[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

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



 
         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.
---------------------------------------------------------------------------
    \1\16 U.S.C. 1801 et seq.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \3\Presidential Directive 27, National Security Council 
``Procedures for dealing with Non-Military Incidents''' January 19, 
1978.
---------------------------------------------------------------------------

                 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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.