[Senate Report 111-124]
[From the U.S. Government Publishing Office]
Calendar No. 270
111th Congress
2d Session SENATE Report
111-124
_______________________________________________________________________
THE SHARK CONSERVATION ACT OF 2009
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 850
February 4, 2010.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred eleventh congress
second session
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota JOHN ENSIGN, Nevada
BARBARA BOXER, California JIM DeMINT, South Carolina
BILL NELSON, Florida JOHN THUNE, South Dakota
MARIA CANTWELL, Washington ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey GEORGE S. LeMIEUX, Florida
MARK PRYOR, Arkansas JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri DAVID VITTER, Louisiana
AMY KLOBUCHAR, Minnesota SAM BROWNBACK, Kansas
TOM UDALL, Colorado MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
Ellen Doneski, Chief of Staff
James Reid, Deputy Chief of Staff
Bruce Andrews, General Counsel
Ann Begeman, Acting Republican Staff Director
Brian Hendricks, Republican General Counsel
Todd Bertoson, Republican Senior Counsel
111th Congress Report
SENATE
2d Session 111-124
======================================================================
THE SHARK CONSERVATION ACT OF 2009
_______
February 4, 2010.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
REPORT
[To accompany S. 850]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 850) to amend the High Seas
Driftnet Fishing Moratorium Protection Act and the Magnuson-
Stevens Fishery Conservation and Management Act to improve the
conservation of sharks, having considered the same, reports
favorably thereon with an amendment (in the nature of a
substitute) and recommends that the bill (as amended) do pass.
Purpose of the Bill
S. 850, the Shark Conservation Act of 2009, would clarify the
intended scope of application of the Shark Finning Prohibition
Act of 2000. It would also equip Federal fisheries enforcement
authorities with new tools to better detect and deter the
unlawful practice of finning sharks.
Background and Needs
There are well over 400 known species of sharks whose
habitats may be found throughout the world's oceans and seas.
Although many of these species dominate their natural habitats
as apex predators or mesopredators, they are also prone to
higher mortality rates due to their slow growth, late age of
maturity, and low fecundity. This higher mortality has been
compounded in recent decades by increased human exploitation of
the oceans' living marine resources, most notably through
incidental taking of sharks as bycatch in pelagic longline
fisheries from the 1960s onward, and the targeting of sharks in
directed fisheries, which expanded rapidly in the 1980s and
continues to the present day.\1\ The impact on shark
populations is staggering--for example, a 2003 scientific
analysis of shark populations in the Northwest Atlantic
included an estimate that all recorded shark species there,
with the exception of mako sharks, had declined by more than 50
percent in the prior eight to fifteen years.\2\ This trend is
not limited to the Northwest Atlantic. Similar declines have
been detected in other oceans and seas throughout the world.\3\
This trend is particularly troubling when considered in the
context of the broader, indirect effects resulting from their
removal. The impacts of eliminating apex predators can be far-
reaching, and can include the release of mesopredator prey
populations from predatory control and the induction of
subsequent cascades of indirect trophic interactions.\4\ In
response to these very real concerns about dwindling shark
populations, the United States has taken a leadership role in
recent years in the implementation of conservation measures.
---------------------------------------------------------------------------
\1\ Julia K. Baum et al., Collapse and Conservation of Shark
Populations in the Northwest Atlantic, Science, Jan. 17, 2003, at 389
(citing R. Bonfil, Overview of World Elasmobranch Fisheries, FAO
Fisheries Technical Paper 341 (Rome, 1994); and D. Rose, An Overview of
World Trade in Sharks and Other Large Cartilaginous Fishes, Traffic
Network (Cambridge, UK, 1996).
\2\ Id.
\3\ See, e.g., Ransom A. Myers and Boris Worm, Rapid Worldwide
Depletion of Predatory Fish Communities, Nature, May 25, 2003;
Francesco Ferretti, Loss of Large Predatory Sharks from the
Mediterranean Sea, 22 Conservation Biology 4, 952-964 (2008); and
Travis D. Shepherd and Ransom A. Myers, Direct and Indirect Fishery
Effects on Small Coastal Elasmobranchs in the Northern Gulf of Mexico,
Ecology Letters, 1095-1104 (2005).
\4\ Ransom A. Myers et al., Cascading Effects of the Loss of Apex
Predatory Sharks from a Coastal Ocean, Science, Mar. 30, 2007, at 1846.
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Under the Magnuson-Stevens Fishery Conservation and
Management Act (``MSA''),\5\ as amended by the Shark Finning
Prohibition Act of 2000,\6\ it is unlawful to: (1) remove the
fins of sharks and discard their carcasses; (2) have custody,
control, or possession of any such fin aboard a fishing vessel
without the corresponding carcass; or (3) land any such fin
without the corresponding carcass.\7\ There is a rebuttable
presumption that a violation of these prohibitions has occurred
if the total weight of shark fins found aboard a fishing vessel
or landed is greater than five percent of the total weight of
shark carcasses found aboard the vessel or landed.\8\ The MSA
defines the term ``fishing vessel'' broadly to include not only
vessels used for fishing, but also vessels used to assist other
vessels at sea in the performance of any activity related to
fishing.\9\ Such fishing-related activities include, but are
not limited to, ``...preparation, supply, storage,
refrigeration, transportation, or processing.''\10\
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\5\ 16 U.S.C. Sec. 1801 et seq.
\6\ Pub. L. 106-557, 114 Stat. 2772.
\7\ 16 U.S.C. Sec. 1857(1)(P).
\8\ Id. Sec. 1857(1).
\9\ Id. Sec. 1802(18).
\10\ Id. Sec. 1802(18)(B) (emphasis added).
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Despite the broad range of vessels to which the shark finning
and other provisions of the MSA are meant to apply, the United
States Court of Appeals for the 9th Circuit held in March,
2008, that the shark finning prohibitions and related
implementing regulations promulgated by the National Marine
Fisheries Service (``NMFS'') do not apply to certain vessels
even though they are performing fishing-related activities.\11\
In that 9th Circuit case, the government brought a civil
forfeiture action against a cargo of shark fins seized from a
United States vessel operating under a Registry endorsement
(and, before that, under a Fishery endorsement), allowing it to
engage in foreign trade. The vessel had been chartered by a
Hong Kong seafood products company to rendezvous with foreign
fishing vessels on the high seas, purchase shark fins from
those vessels, and transport the shark fins to Guatemala where
the Hong Kong company planned to accept delivery. Applying the
law to the facts of the case, the court determined that the
statutory definition of ``fishing vessel'' did not offer fair
notice to the chartering company that the vessel's activities
(i.e., engaging in the at-sea purchase and transfer of shark
fins) would render it a ``fishing vessel'' subject to the shark
finning laws. As a result, the court held that applying the
shark finning prohibitions to the vessel and its charterer
violated due process.\12\
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\11\ See United States v. Approx. 64,695 Pounds of Shark Fins, 520
F.3d 976 (9th Cir. 2008).
\12\ Id. at 983.
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The Committee is aware of the economic concerns that a fins-
attached requirement may raise in certain States and United
States territories where fisheries have developed in accordance
with cultural norms that value the entire shark as a food fish,
and separating fin from shark has been a normal step in the
practice of pre-processing the shark for higher value at the
time of commercial sale. Since these Pacific fisheries present
special challenges for legislation aimed at prohibiting the
abusive practice of finning sharks and discarding the
carcasses, the Committee urges the Secretary, in consultation
with the appropriate regional fishery management councils, to
determine whether additional regulations are warranted to make
allowance for regional and cultural differences in the shark
fisheries. The Committee recognizes that fishing opportunities
in the Pacific, especially in Guam and the Northern Marianas
Islands, are being increasingly restricted through the
designation of the Marianas Trench National Marine Monument and
the pending military build-up in Guam. While it is important
for the United States to remain an international leader in
conservation, part of that leadership role means understanding
regional variations in fishing practices, the cultural
dimensions of demand for ocean products, and the relative
health of the ecosystems that support fisheries.
These economic concerns are not limited to the Pacific.
Similar concerns have been raised regarding commercial smooth
dogfish fisheries along the mid-Atlantic coast of the United
States. The Committee understands that, although this
commercial fishing activity generally occurs less than five
miles offshore, the fisheries catch is harvested in nearly
equal amounts from State waters and the Federal Exclusive
Economic Zone. The Committee recognizes that this commercial
fishing activity is unique among shark fishing operations, and
does not involve ``shark finning'' as that term is defined
under current law. Unlike large coastal sharks, whose fins
account for 80 percent or more of their value, it is the flesh,
not the fins, of smooth dogfish which accounts for 75 percent
or more of their value (when the flesh is of a high quality).
Moreover, while the fins of many sharks can carry a value of
hundreds of dollars per pound, smooth dogfish fins are
typically valued at less than $2 per pound. The Committee is
informed that, because the flesh of smooth dogfish is
especially prone to spoilage, the fish must be partially
processed at sea before returning to shore in order to ensure a
high quality product. This practice involves the removal of the
fins as well as other parts of the fish. The Committee urges
the Secretary, in consultation with the appropriate regional
fishery management councils and the Atlantic States Marine
Fisheries Commission, to determine appropriate allowances under
the provisions of S. 850 to avoid undue burdens on commercial
smooth dogfish fishing.
Summary of Provisions
S. 850 would clarify that the shark finning prohibitions of
the Magnuson-Stevens Act apply not only to fishing vessels, but
also to non-fishing vessels involved in transferring or
receiving shark fins at sea. The bill would also strengthen
Federal fisheries enforcement capabilities related to shark
finning in two important ways. First, it would require that
sharks caught in Federal waters or under a Federal fishing
permit must be taken and landed with all fins at least
partially attached to their corresponding carcasses. Second, it
would amend the High Seas Driftnet Fishing Moratorium
Protection Act, 16 U.S.C. 1826(d)-(k), to provide the United
States with the ability to take action against countries that
catch sharks if those countries lack comparable shark
conservation laws.
Legislative History
S. 850 was introduced on April 22, 2009, by Senator Kerry and
was referred to the Committee on Commerce, Science, and
Transportation. A budget and oversight hearing on National
Oceanic and Atmospheric Administration (NOAA) issues, including
fish conservation and management issues, was held by the
Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard
on June 11, 2009. As a part of that hearing, questions were
asked for the record regarding the Administration's views on
the need for additional shark conservation legislation and on
the provisions of S. 850. On November 19, 2009, the Committee
met in open executive session and by voice vote ordered that S.
850 be reported with an amendment in the nature of a
substitute.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
December 1, 2009.
Hon. John D. Rockefeller IV,
Chairman, Committee on Commerce, Science and Transportation,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 850, the Shark
Conservation Act of 2009.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jeff LaFave.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 850--Shark Conservation Act of 2009
Summary: S. 850 would prohibit certain activities that may
involve shark finning (the practice of removing a shark's fins
and discarding its carcass). The bill also would direct the
National Oceanic and Atmospheric Administration (NOAA) to
identify foreign nations that do not sufficiently regulate
fishing practices that harm sharks.
Based on information from NOAA and assuming appropriation
of the necessary amounts, CBO estimates that implementing S.
850 would cost $5 million over the 2010-2014 period. Enacting
the legislation would not affect revenues or direct spending.
S. 850 contains no intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA) and would not affect
the budgets of state, local, or tribal governments.
S. 850 would impose private-sector mandates, as defined in
UMRA, by requiring that shark fins aboard fishing vessels,
transferred or received at sea, or landed at a U.S. port be
naturally attached to the carcass. CBO estimates that the cost
of complying with the mandates would fall well below the annual
threshold established in UMRA for private-sector mandates ($139
million in 2009, adjusted annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 850 is shown in the following table. The
costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
------------------------------------------------------
2010-
2010 2011 2012 2013 2014 2014
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level............................ 1 1 1 1 1 5
Estimated Outlays........................................ 1 1 1 1 1 5
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Basis of estimate: For this estimate, CBO assumes that S.
850 will be enacted early in calendar year 2010 and that the
necessary amounts will be appropriated for each fiscal year.
S. 850 would amend the Magnuson-Stevens Fishery
Conservation and Management Act to prohibit fishing vessels
from possessing shark fins that are not naturally attached to a
carcass. The bill also would require NOAA to identify any
nation that permits fishing vessels to catch sharks without
also having adopted a conservation program for sharks that is
similar to that of the United States. Based on information from
NOAA, CBO estimates that the agency would need $1 million for
each of fiscal years 2010 through 2014 to expand existing
reports on fishing practices, to enforce new prohibitions on
possessing shark fins, and to help foreign nations improve
their shark conservation efforts.
Estimated impact on state, local, and tribal governments:
S. 850 contains no intergovernmental mandates as defined in
UMRA and would not affect the budgets of state, local, or
tribal governments.
Estimated impact on the private sector: S. 850 would impose
private-sector mandates as defined in UMRA. The bill would make
it unlawful to possess shark fins aboard fishing vessels, to
transfer or receive shark fins at sea, or to land shark fins at
a U.S. port without the fin naturally attached to the carcass.
CBO estimates that the cost to comply with the mandates would
fall well below the annual threshold established in UMRA for
private-sector mandates ($139 million in 2009, adjusted
annually for inflation).
Current law prohibits the possession of a shark fin on a
fishing vessel and the landing of a shark fin at a U.S. port
without the corresponding carcass. By requiring fins to be
naturally attached to the shark, the bill would impose an
additional mandate on owners and operators of those vessels.
Because the National Marine Fisheries Service has issued a
final rule with the same requirement for sharks harvested in
the Atlantic Ocean, the mandate would apply only to vessels in
the Pacific Ocean. If the requirement for Pacific sharks is
implemented in a manner similar to the rule for Atlantic
sharks, leaving fins attached by a flap of skin would be
considered naturally attached and would comply with the
mandate. Compared with leaving the fins completely attached,
that process would provide for easier storage aboard the vessel
and removal of the fin once landed. CBO expects that the
mandate in the bill would be enforced in this manner and thus
would not impose significant additional costs on owners and
operators of fishing vessels.
The bill also would impose a mandate on the owners and
operators of certain U.S. vessels by prohibiting the vessels
from receiving shark fins at sea that are not naturally
attached to the carcass. The cost would be any loss in net
income to the owners and operators of those vessels. CBO
estimates that such costs would not be significant in relation
to the threshold established in UMRA.
Estimate prepared by: Federal costs: Jeff LaFave; Impact on
state, local, and tribal governments: Ryan Miller; Impact on
the private sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 850 as reported by the Committee includes several
provisions which, if enacted and signed into law, would
strengthen the implementation and enforcement of the Shark
Finning Prohibition Act of 2000 (SFPA). The bill would clarify
in statute what was already popularly understood to be the
scope of application of the SFPA prior to the 2008 ruling by
the Federal Court of Appeals for the 9th Circuit, discussed
supra. Furthermore, the bill would simplify how shark finning
is defined by conforming that definition with fins-partially-
attached requirements which already exist under Federal fishery
management plans for sharks and other highly migratory species
in the Exclusive Economic Zone in the Atlantic and the Gulf of
Mexico. Accordingly, the only foreseeable regulatory impacts of
S. 850 will be: (1) to substantially lessen the likelihood that
law-abiding persons will be wrongly accused of shark finning;
and (2) to enhance the ability of Federal fisheries law
enforcement authorities to identify successfully and prosecute
shark finning violations.
ECONOMIC IMPACT
The Committee foresees no negative economic impact associated
with S. 850 other than those relating specifically to
commercial shark fishing activity in the Pacific and off the
coast of Virginia and possibly some neighboring mid-Atlantic
States, discussed in the Section-by-Section Analysis, infra.
PRIVACY
The reported bill would have little, if any, impact on the
personal privacy of individuals.
PAPERWORK
The reported bill should not increase significantly paperwork
requirements for individuals or businesses.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides the
following identification of congressionally directed spending
items contained in the bill, as reported:
Section-by-Section Analysis
Section 1. Short title
This section would provide that the legislation may be cited
as the Shark Conservation Act of 2009.
Section 2. Amendment of High Seas Driftnet Fishing Moratorium
Protection Act
This section would make several amendments to the High Seas
Driftnet Fishing Moratorium Protection Act to enable the
Secretary of Commerce, in consultation with the Secretary of
State, to pursue the adoption by international fishery
management organizations and members thereof of shark
conservation measures comparable to those of the United States,
and to take action against countries whose fishing vessels
target or incidentally take sharks if those countries lack a
shark conservation program comparable to that of the United
States. The Committee wishes to make clear that the provisions
of this section are intended to be construed in a manner
consistent with United States obligations as a member of the
World Trade Organization and under all other applicable
international agreements.
Subsection (a) of this section would amend section 608 of the
High Seas Driftnet Fishing Moratorium Protection Act, 16 U.S.C.
1826i, to require the Secretary of Commerce, in consultation
with the Secretary of State and in cooperation with the
relevant fishery management councils and advisory committees,
to take actions to improve the effectiveness of international
fishery management organizations of which the United States is
a member by: (1) urging such organizations to adopt shark
conservation measures, including measures to prohibit removal
of any of the fins of a shark (including the tail) and
discarding the carcass of the shark at sea; and (2) urging such
organizations and the members thereof to adopt or expand
market-related measures requiring conservation of sharks,
including measures comparable to those of the United States to
prohibit removing any of the fins of a shark (including the
tail) and discarding the carcass at sea, taking into account
different conditions.
Subsection (b) of this section would amend section 609 of the
High Seas Driftnet Fishing Moratorium Protection Act, 16 U.S.C.
1826j, to include shark conservation measures among the
statutory guidelines which must be used by the Secretary of
Commerce to define ``illegal, unreported, or unregulated
fishing'' for purposes of the identification and prohibition
requirements of that Act.
Subsection (c) of this section would amend section 610 of the
High Seas Driftnet Fishing Moratorium Protection Act, 16 U.S.C.
1826k, to authorize the Secretary of Commerce to identify and
list a nation under that Act if: (1) fishing vessels of that
nation are engaged, or have been engaged during the preceding
calendar year, in fishing activities or practices in waters
beyond any national jurisdiction that target or incidentally
catch sharks; and (2) that nation has not adopted a regulatory
program to provide for the conservation of sharks, including
measures to prohibit removal of any of the fins of a shark
(including the tail) and discarding the carcass at sea, that is
comparable to that of the United States, taking into account
different conditions. This subsection would also require the
Secretary of Commerce to begin making the identifications
required under paragraph (2) of section (6)(a) of the High Seas
Driftnet Fishing Moratorium Protection Act, as amended by this
Act, not later than one year after the date of enactment of
this Act.
Section 3. Amendment of Magnuson-Stevens Fishery Conservation and
Management Act
This section would amend subparagraph (1)(P) of section 307
of the MSA to simplify and strengthen the existing prohibition
on shark finning. It would eliminate the second element of the
crime of shark finning under current law, which requires that
the carcass of a shark be discarded at sea (after one or more
fins are removed) in order for a violation to have occurred,
and provides simply that it is unlawful to remove any of the
fins of a shark, including the tail, at sea. This section would
also enhance the prohibitions against having custody, control,
or possession of a shark fin aboard a fishing vessel without
the corresponding carcass, or landing such a fin without the
corresponding carcass, by requiring that the fins remain
naturally attached to the corresponding carcass in such
instances. Finally, this section would address the 9th Circuit
Court of Appeals ruling regarding vessels to which the shark
finning prohibition applies by specifying that it is unlawful
to transfer a shark fin from one vessel to another vessel at
sea, or to receive a shark fin in such a transfer, without the
fin being naturally attached to the corresponding carcass.
This section of S. 850 would also revise the current
rebuttable presumption language of section 307(1) of the MSA,
16 U.S.C. 1857(1). It provides that: (1) if any shark fin,
including the tail, is found aboard a vessel other than a
fishing vessel without being naturally attached to the
corresponding carcass, there is a rebuttable presumption that
the fin was transferred in violation of the new prohibition
against vessels transferring or receiving fins at sea
established by this section; or (2) if, after landing, the
total weight of shark fins, including the tail, landed from any
vessel is greater than five percent of the total weight of
shark carcasses landed, there is a rebuttable presumption that
such fins were taken, held, or landed in violation of
subparagraph (1)(P) of Section 307 as amended by this section.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, 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 material is printed
in italic, existing law in which no change is proposed is shown
in roman):
HIGH SEAS DRIFTNET FISHING MORATORIUM PROTECTION ACT
SEC. 608. ACTION TO STRENGTHEN INTERNATIONAL FISHERY MANAGEMENT
ORGANIZATIONS.
[16 U.S.C. 1826i]
The Secretary, in consultation with the Secretary of State,
and in cooperation with relevant fishery management councils
and any relevant advisory committees, shall take actions to
improve the effectiveness of international fishery management
organizations in conserving and managing fish stocks under
their jurisdiction. These actions shall include--
(1) urging international fishery management
organizations to which the United States is a member--
(A) to incorporate multilateral market-
related measures against member or nonmember
governments whose vessels engage in illegal,
unreported, or unregulated fishing;
(B) to seek adoption of lists that identify
fishing vessels and vessel owners engaged in
illegal, unreported, or unregulated fishing
that can be shared among all members and other
international fishery management organizations;
(C) to seek international adoption of a
centralized vessel monitoring system in order
to monitor and document capacity in fleets of
all nations involved in fishing in areas under
an international fishery management
organization's jurisdiction;
(D) to increase use of observers and
technologies needed to monitor compliance with
conservation and management measures
established by the organization, including
vessel monitoring systems and automatic
identification systems; [and]
(E) to seek adoption of stronger port state
controls in all nations, particularly those
nations in whose ports vessels engaged in
illegal, unreported, or unregulated fishing
land or transship fish; and
(F) to adopt shark conservation measures,
including measures to prohibit removal of any
of the fins of a shark (including the tail) and
discarding the carcass of the shark at sea;
(2) urging international fishery management
organizations to which the United States is a member,
as well as all members of those organizations, to adopt
and expand the use of market-related measures to combat
illegal, unreported, or unregulated fishing,
including--
(A) import prohibitions, landing
restrictions, or other market-based measures
needed to enforce compliance with international
fishery management organization measures, such
as quotas and catch limits;
(B) import restrictions or other market-based
measures to prevent the trade or importation of
fish caught by vessels identified
multilaterally as engaging in illegal,
unreported, or unregulated fishing; and
(C) catch documentation and certification
schemes to improve tracking and identification
of catch of vessels engaged in illegal,
unreported, or unregulated fishing, including
advance transmission of catch documents to
ports of entry; [and]
(3) seeking to enter into international agreements
that require measures for the conservation of sharks,
including measures to prohibit removal of any of the
fins of a shark (including the tail) and discarding the
carcass of the shark at sea, that are comparable to
those of the United States, taking into account
different conditions; and
[(3)] (4) urging other nations at bilateral,
regional, and international levels, including the
Convention on International Trade in Endangered Species
of Fauna and Flora and the World Trade Organization to
take all steps necessary, consistent with international
law, to adopt measures and policies that will prevent
fish or other living marine resources harvested by
vessels engaged in illegal, unreported, or unregulated
fishing from being traded or imported into their nation
or territories.
SEC. 609. ILLEGAL, UNREPORTED, OR UNREGULATED FISHING.
[16 U.S.C. 1826j]
(a) Identification.--The Secretary shall identify, and list
in the report under section 607, a nation if fishing vessels of
that nation are engaged, or have been engaged at any point
during the preceding 2 years, in illegal, unreported, or
unregulated fishing--
(1) the relevant international fishery management
organization has failed to implement effective measures
to end the illegal, unreported, or unregulated fishing
activity by vessels of that nation or the nation is not
a party to, or does not maintain cooperating status
with, such organization; or
(2) where no international fishery management
organization exists with a mandate to regulate the
fishing activity in question.
(b) Notification.--An identification under subsection (a) or
section 610(a) is deemed to be an identification under section
101(b)(1)(A) of the High Seas Driftnet Fisheries Enforcement
Act (16 U.S.C. 1826a(b)(1)(A)), and the Secretary shall notify
the President and that nation of such identification.
(c) Consultation.--No later than 60 days after submitting a
report to Congress under section 607, the Secretary, acting
through the Secretary of State, shall--
(1) notify nations listed in the report of the
requirements of this section;
(2) initiate consultations for the purpose of
encouraging such nations to take the appropriate
corrective action with respect to the offending
activities of their fishing vessels identified in the
report; and
(3) notify any relevant international fishery
management organization of the actions taken by the
United States under this section.
(d) IUU Certification Procedure.--
(1) Certification.--The Secretary shall establish a
procedure, consistent with the provisions of subchapter
II of chapter 5 of title 5, United States Code, for
determining if a nation identified under subsection (a)
and listed in the report under section 607 has taken
appropriate corrective action with respect to the
offending activities of its fishing vessels identified
in the report under section 607. The certification
procedure shall provide for notice and an opportunity
for comment by any such nation. The Secretary shall
determine, on the basis of the procedure, and certify
to the Congress no later than 90 days after the date on
which the Secretary promulgates a final rule containing
the procedure, and biennially thereafter in the report
under section 607--
(A) whether the government of each nation
identified under subsection (a) has provided
documentary evidence that it has taken
corrective action with respect to the offending
activities of its fishing vessels identified in
the report; or
(B) whether the relevant international
fishery management organization has implemented
measures that are effective in ending the
illegal, unreported, or unregulated fishing
activity by vessels of that nation.
(2) Alternative procedure.--The Secretary may
establish a procedure for certification, on a shipment-
by-shipment, shipper-by-shipper, or other basis of fish
or fish products from a vessel of a harvesting nation
not certified under paragraph (1) if the Secretary
determines that--
(A) the vessel has not engaged in illegal,
unreported, or unregulated fishing under an
international fishery management agreement to
which the United States is a party; or
(B) the vessel is not identified by an
international fishery management organization
as participating in illegal, unreported, or
unregulated fishing activities.
(3) Effect of certification.--
(A) In general.--The provisions of section
101(a) and section 101(b)(3) and (4) of this
Act (16 U.S.C. 1826a(a), (b)(3), and (b)(4))--
(i) shall apply to any nation
identified under subsection (a) that
has not been certified by the Secretary
under this subsection, or for which the
Secretary has issued a negative
certification under this subsection;
but
(ii) shall not apply to any nation
identified under subsection (a) for
which the Secretary has issued a
positive certification under this
subsection.
(B) Exceptions.--Subparagraph (A)(i) does not
apply--
(i) to the extent that such
provisions would apply to sport fishing
equipment or to fish or fish products
not managed under the applicable
international fishery agreement; or
(ii) if there is no applicable
international fishery agreement, to the
extent that such provisions would apply
to fish or fish products caught by
vessels not engaged in illegal,
unreported, or unregulated fishing.
(e) Illegal, Unreported, or Unregulated Fishing Defined.--
(1) In general.--In this Act the term ``illegal,
unreported, or unregulated fishing'' has the meaning
established under paragraph (2).
(2) Secretary to define term within legislative
guidelines.--Within 3 months after the date of
enactment of the Magnuson-Stevens Fishery Conservation
and Management Reauthorization Act of 2006, the
Secretary shall publish a definition of the term
``illegal, unreported, or unregulated fishing'' for
purposes of this Act.
(3) Guidelines.--The Secretary shall include in the
definition, at a minimum--
(A) fishing activities that violate
conservation and management measures required
under an international fishery management
agreement to which the United States is a
party, including catch limits or quotas,
capacity restrictions, [and] bycatch reduction
requirements[;], and shark conservation
measures;
(B) overfishing of fish stocks shared by the
United States, for which there are no
applicable international conservation or
management measures or in areas with no
applicable international fishery management
organization or agreement, that has adverse
impacts on such stocks; and
(C) fishing activity that has an adverse
impact on seamounts, hydrothermal vents, and
cold water corals located beyond national
jurisdiction, for which there are no applicable
conservation or management measures or in areas
with no applicable international fishery
management organization or agreement.
(f) Authorization of Appropriations.--There are authorized to
be appropriated to the Secretary for fiscal years 2007 through
2013 such sums as are necessary to carry out this section.
SEC. 610. EQUIVALENT CONSERVATION MEASURES.
[16 U.S.C. 1826k]
(a) Identification.--The Secretary shall identify, and list
in the report under section [607, a nation if] 607--
(1) a nation if--
[(1)] (A) fishing vessels of that nation are
engaged, or have been engaged during the
preceding calendar year in fishing activities
or practices;
[(A)] (i) in waters beyond any
national jurisdiction that result in
bycatch of a protected living marine
resource; or
[(B)] (ii) beyond the exclusive
economic zone of the United States that
result in bycatch of a protected living
marine resource shared by the United
States;
[(2)] (B) the relevant international
organization for the conservation and
protection of such resources or the relevant
international or regional fishery organization
has failed to implement effective measures to
end or reduce such bycatch, or the nation is
not a party to, or does not maintain
cooperating status with, such organization; and
[(3)] (C) the nation has not adopted a
regulatory program governing such fishing
practices designed to end or reduce such
bycatch that is comparable to that of the
United States, taking into account different
conditions[.]; and
(2) a nation if--
(A) fishing vessels of that nation are
engaged, or have been engaged during the
preceding calendar year, in fishing activities
or practices in waters beyond any national
jurisdiction that target or incidentally catch
sharks; and
(B) the nation has not adopted a regulatory
program to provide for the conservation of
sharks, including measures to prohibit removal
of any of the fins of a shark (including the
tail) and discarding the carcass of the shark
at sea, that is comparable to that of the
United States, taking into account different
conditions.
(b) Consultation and Negotiation.--The Secretary, acting
through the Secretary of State, shall--
(1) notify, as soon as possible, other nations whose
vessels engage in fishing activities or practices
described in subsection (a), about the provisions of
this section and this Act;
(2) initiate discussions as soon as possible with all
foreign governments which are engaged in, or which have
persons or companies engaged in, fishing activities or
practices described in subsection (a), for the purpose
of entering into bilateral and multilateral treaties
with such countries to protect such species;
(3) seek agreements calling for international
restrictions on fishing activities or practices
described in subsection (a) through the United Nations,
the Food and Agriculture Organization's Committee on
Fisheries, and appropriate international fishery
management bodies; and
(4) initiate the amendment of any existing
international treaty for the protection and
conservation of such species to which the United States
is a party in order to make such treaty consistent with
the purposes and policies of this section.
(c) Conservation Certification Procedure.--
(1) Determination.--The Secretary shall establish a
procedure consistent with the provisions of subchapter
II of chapter 5 of title 5, United States Code, for
determining whether the government of a harvesting
nation identified under subsection (a) and listed in
the report under section 607--
(A) has provided documentary evidence of the
adoption of a regulatory program governing the
conservation of the protected living marine
resource that is comparable to that of the
United States, taking into account different
conditions, and which, in the case of pelagic
longline fishing, includes mandatory use of
circle hooks, careful handling and release
equipment, and training and observer programs;
and
(B) has established a management plan
containing requirements that will assist in
gathering species-specific data to support
international stock assessments and
conservation enforcement efforts for protected
living marine resources.
(2) Procedural requirement.--The procedure
established by the Secretary under paragraph (1) shall
include notice and opportunity for comment by any such
nation.
(3) Certification.--The Secretary shall certify to
the Congress by January 31, 2007, and biennially
thereafter whether each such nation has provided the
documentary evidence described in paragraph (1)(A) and
established a management plan described in paragraph
(1)(B).
(4) Alternative procedure.--The Secretary shall
establish a procedure for certification, on a shipment-
by-shipment, shipper-by-shipper, or other basis of fish
or fish products from a vessel of a harvesting nation
not certified under paragraph (3) if the Secretary
determines that such imports were harvested by
practices that do not result in bycatch of a protected
marine species, or were harvested by practices that--
(A) are comparable to those of the United
States, taking into account different
conditions, and which, in the case of pelagic
longline fishing, includes mandatory use of
circle hooks, careful handling and release
equipment, and training and observer programs;
and
(B) include the gathering of species-specific
data that can be used to support international
and regional stock assessments and conservation
efforts for protected living marine resources.
(5) Effect of certification.--The provisions of
section 101(a) and section 101(b)(3) and (4) of this
Act (16 U.S.C. 1826a(a), (b)(3), and (b)(4)) (except to
the extent that such provisions apply to sport fishing
equipment or fish or fish products not caught by the
vessels engaged in illegal, unreported, or unregulated
fishing) shall apply to any nation identified under
subsection (a) that has not been certified by the
Secretary under this subsection, or for which the
Secretary has issued a negative certification under
this subsection, but shall not apply to any nation
identified under subsection (a) for which the Secretary
has issued a positive certification under this
subsection.
(d) International Cooperation and Assistance.--To the
greatest extent possible consistent with existing authority and
the availability of funds, the Secretary shall--
(1) provide appropriate assistance to nations
identified by the Secretary under subsection (a) and
international organizations of which those nations are
members to assist those nations in qualifying for
certification under subsection (c);
(2) undertake, where appropriate, cooperative
research activities on species statistics and improved
harvesting techniques, with those nations or
organizations;
(3) encourage and facilitate the transfer of
appropriate technology to those nations or
organizations to assist those nations in qualifying for
certification under subsection (c); and
(4) provide assistance to those nations or
organizations in designing and implementing appropriate
fish harvesting plans.
(e) Protected Living Marine Resource Defined.--In this
section the term ``protected living marine resource''--
(1) means non-target fish, sea turtles, or marine
mammals that are protected under United States law or
international agreement, including the Marine Mammal
Protection Act, the Endangered Species Act, the Shark
Finning Prohibition Act, and the Convention on
International Trade in Endangered Species of Wild Flora
and Fauna; but
(2) does not include species, except sharks, managed
under the Magnuson-Stevens Fishery Conservation and
Management Act, the Atlantic Tunas Convention Act, or
any international fishery management agreement.
(f) Authorization of Appropriations.--There are authorized to
be appropriated to the Secretary for fiscal years 2007 through
2013 such sums as are necessary to carry out this section.
MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT
SEC. 307. PROHIBITED ACTS.
[16 U.S.C. 1857]
It is unlawful--
(1) for any person--
(A) to violate any provision of this Act or
any regulation or permit issued pursuant to
this Act;
(B) to use any fishing vessel to engage in
fishing after the revocation, or during the
period of suspension, of an applicable permit
issued pursuant to this Act;
(C) to violate any provision of, or
regulation under, an applicable governing
international fishery agreement entered into
pursuant to section 201(c);
(D) to refuse to permit any officer
authorized to enforce the provisions of this
Act (as provided for in section 311) to board a
fishing vessel subject to such person's control
for purposes of conducting any search or
inspection in connection with the enforcement
of this Act or any regulation, permit, or
agreement referred to in subparagraph (A) or
(C);
(E) to forcibly assault, resist, oppose,
impede, intimidate, or interfere with any such
authorized officer in the conduct of any search
or inspection described in subparagraph (D);
(F) to resist a lawful arrest for any act
prohibited by this section;
(G) to ship, transport, offer for sale, sell,
purchase, import, export, or have custody,
control, or possession of, any fish taken or
retained in violation of this Act or any
regulation, permit, or agreement referred to in
subparagraph (A) or (C);
(H) to interfere with, delay, or prevent, by
any means, the apprehension or arrest of
another person, knowing that such other person
has committed any act prohibited by this
section;
(I) to knowingly and willfully submit to a
Council, the Secretary, or the Governor of a
State false information (including, but not
limited to, false information regarding the
capacity and extent to which a United States
fish processor, on an annual basis, will
process a portion of the optimum yield of a
fishery that will be harvested by fishing
vessels of the United States) regarding any
matter that the Council, Secretary, or Governor
is considering in the course of carrying out
this Act;
(J) to ship, transport, offer for sale, sell,
or purchase, in interstate or foreign commerce,
any whole live lobster of the species Homarus
americanus, that--
(i) is smaller than the minimum
possession size in effect at the time
under the American Lobster Fishery
Management Plan, as implemented by
regulations published in part 649 of
title 50, Code of Federal Regulations,
or any successor to that plan
implemented under this title, or in the
absence of any such plan, is smaller
than the minimum possession size in
effect at the time under a coastal
fishery management plan for American
lobster adopted by the Atlantic States
Marine Fisheries Commission under the
Atlantic Coastal Fisheries Cooperative
Management Act (16 U.S.C. 5101 et
seq.);
(ii) is bearing eggs attached to its
abdominal appendages; or
(iii) bears evidence of the forcible
removal of extruded eggs from its
abdominal appendages;
(K) to steal or attempt to steal or to
negligently and without authorization remove,
damage, or tamper with--
(i) fishing gear owned by another
person, which is located in the
exclusive economic zone,
(ii) fish contained in such fishing
gear;
(L) to forcibly assault, resist, oppose,
impede, intimidate, sexually harass, bribe, or
interfere with any observer on a vessel under
this Act, or any data collector employed by the
National Marine Fisheries Service or under
contract to any person to carry out
responsibilities under this Act;
(M) to engage in large-scale driftnet fishing
that is subject to the jurisdiction of the
United States, including use of a fishing
vessel of the United States to engage in such
fishing beyond the exclusive economic zone of
any nation;
(N) to strip pollock of its roe and discard
the flesh of the pollock;
(O) to knowingly and willfully fail to
disclose, or to falsely disclose, any financial
interest as required under section 302(j), or
to knowingly vote on a Council decision in
violation of section 302(j)(7)(A);
[(P)(i) to remove any of the fins of a shark
(including the tail) and discard the carcass of
the shark at sea;
[(ii) to have custody, control, or
possession of any such fin aboard a
fishing vessel without the
corresponding carcass; or
[(iii) to land any such fin without
the corresponding carcass;]
(P)(i) to remove any of the fins of a shark
(including the tail) at sea;
(ii) to have custody, control, or possession
of any such fin aboard a fishing vessel unless
it is naturally attached to the corresponding
carcass;
(iii) to transfer any such fin from one
vessel to another vessel at sea, or to receive
any such fin in such transfer, without the fin
naturally attached to the corresponding
carcass; or
(iv) to land any such fin that is not
naturally attached to the corresponding
carcass, or to land any shark carcass without
such fins naturally attached;
(Q) to import, export, transport, sell,
receive, acquire, or purchase in interstate or
foreign commerce any fish taken, possessed,
transported, or sold in violation of any
foreign law or regulation; or
(R) to use any fishing vessel to engage in
fishing in Federal or State waters, or on the
high seas or in the waters of another country,
after the Secretary has made a payment to the
owner of that fishing vessel under section
312(b)(2).
[For purposes of subparagraph (P) there is a
rebuttable presumption that any shark fins landed from
a fishing vessel or found on board a fishing vessel
were taken, held, or landed in violation of
subparagraph (P) if the total weight of shark fins
landed or found on board exceeds 5 percent of the total
weight of shark carcasses landed or found on board.]
For purposes of subparagraph (P), there shall be a
rebuttable presumption that if any shark fin (including
the tail) is found aboard a vessel, other than a
fishing vessel, without being naturally attached to the
corresponding carcass, such fin was transferred in
violation of subparagraph (P)(iii) or that if, after
landing, the total weight of shark fins (including the
tail) landed from any vessel exceeds five percent of
the total weight of shark carcasses landed, such fins
were taken, held, or landed in violation of
subparagraph (P). In such subparagraph, the term
``naturally attached'', with respect to a shark fin,
means attached to the corresponding shark carcass
through some portion of uncut skin.
(2) for any vessel other than a vessel of the United
States, and for the owner or operator of any vessel
other than a vessel of the United States, to engage--
(A) in fishing within the boundaries of any
State, except--
(i) recreational fishing permitted
under section 201(i);
(ii) fish processing permitted under
section 306(c); or
(iii) transshipment at sea of fish or
fish products within the boundaries of
any State in accordance with a permit
approved under section 204(d);
(B) in fishing, except recreational fishing
permitted under section 201(i), within the
exclusive economic zone, or for any anadromous
species or Continental Shelf fishery resources
beyond such zone, unless such fishing is
authorized by, and conducted in accordance
with, a valid and applicable permit issued
pursuant to section 204(b), (c), or (d); or
(C) except as permitted under section 306(c),
in fish processing (as defined in paragraph
(4)(A) of such section) within the internal
waters of a State (as defined in paragraph
(4)(B) of such section);
(3) for any vessel of the United States, and for the
owner or operator of any vessel of the United States,
to transfer at sea directly or indirectly, or attempt
to so transfer at sea, any United States harvested fish
to any foreign fishing vessel, while such foreign
vessel is within the exclusive economic zone or within
the boundaries of any State except to the extent that
the foreign fishing vessel has been permitted under
section 204(d) or section 306(c) to receive such fish;
(4) for any fishing vessel other than a vessel of the
United States to operate, and for the owner or operator
of a fishing vessel other than a vessel of the United
States to operate such vessel, in the exclusive
economic zone or within the boundaries of any State,
if--
(A) all fishing gear on the vessel is not
stored below deck or in an area where it is not
normally used, and not readily available, for
fishing; or
(B) all fishing gear on the vessel which is
not so stored is not secured and covered so as
to render it unusable for fishing; unless such
vessel is authorized to engage in fishing in
the area in which the vessel is operating; and
(5) for any vessel of the United States, and for the
owner or operator of any vessel of the United States,
to engage in fishing in the waters of a foreign nation
in a manner that violates an international fishery
agreement between that nation and the United States
that has been subject to Congressional oversight in the
manner described in section 203, or any regulations
issued to implement such an agreement; except that the
binding provisions of such agreement and implementing
regulations shall have been published in the Federal
Register prior to such violation.