly inclusive. What can we do to fix
this legislation so that only egregious violations of the Magnuson-
Stevens Act are considered to be serious enough for the vessel to be
considered an IUU vessel?
Answer. We understand that the Department of Commerce has also
received these questions. We defer to Commerce for an appropriate
response to this question.
Question. Mr. Walsh also notes in his testimony that foreign
countries could use the threat of an IUU label as a means of extracting
fines from U.S. vessels. Is there something the vessel owner could do
or the U.S. Government could do to dispute an unjustified IUU label for
a U.S. vessel?
Answer. The Port State Measures Agreement does not provide for the
establishment of an IUU fishing vessel list. If officials of a port
State Party to the Agreement threatened to falsify the results of an
inspection report as a means of extracting money from U.S. vessels, the
vessels' owners might be able to seek recourse under the laws of the
port State. In addition, Parties to the Agreement are bound by the
dispute settlement provisions in Part 7 of the Agreement which would
allow the U.S. Government to seek redress.
Question. Current law appears to identify nations rather than
vessels which are involved in IUU fishing practices. Yet the High Seas
Driftnet Fishing Moratorium Protection Act allows for the denial of
port privileges to vessels. Is this a disconnect that needs to be
addressed?
Answer. We understand that the Department of Commerce has also
received this question. We defer Commerce for an appropriate response
to this question.
Question. The High Seas Driftnet Fishing Moratorium Protection Act
already includes authority for the Secretary of the Treasury to deny
entry ``to any place in the United States and to the navigable waters
of the United States'' to any vessel conducting large-scale driftnet
fishing or illegal, unreported, or unregulated fishing beyond the
exclusive economic zone of any nation. Why is additional legislation
necessary?
Answer. We understand that the Department of Commerce has also
received this question. We defer to Commerce for an appropriate
response to this question.
Question. Mr. Lagon notes in his testimony that labor practices and
human trafficking are a problem for some foreign fishing fleets. Under
the legislation being considered today and under existing statutory
authorities, could labor practices be a criteria for labeling a vessel
as an IUU vessel? If so, how could a U.S. importer possibly know
whether fish he was buying from a foreign processor had been purchased
from a vessel that had unfair labor practices?
Answer. IUU fishing is by definition a clandestine activity. As
such, IUU fishing vessels often engage in other criminal activity,
including labor abuses, human trafficking and trafficking of wildlife
or drugs. But these other activities are not themselves IUU fishing,
either according to the internationally agreed terms contained within
the Port State Measures Agreement or existing domestic statutes.
Nonetheless, the Port State Measures Agreement can be an effective tool
to combat labor abuses and trafficking--as well as IUU fishing--through
the increased scrutiny it will put on foreign fishing vessels seeking
access to port. A key part of the Agreement establishes minimum
standards for nations to inspect a certain proportion of foreign
fishing vessels in their ports and sets out how those inspections are
to be conducted. Any information these inspections turn up about other
criminal activity will be invaluable for port States to be able to act
against it.
Question. Mr. Lagon notes in his testimony that there is a problem
with Mexican fishing vessels fishing in U.S. waters. This is illegal
under current law so what is being done by NOAA and the State
Department to address this issue? What additional remedies would these
bills give enforcement agents that do not currently exist?
Answer. The problem of Mexican vessels fishing in U.S. waters is
primarily limited to small, open-hulled speedboats (``lanchas'') that
cross into the U.S. waters from Mexico in the Gulf of Mexico. This is a
longstanding issue that State, NOAA and the U.S. Coast Guard raise with
our Mexican counterparts on a regular basis. NOAA is the lead
enforcement agency for the enforcement of the Magnuson-Stevens
Fisheries Conservation and Management Act, which these lancha
incursions violate. The Coast Guard performs the majority of at-sea
enforcement activities in coordination with NOAA and has numerous
interactions with such vessels each year. Whenever lanchas are
successfully interdicted in U.S. waters the vessel, catch and gear are
seized and escorted to Coast Guard Station Corpus Christi; some are
able to avoid interdiction and run back into Mexican waters. Our
cooperation with Mexican authorities is good and we continue to work
with them to seek a long-term solution to this problem. As noted, this
activity is already illegal and we don't expect that the bills
currently under consideration would affect this particular aspect of
our enforcement efforts.
______
Dr. Fleming. Thank you, Ambassador Balton.
And now the Chair recognizes Mr. Smith for 5 minutes.
STATEMENT OF RUSSELL SMITH, DEPUTY ASSISTANT SECRETARY FOR
INTERNATIONAL FISHERIES, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, DEPARTMENT OF COMMERCE
Mr. Smith. Thank you, Mr. Chairman.
Good afternoon, Mr. Chairman, Ranking Member Sablan, and
members of the committee, other Members of Congress. Thank you
for the opportunity to testify before you today.
My name is Russell Smith. I am the Deputy Assistant
Secretary for International Fisheries at NOAA.
Marine fish and fisheries are vital to the prosperity and
cultural identity of coastal communities in the United States.
They play an enormous role in the U.S. economy. To ensure the
long-term benefits of fishery resources, NOAA relies on clear
science-based rules, fair enforcement, and shared commitment to
sustainable management.
The application of these standards into federally managed
fisheries has resulted in significant progress in ending
overfishing and rebuilding our Nation's fisheries.
As a global leader in sustainably managed fisheries, the
United States continues to translate our domestic fisheries
management practices into international norms. Working in
collaboration with the Department of State, the U.S. Coast
Guard and other parts of the U.S. Government, NOAA works to
ensure that global fish stocks, including those that United
States shares with others, are also sustainably managed.
One of the great challenges of these efforts is illegal,
unreported or unregulated fishing. IUU fishing is a global
problem that threatens the ocean ecosystems and impacts
fisheries, food security, and coastal communities around the
world.
Experts estimate that global value of economic losses from
IUU fishing ranges between $10 and $23 billion. By
circumventing conservation and management measures, IUU fishing
undercuts the sustainability of international and U.S.
fisheries and delivers illegally caught product to global
markets that then unfairly compete with legally harvested fish.
It is imperative that the United States takes steps to
eliminate the economic incentives for engaging in IUU fishing
by closing our market to these products. Although the
Administration has not yet taken a position on H.R. 69, the IUU
Fishing Enforcement Act, it looks forward to working with
Congress to find ways to achieve the objectives of the Act,
including by strengthening international conservation and
management of fish stocks and combating IUU fishing.
Title I of the bill would harmonize enforcement provisions
among various statutes that implement regional fisheries
conservation and management and other international fisheries
agreements to which the United States is a party. This could
provide a more consistent enforcement response to violations of
any of the applicable statutes and ensure that the penalties
that may be assessed are large enough to deter violations and
are not merely a cost of doing business.
H.R. 69 would also provide new enforcement tools designed
to enhance the agency's ability to detect imports of fish and
fish products that were harvested or imported illegally and
would strengthen the ability of the United States to address
fishing activities and concerns by vessels flagged to foreign
nations.
H.R. 69's provisions also enhance our international
cooperation and assistance activities and enhance our ability
to share data to combat IUU fishing and improve fisheries
management under circumstances that protect against unintended
or unauthorized disclosure.
Finally H.R. 69 provides the authorities needed to
implement the Antigua Convention, which will improve management
of tuna and tuna-like species in the Eastern Pacific Ocean. We
support the efforts of this committee to adopt legislation
providing additional authorities to support the U.S. leadership
in efforts to sustainably manage fisheries and prevent, deter,
and eliminate IUU fishing.
The Administration also has no position on the Pirate
Fishing Elimination Act at this point, which would allow the
United States to implement the provisions of the Port State
Measures Agreement. This agreement is the first binding global
instrument specifically focused on combating IUU fishing. It
recognizes that all fish must pass through a port to get to the
market, and that port States can take cost effective measures
to combat IUU.
We have had experience with the implementation of most of
the substantive measures in the agreement, as most are already
authorized under U.S. law, albeit in a more limited context.
Ratification and implementation of the Port States Agreement by
the United States will demonstrate strong leadership in the
global battle against IUU fishing and position our Nation to
encourage ratification and implementation by other countries.
While the Administration has also not taken a position on
H.R. 2646, my understanding is that if enacted, this
legislation would direct the Secretary of Commerce to issue a
fishing capacity reduction loan to refinance the existing loan
funding the Pacific Coast Groundfish Fishing Capacity Reduction
Program.
In 2003, Congress authorized a $46 million buyback program
which permanently removed 91 vessels and 239 permits for 450.7
million from the groundfish trawl fishery and associated
ancillary fisheries of Dungeness crab and pink shrimp off the
California, Oregon and Washington coasts.
We understand that the buyback payments and other mandatory
payments are a substantial portion of the industry's
operational costs, perhaps making it difficult for the fishery
to continue to operate. As such, NOAA is supportive of the
purpose of this bill, ``to conserve the West Coast groundfish
fishery and the coastal economies in California, Oregon and
Washington that rely on it.''
NOAA would be glad to work with the committee and industry
to ensure the buyback program is as efficient as possible.
[The prepared statement of Mr. Smith follows:]
Prepared Statement of Russell F. Smith III, Deputy Assistant Secretary
for International Fisheries, National Oceanic and Atmospheric
Administration, U.S. Department of Commerce
Introduction
Good morning Mr. Chairman and members of the committee. I am
Russell Smith, Deputy Assistant Secretary for International Fisheries
at the National Oceanic and Atmospheric Administration (NOAA), within
the Department of Commerce. Thank you very much for the opportunity to
come before you today to discuss several pieces of legislation pending
before the committee.
Before I address the bills being considered by the committee, I
wish to provide some context about the importance of marine fish and
fisheries to the U.S. economy and culture. Marine fish and fisheries,
such as salmon in the Pacific Northwest and cod in New England, have
been vital to the prosperity and cultural identity of coastal
communities in the United States. U.S. fisheries play an enormous role
in the U.S. economy. Commercial fishing supports fishers and fishing
communities, and provides Americans with a sustainable, healthy food
source. The seafood industry in the United States--harvesters, seafood
processors and dealers, seafood wholesalers and seafood retailers,
taking into account imports and multiplier effects--generated $129
billion in sales impacts and $37 billion in income impacts, and
supported 1.2 million jobs in 2011.\1\ Recreational fishing also makes
significant contributions to employment and the economy in the United
States. Recreational fishing generated an estimated $56 billion in
sales impacts, $18 billion in income impacts, and supported 364,000
jobs in 2011.\2\ Subsistence fishing provides an essential food source
and is culturally significant for indigenous peoples.
---------------------------------------------------------------------------
\1\ See Fisheries Economics of the U.S. 2011. NMFS Office of
Science & Technology, available at: http://www.st.nmfs.noaa.gov/
economics/publications/feus/fisheries_economics_2011.
\2\ Sabrina J. Lovell, Scott Steinback, and James Hilger. 2013. The
Economic Contribution of Marine Angler Expenditures in the United
States, 2011. U.S. Dept. Commerce, NOAA Tech. Memo. NMFS-F/SPO-134, 188
p.
---------------------------------------------------------------------------
To ensure the long-term availability of these resources for the
American people, NOAA relies on clear, science-based rules, fair,
effective and consistent enforcement, and a shared commitment to
sustainable management. Much of this work occurs under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act),
which sets forth standards for the conservation, management and
sustainable use of our Nation's fisheries resources. The application of
these standards has resulted in a Federal fishery management system
that has made very significant progress in ending overfishing and
rebuilding our Nation's fisheries.
The United States is now the world's largest importer of
seafood.\3\ In 2011, seafood imports contributed 176,000 jobs, $48.4
billion in sales impacts, and $14.8 billion in value added impacts.\4\
As such, the United States is in a unique position to support
sustainable fisheries around the world while providing a level playing
field for our domestic fishermen. To achieve this, it is imperative
that the United States take steps to eliminate the economic incentives
for engaging in illegal, unreported, or unregulated (IUU) fishing by
closing our market to products from those IUU fisheries. Working in
collaboration with the Department of State and the U.S. Coast Guard,
NOAA engages in international fisheries fora, such as Regional
Fisheries Management Organizations (RFMOs), to ensure that shared fish
stocks are sustainably managed, including by ensuring that management
is based on the best available science. As the United States is a
leader in sustainably managing fisheries, we regularly draw from our
domestic experience and convince RFMOs to apply, in the waters under
their jurisdiction, management measures comparable to those applied in
U.S. waters.
---------------------------------------------------------------------------
\3\ See February 2014 U.N. Food and Agriculture Organization FACT
SHEET: International fish trade and world fisheries at ftp://ext-
ftp.fao.org/FI/Data/cofi_ft/COFI_FT_Factsheet.pdf.
\4\ 4 See Fisheries Economics of the U.S. 2011, at 7.
---------------------------------------------------------------------------
One of the greatest challenges to our international efforts to
ensure the sustainable management of global fisheries is combating IUU
fishing. IUU fishing is a global problem that threatens ocean
ecosystems and impacts fisheries, food security, and coastal
communities around the world. Experts estimate global economic losses
from IUU fishing range between $10 and $23.5 billion.\5\ By
circumventing conservation and management measures, companies and
individuals engaging in IUU fishing cut corners and lower their
operating costs, impacting not just target species, but also species
taken as bycatch, as well as marine habitat. As a result, their
illegally caught products provide unfair competition for law-abiding
fishermen and seafood industries in the marketplace, and can undercut
the sustainability of international and U.S. fisheries.\6\
---------------------------------------------------------------------------
\5\ Agnew D.J., J. Pearce, G. Pramod, T. Peatman, R. Watson, et al.
(2009). Estimating the worldwide extent of illegal fishing. PLoS ONE,
4(2): e4570.
\6\ United Nations Office of Drugs and Crime. Issue Paper--
Transnational Organized Crime in the Fishing Industry, http://
www.unodc.org/documents/human-trafficking/Issue_Paper_-
_TOC_in_the_Fishing_Industry.pdf. 2011.
---------------------------------------------------------------------------
H.R. 69--Illegal, Unreported, and Unregulated Fishing Enforcement Act
of 2013
The Administration has not taken a position on H.R. 69, the
Illegal, Unreported, and Unregulated Fishing Enforcement Act of 2013.
However, NOAA has and will continue to strive to achieve the objectives
of the Act, namely strengthening the international conservation and
management of fish stocks and combating IUU fishing.
Title I of the bill's provisions would harmonize the enforcement
provisions amongst the statutes that implement regional fisheries
conservation and management and other international fisheries
agreements to which the United States is a party. In some cases, the
enforcement provisions of these laws have not been updated in several
decades. It would incorporate the enforcement provisions of the
Magnuson-Stevens Act by reference, providing more consistent
enforcement across all of the statutes to which it applies and increase
penalties that can be applied proportionally to effectively deter
illegal conduct and reflect the damage to the ecosystem from IUU
activities. Differences among the various statutes implementing our
international fisheries agreements create inconsistencies in how IUU
fishing situations can be investigated and prosecuted depending upon
which international agreement is involved. NOAA also supports enactment
of stronger enforcement provisions to provide a fuller complement of
administrative, civil judicial, and criminal enforcement remedies that
could be used as appropriate to address IUU violations. Having the
ability to seek civil judicial or criminal sanctions, in addition to
administrative sanctions, would enable the United States to respond
more appropriately to violations of differing levels of severity and
would strengthen our enforcement efforts in the international arena.
In addition, the bill authorizes new enforcement tools related to
detecting imports of fish and fish products that were harvested or
imported illegally. Similarly, it also increases information sharing
and coordination among the agencies involved in international fisheries
enforcement. The bill would also authorize new enforcement and
rulemaking authorities.
Current law only authorizes the identification of a nation for IUU
fishing if two or more of its fishing vessels have engaged in IUU
fishing within the specified time period. H.R. 69 would expand the
timeframe that NOAA can consider in our identification process to 3
years. Expanding the time period to 3 years would also enhance the
agency's ability to identify countries for bycatch of finfish and
protected species.
H.R. 69 also provides the authorities to implement legislation for
the Convention for the Strengthening of the Inter-American Tropical
Tuna Commission (Antigua Convention). The Antigua Convention is an
international agreement that provides updates to the mandate and
functions of the Inter-American Tropical Tuna Commission (IATTC), which
manages tunas and other highly migratory species in the eastern Pacific
Ocean. The convention which created the IATTC, and which is being
updated by the Antigua Convention, was adopted in 1949. As a result of
strong U.S. leadership, the Antigua Convention contains modern
principles and reflects the duties and responsibilities of nations to
cooperate toward ensuring the sustainable management of shared
fisheries resources and to conserve marine ecosystems on which
sustainable fisheries depend.
H.R. 69's provisions also authorizes the sharing of fisheries data
to combat IUU fishing and improve fisheries management. NOAA is
concerned with the sustainability of foreign fisheries that supply our
market and support jobs within the U.S. market. Since many fish stocks
move within and beyond national jurisdictions, and since such a large
proportion of all seafood is traded internationally (nearly 40 percent,
per FAO), NOAA must work in cooperation with our international partners
to help ensure that these fisheries are sustainable. Our international
cooperation and assistance activities have multiple benefits. We work
on building relationships with our international partners to support
strong management and enforcement regimes that ultimately support our
U.S. seafood interests and more generally bolster our own economic
well-being.
I would like to share a case I find particularly interesting to
help showcase the work we do to combat IUU fishing. In 2011, a number
of individuals and companies in the Gulf of Mexico region were
sentenced for engaging in a large scale seafood smuggling enterprise.
In this scheme, the defendants conspired to illegally import and sell
fraudulently labeled Vietnamese catfish as grouper or other more
valuable species. They did this to avoid Federal import tariffs
associated with Vietnamese catfish, which would have been approximately
$9.3 million in this case, and because the market price of grouper is
much higher, generally more than double, that of Vietnamese catfish.
The defendants illegally imported more than 10 million pounds, or $15.5
million worth of frozen fish fillets. These illegal activities, and
those like it, displace legitimate, legally produced domestic fish
product and create an uneven playing field in the U.S. market. Our
criminal prosecution of the defendants supported the interests of our
domestic fishermen and highlights the importance of having access to
the enforcement tools necessary to combat IUU fishing.
I applaud the efforts of this committee in highlighting the problem
of IUU fishing. We look forward to working with the committee to
address IUU fishing.
Port States Agreement
The Administration has not taken a position on the Pirate Fishing
Elimination Act, which authorizes implementation of the Agreement on
Port State Measures to Prevent, Deter, and Eliminate Illegal,
Unreported and Unregulated Fishing (Port State Measures Agreement). The
Port State Measures Agreement is the first binding global instrument
focused specifically on combating IUU fishing. It recognizes that all
fish must pass through a port to get to market and that port States can
take cost-effective measures to combat IUU fishing. IUU fishing
deprives law-abiding fishermen and coastal communities around the world
of up to an estimated $23.5 billion of seafood and seafood products
every year,\7\ and undermines efforts to monitor and sustainably manage
fisheries. It also threatens the food security of some of the poorest
countries in the world as well as in the United States and interferes
with the livelihood of legitimate fishers around the world. Seafood
caught through IUU fishing enters the global marketplace through ports
all around the world. Preventing that fish from entering the stream of
commerce requires an international solution and the cooperation of
countries throughout the world.
---------------------------------------------------------------------------
\7\ Agnew D.J., J. Pearce, G. Pramod, T. Peatman, R. Watson, et al.
(2009). Estimating the worldwide extent of illegal fishing. PLoS ONE,
4(2): e4570.
---------------------------------------------------------------------------
The Port States Agreement is recognized within the international
community as a landmark in the effort to combat IUU fishing. The United
States was a primary participant in its negotiation and was one of the
first countries to sign it. We took a leadership role because we
recognized how important taking these measures are for nations that
want to ensure that product entering their ports has been legally
harvested and is safe for consumers. We have had experience with the
implementation of most of the substantive measures in the agreement as
most are already authorized under U.S. law, albeit in a more limited
context.
The Agreement has already had significant impact on efforts to
combat IUU fishing, influencing the adoption of similar measures by
various RFMOs and providing a model for nations, developing nations in
particular, to follow in establishing or strengthening dockside
inspection programs. However, the full effect of the Port States
Agreement as a tool to combat IUU fishing will not be realized until
its entry into force, which requires ratification by 25 nations or
regional economic integration organizations. So far, 10 have done so.
Ratification, and implementation, of the Port States Agreement by the
United States will demonstrate strong leadership in the global battle
against IUU fishing and will position the United States to encourage
ratification and implementation by other countries.
The Agreement sets forth minimum standards for the conduct of
dockside inspections and training of inspectors and, most
significantly, requires parties to restrict port entry and port
services for foreign vessels known or suspected of having been involved
in IUU fishing, particularly those on an RFMO IUU fishing vessel list.
These minimum standards would increase the risks and costs associated
with IUU fishing activities and help to ensure that IUU fish and fish
products do not enter into global trade. Implementation of the Port
States Agreement will ultimately benefit U.S. fishermen, seafood
buyers, and consumers by preventing IUU vessels from entering our ports
and diluting the market with illegal product.
The Port States Agreement has four primary sets of obligations that
Parties are required to apply vis-a-vis foreign flagged fishing vessels
(including support vessels) seeking entry to a Party's port and these
are reflected in the legislation that was transmitted to Congress:
Parties are required to designate ports to which foreign
flagged vessels may seek entry, to require that certain
information be collected and considered, and to establish a
process for granting or denying port entry and/or the use
of port services to foreign flagged fishing vessels;
Parties must maintain the capacity to conduct dockside
vessel inspections in the designated ports and adhere to
minimum standards for the conduct of inspections and the
training of inspectors. A sufficient number of inspections
must be conducted to satisfy the objective of the
Agreement;
Subject to certain limited exceptions, Parties must deny
port entry and the use of port services to vessels that
have been engaged in IUU fishing, including as indicated by
inclusion of the vessel on an RFMO IUU Vessel list.
Importantly, the limited exceptions include allowing port
entry exclusively for enforcement purposes or in the event
of force majeure; and,
Parties are required to share information, including
inspection results, with the flag States and, as
appropriate, other relevant Parties and entities, as well
as to take follow-up actions as requested by the flag State
when evidence of IUU fishing is found during the course of
an inspection.
NOAA would be the lead agency for U.S. implementation of the Port
States Agreement. Primary responsibility to carry out its obligations,
particularly those related to vessel inspections, will fall on NOAA's
National Marine Fisheries Service (NMFS), Office of Law Enforcement, in
collaboration with the U.S. Coast Guard, which has Captain of the Port
authority for the United States. Importantly, the minimum standards set
by the Port States Agreement track closely to what the United States
already does. Under the Port States Agreement, these best practices
would become common practice around the world, thereby effectively
closing the so-called ports of convenience that IUU fishing operators
use to land their fish and support their activities. As a global leader
in sustainable fishing practices, and the third largest importer of
seafood in the world, the United States has a responsibility to ensure
the fish we import is caught legally. The United States also has a
responsibility to protect our domestic fishermen from unfair
competition and ensure consumer confidence in the seafood supply by
keeping illegal product out of the market. The Port State Measures
Agreement marks a significant step forward on both of these counts.
The United States, with our strong legal frameworks, experience in
effective port management and robust fisheries law enforcement, has
been assisting developing nations in their preparations for
implementation of the Agreement. NOAA has most recently assisted
Indonesia in its development of training curriculum for fisheries
inspectors who will carry out inspections under the Agreement.
Additionally, the United States has strongly promoted the adoption of
measures in RFMOs that strengthen port related measures, in accordance
with the Agreement. These efforts promote the success of the Agreement
and thereby reduce the amount of IUU product entering our domestic
markets.
H.R. 2646, Revitalizing the Economy of Fisheries in the Pacific Act
The Administration also has not taken a position on H.R. 2646. If
enacted, I understand that this legislation would direct the Secretary
of Commerce to issue a fishing capacity reduction loan to refinance the
existing loan funding the Pacific Coast groundfish fishing capacity
reduction program. The Administration is still reviewing the bill for
policy impacts and consistency with Federal credit reform requirements.
In January of 2011, the West Coast groundfish fishery transitioned
from a derby fishery, with fleet-wide quotas and trip limits, to a
catch share program with individual quotas that promote individual
flexibility and accountability. This catch share program has been
largely successful from a conservation perspective, with fishermen
staying within annual catch limits and reducing bycatch of overfished
species. Results from 2012 indicate a substantial reduction in the
amount of bycatch and catch of unwanted species; it remains lower than
the two prior years structured under trip-limit management. At the same
time, results show that the groundfish fleet was able to catch a
greater percentage--29 percent--of their non-whiting target species,
which is up from 24 percent in 2011. This result highlights the
increased diversity of the landings and the fishermen's ability to
target new areas and markets. NMFS is pleased with the conservation
results seen in this fishery, and we are also sensitive to the concerns
of fishermen about the impacts of the new program with regard to their
costs to participate.
NMFS is supportive of the underlying rationale contained in the
purpose of the bill, which is to ``conserve the West Coast groundfish
fishery and the coastal economies in California, Oregon, and Washington
that rely on it.'' NMFS would be glad to work with the committee on
ways to best achieve this.
Conclusion
We look forward to working cooperatively with the subcommittee on
how best to address the issues and achieve the goals that are being
discussed here today. I will be happy to answer any questions.
______
Dr. Fleming. I am sorry, Mr. Smith, but we have gone over
time, and your entire statement will be submitted for the
record, and so we thank you.
And we certainly are anxious to ask questions and really
get to the bottom of all of this and talk about three very
interesting bills.
At this point we will begin questioning of witnesses, and
members are, of course, limited to 5 minutes for their
questions as well. We may have another round, and certainly we
have a whole other panel we are going to go to as well, and we
are still waiting to see what the Floor action is about and
when we will be voting.
I now recognize myself for 5 minutes.
This is to either or both gentlemen, whoever feels best
qualified to answer the questions.
Several of today's witnesses used the statistic that IUU
fishing accounts for between $10 and $23 billion per year.
Presumably IUU vessels are targeting high value fish species.
How is it that we cannot identify the specific vessels that are
targeting these fisheries and/or countries where the fish are
entering the market?
Ambassador Balton. Thank you, Mr. Chairman.
I can start. In fact, IUU fishing at some level probably
exists in virtually every fishery around the world. No fishery
has 100 percent compliance rate, but I think what you are
getting at is where are the biggest problems, and the truth is
that we do have a better sense of where the real problems are
now.
At the international level, a series of regional fishery
management organizations have been in the process of
identifying vessels engaged in IUU fishing, and indeed, a
feature of our lives these days are lists of IUU vessels,
vessels that have committed IUU fishing or fishing-related
activities.
And, indeed, the Port State Measures Agreement requires
port States to take action against such vessels primarily by
refusing to allow them to land, transship, package or process
their fish in their ports.
Mr. Smith. So if I might add to Ambassador Balton's
comments, one of the things that we should keep in mind is the
United States imports over 90 percent of its seafood. So much
of the fish that is coming into our markets is landed in other
ports where there are not some of the same safeguards against
the landing of IUU fish that we have in our markets.
So it is difficult for us to always ensure that what is
coming into our markets has not been caught illegally. We do
have some indications. We do take a number of steps, including
based on where we purchase our fish, our work within the RFMOs
to encourage compliance.
Dr. Fleming. But again, back to my base question, why do we
not have better information as to the source, the origin of
these ships, the countries and so forth?
Is it just very difficult and we do not have the technology
to determine this?
Mr. Smith. So it is difficult because we have the vast
oceans, and we only have limited control over these vessels. As
Mr. Balton pointed out, we do have----
Dr. Fleming. Well, let me give you a specific example. For
years the committee has heard concern about the IUU harvest of
Russian crab. This was a real world example of the effect of
IUU fishing on the United States.
Why was Russia not identified as an IUU nation in the
latest report to Congress?
Mr. Smith. Because based upon the criteria set out in the
High Seas Driftnet Fisheries Enforcement Act, we were not able
to identify Russia. We are trying to find other ways and we
were trying to find other ways to work with Russia to address
this issue, and we have, in fact, done some collaboration to
stop shipments that are coming from Russia to the United States
of IUU crab.
But with respect to identifying them under the High Seas
Driftnet Fisheries Enforcement Act, they did not meet the
criteria.
Dr. Fleming. OK. The Nicholson Act allows foreign fishing
vessels to land fish in limited ports in the U.S. territories.
How would the legislation affect fisheries trade at these
ports?
Ambassador Balton. The legislation, if passed, would
broaden the authorities to ensure that we have controls in
place with respect to all U.S. ports where foreign vessels are
allowed to land fish.
You were right that the Nicholson Act generally prohibits
foreign fishing vessels and some foreign transport vessels from
landing fish in most U.S. ports, but there are some exceptions.
There also are other categories of vessels that could be
carrying fish or are otherwise involved in IUU fishing problems
that are not expressly covered in U.S. law. The draft bill
under consideration before the subcommittee would close these
loopholes.
Dr. Fleming. OK. All right. Thank you.
My time is just about out. I will yield to the Ranking
Member, Mr. Sablan, for 5 minutes.
Mr. Sablan. Thank you very much, Mr. Chairman.
Mr. Smith, my apologies, sir, for not getting your name
right the first time and for not pronouncing NOAA correctly.
[Laughter.]
Mr. Sablan. But welcome.
Mr. Ambassador, in the Northern Marianas I hear from my
fishermen all the time that fish are getting smaller and
smaller in order to catch. A lot of this is because of IUU
fishing.
How would the legislations before us today help my
fishermen ensure that their catch is not being stolen by
foreign fleets?
Ambassador Balton. Generally speaking, U.S. vessels must
meet higher standards in engaging in fisheries than some of
their foreign competitors. The effect of the Port State
Measures Agreement and the legislation that would implement it
would have the effect of leveling the playing field and giving
legitimate U.S. fishers, including in the Northern Mariana
Islands, the same terms and conditions as their foreign
competitors.
So that is the basic idea in fighting IUU fishing. In
particular, the Port State Measures Agreement seeks to
undermine the efforts of IUU fishers by denying them entry in
port into the stream of commerce for their fish.
Mr. Sablan. I will take that response for now.
But, again, Ambassador, would you please discuss the
importance of the United States taking a leadership role in the
port State measures to encourage other countries, many of which
import fish to the United States--90 percent of our fish are
imported--so to help cutoff markets for illegally harvested
fish?
Ambassador Balton. Thank you, sir.
In fact, the United States did take a leadership role in
the negotiation of the agreement. I actually led the very first
meeting to produce the first draft of this agreement, and I was
the vice chair of the negotiations that yielded it. We were
among the first nations to sign it as well.
But until we ratify the agreement, we cannot maximize the
leverage we have with respect to other governments to ensure
that they live up to the commitments of it. That is why it is
so vital for us to join the agreement now.
Mr. Sablan. Thank you, Ambassador.
Mr. Smith, in the Pacific, bluefin tuna are highly prized
and subject to heavy fishing pressure, both legal and illegal.
With stocks at less than 4 percent of their historic levels, it
is a real possibility that this species could become extinct at
least in a commercial sense within our lifetime.
So how would H.R. 69, an implementation of the Port State
Measures Agreement, help conserve Pacific bluefin?
Mr. Smith. Thank you, Mr. Sablan.
And, yes, bluefin in the Pacific are in the trouble, and we
need to address their health. I think that both bills, to the
extent that there is IUU fishing going on, help to remove the
economic incentive by eliminating markets for illegally
harvested bluefin, and by when it is coming into the United
States and is detected, allowing us to take stronger action
against those that are illegally importing it.
Mr. Sablan. And maybe we could increase that one boat and
have a little bit more presence. Coast Guard presence also may
help.
But you know, we have also seen crabbers in Alaska,
shrimpers in the Gulf of Mexico, and fishermen across the
country have the prices they get for their fish undercut by
intentionally mislabeled and illegally caught seafood imported
from overseas. So do you think we have a responsibility to
ensure the legality and authenticity of fish sold in the United
States?
Mr. Smith?
Mr. Smith. Thank you, Mr. Sablan.
And yes, we have in place a number of mechanisms for
ensuring that there is no seafood fraud, that we do as well as
we can to ensure that the catch that is being sold here has
been legally harvested. H.R. 69 and the Port State Measures Act
will give us additional tools with which we can address these
important issues.
Thank you.
Mr. Sablan. Thank you.
Mr. Chairman, I am out of time. I yield back.
Dr. Fleming. The gentleman yields back.
The Chair now recognizes Mr. DeFazio, Ranking Member of the
Full Committee for 5 minutes.
Mr. DeFazio. Thank you, Mr. Chairman.
Mr. Smith, you were talking about H.R. 2646 at the end of
your statement there, and I believe you said something to the
extent of perhaps making it difficult for the economic
viability of the industry, the current terms, and then
something about supporting in concept.
What reservations or concerns does the Administration have
that they cannot wholly endorse this legislation?
Mr. Smith. I do not think that we have any reservations
about the ideas behind the legislation or what it needs to
achieve. We simply have not had the time to go through our
process of reviewing and commenting on the legislation.
I believe that even in our initial look at it, there are
perhaps some suggestions that we would have for drafting, and I
believe that our staff has spoken with your staff about those
suggestions, but as a basic point, we support the objective of
the legislation, what the legislation is trying to achieve.
Mr. DeFazio. OK. Well, you have the principal author of the
bill here and myself and Mr. Huffman. We would be happy to
entertain any suggestions, but it is our hope that the
committee will consider this legislation in the very near
future and send it to the Floor. So we need to do this on an
expedited basis.
I mean, some of these people are just barely hanging on,
and for a lot of people the difference in the percent of their
landings, the value that they will have to pay does not sound
like a lot, but to them it is a difference between whether they
stay in the business or not, and it would be a shame to drag
this out and not save people this year as soon as possible.
And you are and do agree that the only way forward is, in
fact, a legislative fix? Because we have tried numerous times
and have asked the previous Administration and this one to look
at administrative fixes, but apparently there are none.
Mr. Smith. Yes, sir. We do not believe that there are any
ways that we can administratively change this law. We need new
legislation.
Mr. DeFazio. OK. Now, as I understand, and I assume you are
going to be reluctant to answer this, but you worked on
international environmental policy in the USTR's office. I have
had the pleasure of meeting with the USTR in a number of venues
to express strong concerns about the TPP and one of my many,
many concerns about that agreement relates to the environmental
section.
You know, it seems to me that we are talking here about the
IUU fishing, and we seem to be all on the same page there and
wanting to have the best, most comprehensive measures, whether
it is port State or mid-ocean, to prevent this.
Do you think that the language that has been published
publicly regarding the environmental compliance section is
adequate to meet those concerns about illegal fishing?
Mr. Smith. So thank you for the question, sir.
I am not really in a position to comment specifically on
that.
Mr. DeFazio. OK.
Mr. Smith. On that language that has been tabled.
Mr. DeFazio. You take the Fifth on that one?
Mr. Smith. I will say though that consistently we have
taken the position that trade and environment need to be
mutually supportive; that our trade agreements need to have
strong environmental commitments to ensure that increased trade
does not undermine environmental protections and that those
strong commitments include the need to have commitments by the
parties to enforce their environmental law.
And we have taken the position that those commitments need
to be enforceable through the trade agreement based upon the
same terms as other commitments made in the trade agreements.
So the same dispute resolution mechanism needs to apply.
So I think that the position of the Administration is that,
yes, strong environmental provisions are needed and that
including covering things such as IUU fishing and stopping
shark finning are appropriate.
Mr. DeFazio. OK. Thank you.
Thank you, Mr. Chairman.
Dr. Fleming. I thank the gentleman.
Do we have a motion?
Mr. Sablan. Yes, Mr. Chairman. If I may, I ask unanimous
consent that Congresswoman Colleen Hanabusa be allowed to
participate in the subcommittee hearing today.
Dr. Fleming. Without objection, so ordered.
Mr. Sablan. Thank you.
Dr. Fleming. The Chair now recognizes Mr. Huffman for 5
minutes.
Mr. Huffman. Mr. Chair, I will waive at this time.
Dr. Fleming. Then the Chair recognizes Ms. Hanabusa if she
has questions.
Do you have? OK.
Ms. Hanabusa. Thank you, Mr. Chair, and thank you, members
of the committee, for agreeing to allow me to participate
today.
Either Ambassador or Mr. Smith, the Port State Measures
Agreement, as I understand it, is modeled after current U.S.
practice, and given that, how do we expect the U.S.
ratification to affect IUU fishing?
And also, can you elaborate on our efforts to assist other
States in achieving the standards under the Port State Measures
Agreement?
Ambassador Balton. Thank you very much, Madam Hanabusa.
I will put it this way. The Port State Measures Agreement
is at heart an effort to bring other countries up to U.S.
standards when it comes to denying entry to IUU fish in our
ports. The United States already does most everything the
agreement calls for.
We do think that there is legislation necessary to close
some gaps in our domestic authorities, but the big picture is
that we are not a major port of entry for illegally harvested
fish. Those tend to come to land in other countries. By
ratifying the agreement, we will be in a much better position
to encourage other countries, in effect, to do what we do.
And, yes, we already do help them in this way, both
bilaterally and also through multilateral organizations, such
as the food and agriculture organizations.
Ms. Hanabusa. I guess the question is that what we really
want all the other States to do is to come up to the U.S.
standard.
Ambassador Balton. Yes.
Ms. Hanabusa. But I am pretty sure you have heard it from
many of our U.S. fishermen who comply, is the fact that the
others are engaged in IUU and that what then goes into maybe
more Mr. Smith's area, is that then that affects, of course,
things like catch shares and quotas and so forth because you
are having this IUU problem.
So I guess it comes back to the same question, which is how
is it that you are going to be able to bring others up when
they know what the standards are? They can comply with it if
they want, but countries are choosing to engage in IUU.
So how is it that by having this agreement we are actually
going to see a change when we have not seen one to date?
Ambassador Balton. All fish caught at sea must ultimately
come to port in order to enter the stream of commerce. This
agreement, if widely ratified and properly implemented, will
prevent that from happening on a large scale, and that will
deprive IUU fishers of the economic benefit of what they do.
And that should, right, redound to the benefit of
legitimate fishers, including here in the United States.
Ms. Hanabusa. I have a question about, I think in the Shark
Conservation Act of 2010, NOAA provided a new definition of IUU
fishing based on not only actions of particular fishing vessels
but also on actions of the ``flag States,'' in other words, the
countries themselves.
And how is NOAA using the new definition of IUU in
developing that biannual report that you are going to be
sending to Congress or any of the other capacities?
In other words, how are you using that, Mr. Smith?
Mr. Smith. So thank you for the question.
The report coming up in 2015 will be the first time that we
will be using that definition, and obviously we will be looking
beyond whether individual vessels are engaged in IUU fishing to
see what it is the countries are doing to try and address it,
how they are trying to deal with systemic issues, and that was
the intent of expanding the definition.
Ms. Hanabusa. And I guess we still always come back to the
same question at the end, which is: all right, we have maybe
agreement, we have these standards, but nothing is good unless
there is an enforcement provision in it.
So the enforcement that we are looking at for the whole IUU
area is basically that they are going to have difficulties
coming into, for example, our ports, which I think you said
earlier we are not the problem? But is that going to be it?
Because I think the question we have always had, especially
in the Pacific, has always been our Coast Guard does a great
job on our fishing vessels, but who is doing everybody else?
So, we have the greatest policing mechanism in the country
that is not violating any treaties or is not violating or
engaging in IUU, but what about the countries that are?
I guess I am having difficulty understanding how it is just
going to work by saying you are not going to have access to our
ports.
Mr. Smith. I think we are trying to create multiple levels
of enforcement here and of obligation here. By bringing the
Port State Measures Agreement into force and creating an
obligation on countries to keep this food out of their ports,
that is one level of obligation.
We have measures in the RFMOs, and, yes, in some cases
those have been difficult to enforce, but that is a second
level of obligation that we have created in a mechanism for
enforcement.
And then we do have the High Seas Driftnet, which is our
own tool.
Dr. Fleming. The gentlelady's time is up.
We are going to vote in a moment, but we will take one more
set of questions. Ms. Herrera Beutler, for 5 minutes.
Ms. Herrera Beutler. Thank you, Mr. Chairman.
And this is for Mr. Smith kind of following up on what Mr.
DeFazio mentioned, reservations. It is not easy to get a
bipartisan bill out of both houses, and this one is moving in
large part because we all recognize our fishing communities are
hurting, and here is a way both to ensure that the loan program
is repaid rather than having mass defaults, and, yes, it does
change some of the bookkeeping, but we believe we are not going
to just recoup the original loan, but the government is going
to recoup interest. So it should not cost the taxpayer
anything.
And it is going to provide a much needed life preserver to
these fishing communities, these coastal communities. So I
guess I would say, you know, considering that the Pacific
Fishery Management Council has recommended to you all to
support this, what is the reservation?
Mr. Smith. So thank you for the question.
I do not believe it is reservations as to the objectives,
as to the potential need for this. I think we have only not had
the opportunity to go through our process of reviewing the
piece of legislation and signing off on it.
Ms. Herrera Beutler. I apologize. I thought you said you
submitted some reservations to Mr. DeFazio's staff.
Mr. Smith. I think we submitted some comments on the
legislation.
Ms. Herrera Beutler. OK.
Mr. Smith. But not reservations to the legislation.
Ms. Herrera Beutler. OK.
Mr. Smith. But comments on how to make the legislation work
as we believe it is intended to work. So there were, shall we
say, technical corrections.
Ms. Herrera Beutler. So you have reviewed it a little bit
and it is mostly just technical.
Mr. Smith. Right. What we have seen so far is technical,
but I have to say we have not gone through the Administration's
process for getting clearance to say we support the
legislation.
Ms. Herrera Beutler. So separate from speaking for the
Administration having not gone through the process, in your
professional opinion do you believe this legislation if enacted
would provide some economic relief for these fishermen?
Mr. Smith. I am not sure I have that separate personality,
but again, I think this is a useful tool and we want to work
with Congress to get it right and get these fishermen really--
--
Ms. Herrera Beutler. I guess I am a little nervous because
it is moving, and it is moving in the Senate. It is moving in
the House, and you know how long it takes a bill to become an
actual law. So that is part of why the Chairman has agreed to
hear it today, because we need it to move.
So I guess we would urge that review to happen as quickly
as possible if you want to have input into it as it moves
through the process.
Mr. Smith. We look forward to working with you soon.
Ms. Herrera Beutler. Thank you.
Mr. Smith. Very soon.
Ms. Herrera Beutler. With that I yield back. Thank you, Mr.
Chairman.
Dr. Fleming. The gentlelady yields back.
We are going to recess for votes. We should be only 20
minutes. We want Panel I to stay because we have one other
member who will return with us, if you would be patient with
us, and have the second panel ready to go as soon as we get
back.
With that we are recessed.
[Recess.]
Dr. Fleming. Well, the committee comes to order.
And we thank our Panel I for sticking around. We have one
more member who would like to ask questions, and therefore, the
Chair recognizes Mr. Southerland for 5 minutes.
Mr. Southerland. Thank you, Mr. Chairman. I appreciate it,
and I want to thank Ambassador Balton and Mr. Smith. Thank you
both for being here.
I have a quick question or two, Mr. Smith, if I could.
Obviously, these rogue individuals that come in and pull from
our fisheries, I am just curious. I live on the Gulf of Mexico.
So, you know, I live on the water, and there is a constant
battle regarding the total allowable catch from different
industry groups whether it is commercial fishing, whether it is
boats for hire, charter fishing, or whether it is recreational
fishing.
Let's say when you have a boat that has been captured and
that catch has been taken, sometimes I am sure large amounts of
fish, is that counted against a commercial total allowable
catch (TAC) or is that counted against the recreational
percentage that they are allowed to catch?
I mean, it clearly has been taken out of the fishery as far
as the stock, and so we are told oftentimes that, Mr. Chairman,
that is a very delicate fishery or the fisheries are very
delicate and so, therefore, it has to count against somebody.
Do you know the answer to that question?
Mr. Smith. Thank you, sir.
I am afraid I do not, but I would be happy to inquire
further if you would like.
Mr. Southerland. That would be great. If you could do that,
that would be extremely helpful. I have asked that question
several times and never got an answer. So if you could do that,
I would appreciate it.
And then I also want to ask: the draft Port State Measures
implementing legislation would allow enforcement agents to
conduct search and seizures with or without warrants. Why is
this necessary?
Mr. Smith. I think that is an investigative tool that is
used in a number of different situations. It is a common
investigative tool.
There are times when you are afraid that if you have to go
through the process of getting a warrant, evidence would be
destroyed, I would imagine. It would probably be better though
if I also inquired further as to the specific reasons for why
we might want such provisions.
I do note that this bill is not the Administration bill. It
was authored by Mr. DeFazio and others. It has some of the
objectives that we would like, but if you would like further
information, I would be happy to----
Mr. DeFazio. If the gentleman would yield, actually you do
have that authority under the Magnuson Act for domestic
fisheries. So it just mirrors the existing Magnuson Act.
Thank you.
Mr. Southerland. I thank the gentleman.
The last question, the bill would also allow the Secretary
of Commerce to use personnel from almost any Federal-State
agency as long as there was an agreement in place to enforce
this Act. It also gives the new enforcement officers the
ability to conduct search and seizures and enforce any law of
the United States.
This seems to be a huge expansion of enforcement
authorities, and I guess my question is similar. Why is this
necessary?
And I do not know if the answer is the same as the one that
the gentleman just gave.
Mr. Smith. I understand that at least with respect to the
use of interagency agreements, it is the same. We have
agreements with all of the coastal States except North
Carolina, and that it is an important tool for us to accomplish
our duties.
We also have agreements, for example, on the border with
Customs agents so that we can work together with them to
fulfill our obligations.
Mr. Southerland. Mr. Chairman, I yield back.
Dr. Fleming. The gentleman yields back.
Panel I, you are now dismissed. We thank you for your
testimony today. We thank you for your patience remaining with
us a little bit longer.
And I would ask that Panel II step forward.
OK. I want to welcome our second panel today and to
introduce Mr. Brad Pettinger, Director, Oregon Trawl
Commission; Mr. James Gerald Neva, Manager, Port of Ilwaco. Am
I saying that right?
Mr. Neva. Ilwaco.
Dr. Fleming. OK. Good guess, huh?
Washington; Ambassador Mark Lagon, Chairman of the
International Relations and Security, MSFS Program, and
Professor in the Practice of International Affairs, Georgetown
University; Mr. Mike Kraft, VP, Corporate Social
Responsibility, Bumble Bee Foods; and Mr. James P. ``Bud''
Walsh, Davis Wright Tremaine, LLP.
As I am sure you heard earlier in the instructions, your
testimony will appear in full in the hearing record. So we ask
that you keep your oral statements to 5 minutes, according to
Committee Rule 4(a).
Our microphones are not automatic. So please press the
button when you speak and make sure the tip is close enough we
can hear you, and you will be under the 5-minute light. It will
be green for the first 4 minutes, then yellow for the last
minute. When it turns red, please go ahead and conclude your
comments.
Mr. Pettinger, you are now recognized for 5 minutes, sir.
STATEMENT OF BRAD PETTINGER, DIRECTOR, OREGON TRAWL COMMISSION
Mr. Pettinger. Thank you, Mr. Chairman, members of the
committee.
My name is Brad Pettinger, and I am the Director of the
Oregon Trawl Commission.
The Oregon Trawl Commission is part of a unified coalition
that represents virtually every trawl permit holder from the
West Coast.
I would also like to thank Congresswoman Herrera Beutler,
Congressman DeFazio, and Congressman Huffman, as well as all of
the legislation's co-sponsors, for their leadership on this
important issue.
The original industry-funded buyback loan was authorized by
Congress in 2003, and it retired 91 trawl permits from the
fishery. The Federal buyback program was sought by the fleet
after the Pacific Council identified capacity reduction as its
number one priority in its groundfish strategic plan, but was
unable to come up with a workable solution at the council
level.
The current loan has a 30-year term, a fixed year interest
rate of 6.97 percent, and an annual fee equal to 5 percent of
the value of the vessel's landed catch. Unfortunately, once the
law was passed, there was a delay of 18 months to develop and
implement the regulations to collect payments. This delay
resulted in, through no fault of the industry, an additional
$4.23 million in accrued interest being added to the loan.
Over the last 8 years, the industry has struggled to keep
pace with the interest and principal obligation of the loan in
large part due to the additional interest tacked onto the loan
at the outset.
As of February 2014, the groundfish fishery had paid back
$20.74 million, but still owes almost as much as originally
borrowed. If regulations to collect the payment fees were
implemented in a timely manner when the Groundfish Fishing
Capacity Reduction Program was established in 2003,
calculations show that the groundfish fishery would owe $19
million today versus the actual balance of $27.6 million, a
difference of over $8.5 million.
And those last figures are a correction from my written
testimony because I found an error in the written testimony.
As some of you may know, the management of the West Coast
groundfish trawl fishery changed dramatically in 2011. A trawl
individual quota program was implemented because the management
system at that time did not have the tools available to
properly manage the fishery. This new Catch Share Program has
resulted in a significant decrease of bycatch and discards and
allows for increased flexibility and personal accountability
for fleet members.
However, with these benefits, there are also additional
costs. In order to facilitate personal accountability, 100
percent human observer coverage is required for every fishing
trip. The current government reimbursement is set to expire in
the near future, and the industry will be responsible for
covering 100 percent of the cost associated with these
observers.
In addition to the observer cost, the industry is now also
subject to a 3 percent cost recovery fee collected by the
National Marine Fishery Service for management of the catch
share fishery. These fees are in addition to the 5 percent
buyback loan payment and any State ad valorem landing taxes. In
all, these costs are approaching 18 percent of a fishing
business' gross revenues on an annual basis. This is not
sustainable.
We cannot control management costs, and we have been
unsuccessful in accelerating regulatory relief. Thus, there is
an urgent need to refinance the current buyback loan. The
industry is not seeking full forgiveness as fisheries in other
parts of the countries have, successfully in some cases, but is
seeking to take advantage of better interest rates and loan
terms in order to give the industry a fighting chance to pay
the loan back while keeping their businesses viable in light of
all the other costs we face.
The current legislation extends the term of the loan to 45
years, reduces the interest rate to the current Treasury rate,
and caps the annual payments to 3 percent versus the current 5
percent.
The legislation has bipartisan support in both houses, as
well as strong support from affected permit holders in all
three West Coast States. It would ensure that the American
taxpayers are paid back in full and that some measure of
economic relief is provided to an industry that provides
healthy food to consumers and jobs to our coastal communities.
We are not asking for a bailout, nor are we trying to walk
away from our obligations. All that we ask is an opportunity to
meet that obligation under vastly changed economic conditions
and more favorable market terms for borrowing.
We ask that the committee move this bill forward as quickly
as possible. Thank you, and I will be happy to answer any
questions.
[The prepared statement of Mr. Pettinger follows:]
Prepared Statement of Brad Pettinger, Director, Oregon Trawl Commission
Mr. Chairman, members of the committee, my name is Brad Pettinger
and I am the Director of the Oregon Trawl Commission, an Oregon State
commodity commission that represents every trawl permit holder in the
State of Oregon. Our members participate in the Oregon pink shrimp
fishery as well as the federally managed groundfish fishery off the
West Coast. Together with other fishery and environmental organizations
from the three West Coast States, the Oregon Trawl Commission has been
helping to lead a unified effort to refinance the trawl buyback loan
for the last several years. Virtually every groundfish trawl permit
holder on the West Coast is represented by this coalition and we are
all strongly supportive of this effort. I would like to thank
Congresswoman Herrera-Beutler as well as Congressman DeFazio and the
other co-sponsors of the bill for their leadership on this critically
important issue for the West Coast trawl groundfish industry.
Background
In 2000 the Secretary of Commerce declared a commercial fishery
failure in the West Coast groundfish fishery due to low stock
abundance, a severely overcapitalized fleet and concerns about several
species of rockfish, which had been overfished historically by foreign
fleets. The Pacific Fishery Management Council acknowledged the
overcapacity problem by identifying ``capacity reduction'' as its
number one priority in its Groundfish Strategic Plan. When the Council
was unable to achieve a workable solution to reduce capacity, the
industry took it upon themselves to approach Congress with a plan to
reduce capacity through an industry-funded buyback loan.
Capacity Reduction Program
Section 212 of the Department of Commerce and Related Agencies
Appropriations Act, 2003 (title II of division B of Public Law 108-7;
117 Stat. 80) was enacted to establish a Pacific Coast groundfish
fishing capacity reduction program, also known as a buyback program, to
remove excess fishing capacity. In 2003, Congress authorized the
$35,700,000 buyback loan, creating the Pacific coast groundfish fishing
capacity reduction program through the National Marine Fisheries
Service finance program with a term of 30 years. The interest rate of
the buyback loan was fixed at 6.97 percent and is paid back based on an
annual ex-vessel landings fee of 5 percent (this is off the gross
revenue that a fishermen is paid by the fish buyer for his fish).
The buyback program resulted in 91 trawl groundfish permits being
``bought out'' of the fishery. The 91 permits were associated with
approximately 46 percent of the groundfish trawl landings at that time.
In addition, 36 crab permits and 85 shrimp permits that were associated
with the bought out trawl permits were also retired.
Buyback Loan Fees and Accrued Interest
Unfortunately, once the law was passed, there was a delay in the
promulgation of the regulations setting up the process for fee
collection. This delay resulted in $4,234,730 in accrued interest
before the fleet began paying back on the loan. This $4.23 million was
tacked onto the loan through no fault of the industry members. Eighteen
months passed between when the groundfish capacity reduction program
was initiated in 2003 and when the fee collection procedures were
established and implemented in 2005. Over the last 8 years the industry
has struggled to keep pace with the interest and principal obligation
of the loan due to previously declining fishery values and the added
interest that was tacked on at the beginning of the loan. Until
recently we had made no progress on paying down the principal.
In fact, as of February 14, 2014, the groundfish fishery had paid
$20,746,810, but still owed $27,664,619--which is only $764,099 less
than what was originally borrowed ($28,428,718). See Attachment 1.
If regulations to collect the payment fees were implemented in a
timely manner when the capacity program was established in 2003,
calculations completed by the Fishermen's Marketing Association based
on PacFIN data (compiled by Pacific States Marine Fisheries Commission)
show that the groundfish fishery would owe $16,942,890 today versus the
actual balance of $27,664,619--a difference of over $10.5 million
dollars! See Attachment 2.
The Current Trawl Groundfish Fishery
In 2011 the management of the West Coast groundfish fishery changed
dramatically. A trawl individual fishing quota program was implemented.
An individual fishing quota program is a type of catch-share program
where individual accountability is a cornerstone of management. The
trawl IQ program includes 100 percent human observer coverage in order
to document all catch and/or discard. Since the program's
implementation there has been a dramatic reduction in bycatch and
discards and individual flexibility and accountability has increased.
The majority of the cost of observers is funded by the industry. In
2014 there is a government reimbursement of less than 50 percent of the
daily cost which can run between $425-$475 per day. This reimbursement
is set to run out at the end of 2014 and beginning in 2015 the industry
may be responsible for paying 100 percent of the observer costs. To be
clear, a fisherman cannot leave the dock without an observer and in the
future he will be responsible for the entire cost of the observer
coverage. In addition to the cost of observers, the industry is now
paying an annual ``cost recovery fee'' to the National Marine Fisheries
Service of 3 percent of the annual ex-vessel value of the fish they
land. The cost recovery program was implemented by NMFS in January of
2014. The industry also pays State ad-valorem taxes (landings taxes)
and these vary by State. All of these fees plus the annual loan payment
of 5 percent will equate to approximately 18 percent of a fishing
business's gross revenue on an annual basis. This is simply not
sustainable, especially for smaller operations.
At the same time that we are seeing successes in the fishery under
the new management regime, there are still several improvements yet to
be implemented within the program, which will increase the economic
value of the fishery. In the 3 years since implementation, less than
one-third of the available total allowable catch (TAC) of non-whiting
groundfish stocks has been brought to shore. The TACs are what can be
sustainably harvested from the fishery based on the current biological
status of each stock. In other words, we are leaving two-thirds of the
fish that could be sustainably harvested in the water each year. The
reasons for this vary, but a lot of the fault rests on antiquated
regulations enacted before the trawl IQ program was implemented. Many
of these regulations are still on the books and upwards of 30 ``trawl
trailing amendments'' are in the works to address both these redundant
and irrelevant regulations as well as unintended consequences that have
occurred under the new management system. It will be several years
before the suite of trawl trailing amendments is completed and
implemented; in the meantime it is more difficult for harvesters to
achieve higher catch limits and generate more income from the fishery
so they can afford the costs noted above.
We cannot control management costs and we have been unsuccessful in
accelerating regulatory relief. Thus, there is an urgent need to
refinance the current buyback loan. The industry is not seeking full
forgiveness as fisheries in other parts of the country have done
(successfully in some cases) but is seeking to take advantage of better
interest rates and loan terms in order to give the industry a fighting
chance to pay the loan back while keeping their businesses viable in
light of all the other costs we currently face.
H.R. 2646
The current legislation seeks to refinance the existing loan. The
terms of the loan include an extension from 30 years to 45 years, a
reduction in the interest rate to reflect the current treasury rate
(currently at 3.60 percent) and a cap on the annual loan payment fee of
no more than 3 percent (versus the current 5 percent). The legislation
has bipartisan support in both houses of Congress, as well as support
from affected permit holders in all three West Coast States. It would
ensure that the American taxpayers receive a return on the investment
they have made in our commercial fishing industry and that the buyback
loan will be repaid. Some measure of economic relief will be provided
to an industry that provides healthy food to consumers and jobs to our
coastal communities.
Let me emphasize that we are not some huge corporation asking for a
Federal bailout nor are we trying to walk away from a loan that was
made to get us through difficult times. We undertook an obligation in
order to increase our productivity and benefit the Nation and we intend
to live up to that obligation. All that we ask is an opportunity to do
so under vastly changed economic conditions and more favorable market
terms for borrowing long-term debt from the Government. We ask that the
committee move this bill forward as quickly as possible.
Thank you. I will be happy to answer any questions.
______
Dr. Fleming. Thank you, Mr. Pettinger.
Mr. Neva, you are now up for the next statement for 5
minutes, sir.
STATEMENT OF JAMES GERALD NEVA, MANAGER, PORT OF ILWACO,
ILWACO, WASHINGTON
Mr. Neva. Mr. Chairman and members of the subcommittee, I
thank you for the opportunity to speak on behalf of fishing
ports and fishing communities along the Pacific Coast.
My name is Jim Neva. I have 20 years of experience as
manager of different small ports in rural communities of
southwest Washington State.
The economies of these rural communities are heavily
dependent upon a healthy fishing industry. It is our history
and it is who we are as a community. These were once thriving
industries providing robust economies that generation after
generation of the local population accepted as a way of life.
It is a hard life, but it was in their blood.
A White Paper produced by the Pacific County Economic
Development Council last summer reported that, and I quote,
``The marine industry sector is an integral part of Pacific
County's economic engine and community well-being.''
According to a recent regional industry cluster study
completed for the Pacific Mountain Workforce Development
Council, marine industries account for more than 20 percent of
the county's 5,885 jobs and an estimated direct annual payroll
in excess of $41.2 million. The tax revenue from these sales
helps to fund country services and the operation of special
districts, such as libraries, ports, water, and emergency
medical services.
Washington State's commercial fishing industry is
structured around a multispecies fishery. Groundfish, halibut,
albacore tuna, salmon and shellfish are all major species
groups important to the industry. Important species within the
groundfish category include whiting, flatfish, rockfish,
lingcod and sablefish.
In 2006, non-tribal commercial fish landings from
Washington fisheries total nearly 109.4 million pounds,
generating $65.1 million in ex-vessel value, which is the price
received by commercial fishers for fish landing at the dock.
Groundfish produced the greatest share of landings, about
54 percent. In terms of regional catch, the coastal area is by
far the largest contributor to commercial fish harvesting in
Washington, accounting for 85 percent of the total pounds
landed and 63 percent of total ex-vessel value.
Seafood processing also contributes significantly to the
value of Washington's commercial fisheries. Including in-State
processing, the wholesale value of fishery products caught in
Washington waters was estimated at $101 million in 2006.
Groundfish accounted for almost 61 percent of that value.
The aggregate number of vessels landing at U.S. West Coast
ports has decreased almost 67 percent since 1981. There was a
large drop in a count of vessels delivering in the adverse
oceanic condition years of 1984 and early 1990s. There were
strategic buyout programs for vessels participating in the
salmon fisheries in the 1990s, and groundfish fishery in 2003.
Vessel counts continued to drop until the late 1990s and have
remained somewhat stable since then.
This bill will help alleviate some of the overwhelming
burdens that have been placed upon the shore-based groundfish
fleet in the last few years. This is largely a question of
fairness.
Buyback payments, observer costs, new vessel safety
requirements, and other government mandates have crippled the
groundfish fleet forcing a level of consolidation that has left
Washington State with only five non-whiting trawl boats. The
existence of these fleets is critical to the coastal
communities that rely on the fishermen for their raw material
and the jobs that shore-based processing create. The coastal
communities of Washington need all the help we can get.
Our ports and communities have been disproportionately
impacted by these Federal management programs, such as the
Buyback and the Trawl IFQ Program. This program permanently
removed 91 vessels and 239 fishing permits from the groundfish
trawl fishery. We have reached a tipping point where without
some financial assistance from the government further decline
in the fleet will result in further erosion of the coastal
fishing infrastructure and corresponding loss of shore-side
jobs and facilities.
The REFI Pacific Act is critically important and its
passage will have an immediate positive impact, economic effect
on our fishing businesses and our rural Washington coast
communities who rely on these fishermen.
Thank you very much.
[The prepared statement of Mr. Neva follows:]
Prepared Statement of James Gerald Neva, Manager, Port of Ilwaco,
Ilwaco, Washington
My name is Jim Neva. I have 20 years of experience as Manager of
different small ports in rural communities of southwest Washington
State. The economies of these rural communities is heavily dependent
upon a healthy fishing industry. It is our history and it is who we are
as a community. These were once thriving industries, providing robust
economies that generation after generation of the local population
accepted as a way of life. It is a hard life, but it was in their
blood.
A ``White Paper'' produced by the Pacific County Economic
Development Council last summer reported that, ``The marine industries
sector is an integral part of Pacific County's economic engine and
community well-being. According to a recent Regional Industry Cluster
Study completed for the Pacific Mountain Workforce Development Council,
marine industries account for more than 20 percent of the County's
5,885 jobs and an estimated direct annual payroll in excess of $41.2
million. The tax revenue from these sales helps to fund County services
and the operation of special districts, such as libraries, ports, water
and emergency medical services.''
Washington State's commercial fishing industry is structured around
a multi-species fishery. Groundfish, halibut, albacore tuna, salmon and
shellfish are all major species groups important to the industry.
Important species within the groundfish category include whiting,
flatfish, rockfish, lingcod and sablefish. In 2006, non-tribal
commercial fish landings from Washington fisheries totaled nearly 109.4
million pounds, generating $65.1 million in ex-vessel value, which is
the price received by commercial fishers for fish landed at the dock.
Groundfish produced the greatest share of landings (about 54 percent).
In terms of regional catch, the Coastal area is by far the largest
contributor to commercial fish harvesting in Washington, accounting for
85 percent of total pounds landed and 63 percent of total ex-vessel
value. Seafood processing also contributes significantly to the value
of Washington's commercial fisheries. Including in-State processing,
the wholesale value of fishery products caught in Washington waters was
an estimated $101 million in 2006. Groundfish accounted for about 61
percent of this value.
The aggregate number of vessels landing at U.S. West Coast ports
has decreased almost 67 percent since 1981. There was a large drop in
the count of vessels delivering in the adverse oceanic conditions years
of 1984 and the early 1990s. There were strategic buyout programs for
vessels participating in the salmon fisheries in the 1990s and
groundfish fishery in 2003. Vessel counts continued to drop until the
late 1990s and have remained somewhat stable since then.
This bill will help alleviate some of the overwhelming burdens that
have been placed upon the shore-based groundfish fleet in the last few
years. This is largely a question of fairness. Buy-back payments,
observer costs, new vessel safety requirements and other government
mandates have crippled the groundfish fleet, forcing a level of
consolidation that has left Washington State with only five non-whiting
trawl boats.
The existence of these fleets is critical to the coastal
communities that rely on the fishermen for their raw material and the
jobs that shore-based processing create. The coastal communities of
Washington need all the help we can get. Our ports and communities have
been disproportionally impacted by these Federal management programs,
such as the buyback and the Trawl IFQ (Individual Fishing Quota)
program. This program permanently removed 91 vessels and 239 fishing
permits from the groundfish trawl fishery. We have reached a tipping
point where, without some financial assistance from the Government,
further decline in the fleet will result in further erosion of the
coastal fishing infrastructure and corresponding losses of shore-side
jobs and facilities. The REFI Pacific Act is critically important and
its passage will have an immediate positive economic effect on our
fishing businesses and our rural Washington coastal communities, who
rely on these fishermen.
______
Dr. Fleming. Thank you, sir.
And next, Mr. Lagon, you are recognized for 5 minutes.
STATEMENT OF MARK P. LAGON, CHAIR OF THE INTERNATIONAL
RELATIONS AND SECURITY, MSFS PROGRAM, AND PROFESSOR, PRACTICE
OF INTERNATIONAL AFFAIRS, GEORGETOWN UNIVERSITY
Dr. Lagon. Thank you, Mr. Chairman, Ranking Member Sablan,
members of the committee.
Dr. Fleming. I believe your mike is not on.
Dr. Lagon. Thank you.
Dr. Fleming. There we go.
Dr. Lagon. Mr. Chairman, Ranking Member Sablan, members of
the committee, it is a privilege to testify today on the
intersection of human trafficking and illicit fishing.
My experience working on combating human trafficking
includes as a Senate Foreign Relations Committee staffer
helping finalize the Trafficking Victims Protection Act, as
Ambassador-at-large to combat trafficking in persons as a Bush
political appointee, and CEO of the leading anti-trafficking
nonprofit.
And I am also a founding board member, uncompensated I
should say, of the Global Business Coalition Against Human
Trafficking that includes Coca-Cola, Delta, Ford, Hilton, and
Microsoft as members. And that coalition seeks to shut windows
of vulnerability to human trafficking, tainting vital,
legitimate business through means I am going to talk about
here.
Increasingly evidence indicates that labor and even sexual
exploitation are occurring at sea, and particularly on fishing
vessels that exist largely unnoticed. In 2013, the Maritime
Labor Convention came into force to protect the rights of
seafarers on merchant vessels and passenger ships, but
unfortunately, no comparable legal measures exist for workers'
rights aboard fishing vessels worldwide.
Fishing vessels are generally exempt from the vessel safety
standards and monitoring requirements of the International
Maritime Organization. Fishing vessels of all sizes are
regulated solely by the country from which the vessel is
registered or the so-called flag State rather than the port
States where they bring their cargo to shore and where they are
more likely to get caught doing something illegal.
In my view, this amounts to a governance black hole, and I
found, for instance, the advice of the Pew Charitable Trust a
useful resource, to see the problems with this weak enforcement
environment. That environment allows increasing demand for
seafood and conditions alternatively creating opportunity for
human traffickers to seize maximum gain with little risk.
A 2011 U.N. Office on Drugs and Crime report concluded
perhaps the most disturbing finding of our study was the
severity of abuse of fishers' traffic for the purpose of forced
labor onboard fishing vessels. These practices can only be
described as cruel, inhuman treatment in the extreme.
As an example, Thailand has a large fishing fleet, but it
is chronically short on fishermen, short by up to 60,000 a
year, and foreign labor makes up 40 percent of the men working
at sea. Human traffickers travel inland to remote villages in
Cambodia and Myanmar and recruit men, and they move them with
the complicity of corrupt border police to be sold into bondage
at sea.
I will give you an example. NPR had an exposee of a man
named Vannak Prum. He looked for a short-term fishing job to
pay for his pregnant wife's hospital bills, but was sold to a
Thai fishing vessel subject to 20-hour work days in dangerous
and unsanitary conditions and held without pay for 3 years at
sea, and his account indicates that that vessel was involved in
illegal fishing inside Indonesian waters.
In 2013, the Environmental Justice Foundation interviewed
four Myanmar men rescued from Thai fishing vessels who reported
beatings and seeing a fellow crew member tortured and executed
for trying to escape, as well as the murder of five others.
The State Department's trafficking persons report documents
numerous examples involving victims, including women and
children traffic for prostitution from developing countries
across the Pacific, Asia and Africa.
Within national fishing fleets, the U.S. fleet is, of
course, generally considered highly compliant with domestic and
international laws, but illegal fishing by foreign vessels
poses problems for the United States, particularly along the
United States and Mexico border. There has been a drastic
increase in recent years in the number of incursions of illegal
Mexican fishing vessels into U.S. waters, vessels that are also
used to smuggle drugs and humans from Northeast Mexico into
Texas.
The Illegal, Unreported, and Unregulated Fishing
Enforcement Act, H.R. 69, and the Pirate Fishing Elimination
Act would markedly enhance the U.S. ability to combat IUU
fishing. H.R. 69 would improve our domestic abilities related
to tracking, apprehending, sanctioning foreign vessels and
nations that engage in IUU fishing. It provides practical steps
the United States can take unilaterally to discourage foreign
illegal fishing.
While H.R. 69 focuses on refining existing law, the Pirate
Fishing Elimination Act would implement a new fisheries
agreement, the Port State Measures Agreement. The PSMA will
strengthen port inspections, enhance communications, and deny
port entry to suspected illegal fishing vessels. It will change
the incentive structure to the bad guys, to human traffickers
and other criminals who will not have the incentive to try and
break the rules.
Both bills will increase the sense of other countries that
they should live by international obligations based on the U.S.
example. I strongly urge the U.S. House of Representatives to
pass both of these bills which would regularize and shed
sunshine on illegal fishing. They would not only prove more
stewardly for maritime ecosystems, but more fair to businesses
playing by the rules and helpful to prevent vulnerable people
from being utterly dehumanized, violated and even killed in
illicit fishing.
Thank you very much.
[The prepared statement of Dr. Lagon follows:]
Prepared Statement of Mark P. Lagon, Professor in the Practice of
International Affairs, and Global Politics and Security Chair, Master
of Science in Foreign Service Program, Georgetown University; Adjunct
Senior Fellow for Human Rights, Council on Foreign Relations
Chairman Fleming, Ranking Member Sablan, members of the committee,
it is a privilege to testify today on the legislation before the
committee and to share insights on the intersection of human
trafficking and illegal fishing. My experience working on combating
human trafficking spans a decade and a half, including serving the
Senate Foreign Relations Committee as a staffer, assisting then Senator
Sam Brownback and the late Senator Paul Wellstone in finalizing the
Trafficking Victims Protection Act of 2000. I later had the privilege
to serve as Ambassador at Large directing the Office to Monitor and
Combat Trafficking in Persons that Act created at the State Department.
Thereafter, I became CEO of the leading U.S. anti-trafficking non-
profit, Polaris Project, and in 2012 Founding Board Member
(uncompensated, to be clear) of the Global Business Coalition Against
Human Trafficking (gbcat.org), which includes Carlson, Coca Cola, Delta
Airlines, Ford Motor Company, Hilton Hotels, Microsoft, and NXP
Semiconductor among its members. This coalition of thought leaders
promotes best practices to shut the windows of vulnerability to human
trafficking tainting vital, legitimate business--through means like
those I will recommend today.
My tenure from 2007 to 2009 as Ambassador at Large involved
rebalancing the focus on human trafficking toward that based on
exploitation for labor--in addition to that horrifically based on
commoditized sex. Labor trafficking is a broader phenomenon, yet still
prosecuted today globally less than one-sixth as often as sex
trafficking, according to the 2013 Department of State Trafficking in
Persons Report.\1\ That tenure also witnessed the revelation of how
often human trafficking occurs in the seafood sector--from the victims
of forced labor in seafood processing I met in Thailand in 2007, to
boys fishing in Ghana's Lake Volta so vividly depicted in the
documentary film on child trafficking, Not My Life,\2\ which we at the
State Department Office lent advice to get made.
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\1\ U.S. Department of State. (2013). Trafficking in Persons
Report--June 2013. See http://www.state.gov/j/tip/rls/tiprpt/2013/.
\2\ See http://notmylife.org/fishing-boys-lake-volta.
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Today, this committee considers two bills that would combat
illegal, unreported and unregulated (IUU) fishing: H.R. 69, The
Illegal, Unreported and Unregulated Fishing Enforcement Act, introduced
by Congresswoman Bordallo, and The Pirate Fishing Elimination Act,
introduced by Committee Ranking Member DeFazio. My testimony will
center on human trafficking as it relates to fishing vessels and
illegal fishing worldwide.
It is important to state from the outset that there is limited
information available on the relationship between illegal fishing,
human trafficking, and other criminal activities. These activities can
occur independently. Obviously only some fishing vessels are engaged in
illegal fishing and human trafficking. However, the available data
suggests that the confluence of these activities at sea does occur all
too often, requiring a strong response from the United States. These
illicit activities impact economically disadvantaged and vulnerable
people, global commerce, and the health of our ocean environment, and
merits your action. I strongly urge this committee to support and
advance The Illegal, Unreported and Unregulated Fishing Enforcement Act
(H.R. 69), and The Pirate Fishing Elimination Act as soon as possible.
Human trafficking is not limited to activities on land, and
increasingly evidence indicates that labor and even sexual exploitation
are occurring at sea, and particularly on fishing vessels that exist
largely unnoticed by the rest of the world. In 2013, the Maritime Labor
Convention (MLC) came into force to protect the rights of seafarers on
merchant vessels and passenger ships, but unfortunately, no comparable
legal measures exist for workers rights aboard fishing vessels
worldwide. Further, fishing vessels are generally exempt from the
vessel safety standards and monitoring requirements of the
International Maritime Organization (IMO). As a result, a range of
fishing vessels of all sizes and seaworthiness are regulated solely by
the country from which the vessel is registered, the vessel's ``flag''
State, and they can operate across wide swaths of the ocean for months
or years at a time with relative autonomy. Enforcement actions have
traditionally been left to the States where the boats are registered,
or ``flagged,'' rather than the ``port'' States where they bring their
cargo to shore, where they would be more likely to be caught doing
something illegal.
Moreover, fishing boats are much less carefully regulated than
other ships. Because fishing vessels are not required to have
identification numbers, enormous ships are known to change names and
flags of registration to stay a step ahead of authorities. Interpol
issued two worldwide alerts last year for vessels that had done just
that.\3\ Fishing vessels are not required to carry satellite
transponders, which makes it easy for them to evade surveillance. This
all amounts to a governance ``black hole.'' Let me say that I have
found the Pew Charitable Trusts, as a nonprofit with expertise on IUU,
working to address international enforcement challenges, a particularly
useful resource for policymaking.
---------------------------------------------------------------------------
\3\ See http://news.msn.co.nz/nationalnews/8767033/nz-goes-to-
interpol-over-rogue-trawler.
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This weak regulatory environment impacts a global fishing industry
with annual revenues of $80-85 billion that seeks to meet the
increasing demand for seafood.\4\ These financial and regulatory
conditions create an opportunity for traffickers to seize maximum gain
with little risk, at the expense of fellow human beings who they in
effect enslave. A 2011 report of the United Nations Office on Drugs and
Crime (UNODC), Transnational Organized Crime in the Fishing Industry,
concluded:
---------------------------------------------------------------------------
\4\ Dyck, A.J. and Sumaila, U.R. (2010). ``Economic Impact of Ocean
Fish Populations in the Global Fishery.'' Journal of Bioeconomics, DOI:
10.1007/s10818-010-9088-3.
Perhaps the most disturbing finding of the study was the
severity of the abuse of fishers trafficked for the purpose of
forced labour on board fishing vessels. These practices can
only be described as cruel and inhumane treatment in the
extreme. . . A particularly disturbing facet of this form of
exploitation is the frequency of trafficking in children in the
fishing industry.\5\
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\5\ United Nations Office on Drugs and Crime (UNODC). Transnational
Organized Crime in the Fishing Industry--Focus on: Trafficking in
Persons, Smuggling of Migrants, and Illicit Drugs Trafficking. (2011).
See http://www.unodc.org/documents/human-trafficking/Issue_Paper-
TOC_in_the_Fishing_Industry.pdf.
We lack robust statistics of the full extent of human trafficking
abuses associated with the global fishing industry, but a growing list
of examples highlights the severity of the problem. Bloomberg
Businessweek conducted a 6-month investigation into debt bondage
schemes in Indonesia where men, desperate for work, were exploited on
Korean-flagged fishing vessels operating off the coast of New Zealand.
Fishing company agents rushed men into signing misleading contracts
that allowed the fishing company to withhold salaries, and they
collected collateral assets from workers' families. Further,
crewmembers were required to work to the company's loosely defined
``satisfaction,'' or be sent home without pay and charged $1,000 for
airfare.\6\ Though the crew lived in cramped, unsanitary conditions
with the daily threat of physical violence and rape, the contract terms
assessed fines for any worker who ran away from the job. Workers were
forced to work, knowing their families would ultimately be held
responsible.
---------------------------------------------------------------------------
\6\ Skinner, E. Benjamin. (February 23, 2012). ``The Fishing
Industry's Cruelest Catch,'' Bloomberg Businessweek. See http://
www.businessweek.com/printer/articles/22538-the-fishing-industrys-
cruelest-catch.
---------------------------------------------------------------------------
A 2011 report from the International Organization for Migration
(IOM) entitled Trafficking of Fishermen in Thailand provides detailed
information on the scale and scope of the human trafficking in the Thai
fishing industry.\7\ Citizens of Southeast Asian countries are
subjected to human trafficking on Thai vessels that fish on longer
voyages in foreign waters far from enforcement (as compared to vessels
that fish in their Exclusive Economic Zone, or EEZ, waters and return
to port frequently). Workers are vulnerable due to their limited
potential to leave the ship. In 2012, National Public Radio (NPR)
produced a special report \8\ exposing significant human trafficking of
men from Cambodia and Myanmar on Thai fishing vessels. Thailand has a
large fishing fleet but is chronically short on fishermen--short by up
to 60,000 per year--and foreign labor makes up 40 percent of the men
working at sea. The report indicates that human traffickers travel
inland to remote villages in Cambodia and Myanmar and recruit men who
they move with the complicity of corrupt border police to be sold into
bondage at sea.
---------------------------------------------------------------------------
\7\ International Organization for Migration (IOM). (2011).
Trafficking of Fishermen in Thailand. See https://www.iom.int/jahia/
webdav/shared/shared/mainsite/activities/countries/docs/thailand/
Trafficking-of-Fishermen-Thailand.pdf.
\8\ Service, Shannon, and Palmstrom, Becky. (June 19, 2012).
``Confined to a Thai Fishing Boat, For Three Years.'' NPR. See http://
www.npr.org/2012/06/19/155045295/confined-to-a-thai-fishing-boat-
forthree-years.
---------------------------------------------------------------------------
The NPR story follows a man named Vannak Prum as he looked for a
short-term fishing job to pay for his pregnant wife's hospital bills,
but was sold to a Thai fishing vessel, subject to 20-hour work days in
dangerous and unsanitary conditions, and held without pay for 3 years
at sea. Prum's account documents illegal fishing inside of Indonesian
waters and his vessel evading gunfire before slipping into Malaysian
waters. Prum eventually escaped by jumping overboard while fishing near
an island off Malaysia, but once ashore, he was sold into indentured
servitude on a palm oil plantation by a local police officer. This case
reflects archetypical human trafficking: vulnerable groups of people
robbed of their autonomy because they lack any access to justice.
Fishermen trapped at sea are subjected to violent, and sometimes
deadly, abuse while aboard Thai vessels. A 2009 survey by the United
Nations Inter-Agency Project on Human Trafficking (UNIAP) found that 59
percent of interviewed migrants trafficked aboard Thai fishing boats
reported witnessing the murder of a fellow worker.\9\ Accidents,
dangerous working conditions and the fear of being physically abused
are common, but reports suggest that most vessels had little to no
medical supplies and would not stop work to seek medical attention for
the crew.\10\ In 2013, the Environmental Justice Foundation (EJF)
interviewed 14 Myanmar men rescued from Thai fishing vessels who
reported beatings by the senior crew, and in two cases, the victims
reported seeing a fellow crewmember tortured and executed for trying to
escape, as well as the murder of five others.\11\ Further, EJF
interviews with rescued victims confirmed that the vessels often fished
illegally in foreign waters.\12\ In 2013, 150 Cambodian and Burmese
victims were rescued from Thai fishing vessels in ports around the
world, but the U.S. State Department reports that this is likely only a
fraction of the total number of Asian men victimized by trafficking on
fishing boats.\13\
---------------------------------------------------------------------------
\9\ United Nations Inter-Agency Project on Human Trafficking
(UNIAP). (2009). ``Exploitation of Cambodian Men at Sea.'' See http://
www.no-trafficking.org/reports_docs/siren/siren_cb3.pdf.
\10\ International Organization for Migration (IOM). (2011).
``Trafficking of Fishermen in Thailand.'' See https://www.iom.int/
jahia/webdav/shared/shared/mainsite/activities/countries/docs/thailand/
Trafficking-of-Fishermen-Thailand.pdf.
\11\ Environmental Justice Foundation. (2013). ``Sold to the Sea--
Human Trafficking in Thailand's Fishing Industry.'' See http://
ejfoundation.org/sites/default/files/public/Sold_to_the_Sea_report_lo-
res-v2.pdf.
\12\ Ibid.
\13\ U.S. Department of State. (2013). Trafficking in Persons
Report--June 2013. See http://www.state.gov/j/tip/rls/tiprpt/2013/.
---------------------------------------------------------------------------
The State Department's Trafficking in Persons Report for 2013
suggests that the connection between human trafficking and the fishing
industry is not limited to Thailand, and there are numerous examples
involving victims--including women and children trafficked for
prostitution--from poor and developing countries across the Pacific,
Asia, and Africa.\14\ In July 2013, a humanitarian organization
reported that a foreign fishing firm based in Sierra Leone trafficked
girls for purposes of sex, leaving port with the girls onboard before
they were rescued by the local authorities.\15\ Many other women and
children are not as fortunate.
---------------------------------------------------------------------------
\14\ Ibid.
\15\ Voice of America. (July 19, 2013). ``Sierra Leone: Government
Targets Human Trafficking.'' Voice of America. See http://
allafrica.com/stories/201307200024.html.
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The same circumstances that make fishing vessels opportune for
human trafficking also make them susceptible to other forms of
transnational organized crime, including drug trafficking. For
instance, a State Department report notes that drug smuggling is often
aided by fishing boats moving drugs through the Bahamas, Jamaica and
Florida.\16\ The 2011 UNODC report Transnational Organized Crime in the
Fishing Industry that I previously mentioned addressed the extent to
which criminal activities within the fishing industry were a threat to
the law-abiding and legitimate fishing industry, local fishing
communities, and the public at large. The study confirmed labor abuses
aboard fishing vessels, as well as the links between illegal fishing,
and transnational organized crime, and drug trafficking. Specifically,
it found that fishing vessels are used for smuggling migrants, drugs
(primarily cocaine), and weapons, and committing acts of terrorism.
Fishing vessels are used as ``mother ships'' serving as base stations
from which criminal activities are coordinated, as supply vessels for
other vessels engaged in criminal activities, or simply as cover for
clandestine activities at sea and in port. The study also found that
some transnational fishing operators are engaged in marine living
resource crime. These fishing operations are highly sophisticated and
employ complex incorporation and vessel registration strategies to
avoid tracking. They coordinate at-sea vessel support services to aid
in moving illegally caught fish to market, often supported by
fraudulent catch documentation.\17\
---------------------------------------------------------------------------
\16\ U.S. Department of State. (2012). International Narcotics
Control Strategy Report (INCSR). See http://www.state.gov/j/inl/rls/
nrcrpt/2012/vol1/184098.htm.
\17\ United Nations Office on Drugs and Crime (UNODC). (2011).
Transnational Organized Crime in the Fishing Industry--Focus on:
Trafficking in Persons, Smuggling of Migrants, and Illicit Drugs
Trafficking. See http://www.unodc.org/documents/human-trafficking/
Issue_Paper-TOC_in_the_Fishing_Industry.pdf.
---------------------------------------------------------------------------
As stated at the outset, the data that explicitly connects illegal
fishing, human trafficking, and other criminal activities is limited,
but mounting evidence suggests that fishing vessels engaged in one of
these illicit activities are likely to also engage in the others. There
is evidence of widespread IUU fishing occurring in the Asia-Pacific
region, estimated at 3.4-8.1 million tons per year,\18\ costing
countries in that region significant annual revenue losses (losses
estimated, for instance, at $2.5 billion in 2007 \19\) and resulting in
overexploited fisheries. The presence of IUU activity overlaps with
human trafficking abuses aboard fishing vessels and also within
communities that service the fishing vessels in port. The coincidence
of these activities indicates that these problems are related, and are
being driven by the global demand for fish and fish products.
---------------------------------------------------------------------------
\18\ Asian-Pacific Economic Cooperation Fisheries Working Group.
(2008). ``Assessment of Impacts of Illegal, Unreported and Unregulated
(IUU) Fishing in the Asia-Pacific,'' APEC Singapore. See http://
www.imcsnet.org/imcs/docs/apec_2008_iuu_fishing_assessmt_se_asia.pdf.
\19\ United Nations Food and Agriculture Organization (FAO). (2007)
``Fishing Capacity Management and IUU Fishing in Asia.'' Bangkok.
---------------------------------------------------------------------------
There is a significant variation of compliance and enforcement, as
with many issues, within national fishing fleets, with the U.S. fleet
generally considered highly compliant with domestic and international
laws, while others, such as Thailand have a poor record, implicated in
cases of illegal fishing, human trafficking abuses, and human
smuggling. Despite the high compliance rates within the U.S. fleet,
illegal fishing by foreign vessels poses problems for the United
States, particularly in Alaska and along the U.S.-Mexico border. In
Alaska, U.S. crab fishermen have been undercut by illegal Russian crab
fishing operations, impacting global supply and prices, and costing the
U.S. economy hundreds of millions of dollars. In the Gulf of Mexico,
there has been a drastic increase in recent years in the number of
incursions of illegal Mexican fishing vessels called ``lanchas'' into
U.S. waters. Local U.S. Coast Guard officials describe these illegal
Mexican fishing vessels as a ``persistent challenge to U.S.
sovereignty,'' \20\ and recent reports suggest that these same vessels
are also used to smuggle drugs and humans from northeast Mexico into
Texas.\21\ Small boats that would typically be used for fishing are a
common mode of transport for undocumented migrants attempting to enter
the United States, using California beaches as a landing point.
Smugglers are paid up to $9,000 per person for these dangerous voyages
that often end in deaths.\22\
---------------------------------------------------------------------------
\20\ Mendoza, Jesse. (September 6, 2013). ``U.S. Coast Guard Seizes
1,000 Pounds of Illegally Caught Fish.'' Valley Morning Star. See
http://www.valleymorningstar.com/news/local_news/article_a1a39b6a-1772-
11e3-a961-001a4bcf6878.html.
\21\ Tompkins, Shannon. (June 11, 2013). ``Gulf Poachers Threaten
to deplete Fisheries.'' Houston Chronicle. See http://
www.houstonchronicle.com/sports/outdoors/article/Gulf-poachers-
threaten-to-deplete-fisheries-4589290.php.
\22\ Carcamo, Cindy. (September 14, 2012). ``For Illegal
Immigrants, Ocean is the New Desert.'' Orange County Register. See
http://www.ocregister.com/articles/san-371399-people-smuggling.html.
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Human trafficking in particular is a complex, international problem
that must be addressed through a variety of legal and diplomatic
channels. To that end, The Illegal, Unreported and Unregulated Fishing
Enforcement Act (H.R. 69), and The Pirate Fishing Elimination Act would
enhance the ability of the United States to combat IUU fishing by
strengthening and streamlining U.S. enforcement within existing
fisheries statutes, and through the implementation of a new
international agreement to fight IUU fishing, the Port State Measures
Agreement.
H.R. 69 takes a number of common-sense steps to improve our
domestic capabilities related to tracking, apprehending and sanctioning
foreign vessels (and nations) that engage in IUU fishing. Specifically,
H.R. 69 would make the prohibitions, penalties, and enforcement
protocols for nine international fisheries statutes consistent with
each other and with our domestic fisheries law, the Magnuson-Stevens
Fishery Conservation and Management Act. The result would be to
streamline enforcement by the relevant Federal and State enforcement
agents. In addition, the legislation facilitates efficiencies including
interagency collaboration, data exchange, and the creation of an IUU
vessel list to allow faster, more coordinated monitoring and
enforcement actions against foreign vessels, and nations, suspected of
illegal fishing. Finally, H.R. 69 makes technical amendments to the
High Seas Driftnet Fishing Moratorium Protection Act, to allow the
United States to more effectively identify nations that are non-
compliant with their international obligations under the various
Regional Fisheries Management Organizations. The concepts in H.R. 69
are practical steps that the United States can take unilaterally to
discourage foreign illegal fishing, facilitate information exchange
between Federal Government entities, and propel other nations'
compliance.
While H.R. 69 focuses primarily on refining existing law, The
Pirate Fishing Elimination Act, would implement a new international
fisheries agreement--the Port State Measures Agreement (PSMA)--that was
created to combat illegal fishing worldwide. I testified this past
February before the Senate Foreign Relations Committee in support of
the PSMA, and am glad that committee subsequently voted unanimously in
favor of its ratification. Once entered into force, the PSMA will
strengthen port inspections, enhance communications, and deny port
entry--including port services and supplies--to suspected illegal
fishing vessels. The PSMA is a cost-effective enforcement mechanism
that will begin to change the economic incentives--increasing the cost
associated with illegal fishing because it will be more difficult for
illegal vessels to access global markets. Once a suspected illegal
fishing vessel is identified, countries will coordinate enforcement
efforts to ensure that the suspected vessel is refused entry at other
ports until the vessel agrees to be inspected or is prosecuted. The
Pirate Fishing Elimination Act puts these concepts into statute by
establishing the responsibilities of the Secretary of Commerce and the
U.S. Coast Guard, inspection and enforcement protocols, and steps to
refuse entry or deny port services to vessels suspected of IUU fishing.
The provisions in this legislation are rightly considered to be non-
controversial and the companion legislation, S. 267, passed the Senate
Commerce Committee unanimously in July 2013.
Together, these two bills make important improvements to our
domestic enforcement capabilities against foreign illegal fishing
operations, while also creating a strong incentive to foreign vessels
and nations to comply with international obligations. The increased
accountability and economic incentives in these bills could help to
erode other criminal activities that are often associated with illegal
fishing, including human trafficking.
In 2000, Congress enacted the Trafficking Victims Protection Act
which defined trafficking for the purposes of labor or sex and provided
critical measures to protect human trafficking victims. This law was
reauthorized for the fourth time in March 2013 with bipartisan support.
The Illegal, Unreported and Unregulated Fishing Enforcement Act (H.R.
69), and The Pirate Fishing Elimination Act would complement this
widely supported law, institute standards that are consistent with
existing U.S. practice, and could pay big dividends globally through
enhanced accountability, monitoring, communication, and enforcement of
suspect fishing vessels that may be engaged in human trafficking or
other criminal activities. These two bills, combined with ratification
and the entry into force of the Port States Measures Agreement, provide
a pathway to beginning to address the complicated problem of human
trafficking on the high seas. I strongly urge the U.S. House of
Representatives to offer its leadership and quickly pass these two
bills, sending a message to the world that we will not tolerate illegal
fishing and its associated human rights violations.
In conclusion, a 2009 peer-reviewed scientific study estimated that
the worldwide annual value of losses from illegal and unreported
fishing could reach $23.5 billion.\23\ Yet, vessels engaged in illegal,
unregulated fishing not only steal precious food resources off the
coasts of poor countries and damage marine ecosystems. They engage in
drug smuggling. Most serious, they also prey on human beings. Illicit
fishing worldwide appears to be rife with human trafficking. The
legislation under consideration at this hearing would regularize and
shed sunshine on that fishing. As a result they would not only prove
more stewardly for marine ecosystems, and more fair to businesses
playing by the rules, but helpful to prevent vulnerable people from
being utterly dehumanized, violated, and even killed in that illicit
fishing.
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\23\ Agnew, David J., et al. (February 25, 2009), ``Estimating the
Worldwide Extent of Illegal Fishing,'' PLOS ONE. See www.plosone.org/
article/info:doi/10.1371/journal.pone.0004570.
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Thank you for inviting me to testify.
______
Dr. Fleming. Thank you. Thank you, Ambassador Lagon, and
thank you for your testimony.
Mr. Kraft, you are now recognized, sir, for 5 minutes.
STATEMENT OF MIKE KRAFT, VICE PRESIDENT, CORPORATE SOCIAL
RESPONSIBILITY, BUMBLE BEE FOODS
Mr. Kraft. Good afternoon, Mr. Chairman, and thank you for
the invitation to testify today.
I am Mike Kraft. I am with Bumble Bee Foods, and I would
like to present our company's views on H.R. 69, the IUU
Fisheries Enforcement Act, as well as the H.R. draft bill that
would implement the Port State Measures Agreement.
Very briefly, Bumble Bee Foods is a privately held company
headquartered in San Diego. We are North America's largest
branded shelf-stable seafood company, and we offer canned and
pouched products for sale in the United States and Canada.
As a seafood company that relies upon our oceans for supply
of natural resources critical to our business, it is inherent
to our mission that we support practices and policies that
ensure long-term sustainability of our fisheries' resources.
At Bumble Bee we have an active sustainability program
participating in a number of U.S. and international fisheries
management organizations. We also were a founder of the
International Seafood Sustainability Foundation, which is a
partnership between scientists, the World Wildlife Fund and
global tuna processors.
Bumble Bee is also a founding member and supporter of the
Congressional Oceans Caucus Foundation.
I will not reiterate the number of points we have heard on
the figures of IUU fishing. It is safe to say that we also view
it as an economic and environmental risk that needs to be
continually addressed.
Now, the United States has been a global leader in
effectively fighting IUU fishing. Domestically we have some of
the strongest laws aimed at curtailing IUU fishing as well as
ensuring IUU fish does not enter our markets. The U.S. Coast
Guard, NMFS and NOAA do an excellent job in enforcing our
domestic laws.
Also, internationally the United States has taken a
leadership role at various RFMOs pushing for stronger measures
to detect and deter IUU fishing. Unfortunately, as is the case
with international fisheries organizations which rely on the
members for the enforcement, the application and enforcement of
the measures remain mixed at best.
H.R. 69 is a bipartisan bill that amends various existing
international fishery statutes to simplify, streamline and
strengthen existing enforcement protocols. The overall goal of
the bill is to improve the capabilities of U.S. law enforcement
to detect, track and prosecute foreign IUU fishing activity.
Today we enforce international fishery agreements to which
we are a party under 11 or more separate fishery statutes.
These laws were developed over a period of time, took divergent
approaches in establishing enforcement protocols and penalties
and are not always consistent with Magnuson-Stevens. As a
result, the U.S. fisheries enforcement efforts are carried out
under a patchwork of different standards and authorities. H.R.
69 will harmonize and strengthen the enforcement authorities.
Title 2 of H.R. 69 amends the Tuna Conventions Act of 1950
to implement the Antigua Convention. As we have heard, the
convention was entered into force in 2010, but the United
States must still conform its domestic statutes before we can
deposit the instrument of ratification and accede to the
convention.
The provisions in H.R. 69 accomplish this and the U.S. tuna
industry strongly supports the convention.
The Port State Measures Agreement adopted by the UNFAO in
2009 establishes the first global agreement focused on IUU
fishing. The United States was one of the principal architects
of the agreement, which is modeled after our own domestic IUU
fishing laws. Port State measures is built on the simple
premise that IUU fishing can be reduced and possibly eliminated
if IUU fish can be prevented from entering global commerce.
The most effective way of accomplishing this is to make it
extremely difficult for IUU fish to be offloaded in port. The
Port State Measures Agreement establishes the first global
standards to control port access from foreign fishing vessels
that engage in IUU.
A critical component of the port State measures is that it
creates an obligation of the signatory nations to apply and
implement these measures so that these measures to combat IUU
become more than just aspirational. The sad truth is that in
many other coastal nations, they are just simply not as
rigorous in enforcing the rules as we are in the United States.
The draft bill includes many of the revisions to the U.S.
law necessary to implement the port State measures. We do have
some concerns regarding the proposed enforcement and penalty
regime and would like to work with the committee to ensure that
the bill is consistent with the Magnuson-Stevens Act.
The Senate companion bill, S. 267 has already been approved
unanimously by the Senate Committee on Commerce, Science and
Transportation, and now are awaiting Floor actions.
In closing, IUU is a multi-billion dollar industry that
threatens the health and sustainability of our global fisheries
resources. Bumble Bee encourages this committee to approve
these two pieces of legislation designed to prevent, deter and
eliminate IUU.
Thank you.
[The prepared statement of Mr. Kraft follows:]
Prepared Statement of Michael Kraft, Vice President of Sustainability,
Bumble Bee Foods, LLC
Thank you for the courtesy of your invitation to testify. I am
Michael Kraft, Vice President of Sustainability for Bumble Bee Foods,
LLC. Today, I will present our company's views on the need for this
committee to approve H.R.____, a bill to prevent, deter, and eliminate
illegal, unreported, and unregulated fishing through the Port State
Measures Agreement (PSMA); and H.R. 69, the Illegal, Unreported and
Unregulated Fishing Enforcement Act of 2013. H.R. 69 also contains
provisions implementing the Antigua Convention which is of particular
importance to the U.S. tuna industry.
Bumble Bee Foods, LLC was founded in 1899 by a handful of dedicated
fishermen. Today, privately held and headquartered in San Diego, Bumble
Bee Foods is North America's largest branded shelf-stable seafood
company, offering a full line of canned and pouched tuna, salmon,
sardines, and specialty seafood products marketed in the United States
under leading brands including Bumble Bee',
Brunswick', Sweet Sue', Snow's', Beach
Cliff', Wild Selections', Bumble Bee
SuperFresh', and in Canada under the Clover Leaf'
brand.
The healthy profile of Bumble Bee's product portfolio affords us a
strong basis from which to support and encourage healthy consumer
lifestyles. The health benefits of seafood are widely known and, at a
time when the USDA is urging Americans to include more seafood in their
diets, we are proud to offer millions of Americans healthy, nutritious
sources of lean protein at an affordable price, while also encouraging
them to take simple steps to live a healthier lifestyle through such
programs as our signature Bee Well for LifeTM program,
designed to encourage a more holistic approach to active living and
good nutrition, and through our participation as a founding member of
the Healthy Weight Commitment Foundation--a first-of-kind initiative in
the United States involving a coalition of over 140 retailers, non-
profit organizations, and food and beverage manufacturers aimed at
reducing obesity, particularly among children, by encouraging behavior
change and providing consumer tools in the marketplace, at work and in
schools.
Sustainability
As a seafood company that relies upon our oceans for a supply of
natural resources critical to our business, it is imperative, and in
fact inherent to our mission, that we adhere to practices and policies
that ensure long-term sustainability of our fisheries resources that
enable us to provide an affordable, nutritious lean source of protein
for people today and help feed a future population expected to grow to
9 billion by 2050.
No single aspect is more important, or more central, to Bumble
Bee's sustainability program than ensuring the responsible harvesting
and management of fisheries from which we source--this is not only
important to the environment and our consumers, but for our business as
well. Our corporate sustainability platform, adopted in 2005, has
become a key focal point driving internal behavior and how we conduct
business across the globe.
Science is at the core of our approach to fisheries management;
independent, science-based stock assessments are a key component in
ensuring the sourcing of sustainable seafood. We have engaged third
party experts to assess our various fisheries to determine if they are
being managed in a sustainable manner. Our assessments are based on the
scientific stock assessments completed by various national and
international research bodies. In addition to our internal efforts,
Bumble Bee actively participates in a broad range of fishery management
organizations. These organizations include the four Regional Fishing
Management Organizations (RFMOs) for tuna, the New England and Mid-
Atlantic Fishery Management Councils, the National Fisheries Institute,
and the Fishery Council of Canada. Bumble Bee is also a Food Marketing
Institute Sustainable Seafood Working Group supplier advisor.
In 2009, Bumble Bee became a proud founder of the International
Seafood Sustainability Foundation (ISSF). ISSF is a global partnership
among scientists, the World Wildlife Fund (WWF), and tuna processors
who represent more than 75 percent of the world's shelf stable tuna
production. This unique combination of industry, science, and
environmental community is committed to driving positive change in tuna
fisheries through direct action of its participants.
The ISSF mission includes undertaking science-based initiatives for
the long-term sustainability of tuna stocks, reducing by-catch and
promoting ecosystem health. The strategy and focus of ISSF addresses
the major sustainability challenges facing the global fishery through
applied science, advocacy and direct action. Since its 2009 inception,
ISSF and its participants have committed to a number of actions aimed
at ensuring long-term sustainability of tuna including: agreement to
traceability standards from capture to plate; not sourcing tuna caught
with large scale drift nets or from IUU fishing; sourcing from boats
with unique vessel identifiers; funding and supporting a multitude of
sea turtle conservation projects; funding at-sea research programs to
mitigate by-catch in purse seine fishing.
Last, Bumble Bee became a founding member and supporter of the
Congressional Oceans Caucus Foundation. Our purpose in joining was to
help ensure that responsible oceans conservation and fisheries
sustainability legislation was enacted by the U.S. Congress on issues
that should enjoy bipartisan support.
IUU Threat to Sustainability
IUU fishing is the greatest single threat to both our industry's
and our Nation's efforts to promote sustainable harvest of the world's
marine resources. Make no mistake about it, IUU fishing is a multi-
billion dollar industry fueled by the overall increase in fish prices
and dwindling global fish stocks. The exact extent of IUU fishing
remains unknown, but it has been estimated in recent years that
worldwide IUU fish harvests are worth between $10 billion and $23.5
billion annually, and represents between 11 million and 26 million
tons.\1\ It's worth noting that the upper limit of 26 million tons of
IUU fish is six times more fish than the entire annual catch of the
U.S. commercial fishing industry. Some of the biggest culprits involve
fishing vessels flagged from Asian and developing nations including
Korea, Taiwan, China and Belize.
---------------------------------------------------------------------------
\1\ David J. Agnew, et al., Estimating Worldwide Extent of Illegal
Fishing, PLoS ONE, Feb. 2009 at 4.
---------------------------------------------------------------------------
So what exactly is ``IUU fishing'' ? The term describes a range of
fishing activities, including the failure to report or the misreporting
of catches; fishing without the permission of a coastal nation; the
reflagging of vessels to countries that are unable or unwilling to
adequately control their fishing activity; and noncompliance with
fishing gear and fishing area rules. Worldwide, the amount of IUU
fishing has been increasing as fishermen attempt to avoid stricter
fishing rules created to address declining fish stocks. Preventing IUU
fishing on the high seas is extremely difficult due to the vast areas
of ocean to monitor, enforcement resource limitations, and a high
volume of operating fishing vessels.
The United States has long been a global leader in effectively
fighting IUU fishing. Domestically, we have some of the strongest laws
aimed at curtailing IUU fishing and ensuring IUU fish do not enter our
markets. Under the High Seas Driftnet Fishing Moratorium Protection
Act, as amended, the United States lists nations identified as having
vessels engaged in IUU fishing and can both deny port privileges to IUU
vessels and prohibit the import of fish products from IUU nations.
Additionally, the Magnuson-Stevens Act includes some of the strictest
enforcement measures and penalties to deter U.S. fishermen from
engaging in IUU fishing.
At this point I would like to commend the U.S. Coast Guard, the
National Marine Fisheries Service and their parent agency NOAA for
doing an excellent job in enforcing our domestic laws. Through their
diligence, they have ensured IUU fishing is not an issue within the
United States and have done the best they can with the tools they have
to prevent IUU fish from coming into our markets.
Internationally, the United States has also taken a leadership
role. Through the various RFMOs, the United States has pushed for
stronger measures to detect and deter IUU fishing, including adoption
of IUU vessel lists, market-related measures, vessel monitoring and
surveillance programs and prohibiting the transfer of catch at sea.
Unfortunately, as is the case with most international fishery
organizations--which rely on the member nations to enforce the rules on
their own fishermen--application and enforcement of these measures
remains mixed at best.
H.R. 69--Title I: IUU Fishing Enforcement Act of 2013
H.R. 69 is a bipartisan bill that amends various existing
international fisheries statutes to simplify, streamline and strengthen
existing enforcement protocols. The overall goal of the bill is to
improve the capabilities of U.S. law enforcement to detect, track and
prosecute foreign IUU fishing activity.
Today, the United States enforces international fishery agreements
to which we are a party under 11 or more separate fisheries statutes.
These laws were developed over time and took divergent approaches in
establishing enforcement protocols and penalties. Additionally, these
statutes are not always consistent with the Magnuson-Stevens Act, the
centerpiece of our Nation's fishery conservation and management laws.
As a result, U.S. international fisheries enforcement efforts are
carried out under a patchwork of different standards and authorities.
H.R. 69 will harmonize and strengthen U.S. fisheries enforcement
authorities and capabilities across various fisheries statutes in order
to better combat and deter foreign IUU fishing activities. Doing this
will also likely increase the ease and improve the efficiency with
which the Coast Guard executes its' at-sea fisheries enforcement
activities. This is a particularly important aspect considering the
Coast Guard's difficult budget situation and the many missions to which
they are tasked.
The Senate Committee on Commerce, Science, and Transportation has
already approved S. 269, the companion bill to H.R. 69. Our company
actively participated in suggesting some practical changes to that bill
to avoid potential budget scoring issues and to ensure that penalties
were consistent with the Magnuson-Stevens Act.
We encourage this committee to work closely with the Senate
committee to develop a text that can pass both chambers and be signed
into law. For the many reasons mentioned above, it's imperative that
this legislation be enacted this year!
Title II: Implementation of the Antigua Convention
Title II of H.R. 69 amends the Tuna Conventions Act of 1950 to
implement the Antigua Convention. The Antigua Convention strengthens
and replaces the 1949 Convention establishing the first ever RFMO, the
Inter-American Tropical Tuna Commission (IATTC). The IATTC has
competence over highly migratory species of tuna and tuna-like species
in the Eastern Tropical Pacific Ocean. The United States and the U.S.
tuna industry have long been a leader in the IATTC. The United States
signed the Antigua Convention in November 2003 and the Senate gave its
advice and consent to enter into the Convention in 2005. Although the
Convention entered into force in 2010, the United States must still
conform its domestic statutes before we can deposit the instrument of
ratification and accede to the Convention. The provisions in H.R. 69 do
this; they make the necessary changes to our domestic laws that will
allow the United States to finally accede to this important fishery
conservation Convention. The entire U.S. tuna industry strongly
supports the Convention, and we encourage the committee to approve this
legislation expeditiously.
H.R.____: A Bill to Implement the Port State Measures Agreement to
Prevent, Deter and Eliminate IUU Fishing
The Port State Measures Agreement (PSMA), adopted by the United
Nations Food and Agriculture Organization in November 2009, establishes
the first global agreement focused on IUU fishing. The United States
was one of the principal architects of the Agreement which is modeled
after our own domestic IUU fishing laws. The PSMA is built on the
simple premise that IUU fishing can be reduced and possibly eliminated
if IUU fish can be prevented from entering global commerce, and the
most effective way of accomplishing this is to make it extremely
difficult for IUU fish to be offloaded in a port. In this regard, the
PSMA establishes the first global standards to control port access from
foreign fishing vessels that illegally engage in IUU fishing. These
standards include mandating parties (port States) to require prior
notice of a foreign fishing vessel's arrival in their port, restricting
port entry and port services to foreign vessels known or suspected of
IUU fishing, adopting minimum dockside inspection and training
standards, and the sharing of information about IUU vessels with the
appropriate RFMOs. Perhaps what is most critical about the PSMA is that
it creates an obligation of the signatory nations to apply and
implement these measures; in other words, these anti-IUU measures are
to be enforceable, not merely aspirational. The sad truth is many
coastal nations are simply not as rigorous in enforcing the rules as
the United States.
H.R.____ includes the necessary revisions to U.S. law to implement
the PSMA. The Senate companion bill S. 267 has already been approved
unanimously by the Senate Committee on Commerce, Science and
Transportation and is now awaiting Floor action. Because the PSMA is
viewed as a fisheries treaty, it requires Senate Advice and Consent.
Encouragingly, on March 11, 2014 the Senate Committee on Foreign
Relations passed a favorable resolution of Advice and Consent to the
ratification of the Agreement by the President. We've been advised that
full Senate will soon consider the Agreement and that a favorable
outcome is expected.
As mentioned earlier, IUU fishing is a multi-billion dollar
industry that threatens the health and sustainability of our global
fishery resources. Unfortunately, the IUU epidemic is spreading and
action must be taken now before it's too late. Bumble Bee encourages
this committee to quickly approve these two critical pieces of
legislation, designed to prevent, deter and eliminate IUU fishing.
______
Dr. Fleming. Thank you, Mr. Kraft.
Mr. Walsh, you are now recognized, sir, for 5 minutes.
STATEMENT OF JAMES P. ``BUD'' WALSH, DAVIS WRIGHT TREMAINE, LLP
Mr. Walsh. Thank you, Mr. Chairman.
My name is James Walsh, better known as ``Bud.'' I am a
partner in the law firm of Davis Wright Tremaine, and I am a
trial lawyer. I am a reformed Senate staffer. I came to Capitol
Hill to work for Senator Warren Magnuson and, in fact, am
reputed to have drafted the Magnuson Act, although the House
members certainly do not agree with that.
Recently my practice has involved the working end of this
legislation, of this kind of legislation. I defend companies,
and I am not here to speak on behalf of any client, but I have
defended companies here in the United States charged with civil
penalty violations, with criminal violations, and I have
represented American companies in foreign countries.
I have experience, and it was not a good one, in Russia,
and so I am here to say that I think this legislation clearly
is needed because the problem of IUU fishing is far greater
than I think has even been stated here today because we are
really at the limit of what we can take naturally out of the
ocean, about 80 to 90 million metric tons.
We are not going to get more than that, and of course, that
is only the fish that have been accurately reported. My concern
is that while we have tried to lead the world in making
sustainability work, and I do not care what anybody tells you,
it is working here very well and it has taken 40 years to get
it going properly. Not everybody else does that, and there is
an alignment between IUU fishing and bad government around the
world.
Somebody asked the question of where. West Africa, East
Africa, Somalia, they really were fishermen before they were
pirates, which brings me to the point about the name of the
bill. Piracy is a universal crime. It is the equivalent of
terrorism. Anybody can enforce it. You do not need a port State
measure. You just need a pirate.
And most fishery violations under customary international
law are considered civil violations. They are not to be treated
criminally, and we happen to be one of the reasons that that is
in the U.N. law, the sea treaty and customary international law
because for many years our vessels were routinely seized and
charged criminally in situations where it was not pirate
fishing. It was simply a disagreement over jurisdiction, and it
was a civil violation.
In addition, we are supposed to let any vessel leave port
with its crew when a bond is placed, and the sad thing is even
in some of the countries that we currently operate, they do not
follow the same civil rules. They do not have the same
constitutional protections of due process and of excessive
penalties. It is no question that the provisions in both of
these bills with regard to what powers are given to the
government, nobody in the fishing industry is going to object
to it because we already have it. It is already there,
observers on every boat in many situations.
We file reports every day. Everything that we do is looked
at closely, but not everybody is, and the danger is that if one
of my clients happens to go into a port State that does not
follow the rules and is more interested in acquiring a big fine
as opposed to really prosecuting a clear violation in order to
get income, I am going to be concerned and we all should be
concerned because we do follow the rules.
And when people follow the rules, they should not be
subjected to the kind of procedures you see in Russia where you
can be held for 3 years without being charged with a crime.
People do not follow the rules. So if you are going to have an
IUU fishing bill, you should have a clear statement that people
who engage in IUU enforcement in port States against your
vessels or anybody else's will follow the highest standards of
due process and the principles of international law intended to
prevent wrongful deprivation of life, liberty and property.
Thank you.
[The prepared statement of M. Walsh follows:]
Prepared Statement of James P. Walsh, Partner, Davis Wright Tremaine
LLP
Thank you for the invitation to testify today on a subject of
growing importance--international enforcement of regional agreements to
conserve and manage the world's fishery resources, including those
found outside the 200-mile jurisdiction of coastal nations and on the
high seas. Since enactment of the Magnuson-Stevens Act in 1976, world
trade value in fish products has increased from $8 billion per year to
$102 billion in 2011. Despite the fact that overall world marine fish
harvests have now leveled off at around 80 million tons per year,\1\
competition for those limited resources is increasing as the world
population continues to grow and the health benefits of fish
consumption are more generally known.
---------------------------------------------------------------------------
\1\ 2012 U.N. World Fisheries Report, U.N. Food and Agriculture
Organization, Rome, Italy, The vast majority of this fish is used for
human consumption. Per capita consumption of fish is increasing most in
developing regions and in low-income food-deficit countries, although
consumption in developed countries is greater. Most of the fish
consumed in developed countries (such as the United States), however,
consists of imports, in particular from developing countries. Fish is
one of the largest food product categories traded globally today.
---------------------------------------------------------------------------
The United States has long pioneered creation of international
organizations to deal collectively with the scientific management of
international fisheries resources, which are now referred to as
Regional Fisheries Management Organizations (RFMOs). For example,
United States leadership led to the creation of the Inter-American
Tropical Tuna Commission (IATTC) in 1949, one of the most successful
RFMOs. The Senate is now considering ratification of four international
agreements to broaden the coverage of RFMOs and strengthen enforcement
of RFMO conservation measures, including the Port State Treaty.
Reaffirming the importance of worldwide enforcement of RFMO
conservation and management measures is consistent with our Nation's
leadership in achieving science-based management, fishery
sustainability and fair trade.\2\ But we must also be wary of
unintended consequences of well-meaning measures.
---------------------------------------------------------------------------
\2\ Agnew, et al., ``Estimating the Worldwide Extent of Illegal
Fishing,'' PLoS ONE, Vol. 4, Issue 2 (February 2009). Agnew estimated
total losses due to IUU fishing at between $10-24 billion annually.
---------------------------------------------------------------------------
I am a partner in the law firm of Davis Wright Tremaine LLP and my
practice focuses on advice, counseling, and litigation for commercial
harvest and processing companies based in the United States with
operations in the United States and other countries and on the high
seas. However, I appear here today on my own behalf and not on behalf
of the firm or any of its clients. I have been practicing law since
1970, with extensive recent experience in fisheries enforcement matters
in contested proceedings. From 1972 to 1981, I was engaged in public
service, as Staff Counsel and later General Counsel of the U.S. Senate
Committee on Commerce (Senator Warren Magnuson, Chairman) and then as
Deputy Administrator of the National Oceanic and Atmospheric
Administration (NOAA) under President Jimmy Carter.
In summary, I believe that S. 69 should be enacted after
modifications as suggested below are made to insure consistency,
symmetry, and fair process. I do not see the need to enact the bill to
implement the Port State Treaty, which has yet to be introduced. The
United States already has sufficient legal authority with its existing
pattern of fishery enforcement statutes to meet, and even exceed, its
obligations under that Treaty. And the Port State Measures would not
only be redundant and confusing, because of its broad breadth, but
would have the effect of overriding some of the provisions in S. 69. If
there is a gap to be filled in our current pattern of enforcement
authorities to satisfy our obligations under the Treaty, it should be
identified and filled with the necessary well-framed additional
authority,
Overview Comments
While I urge support for the basic concepts set forth in H.R. 69,
improvements in its text before final enactment would help avoid
unintended consequences and possible conflicts in real-life
implementation of the concepts contained in any new law. In addition,
we must all recognize certain realities of the global problem of what
is called Illegal, Unregulated and Unreported (IUU) fishing activities,
The greatest problems in IUU fishing are beyond the reach of the United
States, particularly if we go it alone, It is estimated that, off
Africa, illegal fishing may be 40 percent higher than reported catches.
It has gotten so bad that the International Tribunal for Law of the Sea
is considering a request for an advisory opinion on whether a flag
nation should he held financially liable for IUU fishing by its vessels
in exclusive economic zones off West Africa.
Moreover, we must remember that we have American fishing fleets
that are subject to enforcement by other countries which may not always
pursue enforcement in a manner consistent with what we consider due
process.
It would also be a mistake to carry out a national program against
IUU fishing that focuses on the trivial and not on the most significant
unacceptable practices. For example, in NOAA's January 2013 Report to
Congress on Improving International Fisheries Management, the agency
identified Colombia as an ``IUU Fishing Nation'' on the basis of shark
finning cases (illegal under Colombian law) for three Colombian vessels
and three cases of discarding salt bags or trash at sea, each occurring
in 2011 or 2012.\3\ NOAA said that ``Colombia had not yet resolved
these cases'' so it was being identified, based on NOAA's very broad
characterization of IUU fishing. Suffice it to say, NOAA does not
resolve its own civil penalty cases in such a short period of time and
it would be difficult for those not involved in such cases to determine
their status.\4\
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\3\ The alleged violations were based on measures adopted in 2011
and 2012 by the IATTC. However, the vessels in question had not been
listed (and are still not listed) by the IATTC as IUU vessels.
\4\ In Etheridge v. Pritzker, No. 2:12-CV-79-BO (E.D. North
Carolina ) (decided Nov. 22, 2013), a NOAA civil penalty shark finning
case begun in 2007 was decided by a Federal judge, who ruled that NOAA
and an administrative law judge got the law completely wrong in
applying the ban on shark finning and threw out the entire case after 6
years in the NOAA enforcement system.
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One of the biggest problems with IUU fishing is simply defining
what it is and what should be actionable by enforcement authorities.
Some RFMOs have adopted resolutions to be more precise about vessels to
be listed as IUU. See IATTC Resolution C-05-07, Resolution to Establish
a List of Vessels Presumed to Have Carried Out IUU Fishing Activities
in the Eastern Pacific Ocean. Yet these actions lack uniformity. There
is no universally agreed upon definition, only broadly stated
descriptions quite sweeping in scope.\5\ That vagueness creates the
threat of inappropriate enforcement.
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\5\ Illegal fishing means harvests in violation of coastal nation
law and measures adopted by RFMOs. Unreported fishing means harvest
that have not been reported, or are misreported, to management
authorities. Unregulated fishing means activity by stateless vessels or
vessels operating under flags of convenience where the flag country
ignores what is going on. ``Closing the Net: Stopping Illegal Fishing
on the High Seas,'' Final Report of the Ministerally-led Task Force on
IUU Fishing on the High Seas (2006), at 14-15.
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Here are a few considerations that should be kept in mind when
considering this new legislation:
First, the United States currently has sufficient laws on the books
to deal with IUU fishing as it relates to our own fisheries, imports
into the United States, and exports from the United States. In fact, it
can be said that the U.S. commercial fisheries business is the most
highly regulated in the world and the U.S. laws the most strict. The
Nicholson Act, 46 U.S.C. Sec. 55114, enacted in 1950, prohibits a
foreign-flag vessel from landing any fish caught on the high seas, or
any product made from that fish, in a port of the United States, unless
authorized by treaty. Any such fish or product is subject to forfeiture
by the Department of Homeland Security and any trader in the United
States is liable for a $1,000 fine.
So fish from any high seas fishing activity by a foreign-flag
vessel cannot now enter the United States at all, unless there is a
treaty in place that allows landings.\6\ The only exceptions are ports
in American Samoa, Guam, and the Virgin Islands. Thus, foreign fishing
vessels may enter only a few American ports. A National Plan of Action
with respect to IUU fishing, prepared by the State Department, NOAA,
the Coast Guard, the Fish and Wildlife Service, and the U.S. Customs
Service nearly 10 years ago concluded that, because of that fact, ``it
may not be necessary for the United States to establish a `national'
strategy and procedures for Port State Control in this context.''
National Plan, at 24.\7\
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\6\ The U.S.-Canada Albacore Treaty allowed such landings, but it
is being terminated.
\7\ The Appendix listing the existing U.S. laws that could be
applied to the identified problem of IUU fishing is attached for your
reference.
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The most important statute is the Lacey Act, 16 U.S.C. Sec. 3371 et
seq., which other countries believe should be emulated in their
domestic laws to address IUU fishing.\8\ Among other things, the Lacey
Act makes it illegal to import fish or fish products into the United
States that were caught or produced in violation of any foreign law.
Perhaps the best example of its use to prevent IUU fishing is the case
of U.S. v. Bengis, 631 F.3d 33 (2nd Cir. 2011). Mr. Bengis, a U.S.
citizen, and his colleagues operated for years an illicit harvest and
export operation from South Africa taking rock lobsters in violation of
that country's laws, as well as Chilean sea bass caught elsewhere, and
exporting them to the United States. In 2004, Mr. Bengis pleaded guilty
to a criminal conspiracy to import nearly $90 million in IUU fish into
the United States and forfeited $13 million to the United States. The
Second Circuit Court of Appeals also ordered Mr. Bengis to pay
restitution to the South African Government for loss of the
lobsters.\9\ The government was seeking nearly $40 million in
restitution. The Lacey Act has been used to interdict salmon unlawfully
harvested in the high seas, illicit king crab from Russia, and spiny
lobsters from Honduras.
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\8\ Congress, however, has specified that the Lacey Act does not
apply to fishery activities regulated under the Magnuson-Stevens Act or
certain tuna conventions. 16 U.S.C. Sec. 3377.
\9\ See Meyer, ``Restitution and the Lacey Act: New Solutions, Old
Remedies,'' 93 Cornell L.R. 849 (2008).
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Second, responsible U.S. fishing industry participants are moving
to address IUU fishing through the marketplace, given the limits and
inefficiencies of command-and-control government regulatory systems in
many countries around the world. A good example is the International
Seafood Sustainability Foundation (ISSF), a non-governmental
organization that focuses on the sustainability of the global tuna
market. ISSF, comprised of scientists, tuna company officials, and
representatives of environmental groups, develops best practices and
policies to address a wide range of sustainability issues, including
IUU fishing. Recently, ISSF published a paper outlining the steps
needed to improve compliance in tuna RFMOs, a challenging subject.\10\
As of the first of this year, ISSF member companies will not engage in
transactions with purse seine vessels unless their flag nation is in
substantial compliance with RFMO obligations. In effect, the industry
is in the front line carrying out tuna RFMO conservation measures.
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\10\ Koehler, Promoting Compliance in Tuna RFMOs: A Comprehensive
Baseline Survey of Current Mechanics of Reviewing, Assessing, and
Addressing Compliance with RFMO Obligations and Measures, ISSF
Technical Report 2013-2.
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The National Fisheries Institute has developed an implementation
guide for applying traceability standards in the U.S. seafood supply
chain, beginning with the catching vessel to the table. Finally,
labeling standards, such as ``Dolphin-Safe'' and those provided by the
Marine Stewardship Council and others, also create incentives to
conduct responsible fishing operations or else the product may not be
allowed into the marketplace.
The private Sector has a very key role to play here and steps are
being taken to address a problem that impacts the entire market, given
the problem of governance capacity in many countries with fishery
resources that are exported to world markets.
Third, addressing and eliminating IUU fishing requires a
sophisticated management and regulatory system, with strong scientific
support. It also requires an enforcement system that respects due
process and civil rights. Unfortunately, the capacity to create and
maintain the kind of regulatory system that exists here in the United
States is limited by the political will and wealth of a particular
country and is not currently prevalent in many developing countries.
Some countries do not even maintain a searchable online library of
their fishing laws and regulations. A July 2005 Report on IUU Fishing
and Developing Countries by the Marine Resources Assessment Group Ltd.
concluded that its ``analysis uncovered a striking relationship between
the level of governance of a country and its vulnerability to IUU.''
Consequently, there is a danger that a country with weak governance,
once given the authority set forth in the Port State Treaty, will use
that authority to inspect and fine vessels for its own narrow purposes,
i.e. to increase income or protect home-base competitors.
Fourth, H.R. 69, if enacted, would add a new general enforcement
provision to the Magnuson-Stevens Act \11\ that, in effect,
incorporates the civil penalties, permit sanctions, criminal offenses,
civil forfeitures, and enforcement provisions of that law (16 U.S.C.
Sec. Sec. 308-311) into nine other resource management statutes,
presumably as a substitute for the comparable provisions of those
statutes. If this is the intent, this would have the effect, among
other things of setting the maximum civil penalty that can be assessed
under those nine statutes at the current maximum in the Magnuson-
Stevens Act of $140,000 per violation. As a result, the enforcement
provisions and penalty amount would be similar across all statutes, a
welcome development given the patch-work nature of the enforcement
provisions in those statutes. This would mean that similar
transgressions under each law would be treated similarly, an important
improvement in fairness.
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\11\ Technically, the amendments are to the High Seas Driftnet
Fishing Moratorium Protection Act, which has been codified as part of
the Magnuson-Stevens Act at 16 U.S.C. Sec. 1826a-k. Perhaps the
committee might examine a more straight-forward drafting approach,
rather than using the High Seas Act, to create a single enforcement
regime for all fishery conservation statutes, based on the provisions
in the Magnuson-Stevens Act.
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Finally, given that the Magnuson-Stevens Act would become the
central mechanism to enforce alleged violations of all these statutes,
now may also be a good time to amend the Magnuson-Stevens Act
enforcement and penalty provisions to incorporate into law the recent
program changes instituted by NOAA in its enforcement program and to
improve the fairness of its civil penalty, permit sanction, and civil
forfeiture programs. H.R. 69 gives the United States the opportunity to
reinforce its commitment to fair and equitable law enforcement and to
provide leadership to other countries for improving their enforcement
programs, particularly given the new authority in the Port State Treaty
to inspect foreign-flag vessels, including vessels flying the U.S.
flag. The suggested changes deal with the statute of limitations,
hearing procedure and application of rules of evidence, and setting
forth the factors to be considered in settling a penalty amount, and
are discussed below.
H.R.____, the Pirate Fishing Elimination Act
This bill would implement the Port State Treaty and create a new,
separate regulatory and enforcement regime to address IUU fishing of
almost any kind, trivial or destructive, accidental or intentional
through authorities in ``Port'' States to enforce fishing laws in much
the same as the Lacey Act operates, with a whole new set of enforcement
tools and penalty amounts. It is clear, however, that the drafting of
this bill was not undertaken in a manner that considers the Lacey Act
and the Nicholson Act, or even the provisions in H.R. 69. For example,
even though H.R. 69 can be read to limit civil penalties to no more
than $140,000 per violation, the Port State bill has a separate section
on civil penalties, which are increased to $250,000 for each violation,
even for acts in violation of one of the statutes implementing RFMO
measures (which may be limited to no more than $140,000 per
violation).\12\ The Port State Measure is drafted to apply to any
person subject to the jurisdiction of the United States (Sec. 4(a)(3))
and covers any activity considered IUU fishing under the sweeping
definition if it is in violation of any law or regulation in Sec.
3(10). As a consequence, if enacted, this bill will cause confusion and
duplication and will trump the enforcement provisions in all other
fishery regulatory statutes.
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\12\ The existing suite of U.S. enforcement laws, and existing
penalties, has worked in bringing U.S. fisheries to sustainability. See
Daniel Pauly, Op. Ed., New York Times, March 26, 2014 (Fishing grounds
off the United States are being replenished, owing to the passage in
1976 of the Magnuson-Stevens Act). It is hard to understand, therefore,
why increasing the amount of civil penalties with respect to domestic
U.S. fishing operations will do anything to address IUU fishing off
West Africa in where our vessels do not fish.
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Here are some further particular concerns:
Title: The title, though catchy in our Internet world, is not
accurate with respect to the international legal definition of what
constitutes piracy. Given the broad sweep of the bill, some Members of
Congress might be surprised to learn that the definition of pirate
fishing would apply to their fishing industry constituents who
misreported their catch to the National Marine Fisheries Service by
even 1 percent, even if in error, given the strict liability nature of
civil penalties under the Magnuson-Stevens Act. Such a transgression
would be fishing activity in contravention of the laws of a nation in
waters subject to that nation's jurisdiction, within the meaning of the
IUU definition in the Port State Measure, and therefore are covered
under the Pirate Fishing Elimination Act.
Calling every fishing transgression piracy is unnecessarily over
the top, to say the least, and also legally inaccurate. The definition
of piracy is carefully drafted in Article 101 of U.N. Convention on the
Law of the Sea and that provision is considered binding international
law by the United States. It does not cover ordinary fishing
violations. In addition, the Law of the Sea Convention states, in
Article 73.2, that coastal State penalties for violations of fisheries
laws and regulations in the exclusive economic zone may not include
imprisonment, in the absence of agreements to the contrary. So calling
all fishing violations piracy simply does not comport with customary
international law and is needless hyperbole.
Definition of IUU Fishing: What is most troubling is the definition
of IUU fishing, to include anything and everything in the kitchen sink,
not just the more severe, repetitive or criminal behavior. The bill
would make a U.S. fishing vessel subject to inspection and sanction for
any alleged violation of law of any kind, even exclusive U.S. rules of
the most trivial nature, if it offloads in a foreign port. All that is
needed is an allegation that enforcement officials in that country have
``reasonable grounds'' to believe a violation covered by the Port State
Treaty and the broad definition of IUU fishing has occurred.\13\ I am
familiar with many of the countries in the Pacific where U.S. vessels
occasionally land their fish, and their legal procedures are not always
conducive to easy resolution of allegations of fishing violations, even
if the allegations are clearly false,
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\13\ The Port State Treaty does not contain an internal definition
of IUU fishing, but instead refers to ``activities set out in paragraph
3 of the 2001 FAO International Plan of Action to Prevent, Deter and
Eliminate IUU Fishing.'' That definition is as broad as in the Port
State Measure, but goes on with an even more expansive gloss on this
broad intent and includes activities which are not even illicit.
Enforcement of RFMO Conservation Measures: The United States
generally has existing legal authority to enforce conservation and
management measures adopted by RFMOs and agreed to by the United
States. For instance, H.R. 69, at Sec. 101, references the domestic
statute implementing the Western and Central Pacific Fisheries
Convention (16 U.S.C. Sec. 6901 et seq.). That statute authorizes
rulemaking, enforcement, and penalty assessment for the tuna RFMO in
that region with respect to U.S. vessels. Should any non-U.S. fishing
vessels participating in that fishery call at American Samoa or Guam,
the Lacey Act could be applied to sanction a clearly established
violation of an RFMO conservation measure. Yet the Port State Measure
would create an entirely new set of measures that are mostly
duplicative and/or contradictory in comparison to our existing laws and
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the terms of H.R. 69.
The Enforcement Provisions: It makes no sense to create a whole new
set of enforcement provisions (with higher limits on penalties) in a
new statute when the comprehensive enforcement provisions of the
Magnuson-Stevens Act could be referenced, as in H.R. 69. The
enforcement provisions of the Magnuson-Stevens Act can very easily form
the basis for enforcing restrictions on IUU fishing as well.
H.R. 69, the Illegal, Unreported and Unregulated Fishing Enforcement
Act
In General: This bill would be a welcome addition, because it makes
enforcement provisions in several marine resource management statutes,
some of which implement RFMO conservation measures, closely comparable.
U.S. fisheries industry is highly regulated and understands the need
for inspections, subpoenas, and enforcement generally (see the new
section 606(d) on SPECIAL RULES), so long as it is fair. The expanded
authorities provided in H.R. 69 are features of law enforcement which
the U.S. industry has come to understand and accept, again if applied
fairly. Using the enforcement provisions of the Magnuson-Stevens Act
(see the new section 606(d) on ADMINISTRATION AND ENFORCEMENT) as the
basis for enforcement actions under all referenced statutes is a good
development from earlier drafts of this bill. And all penalties to be
issued should be set at the same maximum as in the Magnuson-Stevens
Act. Having a single set of comprehensive enforcement provisions that
apply across all relevant fishery management statutes will be an
improvement from the hodge-podge nature of the existing collection of
statutes.
With respect to the Antigua Convention Implementation Act, I am not
aware of any opposition to the Antigua provisions in H.R. 69, as many
of them are already being implemented with respect to the IATTC.
IUU Lists: It is not difficult to find lists of vessels that are
considered IUU by certain RFMOs, which mostly focus on State-less
vessels or really bad actors. In some countries, issuing documentation
to fishing vessels is a source of income and that is all,
unfortunately. These vessels then compete with more highly regulated
vessels from responsible nations. One hopes that global awareness will
stop this kind of activity. U.S. vessels need support from our
government in light of competition from less regulated vessels from
less responsible nations.
With regard to such lists and to our own country's listing of IUU
countries, I would recommend that the focus not be on the trivial but
on the most egregious violations. Creating a program of hounding
countries over minor transgressions, or slow procedures, is not likely
to create much respect. Worse, this practice could end up harming U.S.
vessels given that turnabout is fair play with regard to U.S. vessels
fishing in other countries' waters.
Disclosure of Enforcement Information: One provision in H.R. 69
addresses the question of sharing enforcement information obtained by
the Secretary of Commerce with international organizations, including
RFMOs. In this regard, I had assumed that that authority already
existed but if not, so long as proper protections are in place similar
to our Freedom of Information Act or the confidentiality provisions of
the Magnuson-Stevens Act, such new statutory authority might be needed.
But it should be also aimed at obtaining enforcement information from
other countries, i.e. the Secretary of Commerce should be seeking
enforcement information from other countries to determine if any
enforcement of RFMO conservation measures is occurring. In addition,
this raises the question of whether observer reports should be made
available to U.S. fishing vessels captains and vessel owners for
comment at the end of a fishing trip. Although certain RFMOs allow this
practice, such as the IATTC (with U.S. consent), NOAA is resisting such
disclosures in the western Pacific, until years later in an enforcement
proceeding. Perhaps this issue can be clarified in H.R. 69.
Improvement of NOAA's Civil Penalty Procedures: Finally, it may be
appropriate for the committee, as part of H.R. 69, to include
amendments to the Magnuson-Stevens Act enforcement provisions to
provide greater balance to the NOAA enforcement program, which has been
recently criticized by a Federal judge for over-enforcement in New
England. Including the agency changes in legislation, along with other
changes to make the NOAA process more like the penalty process followed
by the Environmental Protection Agency, would be a useful way of
confirming the U.S. leadership in pursuing fishing sanctions in a fair
and even-handed manner, based on the rule of law. Therefore, I refer
the committee to my letter of January 31, 2014 which discussed in
greater depth than appropriate here the legislative changes I have
suggested, based on my years of experience in defending civil penalty
cases. More can be done to make the NOAA penalty process fair, such as
by requiring the use of the Federal Rules of Evidence and reducing the
statute of limitations from 5 to 3 years, among other changes,
In summary, Mr. Chairman, I support enactment of H.R. 69, with the
modifications I have discussed above. I do not think a case has been
made for enacting the Port State Measure, as it is duplicative of what
this Nation already has on the statute books and would conflict with
existing law in numerous respects, in addition to being inconsistent in
several respects with H.R. 69. If additional authority is needed,
precise provisions could be drafted to target any gaps in the law.
Thank you for the opportunity to testify here today.
______
Letter Submitted for the Record by James P. Walsh, Davis Wright
Tremaine LLP
Davis Wright Tremaine LLP,
San Francisco, CA,
January 31, 2014.
Hon. Doc Hastings, Chairman,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. Mark Begich, Chairman,
Senate Subcommittee on Oceans, Atmosphere, Fisheries and Coast Guard,
Washington, DC 20510.
Re: Magnuson-Stevens Fishery Conservation and Management Act
Reauthorization: Enforcement Issues
Dear Chairman Hastings and Begich:
Your committees are now deep in the process of examining the
current status of implementation of this Nation's primary law for the
management and conservation of marine fisheries resources, the
Magnuson-Stevens Fishery Conservation and Management Act (the
``Magnuson-Stevens Act''), and possible amendments to that law. One of
the subjects that does not always get in-depth consideration in the
periodic congressional examination of the Magnuson-Stevens Act is the
issue of enforcement. In this letter, I wish to offer some suggestions
for amendments to the Magnuson-Stevens Act that will improve its
functioning, rebalance the relationship between the regulated community
and National Oceanic and Atmospheric Administration (NOAA or agency)
enforcers more appropriately, strengthen procedural protections
consistent with current practices, encourage greater accountability,
and create greater consistency during enforcement hearing proceedings.
These views are mine alone and do not necessarily reflect the views of
any client or the firm.
Those who follow these issues closely are aware of the unfortunate
recent experiences in the enforcement of the Magnuson-Stevens Act in
New England that led to the unprecedented refund of large civil
penalties.\1\ Administrator reforms in NOAA's enforcement program,
termination of the contract for use of Administrative Law Judges (ALJs)
from the U.S. Coast Guard and hiring of ALJs from the Environmental
Protection Agency (EPA), greater national oversight and guidance with
regard to enforcement decisions, and (hopefully) a much better
accounting and use of the funds recovered from penalties have recently
been instituted by the agency. While these changes have improved the
enforcement program to some degree, they come as the result of
discretionary actions by the agency and have not been institutionalized
through clear legislative guidance. A return to the old ways is always
possible and other legislative improvements could strengthen and codify
the reforms already begun by the agency. Therefore, I recommend some
modest changes to the Magnuson-Stevens Act civil penalty, permit
sanctions, and civil forfeiture provisions to affirm by statute needed
reforms in the enforcement program. It is critically important that the
enforcement system be focused not just on results but the integrity of
those results as well as the process that produces those results. This
letter and the attached set of suggested amendments explains those
recommendations.
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\1\ See Hon. Charles B. Swartwood, III (ret.), Special Master,
Report and Recommendation of the Special Master Concerning NOAA
Enforcement Action of Certain Designated Cases, April 2011.
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In addition, there are other bills before Congress that should be
reviewed in the context of the Magnuson-Stevens Act enforcement
provisions and other U.S. laws, such as the Lacey Act (18 U.S.C.
Sec. Sec. 3371-3378) and the Nicholson Act (46 U.S.C. Sec. 55114), to
ensure consistency of congressional guidance and policy and to avoid
unintended consequences for U.S. fishing fleets and processors who
operate through the world and in the global marketplace. These bills
were drafted by the Executive Branch and sent to Congress for enactment
and include: (1) H.R. 69, the ``Illegal, Unreported and Unregulated
Fishing Enforcement Act of 2013'' (pending in the committee); (2) S.
267, the ``Pirate Fishing Elimination Act'' (pending on the Senate
Floor); and (3) S. 269, the ``International Fisheries Stewardship and
Enforcement Act'' (also pending on the Senate Floor). The latter bill
is significant in that it expands enforcement authority generally for a
wide range of U.S. fisheries laws and essentially would graft the
enforcement provisions of the Magnuson-Stevens Act (16 U.S.C.
Sec. Sec. 1858-1861) into those laws as the primary enforcement
mechanism. The other two bills address the issue of ``Illegal,
Unreported and Unregulated Fishing'' (so-called IUU Fishing) in the
international context. It may make sense for the various enforcement
provisions of U.S. marine resource statutes to reflect commonality and
symmetry because, without those features, unnecessary confusion and
litigation will result for the government and for the regulated
industry because of the law of unintended consequences.
magnuson-stevens act changes
It is essential that a successful regulatory regime for achieving
and maintaining sustainable fisheries under the Magnuson-Stevens Act
and other laws include a credible and even-handed enforcement system
that commands respect. Given the extent and complexity of marine
resource activities in the United States, enforcement will primarily
rely upon voluntary compliance, with active enforcement efforts
directed at the clear outliers in the system. As was learned in New
England, over-enforcement (including overcharging and excessive
penalties) will lead to widespread disrespect for the government's
enforcement efforts generally. Moreover, the appearance of favoritism
for the agency in administrative proceedings, such as procedures that
give the agency more power in the dispute process (i.e. thereby forcing
settlements favorable to the agency) or an ALJ decision that favors the
agency because the evidence was not weighed properly or fairly,\2\ will
breed cynicism and anger. Although law enforcement, and the assessment
of penalties and other sanctions generally, is inherently an executive
function, the conduct of the enforcement system is, and must be,
subject to legislative and constitutional guidance and restraint.
Legislative and constitutional guidance is essential to assure that the
enforcement program results in neither under-enforcement nor over-
enforcement and is perceived as fair and impartial with respect to
charged parties. The source of some of this guidance can be found in
the Administrative Procedure Act (APA), 5 U.S.C. Sec. Sec. 554-556, and
the due process and excessive fines provisions of the U.S.
Constitution. But provisions in particular statutes, such as the
Magnuson-Stevens Act, can sharpen this general guidance, particularly
where, as here, improper enforcement practices have not always been
restrained by the broad legal concepts found in the APA and the
Constitution. The devil's always in the details. Our Federal Court
system is constantly changing and improving rules of evidence and
procedure. The administrative civil penalty process, in contrast, gets
very little oversight and is rarely subject to much change. As Supreme
Court Justice Stephen Breyer has said: ``Who is going to regulate the
regulators?'' \3\
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\2\ The most recent example can be found in Willie Etheridge, III
v. Penny Pritzker, Case No. 2:12-CV-79-BO, (E.D. North Carolina) (Judge
Terrence W. Boyle) (decided November 22, 2013), where a Federal
District Court judge ruled that an ALJ and agency penalty decision with
respect to shark finning was not consistent with applicable law and
arbitrary and capricious. This case also highlights another problem
with the NOAA civil penalty system: inordinate delay in resolving
charges. In that case, the Notice of Violation and Assessment (NOVA)
was first sent in April 2006 and the Federal Court decision on review
was issued over 7 years later in 2013.
\3\ A law review article by Howard A. Shelanski, ``Justice Breyer,
Professor Kahn, and Antitrust Enforcement in Regulated Industries,''
100 Cal. L. R. 487-517 (2013), summarizes a ``number of challenges'' in
using regulations, including high cost, ineffectiveness and waste,
procedural unfairness, complexity, delay, unresponsiveness to
democratic control, and the inherent unpredictability of the end result
(at 487).
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1. Changes to the Civil Penalty/Permit Sanctions Provisions (16 U.S.C.
Sec. 1858)
The primary, or most used, mechanism of fisheries enforcement is
the civil penalty, a civil (not a criminal) fine not to exceed $140,000
\4\ for a particular act in violation of a statute or regulation, such
as a limit on the amount of catch or a ban on fishing in a particular
area. In fact, the type of potential violations is seemingly endless as
extensive and complex regulations have been issued throughout the
country by NOAA since enactment of the Magnuson-Stevens Act in 1976.
The extent and complexity of fishery management regulations (which
sometimes change every year or even every few months) is without doubt
a major problem for regulated parties and this complexity (and poor
drafting) can result in unexpected and unintended violations.
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\4\ The current statutory language lists the maximum penalty as
$100,000, However, a general inflation penalty statute (the Federal
Civil Penalties Inflation Adjustment Act of 1990) allows the agency to
increase this maximum by regulation. Currently, the maximum penalty
under the Magnuson-Stevens Act is $140,000. 15 C.F.R. Sec. 6.4 (77 Fed.
Reg. 72915-72917; Dec. 7, 2012).
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Civil penalties are considered strict liability offenses, meaning a
violation can occur regardless of whether the charged party was
negligent or intentional in carrying out a particular act, or failure
to act, or knew that a potential violation was possible. If an alleged
violator wishes to challenge a penalty assessed by NOAA in a Notice of
Violation and Assessment (NOVA) and it cannot otherwise be settled, a
formal trial-type hearing must be requested before an ALJ. Such
hearings, particularly in larger, more complex cases, can be expensive
and lengthy.
To address some of the issues raised by various regulated parties
with respect to the fairness (or perceived fairness) of the
administrative process for determining liability for and amount of a
civil penalty, the following changes to the Magnuson-Stevens Act should
be considered:
Statute of Limitations: There is a general statute of limitations
for the filing of civil penalty charges by the Federal Government in 28
U.S.C. Sec. 2462. Under this law, unless otherwise provided in a
particular statute (such as the Magnuson-Stevens Act), an action to
enforce a civil penalty must be undertaken no later than 5 years after
the alleged violation ``accrued'' or occurred, Congress can and often
does adopt a different statute of limitations, which is purely a policy
choice for the legislature. For example, the Internal Revenue Service
generally has 3 years from the filing of a return to act against a
taxpayer with respect to audit and payment of additional tax, with
certain exceptions (such as fraud). 26 U.S.C. Sec. 6501. Given the
considerable ability of NOAA to collect information through documents
easily managed in modern computer systems and to require reports and
observers, it would be more appropriate to have a 3-year statute of
limitation for Magnuson-Stevens Act civil penalty enforcement actions.
In addition, fishery management laws continuously change and an alleged
violation 5 years ago may not reflect the current regulatory system.
Moreover, a longer statute of limitations favors the government because
evidence becomes stale and memories fade. Finally, if NOAA has a solid
case to make, it should do so with greater diligence rather than
waiting 5 years. A shorter statute of limitations will focus NOAA on
the most important or egregious cases, the ones critical to
establishing a culture of cooperation and compliance with currently
applicable regulations. A similar statute of limitations should also
apply to permit sanctions under subsection (g) of 16 U.S.C. Sec. 1858
and to forfeiture actions under 16 U.S.C. Sec. 1860.
Participation of Management; Establishment of Policy: The decision
to bring a civil penalty action is as much a judgment call as it is a
question of law or fact. Why bring this particular case? How does it
send a signal about the importance of an aspect of fishery management
and conservation to those being regulated? What message is there in the
size of the penalty? At the moment, these questions are answered
exclusively by attorneys within the enforcement section of NOAA's
Office of General Counsel and no affirmation of their unilateral
conclusions is sought from the management side of the agency--for
example, from those who actually approved and implemented the fishery
management regulations in the first place. In effect, NOAA enforcement
attorneys are acting without a real client. A lifetime of prosecuting
perceived ``bad guys'' can create tunnel vision that leads to poor
enforcement decisions, as appears to have happened in New England
according to Judge Swartwood.
To address this issue, changes to the Magnuson-Stevens Act
applicable to civil penalty, permits sanction and forfeiture actions
can be inserted to require that the client (NOAA fishery management
program officials) approve an enforcement action before it is filed.
The process of explaining why a particular case needs to be brought to
the ``client'' will serve as a check and balance on narrow individual
judgment calls. In addition, it should state in the law that the
primary purpose of any enforcement action is to achieve compliance with
fishery management goals and that enforcement should not be used solely
to generate income to NOAA.
Procedural Issues: In any legal proceeding, procedural rules, or
the rules of the game, are critical to a fair and balanced outcome.
NOAA civil penalty procedural rules are largely the product of the
lawyers who prosecute the cases, not the wide range of viewpoints that
helped develop and implement the Federal Rules of Civil Procedure. NOAA
enforcement lawyers, once a NOVA is filed, are primarily interested in
winning for career reasons and have a lesser interest in making sure
that the outcome is balanced and fair. A good example is the manner in
which the agency for years presented its ``evidence'' as to the amount
of the penalty that is assessed. The ALJ had to accept the amount of
the recommended penalty by the prosecuting NOAA attorney and could not
order discovery of the basis for the amount recommended, a practice
inconsistent with the APA and the U.S. Constitution. NOAA jettisoned
this unfair procedure by regulation only in 2010, after following the
practice for years. 75 Fed. Reg. 35631-35632; June 23, 2010.
Other important issues in the NOAA procedural regulations require
similar attention. First, outcomes will be unpredictable where the
well-understood Federal Rules of Evidence do not apply to the
proceeding as with NOAA's procedural rules. The general statement as to
what evidence is admissible--relevant, reliable, and probative, but not
unduly repetitious or cumulative--is quite broad. But NOAA's rules also
state that ``formal rules of evidence do not necessarily apply'' and
that ``hearsay evidence is not inadmissible as such,'' 15 C.F.R.
Sec. 904.251. This language, of course begs the question: what rules of
evidence do apply to a particular issue, for example, the presentation
of an expert witness or whether a fact witness must have personal
knowledge before being allow to testify? Another example: should
someone be allowed to testify on the issue of the value of a catch who
simply does an Internet search and makes a few phone calls but has no
knowledge of actual current prices paid in a fishery? In short, the
current rules leave it up to the ALJ to decide how to handle such
evidentiary issues without any firm guidance on how to make these
critical evidentiary decisions. As a result, the chance of an arbitrary
ruling is greatly increased. In contrast, other agencies have addressed
the issue by also making the Federal Rules of Evidence applicable,
unless there is some definitive reason for not using them. In my view,
this formulation brings better structure and predictability to the
hearing process. Thus, an amendment to the Magnuson-Stevens Act should
state the proper evidentiary standard and require the use of the
Federal Rules of Evidence unless there is a clear reason for not doing
so. These Rules work very well in Federal Courts throughout the
country.
Second, NOAA's current procedural rules would benefit from
reformulation through notice and comment and I recommend that Congress
direct the agency to begin a new rulemaking. The existing procedural
rules could use a clear restatement of the generally applicable
principles, such as burden of proof and the requirement that the ALJ be
fair and impartial, not simply act as an adjunct to the enforcement
program. A Federal Appeals Court has ruled that, where an ALJ undertook
the agency's prosecutorial function and developed evidence against a
defendant, he overstepped the permissible scope of his duties. N.L.R.B.
v. Tamper, Inc., 522 F.2d 781, 790 (4th Cir. 1975). If the respondent
in a NOAA civil penalty hearing is represented by counsel, as the
agency also is, the ALJ's job is always to act as a neutral trier of
fact and not help the government meet its burden of proof by
unilaterally building a ``complete'' record for review. See also,
Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (an impartial decisionmaker
is essential to due process in administrative adjudicatory
proceedings); Butz v. Economu, 438 U.S. 478, 513-517 (1978)
(contrasting the role of an independent, impartial ALJ with that of
agency counsel, who function like prosecutors). Incorporating these
concepts into NOAA's procedural regulations is timely and appropriate.
Thus, I recommend a new statutory provision that directs NOAA to begin
a new civil procedure rulemaking within 6 months of any new amendments
to the Magnuson-Stevens Act. NOAA would do well to look to the
administrative penalty rules followed by the EPA, 40 C.F.R. Part 22,
particularly now that EPA ALJs serve NOAA as well. Those rules
repetitively emphasize the obligation of an ALJ to provide an
efficient, fair and impartial adjudication. No comparable language is
found in the NOAA procedural rules.
Legal Constraints: One of the constraints on ALJ authority in the
NOAA procedural regulations is the inability to rule on important legal
questions that may come up regarding whether a particular regulation is
constitutional or otherwise legally valid. 15 C.F.R. Sec. 904.200(b).
It seems logical and efficient that an ALJ consider these kinds of
seminal legal issues when reviewing the facts of the case under
applicable law. I could find no basis for this rule in the APA for such
a limitation of power, although NOAA probably has the power to create
the limitation. But this limitation forces a charged party to go to
hearing even where it may be legally obvious that the regulation has no
basis in the law, then to challenge the issue in an appeal to the NOAA
Administrator or a Federal Court after an Initial Decision by an ALJ.
An ALJ should be able to rule that the agency's regulations, as drafted
or as applied, are unlawful. Providing this authority could lead to
early settlements where the agency has made a mistake of law. Giving
such authority to the ALJ also enables the charged party to develop a
record for possible NOAA Administrator and/or court review. I recommend
that Congress request that NOAA amend its procedural regulations to
eliminate this restriction. No such restriction can be found in the
list of powers of an ALJ under the EPA administrative penalty rules.
See, 40 C.F.R. Sec. 22.4(c). Under those rules, an ALJ may ``adjudicate
all issues.''
Penalty Considerations: The Magnuson-Stevens Act contains a list of
factors to be considered when determining the amount of a penalty. One
of the factors that should be added is the complexity and clarity of
the application regulations, which can be a real-life problem as was
evident in the New England cases and others.
2. Changes to the Civil Forfeiture Provision (16 U.S.C. Sec. 1858)
The United States substantially reformed all civil forfeiture laws
by enactment of the Civil Asset Forfeiture Reform Act of 2000, amending
various provisions of titles 18 and 28, United States Code, among
others. One major reason for reform was the extensive misuse of civil
forfeiture laws to raise money for enforcement agencies. This law has
both procedural and substantive restraints on civil forfeiture actions,
including providing for an innocent owner defense, legal fees against
the government for wrongful seizure, and a bar on any forfeiture that
is grossly disproportional to the gravity of the offense. The Magnuson-
Stevens Act has a general civil forfeiture provision--for vessels,
fishing gear, cargo, and fish--that is presumably subject to this law
to some extent, although NOAA's civil procedures rules do not make this
clear. The Magnuson-Stevens Act forfeiture provision authorizes seizure
by the Attorney General in a Federal District Court and states that the
``customs laws'' apply to these judicial forfeitures after a judgment
in court. NOAA's rules also provide for administrative forfeiture of
property worth $500,000 or less, although it is unclear from where the
authority is derived.
The Magnuson-Stevens Act should be amended to direct NOAA to
conform its rules and practices to requirements and restrictions of the
Civil Asset Forfeiture Reform Act of 2000. In addition, the statute of
limitations with regard to civil forfeiture under the Magnuson-Stevens
Act should be 3 years after the time when the involvement of the
property in the alleged offense occurs. In nearly all cases, this will
be at the time the agency becomes aware of an alleged fishery
regulation violation. Frequently, the agency will seize the fish
immediately involved in a suspected violation on the basis of probable
cause and sell it. The value of the catch can also play a role in the
setting of a civil penalty amount. The concern is that the agency will
seek to forfeit the fish but the value of the fish (or the vessel) may
far exceed the civil penalty that might reasonably apply to the
violation. How does the agency determine the relationship between the
civil penalty and the value of any property that is or might be seized
for forfeiture? No doubt the days of seeking forfeiture of a fishing
vessel, its catch, and its nets while also seeking a hefty civil
penalty, plus permit sanctions, are gone. But it is not entirely clear.
All these forfeiture issues require further clarity in the agency's
regulations at a minimum and in the Magnuson-Stevens Act as well. It is
time to update the law in this regard, in particular by incorporating
the provisions of the Civil Asset Forfeiture Reform Act of 2000.
other pending legislation
Pirate Fishing?
Who can be against the Pirate Fishing Elimination Act? No one, of
course, would sensibly take that position given the tag word ``pirate''
in the title. However, the pending proposed legislation (S. 267)
requires a closer look to see if there are any unintended consequences
if we simply adopt that legislation as written into law. Anyone who
follows fishery management closely knows that there is a significant
problem in the world with regard to extensive illegal, unreported and
unregulated (IUU) fishing activities outside the rules of Regional
Fishery Management Organizations (RFMOs) or the rules of any nation. In
addition, in some international fisheries, other countries do not
enforce the rules of RFMOs against their vessels but U.S. flag vessels
are subject to extensive regulation and scrutiny and occasional fines
and sanctions for transgressions. Then there is the truly unregulated
fishing activity by vessels that have no meaningful connection to the
country whose flag they fly or that operate without a flag. See
generally, NOAA Report to Congress, ``Improving International Fisheries
Management,'' January 2013.
The concerns about S. 267 are at least three. First, does the
legislation sweep too broadly in its terms to cover even a fix-it
ticket that has been unpaid, thereby giving other countries unnecessary
authority to cite or seize U.S. flag vessels in their ports and demand
payment of fines merely for income? Use of the inflammatory words
``pirate fishing'' is, unfortunately, not legally accurate in this
context. An act of piracy on the high seas was recently adjudicated by
the Ninth Circuit Court of Appeals, ironically during fishing activity
for whales. Institute of Cetacean Research v. Sea Shepherd Conservation
Society, 708 F.3d 1099 (2013).\5\ In that case, the Court applied the
definition of piracy contained in Article 101 of the U.N. Convention on
Law of the Sea: ``illegal acts of violence or detention, or any act of
deprivation, committed for private ends by the crew or passengers of a
private ship . . . and directed on the high seas, against another ship
. . . or against persons or property on board such ship.'' The
defendant group aggressively interfered with a fishing operation that
was considered legal under international law.
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\5\ Chief Judge Alex Kozinski: ``You don't need a peg leg or an eye
patch. When you ram ships; hurl glass containers of acid; drag metal-
reinforced ropes in the water to damage propellers and rudders; launch
smoke bombs and flares with hooks; and point high-powered lasers at
other ships, you are, without a doubt, a pirate, no matter how high-
minded you believe your purpose to be.'' 708 F.3d at 1101.
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But S. 267 defines IUU broadly to include any activity (1) within
200 nautical miles by a U.S. or foreign vessel that contravenes any law
or regulation of another nation or (2) anywhere in contravention of the
conservation and management measures of an RFMO. Contravention of any
law or regulation? Should a vessel that mistakenly fished in the wrong
area and paid a fine be considered an ``IUU Vessel?'' Once again, the
devil is in the details. S. 267 condones an action by any signatory
coastal nation to seize a U.S. vessel if there is reason to believe
that the fish on board was taken in violation of any foreign law or any
conservation or management measure. Sec. 7(a). And the title of the
bill (even though it has no legal effect) provides color to the
argument that that U.S. vessel is engaged in piracy. These are real-
life issues for U.S. fishing vessels operating in the Pacific Ocean.
Should the definition of IUU fishing be so broadly drawn as to cover
any violation, no matter how small? Should the definition omit
situations where enforcement is underway in the flag nation or where a
penalty has been paid and the violation resolved? Overkill from this
legislation is quite possible, in addition to other unintended
consequences for the U.S. fishing industry.
Second, S. 267 is inconsistent with and duplicative of other U.S.
laws, such as the Lacey Act and the Nicholson Act, which already
address this subject. Currently, the Nicholson Act bars the unloading
in a U.S. port from a foreign vessel of (1) any fish caught by that
vessel on the high seas or any fish product therefrom; or (2) any fish
or fish products taken on board that vessel on the high seas from a
vessel engaged in fishing operations or the processing of fish or fish
products (e.g. transshipping). Unless a treaty is in place allowing
landing by a foreign vessel, it does not matter if the fish was taken
legally or illegally--it cannot come into the country. This law is
enforced by the Secretary of Commerce and the U.S. Customs and Border
Protection. Therefore, the Nicholson Act already addresses IUU fishing
on the high seas. For any other IUU situation, the Lacey Act already
provides a ``port'' remedy in the United States. That law, used
frequently in fish product cases, prohibits trade (including imports)
in any fish taken in violation of any U.S. tribal or foreign law. U.S.
v. 594,464 Pounds of Salmon, 687 F. Supp. 525 (W.D. Wash. 1987),
affirmed, 871 F.2d 824 (1989). Thus, there is no gap in U.S. law that
needs filing by enactment of S. 267 or its House counterpart, H.R. 69.
Finally, is this really a U.S. problem and do we really need more
domestic laws on this issue? A more complete list of U.S. laws and
regulations applicable to IUU fishing is found in Annex 2 to NOAA's
January 2013 Report on this subject. There is no question but that the
ball lies in the court of nations other than the United States, not
only coastal nations that need to increase their capacity to regulate
and enforce laws in their own 200 mile fishing zones, but also other
fishing nations that do not in any way hold their vessels to the same
enforcement accountability as the United States applies to its vessels.
Many RFMOs are moving to specify clear rules as to the proper oversight
of fishing vessels by member nations. Lists of vessels that have been
found to engage in IUU fishing can be found on their Web sites. In
addition, there are organizations such as the International Seafood
Sustainability Foundation consisting of industry and environmental
groups that are addressing the issue in the marketplace, outside
traditional command and control regulatory systems. This entire issue
needs closer examination by the Congress before a new law on IUU
fishing is enacted, to include examination of real need and possible
unintended consequences.
Some will argue that we must show leadership in preventing
overfishing throughout the world and that approval of this
international agreement on IUU fishing will demonstrate that
leadership. We already address the issue of IUU fishing as it may touch
the United States through existing laws, a comprehensive regulatory
system, and an enforcement program that far exceeds what other
countries do. Why isn't that kind of leadership enough? Symbolic
adoption of legislation that only adds to the uncertainty and
complexity for U.S. fisheries participants but fails to get others to
change their practices is simply idealistic rather than realistic and
could well be counterproductive. We must also be mindful of the cost of
more implementation and regulatory activity in these times of
constraint on the government's budget and personnel. See generally,
Statement of Arnold Palacios, Chairman, Western Pacific Fishery
Management Council before the U.S. Senate Committee on Oceans,
Atmosphere, Fisheries and Coast Guard; January 30, 2014.
International Stewardship Act
While the recent version of this bill is an improvement over past
drafts, this piece of legislation also deserves greater scrutiny as to
the need for more regulatory authority against U.S. industry in light
of existing laws and regulations and the question, again, of unintended
consequences. Perhaps further hearings should be held to inquire into
these issues.
summary
The United States leads the world in fishery management efforts to
manage its own fisheries sustainably and in support of RFMOs and other
international management entities. It is unlikely that we can make the
big difference in IUU fishing as it requires far more effort by other
countries. One of the major differences in the fisheries business since
enactment of the Magnuson-Stevens Act is the growth of a very active,
globalized market for fish and fish products. Nearly every country has
embraced, to some considerable degree, an open market trading system.
In 1976 the world was broken down into the market economies, the
communist system, and the Third World (now called emerging markets).
All that has now changed, particularly with the growth of markets all
over the world (particularly for fish products), in large part because
of the trade and foreign policy leadership of the United States. Given
this global system we fostered, the United States cannot now go it
alone on any aspect of this global trade and certainly cannot create
new trade restrictions on fish and fish products that are, in effect, a
substitute for inadequate fishery management and enforcement measures
by other coastal countries or fishing vessel flag nations.
The idea, held by some, is that we must regulate American
businesses first and often in order to lead the way to fisheries
sustainability throughout the world. Considerable progress has been
made on the sustainability front domestically, U.S. fishing fleets have
contracted since 1976 in many of our fisheries, and U.S. companies must
struggle constantly against considerable and growing foreign
competition. Perhaps now the Magnuson-Stevens Act should be amended to
shift more focus to helping American businesses compete in the world
marketplace by adopting only those regulations as are absolutely
essential to achieve core goals and by ensuring that over-regulation
and over-enforcement do not prevent our participation on the ``playing
field.'' It is hard to argue for a level playing field if you are not
in the game.
Very truly yours,
James P. Walsh.
______
Amendments to Enforcement Provisions of the Magnuson-Stevens Act
Section 308 (16 U.S.C. Sec. 1858) (Civil Penalties and Permit
Sanctions):
1. Amend subsection (a) to read as follows:
(a) ASSESSMENT OF PENALTY--Any person who is found by the
Secretary to have committed an act prohibited by section 307
shall be liable to the United States for a civil penalty. The
amount of the penalty shall not exceed $100,000.
2. Amend subsection (b) by substituting the language in subsection
(g) and by deleting subparagraphs (g)(2) and (g)(5) thereof
and renumbering the remaining subparagraphs appropriately.
3. Amend subsection (c) by inserting the following new language:
(c) PROCEDURE AND POLICY--(1) Any person who is charged
with a violation of law under this section for which a civil
penalty or a permit sanction may be imposed by the Secretary
shall be provided (a) notice of the basis of the alleged
violation and the civil penalty or permit sanction that may be
imposed; and (b) an opportunity for a hearing on the record
before a fair, impartial and qualified administrative law
judge, in accordance with section 554 of title 5, United States
Code. Notice of a violation shall be sent after review and
approval by a program management official with delegated
authority over the statute or regulation that is alleged to
have been violated. In any hearing that is requested, the
Secretary shall have the burden of proving any such violation
and the reasonableness of any civil penalty or permit sanction
that may be imposed. Any final determination of liability for
and the amount of any civil penalty shall be based on a
preponderance of the evidence. In any such hearing, all
evidence that is relevant, material, reliable, and probative
and is not unduly repetitious or cumulative shall be admitted.
Unless inconsistent with the Administrative Procedure Act, the
Federal Rules of Evidence shall also be applicable. The
administrative law judge assigned to the hearing may rule on
all factual and legal issues.
(2) The purpose of any enforcement action under this
section shall be to achieve compliance with marine resource
management plans and objectives and shall not be solely for
generation of income to the government.
(3) In determining the amount of any civil penalty or
extent of any permit sanction under this section, the Secretary
shall take into account the nature, circumstances, and gravity
of the prohibited acts committed, as well as the complexity and
clarity of any applicable regulation or statutory provision
that applies and the applicability of other penalties, such as
criminal penalties, permit sanctions, or asset forfeitures, to
the same prohibited acts. In addition, the Secretary, with
respect to the violator, shall take into account the degree of
culpability (if proven by substantial evidence), any history of
prior offenses, and such others matters as a just and fair
resolution of the matter may require. In assessing such
penalty, the Secretary may also consider any information
provided by the violator relating to the ability of the
violator to pay if such information is provided at least thirty
(30) days prior to any administrative hearing. Any penalty
amount or permit sanction imposed shall be reasonably related
to the offense that was committed and shall not be excessive.
4. Amend subsection (d) by substituting the language in section (b)
and substituting ``(b)'' for ``(g)'' in the second line
thereof.
5. Renumber the remaining subsections appropriately (Failure to Pay;
In Rem Jurisdiction; Compromise or Other Action.
6. Add the following new subsections at the end of the section:
( ) Within six (6) months of [enactment of this amendment],
the Secretary shall initiate a rulemaking to revise the civil
procedures rules in Part 904 of title 15, Code of Federal
Regulations, to make them consistent with this section and
Section 308. In addition, any such revised rules shall provide
for the availability of alternative means of dispute resolution
in accordance with sections 571-583 of title 5, United States
Code, and for summary adjudication in favor of any party where
there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.
Section 310 (16 U.S.C. Sec. 1860) (Civil Forfeitures)
1. Amend subsection (a) by adding the following new subparagraph (2)
and (3):
(2) Any forfeiture action under this section shall be
governed by the provisions of the Civil Asset Forfeiture Reform
Act of 2000 (Pub. L. 106-185; Apr. 25, 2000).
(3) No forfeiture action may be instituted more than three
(3) years after the time when the property was used in the
alleged offense.
2. Amend subsection (c) by deleting the second and third sentences
thereof.
______
Dr. Fleming. Thank you, Mr. Walsh for your testimony as
well.
At this point we will begin member questioning of the
witnesses. To allow all members to participate and to ensure we
can hear from all witnesses today, members are limited to 5
minutes for their questions. However, if members have
additional questions, we can have more than one round of
questioning. In some cases we may submit them to you verbally
or in writing and ask for a written response.
Therefore, I recognize myself.
Mr. Pettinger, let me see if I understand what happened
here. You started off and I think your original loan was $35.7
million.
Mr. Pettinger. Yes.
Dr. Fleming. And after how many years now?
Mr. Pettinger. Actually that was a total loan for all of
the groundfish fishery and the shrimp and crab fisheries, but
we start off with the groundfish portion and that was $28.7
million, I believe.
Dr. Fleming. But you owe $27 million now. Is that on the
totality of the loan or just the----
Mr. Pettinger. Just the groundfish portion. We owe $700,000
less than we started with.
Dr. Fleming. And that is after how many years?
Mr. Pettinger. Eight and a half years of payments.
Dr. Fleming. That does sound like a payday loan proposition
there. That is not much progress, is it?
Mr. Pettinger. You know, the good news is that we are into
the black or the bad news is it took us 8\1/2\ years and $20
million to get there.
Dr. Fleming. Right. Well, you know, it is interesting. In
this one case the government seems to be getting a better deal
than it should, and you do not find that very often, but it
looks like it is that way here.
And, of course, I think you mentioned that there was some
delay before you could actually begin collecting revenue, which
you were already up to something like three million-something
before you could actually collect the first dime.
Mr. Pettinger. Well, the total loan amount was $4.23
million tacked onto the overall loan amount.
Dr. Fleming. I see, yes. OK.
Let's see now. This really is not an issue addressed in
H.R. 2646, but I understand that while the Catch Share Program
has been successful, there are some species that are managed
under the plan that are not being harvested. Maybe as much as
two-thirds of the total allowable catch remains in the water.
You note that this may be the result of antiquated
regulations. What is being done to update these regulations?
Mr. Pettinger. Well, we are in the process of trying to
move some trilling amendments through the council process, and
it has been going very slow. We did manage to get the 3 percent
cost recovery fee through, but there are a lot of things that
we need to do to make this fishery more efficient.
A couple of things is since we have 100 percent
accountability, to open up the gear as far as the different
type of nets that we can use to be more efficient to catching
certain species that are very healthy. Yellowtail rockfish, for
instance, the quota is like six million pounds. I think our
best year we have done so far is maybe two million pounds. That
is because through a loophole the whiting fishery opens up on
June 15. People can declare themselves in the whiting fishery
and use a mid-water net to catch yellowtail rockfish because it
is up in the mid-water.
That quota is going to triple, I think, maybe in June for
the 2015-16 season, but that is the kind of regulatory
adjustment we need. It may be a rationalized fishery, but it
truly is not rationalized as far as all of the tools available
to us.
And that is what we need. We need some relief in the
meantime until we get there. We are just not there yet.
Dr. Fleming. Sure. Mr. Walsh, you note that any violation
of the Magnuson-Stevens Act by a U.S. vessel could lead to that
vessel being identified as an IUU vessel. If that vessel never
left U.S. waters, would there be any effect of being labeled as
an IUU vessel?
Mr. Walsh. I would think so because the concern I have
about Mr. DeFazio's draft bill, with all due respect--I am from
Coos Bay, Oregon, and I have to be careful--I think it is so
broadly drafted that it includes almost anything, even the most
trivial thing.
And as I identified in my testimony, the United States
identified Colombia as an IUU nation, and we have a different
system than EU, but we identified it as an IUU nation on the
basis of three shark finning cases and two cases of throwing
salt bags into the water, and they said we were not sure how
they had been resolved. So we think it is an IUU nation.
In my mind that is trivial, and if you have a broad
definition that says port States can enforce violations of any
nation's laws in any location, then you open yourself up to
having U.S. vessels show up in a foreign port, and they are
going to say, ``Well, by the way, you know, you did not pay
your bill for your observer you had last month and we found out
about it from the U.S. Government. So we are going to hold your
vessel while you pay us a fine.''
I mean these things, I have actually had real experiences
like this.
Dr. Fleming. Well, and not really on this same subject, but
kind of similar situations perhaps under the Lacey Act and
other things, we have seen examples where the law can be overly
interpreted or over harshly enforced.
Mr. Walsh. You are thinking of the McNabb case.
Dr. Fleming. Yes. So we want this to be properly balanced,
and we want to make sure that the protections are in there,
especially for Americans in American vessels.
Mr. Walsh. People should not be prosecuted if the law on
which you are being prosecuted has been repealed by that
government. That was the McNabb case.
Dr. Fleming. I completely agree with you. Thank you.
My time is up. I yield to Mr. Sablan.
Mr. Sablan. Thank you very much, Mr. Chairman.
And let me go back, Mr. Walsh, because you mentioned in
your testimony, sir, the importance of the Lacey Act in holding
people accountable when they trade in illegal fish. So could
you please elaborate on why a strong Lacey Act is important for
conserving natural resources and limiting criminal activity?
Mr. Walsh. On the Lacey Act, if you look at the literature
on the development of the IUU measure, the port State measure
that is before you today, you will see a routine discussion by
everybody around the world that they all want to emulate the
Lacey Act. And the Lacey Act basically says if you import a
fish into the United States or a fish product that has been
caught in violation of some other country's laws, you are
subject to criminal prosecution. The product can be seized and
forfeited to the U.S. Government.
And very uniquely, recently a decision was made involving
South African lobsters whereby the United States is able to
seek restitution for South Africa for that traffic. It is a
tremendously powerful law, and it is one of the reasons why I
have said in my testimony I do not know that we need many more
laws in this country to deal with IUU fishing as it affects us.
Mr. Sablan. Well, thank you, but you know, I just wanted
for you to repeat why a strong Lacey Act is important, sir.
Ambassador Lagon, sir, thank you. Ambassador, in your
testimony you discuss the fact that there are no international
labor standards for fishing vessels, and that as a result some
IUU vessels are able to operate for months or years using
forced labor, 3 years, as an example, for a guy who just had to
pay for a baby.
So can you please discuss how the legislation before us
today can help American consumers be sure that their swordfish
does not come from a sign of slavery?
Dr. Lagon. Thank you for the question.
The legislation would help reinforce the robust bipartisan
reauthorization of the Trafficking Victims Protection Act here
in Congress last year. The International Labor Organization
found that a minimum of 21 million people in the world are
human trafficking victims. Three-quarters of them are for
labor.
I found when I headed the State Department Human
Trafficking Office a large number of them were in the elicit
fishing sector. The main way that this legislation would assist
would have communication between port States and between flag
and port States about suspected illicit fishing vessels.
I do not quite understand the premises of Mr. Walsh in that
I think it should be the interest of the business community to
protect those who are legitimately living by the rules and stop
those who are trying to undercut their profits by illicit
fishing. If the United States wants to promote due process and
international law, then it should do so by example, by----
Mr. Sablan. Right, right.
Dr. Lagon [continuing]. Getting the ratification of the
Port State Measures Act and the legislation.
Mr. Sablan. Exactly, Ambassador. You know, I am also
confused because Mr. Walsh in his testimony speculates that
U.S. vessels and crews might be subject to enforcement abuses
in foreign ports under the Port State Measures Agreement, PSMA,
and I am confused because it seems that the agreement is
designed to standardize treatment of foreign fishing vessels,
and that it is treated with safeguards to prevent abuse. So I
am glad that the two of us are absolutely puzzled. I am
confused. You may be puzzled.
But would you just elaborate?
Dr. Lagon. Sure. Look. I understand skepticism about
multilateral arrangements. I worked for Senator Helms of the
Senate Foreign Relations Committee. I am a free marketeer. I am
skeptical about a regulation, but in my view the best thing we
can do to raise up the standards of implementation of due
process in other countries is for the United States to embrace
the Port State Measures Act for better communication between
States and have implementation legislation.
The Administration says on the part of the executive branch
they need implementation legislation. I agree.
Mr. Sablan. All right. And so my last question, Ambassador,
is how do we get more data on human trafficking in the fishing
sector and help in IUU fishing and associated human bondage?
Would the ability to trace seafood throughout the supply chain
be helpful?
Dr. Lagon. Look. I am very glad you asked that question.
Data on human trafficking is soft. One must admit that. I am
not here to advocate anything else besides that. But
communication between countries will allow greater tracking and
we will have a better sense of the extent of the problem, and
then as a baseline what success we are having reducing the
problem.
Not only are fish being netted illicitly, but it appears
human beings as well.
Mr. Sablan. Well, thank you.
My time is up, Mr. Chairman. Thank you.
Dr. Fleming. The gentleman yields back.
Mr. DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman.
To Mr. Pettinger, on the terms of the loan and the other
costs, let us just go over a couple of the other costs. There
is a 3 percent fee for management of the Catch Share Program?
Mr. Pettinger. There is a cost recovery fee to the National
Marine Fishery Service.
Mr. DeFazio. Right. Has National Marine Fisheries
documented the number as matched, that that 3 percent is their
actual administrative cost?
Mr. Pettinger. Not yet. It has been asked for. My
understanding is they are being sued by the catcher-processors
of the whiting sector, what they are charging them. So I would
assume those will be forthcoming.
Mr. DeFazio. OK. So we have the 3 percent there. Observers,
they are not paying 100 percent of the cost of the observers
anymore, are they?
Mr. Pettinger. It would vary by the size of vessel and the
capacity, and I think that is one of the big fears here, is the
smaller vessels which would catch less, it would be a bigger
part of their gross. That is why we are moving forward on
electronic monitoring as an alternative to lessen the cost to
the fleet.
Mr. DeFazio. And we are a little bit slow on the electronic
monitor; is that correct? Because they want to be able to deal
with every contingency and with 100 percent certainty as
opposed to being able to identify things 99 percent of the
time?
Mr. Pettinger. We are moving forward at a steady, slow
pace, yes.
Mr. DeFazio. Right. But that would remove a burden.
Mr. Pettinger. Right.
Mr. DeFazio. As I understand, there are like three
companies that provide observers.
Mr. Pettinger. I think there are two main ones, I believe.
Mr. DeFazio. Yes.
Mr. Pettinger. But it is getting pretty hard to get
observers in some of these small ports.
Mr. DeFazio. Right. And so, I mean, electronic monitoring
is problematic not only in terms of cost, but sometimes in
terms of who is sent or who is not sent to be dispatched as an
observer.
Mr. Pettinger. Yes, true.
Mr. DeFazio. So that is another burden.
And then, finally, we have the payday loan on top of that.
Mr. Pettinger. Right.
Mr. DeFazio. OK. So how well are people doing? What percent
of folks are having real trouble making these obligations and
making a living and being able to put food on the table, other
than the fish they catch at home?
Mr. Pettinger. Well, you know, I do not know everybody's
business, but I was in Newport just for the day, and I had a
fisherman come up to me and say, ``Hey, we have to do something
about this.''
It is only 2 percent, which is not that much of the gross,
but that comes off the top, and so if the boat, say, is netting
10 percent, that actual 2 percent that we are going to gain
back is 20 percent extra that they would be receiving. So it is
kind of a culmination of effects.
So we are just trying to chip away where we can. We are not
going to solve the world on all of these issues, but this is
one component of the things we need to work on, and we are
doing all of these amendments and everything to make this
fishery better and more efficient while keeping the
accountability in place because that is really key to this
program.
Mr. DeFazio. And then I asked you a question because we
were puzzling; staff was puzzling; I have been puzzling for
years on how this interest rate was reached since it was two
points above prime at the time. You opined that it was because
of risk, but you also went on to say, I mean, it is not against
someone's individual boat or an individual person not being
able to sustain the business anymore. It is against all of the
landings of the fleet.
Mr. Pettinger. Right.
Mr. DeFazio. So where is the risk? I guess if there are no
more fish there would be a risk.
Mr. Pettinger. That would be the risk. My understanding is
the 2 percent is just a standard insurance that they put on top
of every loan they ever do, and so if the vessel was
depreciable, it makes a difference.
Mr. DeFazio. I am not sure that is true, but we will check
into that.
Thank you, Mr. Chairman. I appreciate the time. Thank you.
Dr. Fleming. The gentleman yields back.
We have no further questions. I want to thank Panel II
today for your testimony. It was very interesting, and
certainly if members think of questions afterwards, we may want
to send them to you.
The record will remain open for 10 days to receive
responses from the questions submitted to you.
Before I adjourn, I would like to ask unanimous consent to
include in the record a letter from Mr. Peter Flournoy
concerning the Antigua Convention provisions of H.R. 69.
Hearing no objections, so ordered.
[The letter from Peter Flournoy submitted for the record by
Dr. Fleming follows:]
Letter Submitted for the Record from the International Law Offices of
San Diego
International Law Offices of San Diego,
San Diego, CA
April 1, 2014.
Hon. John Fleming, Chairman,
Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs,
Washington, DC 20515.
Re: H.R. 69
Dear Chairman Fleming:
I am writing you on behalf of approximately 800 West Coast troll
and pole and line harvesters of albacore tuna. Most of the harvesters
are small family owned businesses, many with a history of several
generations. House Bill 69, which includes implementing legislation for
the Antigua Convention (the revised Inter-American Tropical Tuna
Convention--IATTC), is extremely important to these constituents. The
albacore harvesters fishery off the West Coast falls almost entirely
within this organization's international jurisdiction. The provisions
which currently ``level the playing field'' for U.S. fishermen are
being inadvertently omitted by H.R. 69.
Section 206 of House Bill 69, which amends Section 6 (16 U.S.C.
955) of the Tuna Conventions Act of 1950, unnecessarily deletes by
omission very important language in the current Section 6. That
language in the current Section 6 which must be retained is:
The Secretary of Commerce shall suspend at any time the
application of any such regulation when, after consultation with the
Secretary of State and the United States Commissioners, he determines
that foreign fishing operations in the regulatory area are such as to
constitute a serious threat to the achievement of the objectives of the
commission's recommendations.
Section 405 of S. 269 does not have this omission and makes only
minor amendments to the section. It amends this part of Section 6 (16
U.S.C. 955) as follows, retaining the important provision:
The Secretary of Commerce shall suspend at any time the
application of regulations promulgated to carry out the recommendations
of the Commission. when, after consultation with the Secretary of State
and the United States Commissioners, Secretary of Commerce determines
that foreign fishing operations in the regulatory area are such as to
constitute a serious threat to the achievement of the objectives of the
commission's recommendations.
Thank you very much for your attention to this matter as you
proceed with this legislation.
Sincerely,
Peter H. Flournoy.
______
Dr. Fleming. I want to thank members and staff for their
contributions to this hearing. If there is no further business,
without objection the subcommittee stands adjourned.
[Whereupon, at 4:16 p.m., the subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Prepared Statement of Anthony Long, Director, Ending Illegal Fishing
Project, The Pew Charitable Trusts
The Pew Charitable Trusts (Pew) appreciates the opportunity to
provide a statement in strong support of two bills that would reduce
illegal, unreported and unregulated (IUU) fishing worldwide: H.R. 69,
the Illegal, Unreported, and Unregulated Fishing Enforcement Act of
2013, and H.R.____, the Pirate Fishing Elimination Act (PFEA).
Pew has been working on a global scale for several years to support
efforts to combat IUU fishing and to ensure a sustainable future for
our oceans. Our research and work has led us to conclude that effective
monitoring and control of fishing activities requires several essential
and complementary elements: the ability to clearly identify IUU fishing
vessels; information-sharing across national borders and national
rulemaking; and the need for globally coordinated measures to combat
IUU fishing. As a result, Pew has focused efforts on improving
cooperation and information sharing among authorities; the adoption and
effective implementation of policy measures that enable authorities to
identify and locate fishing vessels; the development of technical
capacity to sanction vessels found to be in violation of the law; and
establishing robust and harmonized port controls.
IUU fishing is a global problem that threatens ocean ecosystems and
sustainable fisheries. It is responsible for up to 26 million metric
tons of fish, valued at $23.5 billion,\1\ being landed every year. This
is equivalent to catching approximately 108,000 pounds of illegal fish
per minute. Scientists estimate that one in five fish on the global
market has been caught using IUU methods,\2\ and in some parts of the
world, such as West Africa, illegal fishing accounts for up to 40
percent of all wild caught fish.\3\
---------------------------------------------------------------------------
\1\ David J. Agnew et al., ``Estimating the Worldwide Extent of
Illegal Fishing,'' PLOS ONE 4(2): e4560, http://www.plosone.org/
article/info%3Adoi%2F10.1371%2Fjournal.pone.0004570.
\2\ Ibid.
\3\ National Oceanic Atmospheric Administration, ``Illegal Fishing:
Not in Our Ports'', http://www.nmfs.noaa.gov/ia/iuu/
portstate_factsheet.pdf.
---------------------------------------------------------------------------
IUU fishing includes all fishing that occurs in violation of a
coastal State or international fishery body management regulation,
including fishing without a required license, fishing in closed areas,
exceeding quotas, and under-reporting or not reporting catch. With 87
percent of the world's wild-caught fish stocks fully exploited, over-
exploited or depleted,\4\ IUU fishing is a serious environmental and
economic threat. It contributes to overfishing, harms rebuilding
efforts, damages sensitive fish habitat, and skews scientific
assessments, undermining international efforts to manage stocks
sustainably. In addition, IUU vessels often have lower operating costs
that could depress fish prices on the global market, putting legitimate
fishing operations at an economic disadvantage.
---------------------------------------------------------------------------
\4\ United Nations Food and Agriculture Organization, ``Review of
the state of world marine fisheries resources'', http://www.fao.org/
docrep/015/i2389e/i2389e.pdf.
---------------------------------------------------------------------------
While there has been a recent increase in the number of illegal
incursions by foreign fishing vessels into U.S. waters, particularly
along the Texas-Mexico border in the Gulf of Mexico, a majority of IUU
fishing occurs on the high seas or in the Exclusive Economic Zones
(EEZs) of developing States, where monitoring and surveillance is
limited. Monitoring and enforcement of illegal fishing, particularly on
the high seas, is prohibitively expensive for all but the wealthiest of
nations, due to the vast size of the ocean and the sheer number of
vessels. For these reasons, the risk of illegal vessels being caught at
sea is very low; however, all vessels must eventually bring their fish
to port. Ports with lax controls and inspection requirements, also
known as ``ports of convenience,'' have been exploited by IUU fishing
fleets to land and sell their catch.
Two bills under consideration today would begin to address the
challenges of IUU fishing by improving domestic enforcement
capabilities and through the implementation of an international
agreement, the Port State Measures Agreement (PSMA). H.R. 69 would make
important improvements to existing U.S. statutes that ensure compliance
with international fisheries obligations negotiated through Regional
Fisheries Management Organizations. Currently, international fisheries
enforcement is regulated through nine separate, and sometimes
overlapping, statutes, and is carried out by a number of Federal
agencies, including the National Oceanic and Atmospheric Administration
(NOAA), the United States Coast Guard (USCG), the United States Navy
and State enforcement agents. H.R. 69 would simplify, streamline and
strengthen the enforcement provisions of these statutes and make them
consistent with our domestic fisheries law, the Magnuson-Stevens
Fishery Conservation and Management Act. In addition, H.R. 69 would
make technical amendments to the High Seas Driftnet Fishing Moratorium
Protection Act that would encourage stronger compliance by other
nations with international fisheries obligations, establish an IUU
vessel list to enhance monitoring of suspected and confirmed foreign
offenders, and encourage information exchange amongst Federal
enforcement agencies and appropriate international authorities.
The Pirate Fishing Elimination Act would address illegal fishing by
implementing the Port State Measures Agreement. The PSMA, for the first
time, sets an internationally agreed-upon definition of IUU fishing and
establishes minimum port inspection standards for foreign fishing
vessels. Nations that ratify the Agreement agree to designate the ports
where foreign fishing vessels may enter, conduct dockside inspections
of foreign vessels, deny port access and services to vessels when there
is clear evidence of IUU fishing, and share information with other
coastal States when a vessel is determined to have engaged in IUU
fishing. By denying illegal vessels a place to offload illegal
landings, the economic incentives for engaging in illegal fishing are
reversed. Broad ratification will help close off ports around the world
to illegal fishing vessels and eliminate the pathways that operators
use to get illegal catch into the stream of commerce.
The PFEA would operationalize the concepts set forth in the PSMA,
including clarifying the responsibilities of the Secretary of Commerce
(NOAA) and the USCG; establishing procedures related to foreign fishing
vessel entry, inspections and enforcement; and the denial of port and
port service access if the vessel is suspected of illegal fishing. The
United States already has robust port controls that meet the standards
of the PSMA, and foreign fishing vessels are generally prohibited from
offloading their catch in U.S. ports, with the exception of American
Samoa, Guam, and some of the other Territories. As a result, enacting
PFEA will require little change in the way U.S. law enforcement
officers conduct foreign fishing vessel inspections in domestic ports.
However, U.S. ratification of the PSMA and passage of PFEA is
critically important to encourage other nations to ratify and implement
the agreement. Thus far, the PSMA has been ratified by the European
Union and 9 other countries; 25 countries must ratify the agreement in
order for it to come into force.
These bills are widely supported by the Administration, including
the Department of State, NOAA, and the USCG, as well as a number of
domestic fishing interests and conservation organizations because they
will bring countries around the globe up to the current standards of
the United States. The Senate Commerce Committee has moved in a
bipartisan fashion to unanimously advance the companion legislation for
H.R. 69, The International Fisheries Stewardship and Enforcement Act
(S. 269), and the Pirate Fishing Elimination Act (S. 267) last July.
Similarly, the Senate Foreign Relations Committee unanimously approved
the Port State Measures Agreement last month. Now is the time for the
U.S. House of Representatives to act to improve domestic and
international capabilities to monitor, track and enforce against
illegal fishing activities that threaten U.S. interests and the global
sustainability of our oceans.
The Pew Charitable Trusts respectfully requests that the U.S. House
of Representatives move expeditiously to pass H.R. 69 and the Pirate
Fishing Elimination Act as soon as possible, and looks forward to
working with Members to ensure the strongest U.S. response to combat
illegal fishing worldwide.
______
Letter Submitted for the Record
Federal Law Enforcement Officers Association,
Washington, DC,
February 5, 2014.
Hon. Harry Reid, Senate Majority Leader,
U.S. Senate,
Washington, DC 20510.
On behalf of the Federal Law Enforcement Officers Association
(FLEOA), the largest nonprofit professional association representing
26,000 current and retired Federal law enforcement officers across the
Nation, including member NOAA special agents and uniformed officers, we
write to express our strong support for the International Fisheries
Stewardship and Enforcement Act (SB 269/H.R. 69), the Pirate Fishing
Elimination Act (SB 267), and the Port State Measures Agreement. We
urge you to immediately pass these important bills to enhance domestic
and international enforcement efforts to protect our valuable fisheries
resources for law-abiding U.S. fishermen and our coastal communities.
The U.S. Coast Guard (USCG) and the National Oceanic Atmospheric
Administration's, Office for Fisheries Law Enforcement (NOAA OLE) are
responsible for protecting living marine resources within the U.S.
Exclusive Economic Zone (EEZ), including preventing foreign illegal
fishing and supporting international efforts to eliminate fisheries-
related crime on the high seas. In addition, enforcement activities
often transcend fisheries crime, as foreign illegal fishing vessels are
known to engage in other types of transnational crimes, including drug
and human trafficking, posing a persistent challenge to U.S.
sovereignty.
Immediate passage of SB 269/H.R. 69; SB 267 and the Port State
Measures Agreement would simplify enforcement protocols and provide the
U.S. Coast Guard and the NOAA Fisheries service, Office for Law
Enforcement additional tools to improve enforcement, enhance port
security, protect our law enforcement officers, and take stronger
action against foreign illegal fishing operators.
Specifically, the International Fisheries Stewardship and
Enforcement Act (IFSEA) would harmonize existing enforcement protocols
and establish streamlined standards for taking action against foreign
illegal fishing vessels. The legislation also increases officer safety
by making it an explicit violation to assault or otherwise oppose law
enforcement officers in the enforcement of existing international
fisheries laws. Finally, SB 269/H.R. 69 would enhance cooperation
between the U.S. Coast Guard, NOAA OLE, other law enforcement partners,
the Department of Defense and increase the resources available to
enforcement officers to detect, track and prosecute foreign illegal
fishing activity.
The Pirate Fishing Elimination Act would implement the Port State
Measures Agreement, an international treaty that would close ports
around the globe to foreign vessels engaged in illegal fishing,
eliminating pathways for illegal product to enter the global fish
market and reducing the economic incentive for foreign illegal fishing
operators. Passage of this bill would encourage other nations to meet
U.S. Standards by implementing common-sense port inspection and control
requirements resulting in a broad increase in overall maritime
security.
Passage of SB 269/H.R. 69; SB 267 and ratification of the Port
State Measures Agreement will enable U.S. law enforcement officers to
more safely and effectively apprehend foreign illegal fishing operators
and build on domestic and international efforts to eliminate fisheries-
related crime. Please pass these important measures as soon as
possible.
Feel free to contact FLEOA Public Information Officer Jennifer
Mattingly for further assistance at (202) 293-1550.
Sincerely,
Jon Adler,
FLEOA National President.
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Letter of support for H.R. 69 and H.R.____
``Pirate Fishing Elimination Act'' from Albion
Fisheries Ltd. et al., a diverse group of
stakeholders.
Letter of support for H.R.____ ``Pirate Fishing
Elimination Act'' from a diverse group of New
Jersey stakeholders.
Letter of support for H.R. 69 and H.R.____
``Pirate Fishing Elimination Act'' from a group of
elected officials and concerned citizens in States
bordering the Gulf of Mexico.
[all]