[Senate Report 114-233]
[From the U.S. Government Publishing Office]
Calendar No. 405
114th Congress } { Report
2d Session } SENATE { 114-233
_______________________________________________________________________
NORTH PACIFIC FISHERIES CONVENTION IMPLEMENTATION ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 1335
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
March 28, 2016.--Ordered to be printed
Filed, under authority of the order of the Senate of March 17, 2016
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred fourteenth congress
second session
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida
ROY BLUNT, Missouri MARIA CANTWELL, Washington
MARCO RUBIO, Florida CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas ED MARKEY, Massachusetts
DAN SULLIVAN, Alaska CORY BOOKER, New Jersey
RON JOHNSON, Wisconsin TOM UDALL, New Mexico
DEAN HELLER, Nevada JOE MANCHIN, West Virginia
CORY GARDNER, Colorado GARY PETERS, Michigan
STEVE DAINES, Montana
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Rebecca Seidel, General Counsel
Kim Lipsky, Democratic Staff Director
Christopher Day, Democratic Deputy Staff Director
Clint Odom, Democratic General Counsel
Calendar No. 405
114th Congress } { Report
SENATE
2d Session } { 114-233
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NORTH PACIFIC FISHERIES CONVENTION IMPLEMENTATION ACT
_______
March 28, 2016.--Ordered to be printed
Filed, under authority of the order of the Senate of March 17, 2016
_______
Mr. Thune, from the Committee on Commerce, Science, and Transportation,
submitted the following
R E P O R T
[To accompany S. 1335]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 1335) to implement the
Convention on the Conservation and Management of the High Seas
Fisheries Resources in the North Pacific Ocean, as adopted at
Tokyo on February 24, 2012, and for other purposes, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
Purpose of the Bill
The purpose of S. 1335, the North Pacific Fisheries
Convention Implementation Act, is to implement the Convention
on the Conservation and Management of the High Seas Fisheries
Resources in the North Pacific Ocean, as adopted at Tokyo on
February 24, 2012, and for other purposes.
Background and Needs
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),\1\ the U.S. Government exercises
jurisdiction over the management of commercial fisheries within
the U.S. EEZ. The MSA authorizes the Secretary of Commerce,
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 of Commerce's
approval, that follow the MSA's requirements for rebuilding
overfished stocks and setting harvest levels according to
science-based catch limits.
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\1\16 U.S.C. 1801 et seq.
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Sustainable fisheries management which occurs on the high
seas or 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), which are 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.\2\ Since that
time, a number of new RFMOs have been formed by international
agreement.
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\2\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).
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All U.S. international fishery enforcement activities are
coordinated closely between the U.S. Coast Guard (USCG), NMFS,
and the State Department. NMFS and the USCG also provide input
for the State Department's negotiations of fishery treaties and
agreements, in addition to reviewing foreign fishing vessel
permit applications. The USCG 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.\3\
Additionally, NMFS and the USCG cooperate closely with
individual U.S. States and territories, and coordinate MSA
enforcement in and adjacent to State and territorial waters.
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\3\Presidential Directive 27, National Security Council
``Procedures for dealing with Non-Military Incidents''' January 19,
1978.
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The North Pacific Fisheries Convention
In response to growing international concern over the
negative impact of certain high seas bottom fishing activities,
delegations from the United States, Japan, South Korea, and
Russia met in Tokyo, Japan in August 2006 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. With U.S. encouragement, these discussions grew in
scope to include not only bottom fisheries but pelagic fish
stocks not otherwise subject to international management. The
negotiations culminated on February 24, 2012, with the adoption
of the Convention on the Conservation and Management of the
High Seas Fisheries Resources in the North Pacific Ocean
(Convention). Once in force, the Convention will establish the
North Pacific Fisheries Commission (Commission), through which
parties to the Convention will cooperate to facilitate the
long-term and sustainable use of fisheries that are not managed
under pre-existing international fisheries management
instruments\4\ in the area covered by the Convention
(Convention Area), which includes areas of the high seas
immediately adjacent to the U.S. EEZ off Alaska, the Pacific
west coast, Hawaii, and other U.S. territories and possessions
in the North Pacific, as shown in Figure 1 below.
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\4\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 has played an active and significant role
in the development of the Convention and the preparations for
its entry into force, which will occur 180 days following the
date that a fourth signatory ratifies the Convention. The
United States signed the Convention on May 2, 2012, and the
Senate provided its advice and consent in favor of ratification
on April 3, 2014. When the Committee on Foreign Relations of
the Senate 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.\5\
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\5\U.S. Congress, Senate Committee on Foreign Relations, Convention
on the Conservation and Management of High Seas Fisheries Resources in
the North Pacific Ocean, report to accompany Treaty Doc. 113 2, 113th
Cong., 2nd sess., May 2, 2012, Exec. Rept. 113-3 (http://www.gpo.gov/
fdsys/pkg/CRPT-113erpt3/pdf/CRPT-113erpt3.pdf).
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United States 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.
Canada, China, Japan, South Korea, and Russia have ratified
the Convention and it entered into force in July 2015. Because
the United States has not yet formally deposited its instrument
of ratification, it can only participate in Commission meetings
as an observer.
Summary of Provisions
S. 1335, the North Pacific Fisheries Convention
Implementation Act, would make changes to domestic law
necessary for the implementation of the Convention. The bill
would establish the number of Commissioners to represent the
United States on the Commission and specify the requirements
for appointment and selection. The bill would establish a
permanent advisory committee of commercial, indigenous, and
scientific individuals and members nominated by the Governors
of Alaska, Hawaii, and Washington that would help inform the
Commissioner's decisions. The Secretary of Commerce 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 USCG and
NMFS serving as primary enforcement authorities for the
requirements of the Act and regulations promulgated thereunder.
S. 1335 would further authorize the Secretary of Commerce
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 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 appropriations at 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. 1335 was introduced by Senators Sullivan and Schatz on
May 13, 2015. On May 20, 2015, the Committee met in open
Executive Session and, by a voice vote, ordered S. 1335 to be
reported favorably, without amendment. A nearly identical bill,
S. 2482, passed out of Committee last Congress.
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. 1335--North Pacific Fisheries Convention Implementation Act
S. 1335 would implement the Convention on the Conservation
and Management of High Seas Fishery Resources in the North
Pacific Ocean (Convention). CBO estimates that implementing the
legislation would cost less than $500,000 a year over the 2016
2020 period, assuming availability of appropriated amounts.
Because enacting the legislation would not affect direct
spending or revenues, pay-as-you-go procedures do not apply.
The Convention that would be implemented under the bill
would call for a science-based, precautionary approach to
managing fisheries resources in the North Pacific Ocean. The
Convention would establish two managing committees to carry out
the functions of the Convention, including conducting
environmental assessments of fisheries to ensure that no
vulnerable marine ecosystems would be harmed if fishing were
permitted in those areas. 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 2016 2020 period. Those funds would be used to cover
costs for annual dues, staff time, travel, and programmatic
activities.
CBO has not reviewed S. 1335 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.
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, Assistant Director for
Budget Analysis.
Regulatory Impact
Because S. 1335 does not create any new programs, the
legislation will have no additional regulatory impact, and will
result in no additional reporting requirements. The legislation
will have no further effect on the number or types of
individuals and businesses regulated, the economic impact of
such regulation, the personal privacy of affected individuals,
or the paperwork required from such individuals and 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 designate the short title of this bill
as the ``North Pacific Fisheries Convention Implementation
Act.''
Section 2. Definitions.
This section would define terms including: ``Convention
Area'' as the waters of the North Pacific Ocean excluding areas
of national jurisdiction, high seas areas of the Bering Sea,
and high sea areas surrounded by the exclusive economic zone of
a single nation, and the exclusive economic zone of the United
States or of any other country; ``Council'' as the Western
Pacific Fishery Management Council, the Pacific Fishery
Management Council, or the North Pacific Fishery Management
Council; ``Exclusive Economic Zone'' with respect to the United
States, as the zone established by Presidential Proclamation,
with respect to a foreign country a similar designated zone;
``Fishery Resources''' as all fish within the Convention Area
including mollusks, crustaceans, and other marine species
caught by a fishing vessel within the Convention Area and
excluding sedentary species insofar as they are subject to the
national jurisdiction of coastal States, catadromous species,
marine mammals, marine reptiles, and sea birds; ``Fishing
Activities''' as the actual or attempted searching for,
catching, taking, harvesting, or processing of fishery
resources and transshipments of fish; ``Fishing Vessel'' as any
vessel used or intended for use for or in support of the
purpose of fishing; ``Secretary'' as the Secretary of Commerce;
``State'' as each of several States of the United States, the
District of Columbia, the Commonwealth of the Northern Mariana
Islands, and any other commonwealth, territory, or possession
of the United States; ``Straddling Stock'' as a stock of
fisheries resources that occurs in the exclusive economic zone
of one or more parties of the Convention and the Convention
Area; and ``Transshipment'' as the unloading of fishery
resources derived from fishing in the Convention Area on-board
a fishing vessel to another fishing vessel either at sea or in
port.
Section 3. United States participation in the North Pacific Fisheries
Convention.
This section would require five Commissioners to represent
the United States on the Commission. The President would
appoint two U.S. Commissioners who are knowledgeable or
experienced concerning fishery resources in the North Pacific
Ocean, and who are officers or employees of the Department of
Commerce, the Department of State, or the USCG. In addition,
one Commissioner would be the chairperson of the North Pacific
Fishery Management Council, one Commissioner would be the
chairperson of the Pacific Fishery Management Council, and one
Commissioner would be the chairperson of the Western Pacific
Fishery Management Council. This section would authorize the
Secretary of State, in consultation with the Secretary of
Commerce, to designate an alternate to the Commission. In the
absence of a Commissioner, the alternate would have all powers
and duties of a Commissioner, and serve the remainder of the
term of the Commissioner that the alternate is substituting
for.
If the Commissioner or employee is not an officer or
employee of the U.S. Government, he or she would not be
considered a Federal employee, except for the purposes of
injury compensation or tort claims liability. Under this
section the Commissioner and the alternate Commissioner would
receive no compensation, except for travel reimbursements. This
section would allow the Secretary of Commerce to reimburse the
Secretary of State for amounts expended by the Secretary of
State.
This section would establish a permanent advisory committee
of 11 members appointed by the Secretary of Commerce (Advisory
Committee). Advisory Committee members would represent groups
concerned with the fishery resources covered by the North
Pacific Fisheries Convention and serve a term of two years and
be eligible for not more than three consecutive terms. There
would be three members engaged in commercial fishing, one from
the North Pacific Fishery Management Council management area,
one from the Pacific Fishery Management Council management
area, and one from the Western Pacific Fishery Management
Council management area; three members from the indigenous
population of the North Pacific; one marine fisheries
scientist; one member nominated by the Governor of Alaska, one
nominated by the Governor of Hawaii, and one nominated by the
Governor of Washington. This section also would require the
Advisory Committee to determine its organization and procedures
for carrying out its functions.
The Advisory Committee would be required to publish and
make public a statement of its organization, practices, and
procedures. Except when in executive session, Advisory
Committee meetings would be open to the public. The members of
the Advisory Committee would not be paid, but would be
reimbursed for travel expenses. They would not be considered
Federal employees except for the purposes of injury
compensation or tort claims liability.
In instances in which the United States is involved in
meetings of the Convention, it would be represented by the
Commissioners and the Advisory Committee.
Section 4. Authority and responsibility of the Secretary of State.
The section would give the Secretary of State the authority
to receive and transmit, on behalf of the United States,
various communications from and to the Commission. It would
allow the Secretary of State, in consultation with the
Secretary of Commerce, to approve, disapprove, object to, or
withdraw objections to bylaws and rules adopted by the
Commission. With the concurrence of the Secretary of Commerce,
the Secretary of State could approve or disapprove the general
annual program of the Commission, and act upon any
communication it receives.
Section 5. Authority of the Secretary of Commerce.
This section would authorize the Secretary of Commerce, in
consultation with the Secretary of State and where relevant,
the Secretary of the department in which the Coast Guard is
operating, to promulgate such regulations as may be necessary
to carry out U.S. obligations under this Act.
The Secretary could request and utilize on a reimbursed or
non-reimbursed basis assistance and equipment from other
Federal departments and agencies. The Secretary of Commerce
could conduct scientific, research, and other programs under
this Act; conduct the fishery research necessary to implement
the Convention; collect, utilize, and disclose necessary
information to implement the Convention; if recommended by the
Commissioners or proposed by the Council impose a fee not to
exceed three percent of the ex-vessel value of fish harvested
by United States vessels under this Act; and issue permits to
owners and operators of U.S. vessels to fish in the Convention
Area.
To the extent practicable, the Secretary of Commerce would
ensure that fishery management programs administered under this
Act are consistent with existing fishery laws. Except as
otherwise specified, this section would give the Secretary of
Commerce and the Secretary of the department in which the Coast
Guard is operating the authority to prevent any person from
violating this Act in the same manner, by the same means, and
with the same jurisdiction, powers, and duties as through
sections 308 through 311 of the MSA (16 U.S.C. 1858, 1859,
1860, 1861), which give the Secretary of Commerce the authority
to assess fines.
This section would give the Secretary of Commerce the
authority to promulgate regulations applicable to all vessels
and persons subject to the jurisdiction of the United States.
Regulations promulgated by the Secretary of Commerce under this
Act would be subject to judicial review to the extent
authorized by law. Upon a motion by the person who files such a
petition, the appropriate court would expedite the matter.
Section 6. Enforcement.
This section would require the Secretary of Commerce and
the Secretary of the department in which the Coast Guard is
operating to administer and enforce this Act, and either could
request and utilize on a reimbursed or non-reimbursed basis
assistance and equipment from other Federal departments and
agencies in their enforcement.
This section would give the district courts of the United
States exclusive jurisdiction over any case or controversy
arising under the provisions of this Act. Under this section,
each violation would be a separate offense and the offense
would be deemed to have been committed not only in the district
where the violation first occurred, but also in any other
district authorized by law.
In general, any information submitted to the Secretary of
Commerce in compliance with any requirement under this Act
would be confidential and may not be disclosed except to a
Federal employee who is responsible for administering,
implementing, and enforcing this Act, the Commission, the State
or Marine Fisheries Commission, when required by court order,
and when the Secretary has obtained written authorization from
the person submitting the information. Nothing in this section
would prevent the information collected by the Secretary of
Commerce from being used for conservation and management
purposes.
Section 7. Prohibited acts.
This section would delineate the various prohibited
actions, with respect to this Act, including violation of any
provision or regulation or permit; refusing or interfering with
an authorized officer boarding and inspecting a fishing vessel;
shipping, transporting, selling, purchasing, importing,
exporting, or possessing prohibited fisheries resources;
engaging in prohibited fishing activities; failing to make,
keep, and furnish required information; failing to stop a
vessel when hailed by an authorized official of the United
States; making false records, or false identification of any
fisheries resources involved in interstate or foreign commerce;
and refusing boarding by an authorized inspector.
Section 8. Cooperation in carrying out Convention.
This section would allow the Secretary of Commerce to
cooperate with any Federal agency or any organization in the
United States or abroad in carrying out this Act. This section
would allow Federal agencies to cooperate in conducting
research and to provide facilities and personnel in assisting
the Commission. Nothing in this Act would diminish or increase
the jurisdiction of any State in its territorial sea of the
United States.
Section 9. Territorial participation.
This section would require the Secretary of State to ensure
that the Northern Mariana Islands can participate in the
Commission in the same manner as territories of other nations.
Section 10. Exclusive Economic Zone notification.
This section would require the masters of commercial
fishing vessels of nations fishing under the management
authority of the North Pacific Fisheries Convention that do not
carry vessel monitoring systems to, when entering the EEZ
bounded by the Convention Area, notify the USCG, ensure that
all fishing gear is stowed, and follow requests by an
enforcement officer.
Section 11. Authorizations of appropriations.
This section would authorize such sums as are necessary to
carry out this Act and to pay the United States' contributions
to the Commission.
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.