[Senate Report 113-315]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 622
113th Congress  }                                     {  Report
2d Session      }                SENATE               {  113-315
                                                                
_______________________________________________________________________

                                     

                                                       



 
         SOUTH PACIFIC FISHERIES CONVENTION IMPLEMENTATION ACT

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 2484

              


               December 12, 2014.--Ordered to be printed
               
               
                   U.S. GOVERNMENT PRINTING OFFICE
                         WASHINGTON:2014               
               
               
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                    one hundred thirteenth congress
                             second session

             JOHN D. ROCKEFELLER IV, West Virginia, Chairman
 BARBARA BOXER, California            JOHN THUNE, South Dakota
 BILL NELSON, Florida                 ROGER F. WICKER, Mississippi
 MARIA CANTWELL, Washington           ROY BLUNT, Missouri
 MARK PRYOR, Arkansas                 MARCO RUBIO, Florida
 CLAIRE McCASKILL, Missouri           KELLY AYOTTE, New Hampshire
 AMY KLOBUCHAR, Minnesota             DEAN HELLER, Nevada
 MARK BEGICH, Alaska                  DANIEL COATS, Indiana
 RICHARD BLUMENTHAL, Connecticut      TIM SCOTT, South Carolina
 BRIAN SCHATZ, Hawaii                 TED CRUZ, Texas
 ED MARKEY, Massachusetts             DEB FISCHER, Nebraska
 CORY BOOKER, New Jersey              RON JOHNSON, Wisconsin
 JOHN WALSH, Montana
                     Ellen Doneski, Staff Director
                     John Williams, General Counsel
              David Schwietert, Republican Staff Director
              Nick Rossi, Republican Deputy Staff Director
               Rebecca Seidel, Republican General Counsel
               
               
                                                       Calendar No. 622
                                                       
113th Congress  }                                      {  Report
2d Session      }                 SENATE               {  113-315
                                                      

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




         SOUTH PACIFIC FISHERIES CONVENTION IMPLEMENTATION ACT

                                _______
                                

               December 12, 2014.--Ordered to be printed

                                _______
                                

     Mr. Rockefeller, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                         [To accompany S. 2484]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 2484) to implement the 
Convention on the Conservation and Management of the High Seas 
Fishery Resources in the South Pacific Ocean, as adopted at 
Auckland on November 14, 2009, and for other purposes, 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

    The purpose of S. 2484 is to implement the Convention on 
the Conservation and Management of the High Seas Fishery 
Resources in the South Pacific Ocean, as adopted at Auckland on 
November 14, 2009, and for other purposes.

                          Background and Needs


International Fisheries Management

    Many fish stocks around the world have become depleted in 
the last several decades as a result of fleet overcapacity, 
overfishing, and ineffective fisheries law enforcement regimes. 
Coastal fishing nations are responsible for managing the stocks 
that fall within their domestic waters, which extend 200 miles 
from their coastline, also known as their Exclusive Economic 
Zone (EEZ). Unfortunately, many of these coastal nations do not 
manage for stock sustainability, enforce their regulations 
effectively, or coordinate management of shared stocks with 
other fishing nations.
    Under the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA; 16 U.S.C. 1801 et seq.), the U.S. 
Government exercises jurisdiction over the management of 
commercial fisheries within the U.S. EEZ. The MSA authorizes 
the Secretary of Commerce (Secretary), through the National 
Marine Fisheries Service (NMFS) within the National Oceanic and 
Atmospheric Administration (NOAA), to be responsible for the 
management of living marine resources. The MSA authorizes 
Regional Fishery Management Councils to develop management 
plans, subject to the Secretary's approval, that follow the 
MSA's requirements for rebuilding overfished stocks and setting 
harvest levels according to science-based catch limits.
    Sustainable fisheries management on the high seas or that 
which occurs under the jurisdiction of multiple nations can be 
difficult due to the vast areas of ocean that must be 
monitored, limited enforcement resources, and high volumes of 
operating fishing vessels. The coordinated management of shared 
stocks harvested beyond 200 miles is accomplished by nations 
participating in Regional Fisheries Management Organizations 
(RFMOs), international commissions established by multilateral 
agreements to guide and coordinate the fisheries management 
activities of multiple nations that target common stocks in 
specific regions. Each nation that chooses to participate in 
RFMOs retains its sovereignty, yet is expected to develop 
domestic fisheries laws and regulations consistent with each 
agreement. The United States follows this practice and seeks to 
implement legislation and regulations to meet its commitments 
under RFMOs and international fisheries agreements. Short of 
such an agreement or implementing legislation, U.S. fisheries 
managers seek discussions with foreign counterparts to address 
concerns on interjurisdictional stock management. In 2004, the 
United Nations General Assembly unanimously adopted Resolution 
59/25, which calls for nations to cooperate in the 
establishment of new RFMOs for areas and resources where no 
such relevant organization or arrangement exists.\1\ Since that 
time, a number of new RFMOs have been formed by international 
agreement.
---------------------------------------------------------------------------
    \1\ Resolution 59/25, adopted by the General Assembly on 17 
November 2004 (http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/477/70/
PDF/N0447770.pdf?OpenElement).
---------------------------------------------------------------------------
    All U.S. international fishery enforcement activities are 
coordinated closely between the U.S. Coast Guard, NMFS, the 
State Department, and the Coast Guard. NMFS and the Coast Guard 
also provide input for the State Department's negotiations of 
fishery treaties and agreements, in addition to reviewing 
foreign fishing vessel permit applications. The Coast Guard 
conducts international fisheries enforcement patrols and 
investigations as part of its 11 statutory missions in close 
coordination with the State Department, as required by 
Presidential Directive 27. Additionally, NMFS and the Coast 
Guard cooperate closely with individual U.S. States and 
territories, and coordinate MSA enforcement in and adjacent to 
State and territorial waters.

The South Pacific Fisheries Convention

    In response to growing international concern over the 
negative impact of certain high seas bottom fishing activities, 
delegations from Australia, Chile, and New Zealand met in 2005 
to begin negotiations on an agreement to address deep sea 
fishing practices occurring outside areas of national 
jurisdiction on sea mounts, hydrothermal vents, deep sea and 
cold water coral communities, sponge fields, and other unique 
and endemic deep-sea marine ecosystems collectively referred to 
as vulnerable marine ecosystems. Soon thereafter, a number of 
other countries and entities, including the United States, 
Belize, China, Denmark (with respect to the Faroe Islands), 
Ecuador, the European Union, Korea, Russia, Peru, several 
Pacific Island States, and Taiwan (as the fishing entity of 
Chinese Taipei) joined the negotiations, the scope of which, 
with U.S. encouragement, grew to include not only bottom 
fisheries but pelagic fish stocks not otherwise subject to 
international management. These discussions culminated on 
November 14, 2009, with the adoption of the Convention on the 
Conservation and Management of the High Seas Fishery Resources 
in the South Pacific Ocean (Convention). The Convention 
established the South Pacific Fishery Commission (Commission), 
through which parties to the Convention cooperate to facilitate 
the long-term and sustainable use of fisheries that are not 
managed under pre-existing international fisheries management 
instruments\2\ in the area covered by the Convention 
(Convention Area), which includes areas of the high seas 
closest to the U.S. territory of American Samoa, and 
immediately adjacent to the U.S. EEZ off a number of U.S. 
Pacific possessions including Jarvis, Howland and Baker 
Islands, Kingman Reef and Palmyra Atoll, as shown in Figure 1 
below.
---------------------------------------------------------------------------
    \2\Other RFMOs, such as the Western and Central Pacific Fisheries 
Commission and the Inter-American Tropical Tuna Commission, already 
coordinate international management of Highly Migratory Species, such 
as tunas, in the North Pacific.


    The United States played an active and significant role in 
the development of the Convention and the preparations for its 
entry into force, which occurred on August 24, 2012. The United 
States signed the Convention on January 31, 2011, and the U.S. 
Senate provided its advice and consent in favor of ratification 
on April 3, 2014. When the U.S. Senate Committee on Foreign 
Relations reported the Convention favorably on March 13, 2014, 
with the resolution of advice and consent to ratification, it 
clarified that the Convention is not self-executing, meaning 
that ratification requires implementing legislation to conform 
U.S. domestic law to the requirements of the Convention.\3\ 
U.S. accession to the Convention is vital to ensuring that the 
United States has a strong voice in managing fishing activities 
outside the U.S. EEZ that could have a direct impact on 
resources within waters under U.S. jurisdiction. Although U.S. 
fishermen do not currently fish within the Convention's area of 
application, U.S. accession will also ensure that U.S. 
fisherman will have a legitimate right to participate in 
fisheries within the Convention Area on an equitable basis now 
and in the future.
---------------------------------------------------------------------------
    \3\Senate Executive Report 113-1: Convention on the Conservation 
and Management of High Seas Fishery Resources in the South Pacific 
Ocean, done at Auckland, New Zealand, November 14, 2009 (http://
www.gpo.gov/fdsys/pkg/CRPT-113erpt2/pdf/CRPT-113erpt2.pdf).
---------------------------------------------------------------------------
    Currently, the Convention has 12 contracting parties, and 
its Commission has met twice in January 2013 and January 2014. 
At these meetings, the Commission adopted measures for the 
management of jack mackerel and bottom fishing. Because the 
United States has not yet formally deposited its instrument of 
ratification with the Commission, it participated in these 
meetings as an observer, arguably wielding significantly less 
influence on the Commission's decisions than if the United 
States had been a full member.

                         Summary of Provisions

    S. 2484, the South Pacific Fisheries Convention 
Implementation Act, would make changes to domestic law 
necessary to implement the Convention. The bill would provide 
the authority for the President to nominate not more than 3 
Commissioners to represent U.S. interests at the Commission, as 
well as establish an advisory panel of experts and stakeholders 
that will inform the Commissioner's decisions. The Secretary 
would have primary responsibility for promulgating regulations 
and developing procedures necessary to carry out the purposes 
and requirements of the Convention and the Act, with the Coast 
Guard and NOAA's NMFS serving as primary enforcement 
authorities for the requirements of the Act and regulations 
promulgated thereunder. S. 2484 would further authorize the 
Secretary to conduct fishing operations and experiments for 
purposes of scientific investigation, issue fishing permits to 
U.S. vessels to fish in the Convention's area of jurisdiction, 
and to request and use the services personnel, and equipment of 
other Federal agencies, foreign governments, intergovernmental 
or international organizations, or other agencies for the 
purposes of the Act. The bill would authorize to be 
appropriated such sums as may be necessary to carry out the Act 
and to pay the United States' contribution to the Commission, a 
requirement for parties to the Convention.

                          Legislative History

    S. 2484 was introduced by Senator Schatz on June 17, 2014, 
and referred to the Committee on Commerce, Science, and 
Transportation. On September 17, 2014, the Committee met in 
open Executive Session and, by a voice vote, ordered S. 2484 to 
be reported favorably 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:

S. 2484--South Pacific Fisheries Convention Implementation Act

    S. 2484 would implement the Convention on the Conservation 
and Management of High Seas Fishery Resources in the South 
Pacific Ocean (Convention). CBO estimates that implementing the 
legislation would cost less than $500,000 a year over the 2015-
2019 period, assuming appropriation of the necessary amounts. 
Because enacting the legislation would not affect direct 
spending or revenues, pay-as-you-go procedures do not apply.
    Under the bill, all parties to the Convention would be 
required to apply specific conservation and management 
principles and approaches to promote the conservation and 
sustainable use of fisheries resources located in the South 
Pacific Ocean between South America and Australia. Based on 
information provided by the National Oceanic and Atmospheric 
Administration, the U.S. Coast Guard, and the Department of 
State, CBO estimates that carrying out the new Convention would 
cost less than $500,000 a year over the 2015-2019 period. Those 
funds would be used to cover costs for annual dues, staff time, 
travel, and programmatic activities.
    CBO has not reviewed S. 2484 for intergovernmental or 
private-sector mandates. Section 4 of the Unfunded Mandates 
Reform Act excludes from the application of that act any 
legislative provisions that are necessary for the ratification 
or implementation of international treaty obligations. CBO has 
determined that the bill falls within that exclusion because it 
would implement the South Pacific Fisheries Convention.
    The CBO staff contacts for this estimate are Jeff LaFave 
(for federal costs), Jon Sperl (for intergovernmental 
mandates), and Amy Petz (for private-sector mandates). The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                           Regulatory Impact

    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. 2484 as reported does not create any new programs or 
impose any new regulatory requirements, and therefore will not 
subject any individuals or businesses to new regulations.

                            economic impact

    Enactment of S. 2484 is not expected to have any 
inflationary or adverse impact on the Nation's economy.

                                privacy

    S. 2484 will not impact the personal privacy of 
individuals.

                               paperwork

    S. 2484 will have no impact in 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 that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis


Section 1. Short title.

    This section would provide that this Act may be cited as 
the ``South Pacific Fisheries Convention Implementation Act''.

Section 2. Definitions.

    This section would define the following terms: ``Advisory 
Committee;'' ``Commission;'' ``Commissioner;'' ``Convention 
Area;'' ``Council;'' ``Exclusive Economic Zone;'' ``fishery 
resources;'' ``fishing;'' ``fishing vessel;'' ``panel;'' 
``person;'' ``Secretary;'' ``South Pacific Fisheries 
Convention;'' ``State;'' ``straddling stock;'' 
``transshipment;'' and ``1982 Convention.''

Section 3. Appointment of United States commissioners.

    This section would authorize the President to nominate not 
more than 3 Commissioners to represent the United States on the 
Convention's governing Commission. It would require that 
individuals appointed as Commissioners be knowledgeable or 
experienced concerning the fisheries resources in the South 
Pacific Ocean.
    Subsections (b) and (c) of this section would authorize the 
Secretary of State, in consultation with the Secretary of 
Commerce, to designate an alternate Commissioner when 
considered appropriate, and would specify certain details 
regarding Commissioners' and alternate Commissioners' 
employment status, compensation, and travel expenses.
    Subsection (d) of this section would authorize an Advisory 
Committee and would establish its composition, status, terms, 
and responsibilities. Subsection (e) of this section would 
provide for the development of a memorandum of understanding 
among the Secretary of Commerce, the Secretary of State, and 
the Western Pacific Regional Fishery Management Council, 
setting forth a clear understanding of the role of the Council 
in international fishery management discussions relating to 
stocks under Council jurisdiction, as well as with respect to 
development of domestic fishing regulations for such stocks 
that are consistent with international management actions.

Section 4. Authority and responsibility of the Secretary of State.

    This section would authorize the Secretary of State, in 
consultation with the Secretary of Commerce, to approve or 
disapprove acts of the Commission and act on them either 
directly or by referral to the appropriate authority.

Section 5. Authority of the Secretary of Commerce.

    This section would authorize the Secretary of Commerce, in 
consultation with the Secretary of State and the Secretary of 
the department in which the Coast Guard is operating, to 
implement and enforce the provisions of this Act. Consistent 
with practice in other regions of the country, implementation 
of any discretionary provisions of the Convention relating to 
stocks under Council jurisdiction could be made, to the extent 
practicable and within necessary timelines, under procedures 
used in the MSA. Such regulations would be applicable only to a 
person, a fishing vessel, or fisheries resources covered by the 
Convention or this Act. This section also would provide for 
judicial review of any regulations promulgated under this Act.

Section 6. Enforcement.

    This section would authorize the Secretary of Commerce and 
the Secretary of the department in which the Coast Guard is 
operating to administer and enforce this Act and any 
regulations issued under this Act, except to the extent 
otherwise provided for in the MSA. It would authorize the 
Secretary of Commerce and the Secretary of the department in 
which the Coast Guard is operating to request and utilize on a 
reimbursed or non-reimbursed basis the assistance, services, 
personal, equipment, and facilities of other Federal 
departments and agencies (e.g., the Department of State) in the 
administration and enforcement of this Act.
    Subsection (b) of this section would provide that all 
violations of the Act shall be prosecuted in the same manner, 
by the same means, and with the same powers provided to the 
Secretary of Commerce under the MSA. Any person that violates 
any provision of this Act would be subject to the penalties and 
entitled to the privileges and immunities provided in the MSA.
    Subsection (c) of this section would designate the district 
courts of the United States as having exclusive jurisdiction 
over any case or controversy arising under the provisions of 
this Act, notwithstanding section 311(d) of the MSA (16 U.S.C. 
1861(d)). In the case of Hawaii or any possession of the United 
States in the Pacific Ocean, the appropriate court is the 
United States District Court for the District of Hawaii, except 
that in the case of Guam and Wake Islands, and in the case of 
the Northern Mariana Islands, the appropriate courts are the 
United States District Courts for the District of Guam and the 
Northern Mariana Islands, respectively. These provisions would 
address a long-standing problem in vessel forfeiture cases 
where seized vessels have had to be escorted longer distances 
than would otherwise be necessary due to the venue provisions 
in the MSA.
    Subsection (d) of this section would provide that any 
information submitted to the Secretary of Commerce as required 
under this Act shall be confidential and may not be disclosed, 
except: (1) to a Federal employee who is responsible for 
administering, implementing, and enforcing this Act; (2) to the 
Commission, in accordance with requirements in the Convention 
and decisions of the Commission, and, insofar as possible, in 
accordance with an agreement with the Commission that prevents 
public disclosure of the identity or business of any person; 
(3) to State or Marine Fisheries Commission employees pursuant 
to an agreement with the Secretary that prevents public 
disclosure of the identity or business or person; (4) when 
required by court order; or (5) when the Secretary has obtained 
written authorization from the person submitting such 
information to release such information to another person for a 
reason not otherwise provided for, and such release does not 
violate other requirements of this Act. This section would 
provide an exception to the aforementioned confidentiality and 
disclosure requirements should the information be released in 
any aggregate or summary form that does not directly or 
indirectly disclose the identity or business of any person. Any 
information submitted to the Secretary under this Act would be 
available for use for conservation and management purposes.

Section 7. Prohibited acts.

    This section would make it unlawful for any person to: (1) 
violate any provision of this Act or any regulation or permit 
issued pursuant to this Act; (2) use any fishing vessel to 
engage in fishing activities after the revocation, or during 
the period of suspension, on an applicable permit issued 
pursuant to this Act; (3) refuse to permit any officer 
authorized to enforce the provisions of this Act to board a 
fishing vessel subject to such person's control for the 
purposes of conducting any search, investigation, or inspection 
in connection with the enforcement of this Act or any 
regulation, permit, or the Convention; (4) assault, resist, 
oppose, impede, intimidate, or interfere with any such 
authorized officer in the conduct of any search, investigation, 
or inspection in connection with the enforcement of this Act or 
any regulation, permit, or the Convention; (5) resist a lawful 
arrest for any act prohibited by this Act; (6) knowingly and 
willfully ship, transport, offer for sale, sell, purchase, 
import, export, or have custody, control, or possession of, any 
fisheries resources taken or retained in violation of this Act 
or any related regulation, permit, or agreement; (7) 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; (8) knowingly and 
willfully submit to the Secretary false information (including 
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 Secretary is considering in the course of 
carrying out this Act; (9) assault, resist, oppose, impede, 
intimidate, sexually harass, bribe, or interfere with any 
observer on a vessel under this Act, or any data collector 
employed or under contract to any person to carry out 
responsibilities under this Act; (10) engage in fishing 
activities in violation of any regulation adopted pursuant to 
this Act; (11) knowingly and willfully ship, transport, 
purchase, sell, offer for sale, import, export, or have in 
custody, possession, or control any fisheries resources taken 
or retained in violation of such regulations; (12) fail to 
make, keep, or furnish any catch returns, statistical records, 
or other reports required by regulations adopted pursuant to 
this Act to be made, kept, or furnished; (13) fail to stop a 
vessel upon being hailed and instructed to stop by a duly 
authorized official of the United States; (14) import, in 
violation of any regulation adopted pursuant to this Act, any 
fisheries resources in any form of those species subject to 
regulation pursuant to a recommendation, resolution, or 
decision of the Commission, or any fisheries resources in any 
form not under regulation but under investigation by the 
Commission, during the period such fisheries resources have 
been denied entry in accordance with the provisions of this 
Act; (15) make or submit any false record, account, or label 
for, or any false identification of, fisheries resources in or 
intended for interstate or foreign commerce; or (16) refuse to 
authorize and accept boarding by a duly authorized inspector of 
fishing vessels in the Convention Area.

Section 8. Cooperation in carrying out Convention.

    This section would authorize the Secretary of Commerce to 
cooperate with any Federal, State, or private institution or 
organization within the United States or abroad, and, through 
the Secretary of State, a duly authorized official of the 
government of any party to the Convention, in carrying out 
responsibilities under this Act. Subsection (b) of this section 
would authorize any Federal agency, upon the request of the 
Secretary of Commerce, to cooperate in the conduct of 
scientific and other programs and to furnish facilities and 
personal for the purpose of carrying out this Act or 
obligations under the Convention. Subsection (c) of this 
section would clarify that nothing in this Act prevents the 
Secretary of Commerce or the Commission from conducting or 
authorizing fishing operation and biological experiences for 
the purpose of scientific investigation or discharging any 
other duties prescribed by the Convention. Subsection (d) of 
this section would provide that nothing in this Act shall be 
construed to diminish or increase the jurisdiction of any State 
in the territorial sea of the United States.

Section 9. Territorial participation.

    This section would direct the Secretary of State to ensure 
participation by American Samoa, Guam, and the Commonwealth of 
the Northern Mariana Islands to the same extent provided to the 
territories of other nations.

Section 10. Exclusive Economic Zone notification.

    This section would require foreign commercial fishing 
vessels fishing under the management authority of the 
Convention that do not carry vessel monitoring systems capable 
of communicating with U.S. enforcement authorities, prior to or 
as soon as reasonably possible after entering and transiting 
the U.S. EEZ bounding the Convention Area, to: (1) notify the 
Coast Guard of the name, flag state, location, route, and 
destination of the vessel and of the circumstances under which 
it will enter U.S. waters; (2) ensure that all fishing gear 
onboard the vessel is stowed below deck or otherwise removed 
from the place it is normally used for fishing and placed where 
it is not readily available for fishing; and (3) if requested 
by an enforcement officer, proceed to a specified location so 
that a vessel inspection can be conducted.

Section 11. Authorization of appropriations.

    This section would authorize to be appropriated to the 
Secretary of Commerce and the Secretary of State such sums as 
may be necessary to carry out this Act and to pay for the 
United States' contribution to the Commission under Article 15 
of the Convention.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
bill as reported would make no change to existing law.