[Congressional Record Volume 143, Number 134 (Wednesday, October 1, 1997)]
[Senate]
[Pages S10299-S10300]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       THE AMERICAN FISHERIES ACT

   Mr. BREAUX. Mr. President, the American Fisheries Act, S. 
1221, was introduced last week by Senators Stevens, Murkowski, Hollings 
and myself. This bill represents another major milestone in our long 
efforts to reserve U.S. fishery resources for bona fide U.S. citizens 
as well as take steps to substantially improve the conservation and 
management of our Nation's fishery resources through a reduction in the 
overcapitalization of our fishing fleets. To put the bill in 
perspective, I wish to remind my colleagues of the steps taken in the 
past to establish our fishery conservation zone now called the 
Exclusive Economic Zone or EEZ, to support an American preference for 
harvesting and processing fishery resources within that zone, to 
eliminate foreign fishing in our EEZ whenever sufficient U.S. capacity 
existed, and finally to reduce the conservation and management problems 
associated with excess capacity. The historical basis for such a bill 
is well established in U.S. fishery policy.


                             The Open Seas

  For hundreds of years, a basic component of the freedom of the seas 
had been the freedom of fishing. Nations claimed narrow territorial 
seas where they exercised sovereignty on and above the surface down to 
and including the seabed, subject only to the right of innocent 
passage. Originally, this territorial sea was limited to 3 miles out 
from the coastline--that distance being the range which a cannon-ball 
could be fired from the shore to protect the coastal State's interest. 
Outside of the territorial sea, all nations enjoyed free access to 
fishery resources on the high seas, subject only to limitations imposed 
by international agreements and a general yet unenforceable 
understanding to conserve the resource.


                Establishing the Exclusive Economic Zone

  This concept was radically changed in 1945 with the issuance of the 
Truman Proclamation which declared that the continental shelf 
contiguous to U.S. coasts was ``appertaining to the United States, 
subject to its jurisdiction and control.'' Although the Truman 
Proclamation did not carry the force of international law, other 
nations followed suit in extending their jurisdiction beyond 3 nautical 
miles, some nations went out to 12 miles while others went all the way 
out to 200 miles. Congress contributed to this trend when it passed the 
12 Mile Fishery Jurisdiction Act. In passing the Fishery Conservation 
and Management Act in 1976, Congress established a 200-mile fishery 
conservation zone where the United States would exercise sovereign 
rights over the conservation, harvesting and management of the 
resource. In 1983, President Reagan declared through Proclamation 5030 
that the U.S. would exercise broad sovereign rights from the seaward 
limit of the territorial sea to a distance of 200 miles from the shore, 
thus establishing the Exclusive Economic Zone. The EEZ regime was 
reflected in the U.N. Convention on the Law of the Sea and although the 
United States has not ratified this treaty, we maintain that it is 
generally reflective of customary international law applying to the EEZ 
among other things.


                      Americanizing the Fisheries

  For more than 200 years, the Federal Government has been looking 
after our fishermen, starting as early as the Treaty of Paris of 1783 
which secured fishing rights off the coast of New England. However, our 
management of fishery stocks was limited to our narrow territorial sea. 
This principle worked well until technology became very sophisticated 
in the early 1950's. Harvesting efficiency and capacity greatly 
increased and the presence of large foreign fishing fleets off our 
coast threatened the survivability of numerous stocks. In the 1950's, 
as large foreign fishing fleets loomed off our coast, Congress acted to 
protect the rights of our fishermen with the Fisherman's Protective Act 
of 1954. The Fish and Wildlife Act of 1956 also affirmed the rights of 
U.S. fishermen to waters off our own coast. In 1964, Congress passed 
the Prohibition of Fishing in the U.S. Territorial Waters by Foreign-
Fishing Vessels and then in 1972, Congress passed the Prohibition of 
Foreign Fishing Vessels Act, again attempting to reserve the right to 
harvest U.S. fishing resources for U.S. fishermen. These laws were all 
precursors to the Fishery Conservation and Management Act of 1976 to 
which the names of Senators Magnuson and Stevens were later added.
  The Magnuson-Stevens Fishery Conservation and Management Act. The 
Magnuson-Stevens Act established a 200-mile Fishery Conservation Zone 
and further established U.S. management jurisdiction over all fishery 
resources within that zone. As a House cosponsor of the bill, I can 
recall the great debates of the day as the Magnuson-Stevens Act was 
being discussed. Members feared retaliation by other nations because of 
our unilateral extension of authority out to 200 miles, but the fear of 
the foreign fishing fleets just off our coast was greater. Of special 
significance was the concept that U.S. fishermen should have the first 
right to harvest the fishery resources found within our 200-mile limit. 
Specifically, section 201 of the Magnuson-Stevens Act states ``After 
February 28, 1977, no foreign fishing is authorized within the 
exclusive economic zone * * *'' unless certain conditions are met as 
set forth within the act. Section 2(b)(1) of the Magnuson-Stevens Act 
stated as a purpose: ``to exercise sovereign rights for the purposes of 
exploring, exploiting, conserving, and managing all fish within the 
exclusive economic zone.'' This Americanization provision allowed for 
the gradual reduction of foreign fishing within U.S. waters as U.S. 
capacity increased.


                  The American Fisheries Promotion Act

  However, the great promise of the Magnuson-Stevens Fishery 
Conservation and Management Act to Americanize the fisheries was slow 
to come to fruition. As many Members may recall, numerous bills were 
introduced and debated to help the U.S. fleet establish itself in the 
new fishery conservation zone. In 1979, 60 percent of the edible and 
industrial fish we used was supplied by foreign companies despite the 
fact that 20 percent of the world's fishery resource was within our own 
zone. Foreign fleets still dominated our fishery conservation zone. As 
Chairman of the Subcommittee on Fisheries and Wildlife Conservation and 
the Environment within the House Committee on Merchant Marine and 
Fisheries, I authored the American Fisheries Promotion Act. Popularly 
coined as the fish and chips bill, the legislation was designed to 
promote development of U.S. fisheries by providing a statutory 
mechanism to phaseout foreign fishing within our fishery conservation 
zone. Unfortunately, the phase out of foreign flag vessels did not 
fully achieve the goal of reserving the full economic benefits of our 
resources to U.S. citizens.


                           Reflagging Issues

  Foreign companies were able to circumvent the intent of these laws by 
reflagging. Foreign-controlled companies could reflag their vessels 
under U.S. documentation laws and gain the same priority access to U.S. 
fishery resources as bona fide U.S. citizens were intended to enjoy. To 
counter such actions, Congress passed the Anti-Reflagging Act of 1987 
which was designed to stop this practice and prohibit foreign 
ownership/control of U.S. fishing vessels. The exact method of ensuring 
this occurred was by requiring that a majority controlling interest in 
any corporation who owns fishing vessels operating in the U.S. fishery 
were bona fide U.S. citizens. To protect the financial investments of 
vessels already within the fishery, grandfather provisions were 
included in the bill. Unfortunately, interpretation of the grandfather 
provision has effectively nullified the original intent of that 
landmark legislation. Although the vessels now carry the American flag, 
effective control of the vessels is under foreign hands. This bill will 
restore the rights of bona fide United States citizens to have priority 
access to U.S. fishery resources which are well established under U.S. 
and international law. In essence, we seek to return to a de facto 
standard as set forth in section 201(d) which establishes that the 
total level of foreign fishing shall be the portion of the optimal 
yield which will not be harvested by U.S. vessels.


                    Overcapitalization of the Fleet

  A second issue that we deal with in this bill is the issue of 
overcapitalization of the fishing fleet. The increasing

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demand for fish products throughout the world has created an incentive 
for increasing the size and capabilities of the world's fishing fleets. 
Traditionally, the United States has operated under an open access 
system of fishery management and increased demand has led to increased 
entry into the fishing industry. It is not disputed that the harvesting 
and processing capacity in the world far exceeds that required to 
efficiently harvest most resources.
  The Magnuson-Stevens Act's first National Standard requires that any 
fishery management plan be consistent with conservation and management 
measures to prevent overfishing while achieving optimal yield from the 
fishery. Controlling overfishing has been done in basically four types 
of programs--controlling the when, where, how and how much of fishing. 
Fishery managers control the when--establishing seasons in which a 
particular species may be fished. Fishery managers control the where--
setting closed areas where fishermen cannot fish. Fishery managers 
control the how--restricting certain forms of fishing gear. And 
finally, fishery managers control the how much--setting total allowable 
catches to limit harvest. However, these methods have not always been 
successful and the collapses of the New England ground fishery and 
Bering Sea crab fishery are examples of that. The existence of ``derby 
style'' fishery where an excessive number of boats attempt to catch a 
limited resource in the shortest period of time possibly is one symptom 
of inadequate controls. Such derby style fishing in overcapitalized 
fisheries has led to a range of serious conservation, management, 
bycatch and safety problems in our fisheries. It is time to establish 
some form of control of fishing capacity, particularly if the capacity 
is under the control of foreign fishing companies. This bill will 
establish such control by reducing capacity with a preference for 
American companies--as Congress has long intended.
  Mr. President, there are some areas of this bill which I will want to 
address further. For instance, the menhaden and tuna industries use 
large vessels to harvest their catch, primarily through purse seining. 
These fisheries operate outside of our Exclusive Economic Zone and are 
not subject to management by our traditional Regional Council system 
nor have they experienced the problems associated with 
overcapitalization. I will seek to ensure there are no unintended 
consequences of this bill on their industry. Mr. President, I think 
this bill continues the work that was started in 1976 and I look 
forward to a healthy and open debate on these very important 
issues.

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