Congressional Research Service

Summaries of Major Laws Implemented by the
National Marine Fisheries Service

95-460 ENR

PERMANENT OR INDEFINITE AUTHORIZATIONS
-- Driftnet Impact Monitoring, Assessment, and Control Act of 1987
-- Fishermen's Protective Act of 1967
-- Saltonstall-Kennedy Act
IMPLEMENTATION OF TREATIES AND INTERNATIONAL AGREEMENTS
-- Atlantic Salmon Convention Act of 1982
-- Atlantic Tunas Convention Act of 1975
-- Eastern Pacific Ocean Tuna Licensing Act of 1984
-- Fur Seal Act of 1966
-- North Pacific Anadromous Stocks Convention Act of 1992
-- Northern Pacific Halibut Act of 1982
-- Pacific Salmon Treaty Act of 1985
-- South Pacific Tuna Act of 1988
-- Tunas Convention Act of 1950
-- Whaling Convention Act of 1949

PERMANENT OR INDEFINITE AUTHORIZATIONS

Driftnet Impact Monitoring, Assessment, and Control Act of 1987

In an effort to curtail the effects of driftnet fishing on U.S. marine resources, the Driftnet Impact Monitoring, Assessment, and Control Act of 1987 (16 U.S.C. 1822 note; Title IV of Pub. L. 100-220, as amended) authorized the Secretary of Commerce to enter into agreements with foreign nations. These agreements focus on monitoring, assessing and reducing the adverse impacts of driftnets of marine fishery resources.

The Secretary of Commerce negotiates, through the Secretary of State, with the governments of foreign nations permitting driftnet fishing that results in the taking of U.S. marine resources (e.g., anadromous salmon) in waters of the North Pacific Ocean outside of the EEZ or territorial sea of any nation. The intent of these negotiations is to enter into agreements providing for reliable monitoring and assessment of the U.S. marine resources which are killed and retrieved, discarded, or lost by driftnet fishing vessels of foreign governments. These negotiations are intended to allow entering into agreements for the enforcement of laws and regulations, applicable to the location, season, and other aspects of the operation of the foreign nation's driftnet fishing vessels. The Secretary of Commerce provides to the Congress as deemed necessary a report outlining the nature, extent, and effects of this driftnet fishing. Under this authority, agreements were negotiated with Japan, the Republic of Korea, and Taiwan.

The Driftnet Act Amendments of 1990 (§107 of Pub. L. 101-627) expanded upon this Act by directing the Secretary of Commerce, through the Secretary of State and the Secretary of the department in which the Coast Guard operates, to seek international agreements that require foreign driftnet vessels to be equipped with satellite transmitters, authorize U.S. officials to board and inspect foreign driftnets vessels for violations of the agreement, require reliable monitoring and documentation of all catches by foreign vessels, impose time and area restrictions on driftnet use to prevent interception of anadromous species, require driftnets be constructed of biodegradable materials, require driftnets to be clearly marked, and minimize the taking of non-target living resources. Furthermore, these amendments directed the Secretary of Commerce to certify under the Pelly Amendment any driftnet fishing nation failing to enter into or implement adequate monitoring and enforcement agreements with the United States.

Monies appropriated under the Act for FY94 were applied to the continuing surveillance of certain areas of the North Pacific to detect any possible illegal driftnet fishing activity. Surveillance activities included surface and air patrols by U.S. Coast Guard platforms, air patrols by the Canadian Maritime Forces, and continued development of the U.S. Navy's Sound Surveillance System for the detection of driftnet vessels. The non-binding United Nations General Assembly Resolution 46/215 banned large-scale high-seas driftnet fishing beginning in 1993, and has all but put an end to the use of this gear on the high seas. However, in June 1994, a single unidentified Asian driftnet vessel was sighted by an NMFS enforcement officer aboard a Canadian Maritime Forces aircraft.

Fishermen's Protective Act of 1967

The Fishermen's Protective Act of 1967 (22 U.S.C. 1971-1980; Pub. L. 90-482, as amended) authorizes the Secretary of Commerce to establish an insurance fund for the reimbursement of owners or charterers of fishing vessels which incur damage, loss, or destruction while engaged in any fishery under U.S. exclusive management, or are damaged by a vessel other than a U.S. vessel. This insurance also extends to any loss of, damage to, or destruction of fishing gear being used for fishing within any fishery subject to exclusive U.S. management authority, or its damage by any vessel, whether or not such vessel is a U.S. vessel. Funding for this insurance program is available through the Fishing Vessel and Gear Damage Compensation Fund. The Fund is capitalized by all sums recovered by the United States acting on behalf of vessel owners, all administrative fees collected on applications for compensation submitted to the Secretary pursuant to this Act, all surcharges collected on foreign vessels, all revenues received from deposits or investment of the Fishing Vessel and Gear Damage Compensation Fund, and any funds derived from notes or obligations issued by the Secretary to assure sufficient levels of funds for implementing this Act.

The 1971 Pelly Amendment to the Fishermen's Protective Act authorizes the Secretary of Commerce, upon determination that foreign nationals are conduction fishing operations in a way that diminishes the effectiveness of international fishery conservation programs, to certify such to the President. The Secretary also has the responsibility to certify to the President when foreign nationals are engaging in trade or taking in a manner which diminishes the effectiveness of any international program for endangered or threatened species. The Secretary also periodically reviews the activities of the offending nationals to determine if the reasons for the certification still prevail. If the reasons no longer prevail, the Secretary revokes the certification and publishes a notice thereof in the Federal Register.

Saltonstall-Kennedy Act

The Saltonstall-Kennedy Act (15 U.S.C. 713c-3; Act of July 1, 1954, as amended) authorizes the Secretary of Commerce to promote domestically produced fishery products. To achieve this goal, the Secretary provides financial assistance for fisheries research and development programs.

This Act authorizes the dispersal of money transferred to the Secretary of Commerce from the Secretary of Agriculture to promote domestic fisheries. Not less than 60 percent of this fund may be used for direct industry grants. The balance of the fund may be used to finance NMFS activities which coincide with the fisheries development goals of this Act. Projects which qualify for funding include, but are not limited to, research and development projects in harvesting, processing, marketing, and associated infrastructures, or other projects as the Secretary of Commerce deems appropriate. The Secretary submits an annual report to Congress on all pending projects, funding decisions, and a description of residual funds available.

For FY94, the Saltonstall-Kennedy Act appropriation was $7.1 million. During FY94, 55 proposals from a total of 229 submitted were recommended for funding at a total funding level of $6,119,655. In FY95, $9.2 million was appropriated under this Act. A notice announcing the availability of Federal assistance for FY95 was published on October 18, 1994 (59 Federal Register 52517). A record 345 proposals were received through December 19, 1994, which was the closing date for the receipt of proposals. A report, entitled The Saltonstall-Kennedy Grant Program: Fisheries Research and Development Annual Report 1994, summarizes the recent accomplishments of this program.

IMPLEMENTATION OF TREATIES AND INTERNATIONAL AGREEMENTS

Atlantic Salmon Convention Act of 1982

The Atlantic Salmon Convention Act of 1982 (16 U.S.C. 3601-3608; Title III of Pub. L. 97-389, as amended) authorizes the Secretary of Commerce to promulgate regulations necessary to implement and enforce the Convention for the Conservation of Salmon in the North Atlantic Ocean. Under this authority, procedures for the U.S. section of the North Atlantic Salmon Conservation Organization were published (49 Federal Register 14416, April 11, 1984). These regulations are enforceable against all vessels and persons subject to U.S. jurisdiction. The Act allows for both civil and criminal penalties for violations of this Act and regulations issued in support of this Act or the Convention. In addition, any vessel used or fish taken in a manner which is a violation of this Act is subject to forfeiture. To enforce the provisions of this Act, the Secretary of Commerce may cooperate with any other Federal agency, any State agency, or any private organization or institution.

The Secretary of Commerce is also authorized to cooperate with other agencies to conduct scientific research and other programs as deemed appropriate for assisting the North Atlantic Salmon Conservation Organization in carrying out its assigned duties and authorities. Interagency cooperation includes, but is not limited to, furnishing facilities and personnel to assist in research projects.

Atlantic Tunas Convention Act of 1975

The Atlantic Tunas Convention Act of 1975 (16 U.S.C. 971-971i; Pub. L.94-70, as amended) authorizes the Secretary of Commerce to administer and enforce all provisions of the International Convention for the Conservation of Atlantic Tunas. Pursuant to this goal, the Secretary cooperates with the duly authorized officials of the government of any party to the Convention as well as any other Federal department or agency or any State.

The Secretary of Commerce is authorized to issue regulations deemed necessary to implement the Convention. These regulations are published at 50 C.F.R. Part 285. The Act authorizes the Secretary to use the personnel, services, and facilities of any agency of any party to the Convention, any other Federal department or agency, or any agency of any State. This Act also charges the Secretary with issuing regulations for the advancement of any recommendation from the International Commission for the Conservation of Atlantic Tunas (ICCAT). However, regulations promulgated under this Act are, to the extent practicable, to be consistent with fishery management plans prepared and implemented under the Magnuson Fishery Conservation and Management Act of 1976, as amended.

This Act authorizes the Secretary of Commerce to prohibit the entry into the United States of any species subject to regulations recommended by ICCAT and taken from the Convention area in a manner which would diminish the effectiveness of ICCAT's conservation efforts. The Secretary may also prohibit the importation of any fish regulated by the Convention from a country whose fishing vessels are harvesting in the Convention area in a manner which would diminish the effectiveness of ICCAT's recommendations. In addition, the Secretary prepares and submits biennial reports to Congress, summarizing bluefin tuna harvest by U.S. fishermen and the status of bluefin tuna stocks within the Convention area.

The NMFS Office of Enforcement initiated 47 cases under this Act in 1994. Violations were mainly for taking tuna in excess of daily and seasonal limits.

Eastern Pacific Ocean Tuna Licensing Act of 1984

The Eastern Pacific Ocean Tuna Licensing Act of 1984 (16 U.S.C. 972-972h; Pub. L. 98-445, as amended) authorizes the Secretary of Commerce to issue and enforce regulations deemed necessary to implement the Eastern Pacific Ocean Tuna Fishing Agreement. This Act prohibits the taking of designated species of tuna within the Agreement's conservation area by U.S. citizens without a permit issued by the Secretary of Commerce. However, recommendations regarding the conservation of a specific species of tuna may only be promulgated pursuant to recommendations made by the Council. (13) It is also illegal to knowingly ship, transport, purchase, sell, offer for sale, export, or have in custody any tuna taken in violation of this Act. Under the conditions of this Act, persons convicted of violations are subject to civil fines and forfeitures. The Secretary of Commerce may issue regulations to accomplish the goals of this Act. Violators of any such regulations are subject to civil penalties and forfeitures.

The Secretary of Commerce, to enforce the Agreement, may designate officers and employees of the States, of the Commonwealth of Puerto Rico, and of American Samoa to conduct enforcement activities on behalf of the Department of Commerce. A person so designated has the authority to search vessels subject to U.S. jurisdiction to achieve the objectives of this Act.

Fur Seal Act of 1966

The Fur Seal Act of 1966 (16 U.S.C. 1151-1175; Pub. L. 89-702, as amended) provides for management of the fur seal herd and administration of the Pribilof Islands. Prior to the termination of the Interim Convention on the Conservation of North Pacific Fur Seals, this Act implemented the provisions of that agreement.

The Act prohibits the taking, transporting, importing, or selling of fur seals in the North Pacific Ocean or on the lands or waters within U.S. jurisdiction. Exceptions to this Act are made for Indians, Aleuts, and Eskimos dwelling along the coast of the North Pacific Ocean or the Pribilof Islands, in so far as the seals are taken for subsistence use only and by means consistent with the MMPA. The Fur Seal Act also allows for the taking of seals for purposes of education, science, or exhibition with permission from the Secretary of Commerce. The Act authorizes the seizure of vessels or persons, or both, found to be in violation of this Act and which are operating within U.S. fisheries jurisdiction.

The Act authorizes the Secretary of Commerce to administer the fur seal rookeries and other Federal property on the Pribilof Islands to assure that activities on the Islands are consistent with the provisions of this Act. To assure the long term, stable existence of diversified economies on the Pribilof Islands, the Secretary of Commerce established and administers a trust fund for the benefit of the Natives of the Islands. Regulations promulgated under this Act regulate an annual subsistence harvest of fur seals by Pribilof Island residents using humane harvesting methods (50 C.F.R. Part 215).

In a workshop conducted on November 5, 1991, NMFS recognized the need to re-evaluate the regulatory issues regarding the subsistence harvest of fur seals on the Pribilof Islands, to determine whether changes in the methods of monitoring and conducting this harvest were warranted. As a first step towards addressing these concerns, NMFS, on May 13, 1994, proposed an amendment to §215.32 of the Fur Seal Act regulations (59 Federal Register 25024), allowing subsistence take estimated to be applicable for a 3-year period, beginning in 1994. During this 3-year period, NMFS will examine the current subsistence harvest management regime. The proposed amendment was based on the fact that the actual number of fur seals harvested each year since 1989 has been relatively consistent, and the fur seal take has never exceeded the upper limit of the estimated range for subsistence need within any harvest year. Due to recent commercial development in the Pribilof Islands, NMFS anticipates that the subsistence needs will increase during the next 3 years, but, based on historical evidence, the annual subsistence needs are not expected to exceed the range established in the 1993 final estimate. The final rule making subsistence estimates applicable for three years instead of one year was published on July 12, 1994 (59 Federal Register 35471). A total of $290,000 was appropriated for fur seal management in FY95.

North Pacific Anadromous Stocks Convention Act of 1992

The North Pacific Anadromous Stocks Convention Act of 1992 (16 U.S.C. 5001-5012; Title VIII of Pub. L. 102-587, as amended) authorizes the Secretary of Commerce to implement the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean. The Secretary issues and enforces regulations to accomplish the goals of this Act and the Convention (50 C.F.R. Part 210). The Act repealed the North Pacific Fisheries Act of 1954 (16 U.S.C. 1021-1035).

It is illegal for any U.S. vessel to fish for anadromous species, or keep any anadromous species taken incidentally within the Convention area. Any person who obstructs an agent of the Secretary of Commerce in carrying out the provisions of this Act, including, but not limited to, conducting searches and investigations, violates this Act. In addition, it is illegal to violate any provision of the Convention, this Act, or any regulation issued pursuant to this Act.

The Secretary of Commerce may use the personnel, services, equipment, and facilities of any Federal agency or any State agency to enforce any provision of this Act. Officers acting on behalf of the Secretary in the fulfillment of this Act are authorized to arrest or otherwise board and search or inspect, without a warrant, any vessel, or any part thereof, shoreward of the outer boundary of the U.S. EEZ if such vessel is suspected of violating provisions of this Act or the Convention. If the officer discovers that the vessel is being or has been used to violate this Act, the officer is authorized to seize the vessel, any fish taken in a prohibited manner, or any other evidence related to any violation of any provision of the Convention, this Act, or any regulations issued pursuant to this Act. This Act permits the imposition of criminal and civil penalties, as well as forfeiture.

Northern Pacific Halibut Act of 1982

The Northern Pacific Halibut Act of 1982 (16 U.S.C. 773-773k; Pub. L. 97-176, as amended) authorizes the Secretary of Commerce to enforce the terms of the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea. The Secretary promulgates regulations pursuant to this goal in 50 C.F.R. Part 301. The Regional Fishery Management Council responsible for the geographic area concerned (i.e., the Pacific or North Pacific Council) may also develop and implement, with the approval of the Secretary, regulations as deemed necessary to fulfill the purpose of the Convention and this Act. However, the implementation of these regulations is subject to approval by the Secretary of Commerce. This Act allows for criminal and civil penalties, as well as forfeitures.

This Act prohibits foreign vessels from fishing for halibut, unless otherwise authorized in accordance with the Convention, this Act, and regulations issued in accordance with this Act, in the EEZ or special areas established by the Convention. It is illegal to impede, in any way, a search or inspection of a vessel suspected of violating the Convention, this Act, or any regulation promulgated pursuant to this Act. Resisting the lawful arrest or detention of persons suspected of violating any part of this Act is illegal.

The Secretary of Commerce, or officer appointed by the Secretary, is authorized to enforce all provisions of the Convention, this Act, and all regulations issued pursuant to this Act. The Secretary of Commerce may undertake investigations as deemed necessary for the enforcement of this Act. During the course of these investigations, the Secretary, or representative of the Secretary, is authorized to administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of materials which could have bearing on the investigation.

NMFS, on behalf of the International Pacific Halibut Commission, implemented the 1994 regulations for U.S. fisheries for Pacific halibut. The Regional Fishery Management Councils, through the Secretary of Commerce, are tasked with the responsibility of allocating allowable quotas among domestic fishermen. The Pacific Council developed a catch-sharing plan to allocate the catch limits off California, Oregon, and Washington among commercial, recreational, and treaty Indian fishermen. The North Pacific Council developed a limited access system for Pacific halibut commercial fishermen off Alaska. In conjunction with this program, NMFS developed procedures for individual allocations to vessel owners or lease holders; appeal of allocations, permits, transfers; and a Western Alaska Community Development Quota Program to allow fishing to begin in 1995.

A total of 294 enforcement cases was made by NMFS in 1994 under this Act. Most violations involved taking halibut in excess of established quotas and fishing before and after the open season. Significant additional enforcement effort is anticipated in 1995 and beyond as management of the North Pacific halibut fishery moves to a system of individual fishery quotas.

Pacific Salmon Treaty Act of 1985

The Pacific Salmon Treaty Act of 1985 (16 U.S.C. 3631-3644; Pub. L. 99-5, as amended) authorizes the Secretary of Commerce to issue and enforce regulations necessary for implementing the Treaty between the Government of the United States of America and the Government of Canada Concerning Pacific Salmon. To fulfill these obligations, the Secretary may cooperate with other Federal agencies, State agencies, treaty Indian tribes, and private institutions and organizations. This Act repealed the Pink Salmon Act of July 28, 1947 (16 U.S.C. 776-776f).

Persons or vessels under U.S. jurisdiction are prohibited from violating any provision of this Act, any regulation adopted pursuant to this Act, or any provision under the Treaty. This Act prohibits the sale, transporting, shipping, offering for sale, purchasing, importing, exporting, or possession of fish taken in violation of this Act. It is considered illegal to obstruct, in any manner, attempts by any officer authorized by the Secretary of Commerce to conduct a search or investigation to enforce this Act.

To implement the provisions of this Act and the Treaty, the Secretary of Commerce, in cooperation with the Regional Fishery Management Councils, the States, and treaty Indian tribes, promulgates regulations appearing at 50 C.F.R. Part 372. If any State or treaty Indian tribe acts, or fails to act, in any manner which then results in the United States being at risk of violating the Treaty, the Secretary of Commerce informs the State or treaty Indian tribe. If, within fifteen days after notification, the State or treaty Indian tribe does not remedy the situation, the Secretary may act to alleviate the problem.

On September 15, 1994, NMFS issued a final rule (59 Federal Register 47283) to preempt a Fraser River sockeye salmon fishery by the Lummi Indian Tribe in Washington State to support U.S. treaty obligations under the Pacific Salmon Treaty.

South Pacific Tuna Act of 1988

The South Pacific Tuna Act of 1988 (16 U.S.C. 973-973r; Pub. L. 100-330, as amended) authorizes the Secretary of Commerce to issue and enforce regulations necessary to implement the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America. Provisions are made for both criminal and civil penalties for violation of the Treaty or this Act. Regulations promulgated pursuant to this Act appear at 50 C.F.R. Part 282.

This Act prohibits fishing within the Treaty area in a manner which diminishes the effectiveness of the Treaty. The Act also makes it illegal to intentionally falsify, destroy, or otherwise fail to provide, upon request by the Secretary of Commerce, documents which could be used to determine if violations of this Act or the Treaty have occurred.

The Secretary of Commerce operates a system which processes requests for licenses to fish within Treaty waters not otherwise designated as closed for fishing or under U.S. jurisdiction, as designated by international law. Approved license requests are forwarded to the Administrator of the Treaty for issuance. Through this program, the Secretary determines whether the applicants are eligible for a license; applicants may be deemed ineligible if their application is not in accordance with established procedures, the applicant is subject to bankruptcy proceedings, the applicant's vessel is deemed not to be fully insured based on normal maritime insurance coverage, or the applicant has not paid any penalty assessed by the Secretary pursuant to this Act. In the event that there are more requests than licenses to be issued, the Secretary of Commerce determines how such licenses shall be allocated.

Upon request by any party to the Treaty, the Secretary of Commerce is required to fully investigate any alleged violation of the Treaty which involves a vessel under U.S. jurisdiction. The Secretary must inform the operator of any involved vessel of the pending investigation, of the nature of the investigation, and of his/her rights to submit comments, information or other evidence having bearing on the investigation. Following such an investigation, the Secretary is authorized to order any vessel found not to be in compliance with the Treaty, this Act, or regulations promulgated pursuant to this Act to immediately leave all areas under Treaty jurisdiction.

On March 24, 1994, NMFS finalized an interim final rule implementing revisions to the annexes to the Treaty (59 Federal Register 13894).

Tunas Convention Act of 1950

The Tunas Convention Act of 1950 (16 U.S.C. 951-961; Act of September 7, 1950, as amended) authorizes the Secretary of Commerce to issue regulations for implementing recommendations of the Inter-American Tropical Tuna Commission (IATTC). In addition, the Secretary enforces regulations promulgated pursuant to this Act, appearing at 50 C.F.R. Parts 280 and 281. The Act provides for both civil and criminal penalties for violations of this Act or regulations promulgated pursuant to this Act.

To achieve the goals of the Convention, the Secretary of Commerce is authorized to divide Convention waters into areas, establish open or closed seasons, limit the size and quantity of the permissible catch, limit or prohibit incidental catch of regulated species, require vessel clearance certificates, and take other measures deemed necessary to implement IATTC recommendations. Concurrent with these regulations, the Secretary of Commerce also issues regulations prohibiting U.S. entry of any fish taken in a manner which undermines the effectiveness of IATTC recommendations.

On May 19, 1993, NMFS published an interim final rule (58 Federal Register 29128) implementing a multilateral agreement entered into by the United States and other fishing nations at the IATTC's annual meeting. This agreement was to adopt a multilateral program to progressively reduce dolphin mortality in the eastern tropical Pacific (ETP) Ocean, to seek ecologically sound means of capturing yellowfin tuna in the ETP at maximum sustained catches year after year, and to limit or eliminate mortality of dolphins in the ETP.

Whaling Convention Act of 1949

The Whaling Convention Act of 1949 (16 U.S.C. 916-9161; Act of August 9, 1950, as amended) authorizes the Secretary of Commerce to enforce the provisions of the International Convention for the Regulation of Whaling and to issue regulations necessary for this purpose, appearing at 50 C.F.R. Parts 230 and 351. The Secretary is authorized and directed to administer and enforce all provisions of the Convention, this Act, and regulations promulgated pursuant to this Act. In conducting the duties prescribed under this Act, the Secretary of Commerce cooperates with other agencies of the Federal Government, State governments, or other independent institutions. The Secretary may also cooperate with any agency from any other government of any party to the Convention.

Under this Act, it is illegal for any person under U.S. jurisdiction to engage in any act prohibited or not do any act required by the Convention, this Act, or any regulations promulgated by the Secretary of Commerce pursuant to this Act. It is also illegal to ship, transport, purchase, sell, offer for sale, import, export, or have in possession any whale or whale products taken in violation of the Convention, this Act, or any regulation promulgated by the Secretary of Commerce pursuant to this Act. The prohibitions of this Act do not preclude the taking of whales for scientific investigation, with the approval of the Secretary.

To the extent that the Convention applies to the United States, the Secretary of Commerce issues regulations deemed necessary to further the goals of the Convention.

Endnotes

13 The Council consists of representatives from each Contracting Party to the Eastern Pacific Ocean Tuna Fishing Agreement which is a Coastal State of the eastern Pacific Ocean or a member of the Inter-American Tropical Tuna Commission at the time when the Agreement went into effect.