[Senate Report 114-235]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 419
114th Congress     }                                    {       Report
                                 SENATE
 2d Session        }                                    {      114-235
_______________________________________________________________________





         SOUTH PACIFIC FISHERIES CONVENTION IMPLEMENTATION ACT

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 1336

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                 April 6, 2016.--Ordered to be printed
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

59-010                         WASHINGTON : 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. 419
114th Congress     }                                    {       Report
                                 SENATE
 2d Session        }                                    {      114-235

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



 
         SOUTH PACIFIC FISHERIES CONVENTION IMPLEMENTATION ACT

                                _______
                                

                 April 6, 2016.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 1336]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 1336) 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 without 
amendment and recommends that the bill do pass.

                          Purpose of the Bill

    The purpose of S. 1336, the South Pacific Fisheries 
Convention Implementation Act, is to implement the Convention 
on the Conservation and Management of the High Seas Fisheries 
Resources in the South Pacific Ocean, as adopted at Auckland on 
November 14, 2009, 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 Federal 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 approval of the Secretary of 
Commerce, 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), 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 United States Coast Guard 
(USCG), the NMFS, and the State Department. The 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. Additionally, the 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.

                 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\3\ 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.
---------------------------------------------------------------------------
    \3\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.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    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 
Federal law to the requirements of the Convention.\4\ 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.
---------------------------------------------------------------------------
    \4\U.S. Congress, Senate Committee on Foreign Relations, Convention 
on the Conservation and Management of High Seas Fisheries Resources in 
the South Pacific Ocean, report to accompany Treaty Doc. 113-1, 113th 
Cong., 2nd sess., Exec. Rept. 113-2, November 14, 2009 (http://
www.gpo.gov/fdsys/pkg/CRPT-113erpt2/pdf/CRPT-113erpt2.pdf).
---------------------------------------------------------------------------
    Currently, the Convention has 13 contracting parties, and 
its Commission has met 3 times in January 2013, January 2014, 
and February 2015. 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. 1336, the South Pacific Fisheries Convention 
Implementation Act, would make changes to domestic law 
necessary for the implementation of the South Pacific Fisheries 
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 Governor of Hawaii that would help inform the 
Commissioners' 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 
NOAA's NMFS serving as primary enforcement authorities for the 
requirements of the Act and regulations promulgated thereunder.
    S. 1336 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. 1336 was introduced by Senators Schatz and Sullivan on 
May 13, 2015. On May 20, 2015, the Committee met in open 
Executive Session and, by a voice vote, ordered S. 1336 to be 
reported favorably. A nearly identical bill, S. 2484, 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. 1336--South Pacific Fisheries Convention Implementation Act

    S. 1336 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 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.
    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 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. 1336 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. 1336 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 ``South Pacific Fisheries Convention Implementation 
Act.''

Section 2. Definitions.

    This section would define the following terms: ``Advisory 
Committee'' as the advisory committee established under section 
3; ``Commission'' as the South Pacific Fisheries Commission 
established pursuant to the South Pacific Fisheries Convention; 
``Commissioner'' as a U.S. Commissioner appointed under section 
3; ``Convention Area'' as the waters of the South Pacific Ocean 
excluding areas of national jurisdiction; ``Council'' as the 
Western Pacific Regional Fishery Management Council; 
``exclusive economic zone of the United States'' as the zone 
established by Presidential Proclamation Numbered 5030 of March 
10, 1983; ``Fishery Resources'' as all fish within the 
Convention Area including mollusks, crustaceans, and other 
living resources as may be decided by the Commission and 
excluding sedentary species in so far as they are subject to 
the national jurisdiction of coastal States, highly migratory 
species, anadromous species, catadromous species, marine 
mammals, marine reptiles, and sea birds; ``Fishing'' as the 
actual or attempted searching for, catching, taking, or 
harvesting of fishery resources and transshipments of fish, but 
not any operation related to an emergency involving the health 
or safety of a crew member or the safety of a fishing vessel; 
``Fishing Vessel'' as any vessel used or intended for use for 
or in support of the purpose of fishing; ``Panel'' as the 
Western Pacific Regional Fishery Management Council's Advisory 
Panel; ``Person'' as any individual, corporation, partnership, 
association, or other entity, or Federal, State, local, tribal, 
or foreign government or any entity of such government; 
``Secretary'' as the Secretary of Commerce; ``South Pacific 
Fisheries Convention'' as the Convention on the Conservation 
and Management of the High Seas Fishery Resources in the South 
Pacific Ocean; ``State'' as each of several States of the 
United States, the District of Columbia, American Samoa, Guam, 
and any other commonwealth, territory, or possession of the 
United States; ``Straddling Stock'' as a stock of fishery 
resources which migrates between, or occurs in, the exclusive 
economic zone of 1 or more parties to the South Pacific 
Fisheries Convention and the Convention Area; ``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; and ``1982 
Convention'' as the United Nations Convention on the Law of the 
Sea of 10 December 1982.

Section 3. Appointment of United States Commissioners.

    This section would direct the President to appoint one 
United States Commissioner who is knowledgeable or experienced 
concerning fishery resources in the South Pacific Ocean. This 
section would allow 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.
    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 not less than 15 nor more than 20 individuals appointed by 
the Secretary of Commerce. Advisory committee members would 
represent groups concerned with the fishery resources covered 
by the South Pacific Fisheries Convention and serve a term of 
two years, with the possibility of reappointment. This section 
would also require the advisory committee to determine its 
organization and procedures for carrying out its functions.
    The advisory committee would 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.
    This section would direct the Secretary of Commerce, in 
coordination with the Secretary of State to develop a 
memorandum of understanding with the Council for fishery 
resources in the Convention Area describing the role of the 
Council with respect to the participation of U.S. delegations 
to international fishery organizations in the Pacific Ocean, 
recommending to the Secretary of Commerce and the Secretary of 
State necessary measures for domestic and foreign fishing 
vessels, coordinating positions with the U.S. delegation, and 
recommending domestic fishing regulations that are consistent 
with the actions of the appropriate international fishery 
organization.

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. Rulemaking 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. 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. It also would 
give them the authority to 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 South Pacific Fisheries 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 U.S. vessels under this Act; issue permits 
to owners and operators of U.S. vessels to fish in the 
Convention Area; and request and utilize on a reimbursed or 
non-reimbursed basis assistance and equipment from other 
Federal departments and agencies for such activities.
    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 gives the Secretary of Commerce the 
authority to assess fines.
    This section would give the U.S. district courts 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 of Commerce 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 attempting to board and inspect 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; and failing to stop a 
vessel when hailed by an authorized official of the United 
States. This section would require those importing fish to 
provide satisfactory proof that the fisheries resources are not 
ineligible for entry under this Act.

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 unless the 
Secretary of Commerce determines the State has not enacted laws 
that implement the recommendations of the Commission or that 
the State is not enforcing such laws.

Section 9. Territorial participation.

    This section would require the Secretary of State to ensure 
that American Samoa and Guam 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 South 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.

                                  [all]