[House Report 104-47]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                     104-47
_______________________________________________________________________


 
                 FISHERMEN'S PROTECTIVE ACT AMENDMENTS

                                _______


 February 23, 1995.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

_______________________________________________________________________


  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 716]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Resources, to whom was referred the bill 
(H.R. 716) to amend the Fishermen's Protection Act, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                          Purpose of the Bill

    The purpose of H.R. 716 is to amend the Fishermen's 
Protective Act (FPA) to expand the use of the Fishermen's 
Protective Fund, to extend the effective date of section 7 of 
the FPA, and to amend provisions relating to the collection of 
fees from participating fishermen.

                  Background and Need For Legislation

    The Fishermen's Protective Act of 1967 (22 U.S.C. 1971 et 
seq.) established a program under which the Secretary of State 
may compensate fishermen for fines paid to secure the release 
of fishing vessels and crew which have been illegally seized by 
a foreign government. These repayments are to be made from the 
Fishermen's Protective Fund established under section 9 of the 
FPA. The FPA also established a voluntary insurance program 
financed through contributions from fishermen to compensate 
fishermen who suffer lost income as a result of the seizure. 
Payments under this program are made from the Fishermen's 
Guaranty Fund under section 7 of the FPA.
    On June 15, 1994, in the aftermath of a breakdown in 
negotiations between the United States and Canada on Pacific 
salmon fishing rights, the Government of Canada imposed a $1500 
(Canadian) transit fee on U.S. commercial fishing vessels 
passing through certain waters adjacent to Canada. The 
Department of State judged the fee inconsistent with 
international law. The Canadian Government has since lifted the 
fee; however, this did not occur until after 258 vessels had 
already been forced to pay it.

                            Committee Action

    H.R. 716 was introduced by Chairman Don Young on January 
26, 1995, along with Congressman Jim Saxton and Congressman 
Gerry Studds, and was referred to the Committee on Resources. 
The bill was subsequently referred to the Subcommittee on 
Fisheries, Wildlife and Oceans.
    On January 25, 1995, the Subcommittee on Fisheries, 
Wildlife and Oceans held a hearing on H.R. 716, and other 
issues. Ambassador David A. Colson, Deputy Assistant Secretary 
of State for Oceans, and Mr. Rolland A. Schmitten, Assistant 
Administrator for Fisheries, National Marine Fisheries Service, 
testified for the Administration. Both witness discussed the 
need to amend the Fishermen's Protective Act to enable the 
United States Government to reimburse U.S. fishermen who paid 
the Canadian transit fee.
    On February 1, 1995, the Subcommittee on Fisheries, 
Wildlife and Oceans met to consider H.R. 716. No amendments 
were offered and the bill was ordered reported to the Full 
Committee by voice vote.
    On February 8, 1995, the full Committee on Resources met to 
consider H.R. 716. No amendments were offered and the bill was 
ordered reported to the House by voice vote, with the presence 
of a quorum.

                      Section-By-Section Analysis

Sec. 1. Amendments to the Fishermen's Protective Act of 1967

    This section expands the existing compensation program in 
section 3 of the FPA to cover the reimbursement of fees paid by 
a U.S. fishing vessel transiting waters of a foreign nation 
when the fees are determined to be inconsistent with 
international law. This section also authorizes the Secretary 
of State to seek reimbursement from the nation imposing the 
fee.
    This section also clarifies the circumstances under which 
fees may be collected by the Secretary of State from fishermen 
participating in the Fishermen's Guaranty Fund, established 
under section 7 of the FPA. This voluntary program provides 
compensation to a fishing vessel owner for incidental costs, 
such as the loss of gear or fish or damage to the vessel, 
associated with an unfair seizure by a foreign nation. This 
language clarifies the Secretary's authority to assess 
reasonable fees on those participating in this program.
    Finally, this section reactivates the Fishermen's Guaranty 
Fund, which expired in 1993. The amendment allows money to be 
deposited in this Fund until October 1, 1998, and removes an 
obligation that a portion of the funds be appropriated by 
Congress.

Sec. 2. Clearance and entry of commercial fishing vessels

    This section directs the Secretaries of State and Treasury 
to take certain actions when a foreign nation imposes a fee on 
U.S. commercial fishing vessels transiting that nation's 
waters. Currently, Canadian fishing vessels routinely receive 
U.S. Customs clearance by radio to enter U.S. waters at night. 
This section would deny access to the West Coast and Alaskan 
waters of the U.S. to any foreign fishing vessel registered in 
a nation that charges a transit fee to U.S. vessels. Exceptions 
are allowed in the case of an emergency, when a vessel is 
operating under a treaty providing freedom of access, or if a 
vessel master pays a fee to the U.S. equal to that charged to a 
U.S. vessel. When paying the fee, the vessel master must do so 
in person at a designated port of entry.
    Violation of this section subjects the vessel master and/or 
owner to civil penalties under the Magnuson Fishery 
Conservation and Management Act.

Sec. 3. Technical correction

    This section corrects an enrolling error in Public Law 103-
238.

            Committee Oversight Findings and Recommendations

    Pursuant to clause 2(l)(3) of rule XI of the Rules of the 
House of Representatives and clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, the Committee's 
oversight findings and recommendations are reflected in the 
body of this report.

                     Inflationary Impact Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that the 
enactment of H.R. 716 will have no significant inflationary 
impact on prices and costs in the operation of the national 
economy.

                        Cost of the Legislation

    Clause 7 of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs which would be incurred in carrying out 
H.R. 716. However, clause 7(d) of that Rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 403 of the Congressional Budget Act of 1974.

                     Compliance With House Rule XI

    1. With respect to the requirements of clause 2(l)(3)(A) of 
rule XI of the Rules of the House of Representatives, the 
Subcommittee on Fisheries, Wildlife and Oceans held hearings on 
H.R. 716 and other pending fisheries issues on January 25, 
1995, and the oversight findings and recommendations of the 
Committee are reflected in this report.
    2. With respect to the requirement of clause 2(l)(3)(D) of 
rule XI of the Rules of the House of Representatives, the 
Committee has received no report of oversight findings and 
recommendations from the Committee on Government Reform and 
Oversight on the subject of H.R. 716.
    3. With respect to the requirement of clause 2(l)(3)(C) of 
rule XI of the Rules of the House of Representatives and 
section 403 of the Congressional Budget Act of 1974, the 
Committee has received the following cost estimate for H.R. 716 
from the Director of the Congressional Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 15, 1995.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget office has 
prepared the enclosed cost estimate for H.R. 716, a bill to 
amend the Fishermen's Protective Act.
    Enactment of H.R. 716 would affect direct spending and 
receipts. Therefore, pay-as-you-go procedures would apply to 
the bill.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                    Robert D. Reischauer, Director.
    Enclosure.

               Congressional Budget Office Cost Estimate

    1. Bill number: H.R. 716.
    2. Bill title: A bill to amend the Fishermen's Protective 
Act.
    3. Bill status: As ordered reported by the House Committee 
on Resources on February 8, 1995.
    4. Bill purpose: H.R. 716 would extend the authority of the 
State Department to reimburse fishermen from the Fishermen's 
Protective Fund to include reimbursement for certain fees. The 
bill would extend the authorization of the Fishermen's Guaranty 
Fund through fiscal year 1998, and would repeal the requirement 
that a certain percentage of deposits to this fund come from 
appropriated funds. It also would permit the State Department 
to collect fees regardless of whether the fee collections were 
needed to carry out the purposes of the fund. In addition, the 
bill would require the State Department to publish annually a 
list of countries imposing certain fees. Commercial fishing 
vessels registered in listed countries could not receive 
clearance to enter certain waters of the United States except 
under certain circumstances. Those vessels entering without 
clearance would be subject to civil penalties.
    5. Estimated cost to the Federal Government: CBO estimates 
that enacting H.R. 716 would result in direct spending. The 
following table summarizes CBO's estimates of the budgetary 
impact of this bill.

------------------------------------------------------------------------
                     1996        1997       1998       1999       2000  
------------------------------------------------------------------------
Direct spending:                                                        
    Estimated                                                           
     budget                                                             
     authority..         0            0          0  .........  .........
    Estimated                                                           
     outlays....         0.3          0          0  .........  .........
Estimated                                                               
 revenues.......         0            0          0          0          0
------------------------------------------------------------------------

    The costs of this bill fall within budget function 370.
    Direct Spending. H.R. 716 would extend the authorization of 
the Fishermen's Guaranty Fund through fiscal year 1998. Based 
on information from the State Department, CBO projects that 
unobligated balances in the fund would become available for 
spending as a result of enactment of this bill, and that 
payments from the fund would total approximately $400,000 
annually from 1996 through 1998. (Payments in excess of the 
$2.9 million unobligated balance in the Fishermen's Guaranty 
Fund could be made only to the extent provided in advance in 
appropriations acts.)
    Under current law, the State Department may collect fees 
for the Fishermen's Guaranty Fund only after receiving an 
appropriation to the fund, and then only in an amount equal to 
twice the appropriation. The bill would no longer require an 
appropriation before permitting the State Department to collect 
fees for the fund. Because collection of fees would no longer 
require appropriations action, fee collections would reduce 
direct spending. Based on information from the State 
Department, CBO estimates that the department would collect 
approximately $400,000 per year for fiscal years 1996 through 
1998, offsetting the additional direct spending.
    Enacting H.R. 716 also would make owners of various fishing 
vessels eligible for payments totaling $284,000 from the 
Fishermen's Protective Fund. The fund currently has sufficient 
unobligated balances to make such payments, so we estimate that 
the bill would result in additional outlays of $284,000 in 
1996. This amount would be direct spending because the 
expenditures would take place without further appropriation 
action.
    Spending Subject to Appropriations. The bill would require 
the State Department to publish a list of nations that charge 
certain fees to U.S. commercial fishing vessels. CBO estimates 
that compiling such a list would cost less than $5,000 
annually.
    Revenues. Commercial fishing vessel of nations appearing in 
the list compiled by the State Department would be prohibited, 
with certain exceptions, from entering certain waters of the 
United States without paying a fee to the Department of the 
Treasury. Any collections from these fees would be considered 
governmental receipts; however, because no countries are 
charging the fees in question to U.S. fishing vessels, CBO does 
not expect that any fees would be collected as a result of 
enactment of this provision.
    The bill would make violators of this provision liable for 
civil penalties. Receipts from civil penalties would be 
governmental receipts. Again, because no nations are currently 
charging the fees in question to U.S. fishing vessels, CBO 
expects that there would be no violators, and therefore CBO 
does not expect that any additional collections would result 
from these civil penalties.
    6. Comparison with spending under current law: H.R. 716 
would lead to increased spending of $284,000 from the 
Fishermen's Prospective Fund. This additional spending would 
probably occur in 1996. CBO expects that there will be no 
spending from this fund in 1995.
    7. Pay-as-you-go considerations: Section 252 of the 
Balanced Budget and Emergency Deficit Control Act of 1985 sets 
up pay-as-you-go procedures for legislation affecting direct 
spending or receipts through 1998. Because H.R. 716 would 
affect direct spending and receipts, the bill would be subject 
to pay-as-you-go procedures. The bill would permit the State 
Department to collect about $400,000 per year in fees for the 
1996-1998 period. The State Department also would be permitted 
to make payments from unobligated balances of the Fishermen's 
Guaranty Fund without appropriations action. This spending 
would total approximately $400,000 per year for the 1996-1998 
period. In addition, the bill would increase spending by 
$284,000 in 1996 out of unobligated balances of the Fishermen's 
Protective Fund.
    The bill also would permit the Department of the Treasury 
to collect fees under certain circumstances. These fee 
collections would count as governmental receipts, but CBO does 
not expect any fees to be collected. Finally, the bill would 
make violators of certain provisions liable for civil 
penalties. Collections from civil penalties would count as 
governmental receipts, but because CBO does not expect 
violations to occur, we do not expect that any civil penalties 
would be collected. The following table summarizes the 
estimated pay-as-you-go effect of the bill.

------------------------------------------------------------------------
                                       1996         1997         1998   
------------------------------------------------------------------------
Changes in receipts..............            0            0            0
Changes in outlays...............            0            0            0
------------------------------------------------------------------------

    8. Estimated cost to state and local governments: None.
    9. Estimate comparison: None.
    10. Previous CBO estimate: None.
    11. Estimate prepared by: John Webb (226-2860) and Melissa 
Sampson (226-2720).
    12. Estimate approved by: Paul N. Van de Water, Assistant 
Director for Budget Analysis.

                           Department Reports

    The Committee has received a departmental report from the 
Department of State dated February 7, 1995, on H.R. 716.

                                  U.S. Department of State,
                                  Washington, DC, February 7, 1995.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives.
    Dear Mr. Chairman: This letter is to provide the Committee 
with our views on H.R. 716, a bill to amend the Fishermen's 
Protective Act. The Department of State supports H.R. 4852, 
which was passed by the full House during the 103rd Congress.
    In the detailed comments which are enclosed, we refer both 
to H.R. 716 and to H.R. 4852.
    In general, we are concerned that H.R. 716, which would 
authorize us to reimburse fishermen who paid a ``transit fee'' 
to Canada last summer, be drafted in a manner that is 
sufficiently flexible to allow us to make prompt payments to 
the fishermen. We have other concerns, which are addressed in 
our detailed comments as well. We hope that we can work with 
you to conclude the drafting of this bill quickly, and in a 
manner which will allow expeditious implementation.
    As provided in current law, we will pursue all possible 
avenues for reimbursement from Canada.
    I hope this information is useful to you. Please do not 
hesitate to call if we can be of further assistance.
            Sincerely,
                                          Wendy R. Sherman,
                          Assistant Secretary, Legislative Affairs.
    Enclosure.

                          Comments On H.R. 716

                               background

    In response to Canada's imposition of ``transit fees'' on 
U.S. fishing vessels transiting the ``Inside Passage'' last 
June, the Administration and concerned Members of Congress 
suggested that fishermen pay the fee, under protest, and that 
they file for reimbursement under the Fishermen's Protective 
Act of 1967 (22 U.S.C. 1971-1980--the Act). Several bills to 
amend the Act to give the Secretary of State the authority to 
make this reimbursement were considered in the 103d Congress. 
The Administration commented extensively on H.R. 3817 and on a 
Senate bill, S. 2243. Title V of H.R. 4852, which was approved 
by the full House on October 7, 1994, contained language 
identical to S. 2243.

                                comments

    The Administration prefers the approach taken by H.R. 4852 
in the last Congress. The remaining concerns with H.R. 716 are 
set out below:

1. Free-standing Sec. 11

    The Department prefers the addition of a new section to the 
existing language of Fisherman's Protective Act to provide for 
reimbursement of transit fees. In order to ensure that the 
provisions regarding reimbursement for transit fees may 
``sunset,'' once the Canadian problem is resolved, the 
Administration supports the H.R. 4852 approach (i.e., a 
separate section that addresses the specific problem). H.R. 716 
proposes to amend 22 U.S.C. 1973, a section of the FPA which 
was drafted to respond to other circumstances, to give the 
Department authority to reimburse fishermen for these fees.

2. Authority to use unexpended balances of the FPF and FGF

    The Department requires the flexibility to use unexpended 
balances available in either the Fishermen's Protective Fund 
(FPF) or the Fishermen's Guaranty Fund (FGF). H.R. 4852 
provided the needed flexibility. The Department believes that 
it is important to pay these claims quickly. In order to do so, 
about 260 claims must be processed, certified for payment, and 
paid. Thus, the Department must have maximum flexibility to 
manage the claims process. Under current law, the FGF (22 
U.S.C. 1977) is used to reimburse fishermen for losses 
experienced under criteria in the FPA. The office responsible 
for FGF claims has been the Department of State action office 
for this problem from the start. It is prepared to deal with 
these claims on a priority basis, but can do so only if the 
legislation provides the needed flexibility.
    H.R. 716 does not provide that flexibility. Under current 
law the FPF (established under 22 U.S.C. 1973) reimburses 
fishermen for fines and fees necessary to secure the release of 
their vessels, when the seizures meet the criteria stated in 
the FPA. This section of the FPA was drafted to address a 
different situation than the one at hand. We believe it is best 
not to broaden the scope of this section, but rather to add a 
different section to address the specific problem.

3. Sunset provision

    Reviewers of last year's draft legislation were concerned 
that some might construe the establishment of a commitment to 
reimburse transit fees as an entitlement and therefore 
suggested that the provision expire, following a period of time 
sufficient for fishermen involved to file their claims and be 
reimbursed. The Department supports the language in SEC. 
502.(g) of H.R. 4852, which terminates the authorization of the 
free-standing transit fee (Section 11) portion of the FPA. H.R. 
716 is a permanent change to the FPA, with no end point, and it 
thus changes the scope of the Act significantly.

4. FGF fee collections

    The collection of fees for participation in the FGF is not 
related to the transit fee problem; both H.R. 4852 and H.R. 716 
address a persistent technical problem concerning the match 
between direct appropriations and fee collections 
satisfactorily by deleting the third sentence in 22 U.S.C. 1977 
(c).

5. Paygo problems

    H.R. 716 would increase direct spending; therefore it is 
subject to the pay-as-you-go requirement of the Omnibus Budget 
Reconciliation Act of 1990. It is estimated that H.R. 716 would 
increase direct spending by less than $500,000. The mechanism 
established under the Fishermen's Protective Act at 22 U.S.C. 
1975, calls for the Secretary of State to make claims from the 
other government involved for any payments made under 22 U.S.C. 
1973 or 22 U.S.C. 1977. The U.S. will pursue reimbursement for 
transit fees from Canada through all possible avenues.

6. ``Unexpended balances''

    Several reviewers of draft bills before the 103rd Congress 
expressed concern that reimbursement to fishermen who paid 
transit fees be limited to the portion of the unexpended 
balance of funds in the 22 U.S.C. 1977 (FGF) account derived 
from direct appropriations, rather than expend funds from the 
portion derived from fee collections. Fees, direct 
appropriations, and interest income are commingled in the FGF 
account; no accurate accounting by source of funds is possible. 
The language in H.R. 4852 is preferred over that in H.R. 716.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italic, existing law in which no change is proposed 
is shown in roman):

                   FISHERMEN'S PROTECTIVE ACT OF 1967

          * * * * * * *
  Sec. 3. (a) In any case where a vessel of the United States 
is seized by a foreign country under the conditions of section 
2 and a fine, license fee, registration fee, or any other 
direct charge must be paid in order to secure the prompt 
release of the vessel and crew, or when a fee regarded by the 
United States as being inconsistent with international law must 
be paid for a vessel of the United States to transit the waters 
of a foreign nation on a voyage between points in the United 
States (including a point in the exclusive economic zone or an 
area whose jurisdiction is in dispute), the owners of the 
vessel shall be reimbursed by the Secretary of State in the 
amount determined and certified by him as being the amount of 
the fine, license fee, registration fee, or any other direct 
charge actually paid. For purposes of this section, the term 
``other direct charge'' means any levy, however characterized 
or computed (including, but not limited to, any computation 
based on the value of a vessel or the value of fish or other 
property on board a vessel), which is imposed in addition to 
any fine, license fee, or registration fee. Any reimbursement 
under this section shall be made from the Fishermen's 
Protective Fund established pursuant to section 9.
          * * * * * * *
  Sec. 5. (a) The Secretary of State shall--
          (1) immediately notify a foreign country of--
                  (A) any reimbursement made by him under 
                section 3 as a result of the seizure of or 
                imposition of a fee regarded by the United 
                States as inconsistent with international law 
                on a vessel of the United States by such 
                country,
          * * * * * * *
  Sec. 7. (a)  * * *
          * * * * * * *
  (c) The Secretary shall from time to time establish by 
regulation fees which shall be paid by the owners of vessels 
entering into agreements under this section. Fees may be 
collected regardless of whether needed to carry out the 
purposes of subsection (a). Such fees shall be adequate (1) to 
recover the costs of administering this section, and (2) to 
cover a reasonable portion of any payments made by the 
Secretary under this section. [The amount fixed by the 
Secretary shall be predicated upon at least 33\1/3\ per centum 
of the contribution by the Government.] All fees collected by 
the Secretary shall be credited to a separate account 
established in the Treasury of the United States which shall 
remain available without fiscal year limitation to carry out 
the provisions of this section. Those fees not currently needed 
for payments under this section shall be kept on deposit or 
invested in obligations of, or guaranteed by, the United States 
and all revenues accruing from such deposits or investments 
shall be credited to such separate account. If a transfer of 
funds is made to the separate account under section 5(b)(2) 
with respect to an unpaid claim and such claim is later paid, 
the amount so paid shall be covered into the Treasury as 
miscellaneous receipts. All payments under this section shall 
be made first out of such fees so long as they are available, 
and thereafter out of funds which are hereby authorized to be 
appropriated to such account to carry out the provisions of 
this section.
          * * * * * * *
  (e) The provisions of this section shall be effective until 
[October 1, 1993] October 1, 1998, except that payments may be 
made under this section only to such extent and in such amounts 
as are provided in advance in appropriation Acts.
          * * * * * * *
                              ----------                              


   SECTION 15 OF THE MARINE MAMMAL PROTECTION ACT AMENDMENTS OF 1994

SEC. 15. TRANSITION RULE; IMPLEMENTING REGULATIONS.

  (a) Transition Rule.--Section 114(a)(1) (16 U.S.C. 
1383a(a)(1)) is amended by striking ``ending [April 1, 1994,] 
May 1, 1994.'' and inserting in lieu thereof ``until superseded 
by regulations prescribed under section 118, or until September 
1, 1995, whichever is earlier,''.
          * * * * * * *
                              ----------                              


        SECTION 114 OF THE MARINE MAMMAL PROTECTION ACT OF 1972

               Interim Exemption for Commercial Fisheries

  Sec. 114. (a)(1) During the period beginning on the date of 
enactment of this section and ending [May 1, 1994.] until 
superseded by regulations prescribed under section 118, or 
until September 1, 1995, whichever is earlier, except as 
provided in paragraph (2), the provisions of this section, 
rather than sections 101, 103, and 104, shall govern the 
incidental taking of marine mammals in the course of commercial 
fishing operations by persons using vessels of the United 
States and vessels which have valid fishing permits issued by 
the Secretary in accordance with section 204(b) of the Magnuson 
Fishery Conservation and Management Act (16 U.S.C. 1824(b)). In 
any event it shall be the immediate goal that the incidental 
kill or serious injury of marine mammals permitted in the 
course of commercial fishing operations be reduced to 
insignificant levels approaching a zero mortality and serious 
injury rate.
          * * * * * * *