[Senate Executive Report 113-1]
[From the U.S. Government Publishing Office]


113th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                       113-1

======================================================================



 
   AGREEMENT ON PORT STATE MEASURES TO PREVENT, DETER, AND ELIMINATE 
    ILLEGAL, UNREPORTED, AND UNREGULATED FISHING (TREATY DOC. 112-4)

                                _______
                                

                 March 13, 2014.--Ordered to be printed

                                _______
                                

         Mr. Menendez, from the Committee on Foreign Relations,
                        submitted the following

                                 REPORT

                    [To accompany Treaty Doc. 112-4]

    The Committee on Foreign Relations, to which was referred 
the Agreement on Port State Measures to Prevent, Deter, and 
Eliminate Illegal, Unreported, and Unregulated Fishing (Treaty 
Doc. 112-4) (the ``Agreement''), done at the Food and 
Agriculture Organization of the United Nations, in Rome, Italy 
on November 22, 2009, and signed by the United States on that 
date, having considered the same, reports favorably thereon 
with one declaration, as indicated in the resolution of advice 
and consent, and recommends that the Senate give its advice and 
consent to ratification thereof.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Summary of Key Provisions of the Agreement.......................2
 IV. Implementing Legislation.........................................5
  V. Committee Action.................................................5
 VI. Committee Recommendation and Comments............................5
VII. Text of Resolution of Advice and Consent to Ratification.........6

                               I. Purpose

    The Agreement, the first global treaty focused specifically 
on illegal, unreported and unregulated fishing (IUU), will 
implement legally binding minimum standards for port states to 
control port access by foreign fishing vessels, as well as the 
foreign transport and supply ships that support fishing 
vessels, and encourages Parties to apply similar measures to 
their own fishing vessels. The Agreement establishes practical 
provisions such as standardized ship inspections and better 
communication between ports concerning vessels associated with 
illegal fishing, so as to prevent fish from illegal, 
unreported, and unregulated fisheries from entering the stream 
of commerce.

                             II. Background

    IUU fishing has had a severe impact on the sustainability 
of marine resources, as well as the ecosystem in which they 
reside. Developing coastal nations that rely upon fish as a 
staple food have encountered great difficulty due to the 
depletion of fish stocks and the resulting loss in local 
employment. In recent years many countries, either on their own 
or working through local regional mechanisms, have begun to 
combat IUU fishing by limiting and regulating vessel access to 
their ports. The international community organized a collective 
process through the United Nations Food and Agriculture 
Organization (FAO) to develop a legally binding instrument to 
combat IUU fishing. The Agreement was adopted by the Food and 
Agriculture Conference on November 22, 2009. There were 23 
original signatories to the Agreement, including the United 
States.

            III. Summary of Key Provisions of the Agreement

    Overall, the Agreement requires Parties to designate ports 
to which foreign vessels may request entry, and to deny entry 
to vessels known to have engaged in IUU fishing. Parties must 
also inspect enough vessels in their ports to achieve the 
objectives of the Agreement, take appropriate action against 
vessels where clear evidence exists of engagement in IUU 
fishing, and communicate the results of such inspections to 
other states. The Agreement also seeks to assist developing 
State Parties in carrying out the Agreement by encouraging 
assistance from other State Parties. A detailed article-by-
article discussion of the Agreement may be found in the Letter 
of Submittal from the Secretary of State to the President, 
which is reprinted in full in Treaty Document 112-4. A summary 
of the key provisions of the Agreement is set forth below.
    Article 1 of the Agreement defines ``illegal fishing'' as 
fishing conducted by vessels in waters under the jurisdiction 
of a State, without permission of that State or in 
contravention of the State's laws and regulations, in 
contravention of international laws, or by vessels of a State 
member of a Regional Fishery Management Organization (RFMO), in 
contravention of that RFMO's conservation and management 
measures. ``Unreported fishing'' is fishing that has either not 
been reported, or is misrepresented to the relevant authority. 
``Unregulated fishing'' is fishing done in areas regulated by 
an RFMO when the vessels do not belong to member states of that 
RFMO, or in an area where there are no conservation and 
management measures, and the vessels fail to conserve living 
marine resources under international law. ``Fish'' is defined 
as all species of living marine resources, and ``fishing 
related activities'' includes fishing, landing, packaging, 
processing, transshipping, and provisioning of personnel, fuel, 
gear and other supplies at sea.
    Article 3 requires a Party to apply the Agreement to all 
vessels not entitled to fly that Party's flag that are seeking 
to use its ports, with exceptions in certain circumstances for 
container vessels, as well as for neighboring state vessels 
engaged in artisanal fishing for subsistence. A Party is not 
required to apply the Agreement to its own flag vessels, and 
the Agreement does not apply to non-marine areas such as lakes 
and internal waters. Fishing need only fit one of the IUU 
categories to be considered IUU fishing. Parties are also 
required to encourage other entities to apply measures 
consistent with the Agreement.
    Article 4 specifies that the Agreement does not bind 
Parties to the standards of RFMOs to which they are not 
members, and does not impact a Party's jurisdiction over its 
internal and territorial waters, or its rights over its 
Exclusive Economic Zone and continental shelf.
    Article 5 requires Parties to integrate fisheries-related 
port measures within their existing system of port controls, 
and to coordinate its port measures with other efforts to 
combat IUU fishing.
    Article 6 obligates a Party to cooperate and exchange 
information with relevant states, the FAO, and other RFMOs and 
international organizations, and obligates a Party to take 
measures in support of conservation and management measures 
adopted by other States or relevant international 
organizations.
    Article 8 obligates Parties to require from all vessels not 
entitled to fly the Party's flag information which includes 
their intended port of call, port state, estimated date and 
time of arrival, purpose of landing, port and date of last port 
call, the name and type of the vessel, as well as their contact 
information and owners, their flag State, their international 
radio call sign, other appropriate identifications, relevant 
fishing and transshipment authorizations, as well as the total 
catch onboard, and total catch to be offloaded.
    Article 9 requires a Party, once it has received the 
relevant information required by Article 8, to make a decision 
whether or not to authorize entry to a port and communicate 
that decision to a vessel. When a Party has sufficient proof 
that a vessel has engaged in IUU fishing, the Party is required 
to deny that vessel entry. Sufficient proof means, in 
particular, the vessel's inclusion on a RFMO IUU list. The 
Party denying entry is required to communicate that decision to 
the vessel's flag State and any relevant RFMOs and 
international organizations. However, a Party may allow such a 
vessel port entry if it is for the purposes of inspecting the 
vessel and taking any other appropriate action under 
international law.
    Article 11 summarizes circumstances where a Party is 
required to deny a vessel already within its port the use of 
that port for fishing related activities and other port 
services, save for services essential to the safety and health 
of the crew and the vessel. These circumstances can include 
lack of authorization for the vessel's activities from its flag 
State, or failure by the flag State to confirm that the vessel 
engaged in fishing pursuant to relevant RFMO measures, or 
reasonable grounds to believe the vessel was engaged in IUU 
fishing or fishing-related activities.
    Article 12 requires Parties to inspect enough vessels in 
its ports to achieve the objectives of this Agreement, and 
encourages Parties to agree on minimum levels of inspection 
through RFMOs, the FAO, or elsewhere. In determining which 
vessels to inspect, a Party must give priority to vessels 
denied entry or use of another port in accordance with the 
Agreement, requests from other relevant Parties, States or 
RFMOs that particular vessels be inspected, and other vessels 
for which there are clear grounds to suspect IUU fishing.
    Article 13 identifies minimum requirements for carrying out 
inspection, including that the inspectors be properly qualified 
and examine all relevant areas of the vessel, attempt to avoid 
undue delay, interference and inconvenience, and ensure that 
inspections are conducted in a fair, transparent and non-
discriminatory manner. The master of the vessel, in turn, must 
render inspectors all necessary assistance and information.
    Article 15 states that Parties shall transmit the results 
of each inspection to the flag State of the inspected vessel 
and, if appropriate, to relevant Parties, States, RFMOs, the 
FAO and other international organizations.
    Article 18 states that if, after an inspection, there are 
clear grounds for believing that a vessel has engaged in IUU 
fishing, the inspecting Party must promptly notify the flag 
State and other appropriate entities, and deny the vessel the 
use of its port for fishing related activities, unless use of 
the port is essential for the safety or health of the crew or 
vessel.
    Article 19 requires that, upon request, information be 
provided to an affected vessel with regard to legal recourse 
under a Party's national laws. Further, in light of any loss or 
damage, an affected vessel can access information about the 
right to seek compensation. The Article only requires that 
information be provided, and does not require any Party to 
create a right of action.
    Article 20 requires that Parties compel cooperation with 
inspections from vessels entitled to fly their flag. When a 
flag State has clear grounds to believe that one of its vessels 
has engaged in IUU fishing activities and is seeking entry to 
or is in the port of another state, it shall, if appropriate, 
request that the State inspect the vessel or take other 
appropriate measures. Each Party must encourage their vessels 
to fish and conduct related activities in a manner in 
accordance with this Agreement, and to develop transparent and 
non-discriminatory procedures for identifying any State not 
acting in accordance with this Agreement. Each Party shall also 
report to other Parties, RFMOs and the FAO on the actions taken 
in respect to vessels entitled to fly its flag that have been 
determined to have engaged in IUU fishing.
    Article 21 requires Parties to assess the special 
requirements of developing States Parties in enacting this 
Agreement, and provide assistance to developing State Parties 
to enhance their ability to implement effective port measures.
    Article 22 provides for a Party to seek consultations with 
any other Party or Parties in the event of a dispute over an 
interpretation or application of the agreement. If the dispute 
is not resolved through such consultations, Parties may, with 
the consent of all parties, refer the dispute to the 
International Court of Justice, the International Tribunal of 
the Law of the Sea, or arbitration.
    Article 24 requires Parties to utilize the framework of the 
FAO to ensure regular review and monitoring of the 
implementation of the Agreement, and to convene the Parties for 
this purpose 4 years after the Agreement has entered into 
force.
    Article 28 provides for the participation of either a 
Regional Economic Integration Organization (REIO) or its member 
states. At the time of signature or accession, the REIO must 
specify either that it has competence for some or all matters 
governed by the Agreement.
    Article 29 provides that the Agreement enters into force 
thirteen days after the twenty-fifth deposit of an instrument 
of ratification, acceptance, approval or accession.
    Articles 30 and 31 preclude making reservations or 
exceptions, but not declarations or statements to the 
Agreement, so long as those declarations or statements do not 
purport to exclude or modify the legal effect of the 
Agreement's provisions.
    Article 33 provides that amendments will be adopted and 
approved only by Parties to the Agreement. Amendments may be 
proposed 2 years after the Agreement enters into force, and may 
be adopted only by consensus. Amendments enter into force for 
Parties that have ratified, accepted or approved them 90 days 
after the deposit of instruments of ratification, acceptance or 
approval from two-thirds of the Parties based on the number of 
Parties on the date of the amendment's adoption.

                      IV. Implementing Legislation

    Legislation will be needed to implement this Agreement. The 
executive branch has indicated that it will soon provide 
proposed legislation to the appropriate congressional 
committees.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the Agreement on February 12, 2014, at which it heard testimony 
from David Balton, the Deputy Assistant Secretary for Oceans 
and Fisheries at the Department of State, as well as from 
Russell Smith, the Deputy Assistant Secretary for International 
Fisheries at the Department of Commerce, and Rear Admiral 
Frederick J. Kenney, Judge Advocate General and Counsel for the 
United States Coast Guard. The committee also heard testimony 
from a panel of private sector witnesses: Mark Gleason, 
Executive Director of the Alaska Bering Sea Crabbers; Mark P. 
Lagon, Global Politics and Security Chair of Georgetown 
University and Adjunct Senior Fellow for Human Rights at the 
Council on Foreign Relations; and Raymond Kane, Outreach 
Coordinator for the Cape Cod Commercial Fishermen's Alliance. 
On March 11, 2014, the committee considered the Agreement and 
ordered it favorably reported by voice vote, with the 
recommendation that the Senate give its advice and consent to 
its ratification.

               VI. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that the 
proposed Agreement is in the interest of the United States and 
urges the Senate to act promptly to give advice and consent to 
its ratification. The committee believes the Agreement is of 
direct and critical interest to United States fishing concerns, 
as well as U.S. conservation organizations, U.S. consumers, and 
those who reside in vulnerable developing coastal countries.
    The Committee on Foreign Relations has included one 
declaration in the recommended resolution of advice and 
consent. The declaration states that the Agreement is not self-
executing. This statement means that the Agreement will have 
domestic effect through implementing legislation and 
regulations thereunder. Prior to the 110th Congress, the 
committee generally included such statements in the committee's 
report, but in light of the Supreme Court decision in Medellin 
v. Texas, 128 S. Ct. 1346 (2008), the committee determined that 
a clear statement in the Resolution is warranted. A further 
discussion of the committee's views on this matter can be found 
in Section VIII of Executive Report 110-12.

     VII. Text of Resolution of Advice and Consent to Ratification

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Agreement on Port State Measures to Prevent, Deter, and 
Eliminate Illegal, Unreported, and Unregulated Fishing, Done at 
the Food and Agriculture Organization of the United Nations, in 
Rome, Italy on November 22, 2009, and Signed by the United 
States on November 22, 2009 (the ``Agreement'') (Treaty Doc. 
112-4), subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:
          The Agreement is not self-executing.

                                  
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