S. 2484 — Introduced in Senate

II 113th CONGRESS 2d Session S. 2484 IN THE SENATE OF THE UNITED STATES June 17, 2014 Mr. Schatz introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL 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. 1. Short title This Act may be cited as the South Pacific Fisheries Convention Implementation Act. 2. Definitions In this Act: (1) Advisory Committee The term Advisory Committee means the advisory committee established under section 3. (2) Commission The term Commission means the South Pacific Fisheries Commission established pursuant to the South Pacific Fisheries Convention. (3) Commissioner The term Commissioner means a U.S. Commissioner appointed under section 3. (4) Convention Area The term Convention Area means— (A) the waters of the Pacific Ocean beyond areas of national jurisdiction and in accordance with international law jurisdiction, bounded by the 10° parallel of north latitude and the 20° parallel of south latitude and by the 135° meridian of east longitude and the 150° meridian of west longitude; and (B) the waters of the Pacific Ocean beyond areas of national jurisdiction and in accordance with international law jurisdiction— (i) east of a line extending south along the 120° meridian of east longitude from the outer limit of the national jurisdiction of Australia off the south coast of Western Australia to the intersection with the 55° parallel of south latitude; then due east along the 55° parallel of south latitude to the intersection with the 150° meridian of east longitude; then due south along the 150° meridian of east longitude to the intersection with the 60° parallel of south latitude; (ii) north of a line extending east along the 60° parallel of south latitude from the 150° meridian of east longitude to the intersection with the 67° 16' meridian of west longitude; (iii) west of a line extending north along the 67° 16' meridian of west longitude from the 60° parallel of south latitude to its intersection with the outer limit of the national jurisdiction of Chile; then along the outer limits of the national jurisdictions of Chile, Peru, Ecuador and Colombia to the intersection with the 2° parallel of north latitude; and (iv) south of a line extending west along the 2° parallel of north latitude (but not including the national jurisdiction of Ecuador (Galapagos Islands)) to the intersection with the 150° meridian of west longitude; then due north along the 150° meridian of west longitude to its intersection with 10° parallel of north latitude; then west along the 10° parallel of north latitude to its intersection with the outer limits of the national jurisdiction of the Marshall Islands; and then generally south and around the outer limits of the national jurisdictions of Pacific States and territories, New Zealand and Australia until it connects to the commencement of the line described in clause (i). (5) Council The term Council means the Western Pacific Regional Fishery Management Council. (6) Exclusive economic zone The term exclusive economic zone means the zone established by Presidential Proclamation Numbered 5030 of March 10, 1983. (7) Fishery resources (A) In general The term fishery resources means all fish within the Convention Area. (B) Inclusions The term fishery resources includes mollusks, crustaceans, and other living marine resources as may be decided by the Commission. (C) Exclusions The term fishery resources does not include— (i) sedentary species in so far as they are subject to the national jurisdiction of coastal States pursuant to Article 77 paragraph 4 of the 1982 Convention; (ii) highly migratory species listed in Annex I of the 1982 Convention; (iii) anadromous species; (iv) catadromous species; (v) marine mammals; (vi) marine reptiles; or (vii) sea birds. (8) Fishing (A) In general The term fishing means— (i) the actual or attempted searching for, catching, taking, or harvesting of fishery resources; (ii) engaging in any activity that can reasonably be expected to result in the locating, catching, taking, or harvesting of fishery resources for any purpose; (iii) transshipment and any operation at sea in direct support of, or in preparation for, any activity described in this subparagraph; and (iv) the use of any vessel, vehicle, aircraft, or hovercraft, in relation to any activity described in clauses (i) through (iii). (B) Exclusions The term fishing does not include any operation related to an emergency involving the health or safety of a crew member or the safety of a fishing vessel. (9) Fishing vessel The term fishing vessel means any vessel used or intended for use for the purpose of fishing, including a support ship, a carrier vessel, or any other vessel directly involved in such fishing operations. (10) Panel The term Panel means the Western Pacific Regional Fishery Management Council’s Advisory Panel. (11) Person The term person means— (A) any individual, whether or not a citizen or national of the United States; (B) any corporation, partnership, association, or other entity, whether or not organized or existing under the laws of any State; and (C) any Federal, State, local, tribal, or foreign government or any entity of such government. (12) Secretary The term Secretary means the Secretary of Commerce. (13) South Pacific Fisheries Convention The term South Pacific Fisheries Convention means the Convention on the Conservation and Management of the High Seas Fishery Resources in the South Pacific Ocean (including any annexes, amendments, or protocols that are in force, or have come into force, for the United States), which was adopted at Auckland on November 14, 2009. (14) State The term State means each of the several States of the United States, the District of Columbia, American Samoa, Guam, and any other commonwealth, territory, or possession of the United States. (15) Transshipment The term transshipment means the unloading of all or any of the fishery resources or fishery resource products derived from fishing in the Convention Area on board a fishing vessel to another fishing vessel either at sea or in port. (16) 1982 Convention The term 1982 Convention means the United Nations Convention on the Law of the Sea of 10 December 1982. 3. Appointment of United States Commissioner (a) Appointment The United States shall be represented on the Commission by 1 U.S. Commissioner. The President shall appoint an individual to serve on the Commission at the pleasure of the President. In making an appointment, the President shall select an individual who is knowledgeable or experienced concerning fishery resources in the South Pacific Ocean. (b) Alternate Commissioners The Secretary of State, in consultation with the Secretary, may designate from time to time and for periods of time considered appropriate an alternate Commissioner to the Commission. An alternate Commissioner may exercise all powers and duties of a Commissioner in the absence, for whatever reason, of a Commissioner appointed under subsection (a). (c) Administrative matters (1) Employment status An individual serving as a Commissioner, or as an alternate Commissioner, other than an officer or employee of the U.S. Government, shall not be considered a Federal employee, except for the purposes of injury compensation or tort claims liability as provided in chapter 81 of title 5, United States Code and chapter 171 of title 28, United States Code. (2) Compensation An individual serving as a Commissioner or an alternate Commissioner, although an officer of the United States while so serving, shall receive no compensation for the individual’s services as such Commissioner or alternate Commissioner. (3) Travel expenses (A) In general The Secretary of State shall pay the necessary travel expenses of a Commissioner or an alternate Commissioner in accordance with the Federal Travel Regulations and sections 5701, 5702, 5704 through 5708, and 5731 of title 5, United States Code. (B) Reimbursement The Secretary may reimburse the Secretary of State for amounts expended by the Secretary of State under this paragraph. (d) Advisory committee (1) Establishment of permanent advisory committee (A) Membership There is established an advisory committee which shall be composed of— (i) not less than 15 nor more than 20 individuals appointed by the Secretary in consultation with the Commissioner, who shall select such individuals from the various groups concerned with the fishery resources covered by the South Pacific Fisheries Convention, providing, to the maximum extent practicable, an equitable balance among such groups; and (ii) the chairperson of the Panel or the chairperson’s designee. (B) Terms and privileges Each member of the Advisory Committee shall serve for a term of 2 years and shall be eligible for reappointment. The Commissioner shall notify in advance the Advisory Committee of each meeting of the Commission. The Advisory Committee may attend each meeting and may examine and be heard on all proposed programs of investigation, reports, recommendations, and regulations of the Commission. (C) Procedures The Advisory Committee shall determine its organization and prescribe its practices and procedures for carrying out its functions under this Act, the South Pacific Fisheries Convention, and the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). The Advisory Committee shall publish and make available to the public a statement of its organization, practices, and procedures. A majority of the members of the Advisory Committee shall constitute a quorum to conduct business. Meetings of the Advisory Committee, except when in executive session, shall be open to the public. Prior notice of each non-executive meeting shall be made public in a timely fashion. The Advisory Committee shall not be subject to the Federal Advisory Committee Act (5 U.S.C. App.). (D) Provision of information The Secretary and the Secretary of State shall furnish the Advisory Committee with relevant information concerning fishery resources and international fishery agreements. (2) Administrative matters (A) Support services The Secretary shall provide to the Advisory Committee in a timely manner such administrative and technical support services as are necessary to function effectively. (B) Compensation; status; expenses An individual appointed to serve as a member of the Advisory Committee— (i) shall serve without pay, but while away from the individual’s home or regular place of business in the performance of services for the Advisory Committee shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as a person employed intermittently in the Government service is allowed expenses under section 5703 of title 5, United States Code; and (ii) shall not be considered a Federal employee, except for the purposes of injury compensation or tort claims liability as provided in chapter 81 of title 5, United States Code and chapter 171 of title 28, United States Code. (e) Memorandum of understanding For fishery resources in the Convention Area, the Secretary, in coordination with the Secretary of State, shall develop a memorandum of understanding with the Council, that clarifies the role of the Council with respect to— (1) participation in U.S. delegations to international fishery organizations in the Pacific Ocean, including government-to-government consultations; (2) providing formal recommendations to the Secretary and the Secretary of State regarding necessary measures for both domestic and foreign vessels fishing for fishery resources; (3) coordinating positions with the U.S. delegation for presentation to the appropriate international fishery organization; and (4) recommending those domestic fishing regulations that are consistent with the actions of the international fishery organization, for approval and implementation under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). 4. Authority and responsibility of the Secretary of State The Secretary of State may— (1) receive and transmit, on behalf of the United States, reports, requests, recommendations, proposals, decisions, and other communications of and to the Commission; (2) in consultation with the Secretary, approve, disapprove, object to, or withdraw objections to bylaws and rules, or amendments thereof, adopted by the Commission; (3) with the concurrence of the Secretary, approve or disapprove the general annual program of the Commission with respect to conservation and management measures and other measures proposed or adopted in accordance with the South Pacific Fisheries Convention; and (4) act upon, or refer to other appropriate authority, any communication under paragraph (1). 5. Rulemaking authority of the Secretary of Commerce (a) Promulgation of regulations The Secretary, in consultation with the Secretary of State and, with respect to enforcement measures, the Secretary of the department in which the Coast Guard is operating, is authorized to promulgate such regulations as may be necessary to carry out U.S. international obligations under the South Pacific Fisheries Convention and this Act, including recommendations and decisions adopted by the Commission. If the Secretary has discretion in the implementation of 1 or more measures adopted by the Commission that would govern fishery resources under the authority of the Council, the Secretary may promulgate, to the extent practicable within the implementation schedule of the South Pacific Fisheries Convention and any recommendations and decisions adopted by the Commission, such regulations in accordance with the procedures established by the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). (b) Judicial review of regulations (1) In general Regulations promulgated by the Secretary under this Act shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of title 5, United States Code, if a petition for such review is filed not later than 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register, as applicable. (2) Responses Notwithstanding any other provision of law, the Secretary shall file a response to any petition filed in accordance with paragraph (1), not later than 30 days after the date the Secretary is served with that petition, except that the appropriate court may extend the period for filing such a response upon a showing by the Secretary of good cause for that extension. (3) Copies of administrative record A response of the Secretary under paragraph (2) shall include a copy of the administrative record for the regulations that are the subject of the petition. (4) Expedited hearings Upon a motion by the person who files a petition under this subsection, the appropriate court shall assign the matter for hearing at the earliest possible date. 6. Enforcement (a) In general The Secretary and the Secretary of the department in which the Coast Guard is operating— (1) shall administer and enforce this Act and any regulations issued under this Act, except to the extent otherwise provided for in the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.); and (2) may request and utilize on a reimbursed or non-reimbursed basis the assistance, services, personnel, equipment, and facilities of other Federal departments and agencies in the administration and enforcement of this Act. (b) Additional authority The Secretary may conduct, and may request and utilize on a reimbursed or non-reimbursed basis the assistance, services, personnel, equipment, and facilities of other Federal departments and agencies in— (1) scientific, research, and other programs under this Act; (2) fishing operations and biological experiments for purposes of scientific investigation or other purposes necessary to implement the South Pacific Fisheries Convention; (3) the collection, utilization, and disclosure of such information as may be necessary to implement the South Pacific Fisheries Convention, subject to sections 552 and 552a of title 5, United States Code, and section 402(b) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1881a(b)); (4) if recommended by the Commissioner or proposed by the Council, the assessment and collection of fees, not to exceed 3 percent of the ex-vessel value of fish harvested by vessels of the United States from fishery resources managed under this Act, to recover the actual costs to the United States of management and enforcement under this Act, which shall be deposited as an offsetting collection in, and credited to, the account providing appropriations to carry out the functions of the Secretary under this Act; and (5) the issuance of permits to owners and operators of U.S. vessels to fish in the Convention Area seaward of the U.S. exclusive economic zone, under such terms and conditions as the Secretary may prescribe, including the period of time that a permit is valid. (c) Consistency with other laws The Secretary shall ensure the consistency, to the extent practicable, of fishery management programs administered under this Act, the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), the Tuna Conventions Act of 1950 (16 U.S.C. 951 et seq.), the South Pacific Tuna Act of 1988 (16 U.S.C. 973 et seq.), section 401 of Public Law 108–219 (16 U.S.C. 1821 note) (relating to Pacific albacore tuna), the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq.), and the Western and Central Pacific Fisheries Convention Implementation Act (16 U.S.C. 6901 et seq.). (d) Secretarial actions Except as provided under subsection (e), the Secretary and the Secretary of the department in which the Coast Guard is operating shall prevent any person from violating this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though sections 308 through 311 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1858, 1859, 1860, 1861) were incorporated into and made a part of this Act. Any person that violates any provision of this Act is subject to the penalties and entitled to the privileges and immunities provided in the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) in the same manner, by the same means, and with the same jurisdiction, power, and duties as though sections 308 through 311 of that Act (16 U.S.C. 1858, 1859, 1860, 1861) were incorporated into and made a part of this Act. (e) Jurisdiction of the courts (1) In general Subject to paragraphs (2) and (3), the district courts of the United States shall have exclusive jurisdiction over any case or controversy arising under the provisions of this Act, and any such court may at any time— (A) enter restraining orders or prohibitions; (B) issue warrants, process in rem, or other process; (C) prescribe and accept satisfactory bonds or other security; and (D) take such other actions as are in the interest of justice. (2) Hawaii and Pacific insular areas 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— (A) in the case of Guam and Wake Island, the appropriate court is the United States District Court for the District of Guam; and (B) in the case of the Northern Mariana Islands, the appropriate court is the United States District Court for the District of the Northern Mariana Islands. (3) Construction Each violation shall be a separate offense and the offense shall 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. Any offense not committed in any district is subject to the venue provisions of section 3238 of title 18, United States Code. (f) Confidentiality (1) In general Any information submitted to the Secretary in compliance with any requirement under this Act shall be confidential and may not be disclosed, except— (A) to a Federal employee who is responsible for administering, implementing, and enforcing this Act; (B) to the Commission, in accordance with requirements in the South Pacific Fisheries 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; (C) to a State or Marine Fisheries Commission employee pursuant to an agreement with the Secretary that prevents public disclosure of the identity of any business or individual; (D) when required by court order; or (E) 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 in this paragraph, and such release does not violate other requirements of this Act. (2) Use of information (A) In general Except as provided under subparagraph (B), the Secretary shall promulgate regulations regarding the procedures the Secretary considers necessary to preserve the confidentiality of information under this Act. (B) Exception The Secretary may release or make public information submitted under this Act if the information is in any aggregate or summary form that does not directly or indirectly disclose the identity or business of any person. (3) Rule of construction Nothing in this subsection shall be interpreted or construed to prevent the use for conservation and management purposes by the Secretary of any information submitted under this Act. 7. Prohibited acts (a) In general It is unlawful for any person— (1) to violate any provision of this Act or any regulation or permit issued pursuant to this Act; (2) to use any fishing vessel to engage in fishing after the revocation, or during the period of suspension, on an applicable permit issued under this Act; (3) to 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 the South Pacific Fisheries Convention; (4) to forcibly 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 the South Pacific Fisheries Convention; (5) to resist a lawful arrest for any act prohibited by this Act; (6) to knowingly and willfully ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any fishery resource taken or retained in violation of this Act or any regulation, permit, or agreement referred to in paragraph (1) or (2); (7) to 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) to 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) to forcibly assault, resist, oppose, impede, intimidate, sexually harass, bribe, or interfere with any observer on a vessel under this Act, or any data collector employed by or under contract to any person to carry out responsibilities under this Act; (10) to engage in fishing in violation of any regulation adopted pursuant to this Act; (11) to knowingly and willfully ship, transport, purchase, sell, offer for sale, import, export, or have in custody, possession, or control any fishery resource taken or retained in violation of such regulations; (12) to fail to make, keep, or furnish any catch returns, statistical records, or other reports required to be made, kept, or furnished under this Act; (13) to fail to stop a vessel upon being hailed and instructed to stop by a duly authorized official of the United States; or (14) to import, in violation of any regulation adopted pursuant to this Act, any fishery resource in any form of those species subject to regulation pursuant to a recommendation, resolution, or decision of the Commission, or any fishery resource in any form not under regulation but under investigation by the Commission, during the period the fishery resource has been denied entry in accordance with the provisions of this Act. (b) Entry certification In the case of any fishery resource described in subsection (a) offered for entry into the United States, the Secretary shall require proof satisfactory to the Secretary that the fishery resource is not ineligible for such entry under the terms of this Act. 8. Cooperation in carrying out Convention (a) Federal and State agencies; private institutions and organizations The Secretary may cooperate with any Federal agency, any public 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 South Pacific Fisheries Convention, in carrying out responsibilities under this Act. (b) Scientific and other programs; facilities and personnel Each Federal agency is authorized, upon the request of the Secretary, to cooperate in the conduct of scientific and other programs and to furnish facilities and personnel for the purpose of assisting the Commission in carrying out its duties under the South Pacific Fisheries Convention. (c) Sanctioned fishing operations and biological experiments Nothing in this Act, or in the laws of any State, prevents the Secretary or the Commission from— (1) conducting or authorizing the conduct of fishing operations and biological experiments at any time for purposes of scientific investigation; or (2) discharging any other duties prescribed by the South Pacific Fisheries Convention. (d) State jurisdiction not affected Except as provided in subsection (e), nothing in this Act shall be construed to diminish or to increase the jurisdiction of any State in the territorial sea of the United States. (e) Application of regulations (1) In general Regulations promulgated under this Act shall apply within the boundaries of any State bordering on the Convention Area if— (A) the Secretary has provided notice to the State; (B) the State does not request a formal agency hearing; and (C) the Secretary determines that the State— (i) has not, within a reasonable period of time after the promulgation of regulations under this Act, enacted laws that implement the recommendations of the Commission within the boundaries of the State; or (ii) has enacted laws that implement the recommendations of the Commission within the boundaries of the State that— (I) are less restrictive than the regulations promulgated under this Act; or (II) are not effectively enforced. (2) Determination by Secretary The regulations promulgated under this Act shall apply until the Secretary determines that the State is effectively enforcing within that State’s boundaries measures that are as or more restrictive than the regulations promulgated under this Act. (3) Formal agency hearing If a State requests a formal agency hearing, the Secretary shall not apply the regulations promulgated under this Act within that State’s boundaries unless the hearing record supports a determination under clause (i) or (ii) of paragraph (1)(C). (f) Review of State laws and regulations To ensure that the purposes of subsection (e) are carried out, the Secretary shall undertake a continuing review of the laws of each State to which subsection (e) applies or may apply and the extent to which such laws and regulations are enforced. 9. Territorial participation The Secretary of State shall ensure participation in the Commission and its subsidiary bodies by American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands to the same extent provided to the territories of other nations. 10. Exclusive economic zone notification 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 capable of communicating with U.S. enforcement authorities shall, prior to, or as soon as reasonably possible after, entering and transiting the exclusive economic zone seaward of the Convention Area— (1) notify the U.S. 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 on board 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. 11. Authorization of appropriations There are authorized to be appropriated to the Secretary of Commerce such sums as may be necessary to carry out this Act and to pay the United States contribution to the Commission under Article 15 of the South Pacific Fisheries Convention.