Denial of port privileges and sanctions for high seas large-scale driftnet fishing

16 U.S.C. § 1826a

• Title: 16 — Conservation
• Chapter: SUBCHAPTER III—FOREIGN FISHING AND INTERNATIONAL FISHERY AGREEMENTS

Text

(a) Denial of port privileges
Not later than 30 days after November 2, 1992, and periodically thereafter, the Secretary of Commerce, in consultation with the Secretary of State, shall publish a list of nations whose nationals or vessels conduct large-scale driftnet fishing beyond the exclusive economic zone of any nation.
The Secretary of Homeland Security shall, in accordance with international law—
(A) withhold or revoke the clearance required by section 60105 of title 46 for any large-scale driftnet fishing vessel of a nation that receives a negative certification under section 1826j(d) or 1826k(c) of this title, or fishing vessels of a nation that has been listed pursuant to section 1826j(b) of this title or section 1826k(a) of this title in 2 or more consecutive reports for the same type of fisheries activity, as described under section 1826h of this title, until a positive certification has been received;
(B) withhold or revoke the clearance required by section 60105 of title 46 for fishing vessels of a nation that has been listed pursuant to section 1826j(a) or 1826k(a) of this title in 2 or more consecutive reports as described under section 1826h of this title; and
(C) deny entry of that vessel to any place in the United States and to the navigable waters of the United States, except for the purposes of inspecting such vessel, conducting an investigation, or taking other appropriate enforcement action.
Before the publication of a list of nations under paragraph (1), the Secretary of State shall notify each nation included on that list regarding—
(A) the effect of that publication on port privileges of vessels of that nation under paragraph (1); and
(B) any sanctions or requirements, under this Act or any other law, that may be imposed on that nation if nationals or vessels of that nation continue to conduct large-scale driftnet fishing beyond the exclusive economic zone of any nation after December 31, 1992.
(b) Sanctions
Not later than January 10, 1993, the Secretary of Commerce shall—
(i) identify each nation whose nationals or vessels are conducting large-scale driftnet fishing beyond the exclusive economic zone of any nation; and
(ii) notify the President and that nation of the identification under clause (i).
At any time after January 10, 1993, whenever the Secretary of Commerce has reason to believe that the nationals or vessels of any nation are conducting large-scale driftnet fishing beyond the exclusive economic zone of any nation, the Secretary of Commerce shall—
(i) identify that nation; and
(ii) notify the President and that nation of the identification under clause (i).
Not later than 30 days after a nation is identified under paragraph (1)(B), the President shall enter into consultations with the government of that nation for the purpose of obtaining an agreement that will effect the immediate termination of large-scale driftnet fishing by the nationals or vessels of that nation beyond the exclusive economic zone of any nation.
The President—
(i) upon receipt of notification of the identification of a nation under paragraph (1)(A) or a negative certification under section 1826j(d) of this title or section 1826k(c) of this title; or
(ii) if the consultations with the government of a nation under paragraph (2) are not satisfactorily concluded within ninety days, shall direct the Secretary of the Treasury to prohibit the importation into the United States of fish and fish products and sport fishing equipment (as that term is defined in section 4162 of title 26) from that nation.
With respect to an import prohibition directed under subparagraph (A), the Secretary of the Treasury shall implement such prohibition not later than the date that is forty-five days after the date on which the Secretary has received the direction from the President.
Before the effective date of any import prohibition under this paragraph, the Secretary of the Treasury shall provide public notice of the impending prohibition.
Not later than six months after the date the Secretary of Commerce identifies a nation under paragraph (1) or issues a negative certification under section 1826j(d) of this title or section 1826k(c) of this title, the Secretary shall determine whether—
(i) any prohibition established under paragraph (3) is insufficient to cause that nation to terminate large-scale driftnet fishing conducted by its nationals and vessels beyond the exclusive economic zone of any nation, or to address the offending activities for which a nation received a negative certification under section 1826j(d) or 1826k(c) of this title; or
(ii) that nation has retaliated against the United States as a result of that prohibition.
The Secretary of Commerce shall certify to the President each affirmative determination under subparagraph (A) with respect to a nation.
Certification by the Secretary of Commerce under subparagraph (B) is deemed to be a certification under section 1978(a) of title 22.

History

(Pub. L. 102–582, title I, §101, Nov. 2, 1992, 106 Stat. 4901; Pub. L. 109–479, title IV, §403(b)(1), Jan. 12, 2007, 120 Stat. 3632; Pub. L. 114–81, title I, §102(a), Nov. 5, 2015, 129 Stat. 656; Pub. L. 117–263, div. K, title CXIII, §11336, Dec. 23, 2022, 136 Stat. 4101.)

Editorial Notes

Editorial Notes

References in Text
This Act, referred to in subsec. (a)(3)(B), is Pub. L. 102–582, Nov. 2, 1992, 106 Stat. 4900, known as the High Seas Driftnet Fisheries Enforcement Act, which enacted sections 1826a to 1826c of this title and section 1707a of the former Appendix to Title 46, Shipping, amended sections 1362, 1371, 1852, and 1862 of this title, section 1978 of Title 22, Foreign Relations and Intercourse, and section 2110 of Title 46, repealed section 1111c of the former Appendix to Title 46, and enacted provisions set out as notes under this section and sections 1801, 1823, and 1861 of this title and section 2110 of Title 46. For complete classification of this Act to the Code, see Short Title of 1992 Amendments note set out under section 1801 of this title and Tables.

Codification
Section was enacted as part of the High Seas Driftnet Fisheries Enforcement Act, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

Amendments
2022—Subsec. (a)(2). Pub. L. 117–263 amended par. (2) generally. Prior to amendment, text read as follows: "The Secretary of the Treasury shall, in accordance with international law—
"(A) withhold or revoke the clearance required by section 60105 of title 46 for any large-scale driftnet fishing vessel that is documented under the laws of the United States or of a nation included on a list published under paragraph (1) or, as appropriate, for fishing vessels of a nation that receives a negative certification under section 1826j(d) of this title or section 1826k(c) of this title; and
"(B) deny entry of that vessel to any place in the United States and to the navigable waters of the United States, except for the purposes of inspecting such vessel, conducting an investigation, or taking other appropriate enforcement action."
2015—Subsec. (a)(2). Pub. L. 114–81, §102(a)(1), struck out "recognized principles of" after "in accordance with" in introductory provisions.
Subsec. (a)(2)(A). Pub. L. 114–81, §102(a)(2), inserted "or, as appropriate, for fishing vessels of a nation that receives a negative certification under section 1826j(d) of this title or section 1826k(c) of this title" after "paragraph (1)".
Subsec. (a)(2)(B). Pub. L. 114–81, §102(a)(3), inserted before period at end ", except for the purposes of inspecting such vessel, conducting an investigation, or taking other appropriate enforcement action".
Subsec. (b)(1)(A)(i). Pub. L. 114–81, §102(a)(4), struck out "or illegal, unreported, or unregulated fishing" after "driftnet fishing".
Subsec. (b)(1)(B), (2). Pub. L. 114–81, §102(a)(5), struck out "or illegal, unreported, or unregulated fishing" after "driftnet fishing".
Subsec. (b)(3)(A)(i). Pub. L. 114–81, §102(a)(6), inserted "or a negative certification under section 1826j(d) of this title or section 1826k(c) of this title" after "paragraph (1)(A)".
Subsec. (b)(4)(A). Pub. L. 114–81, §102(a)(7), inserted "or issues a negative certification under section 1826j(d) of this title or section 1826k(c) of this title" after "paragraph (1)" in introductory provisions.
Subsec. (b)(4)(A)(i). Pub. L. 114–81, §102(a)(8), (9), struck out "or illegal, unreported, or unregulated fishing" after "driftnet fishing" and inserted ", or to address the offending activities for which a nation received a negative certification under section 1826j(d) or 1826k(c) of this title" after "beyond the exclusive economic zone of any nation".
2007—Subsec. (b)(1)(A)(i), (B), (2), (4)(A)(i). Pub. L. 109–479 inserted "or illegal, unreported, or unregulated fishing" after "driftnet fishing".

Statutory Notes and Related Subsidiaries

Regulations
Pub. L. 117–263, div. K, title CXIII, §11341, Dec. 23, 2022, 136 Stat. 4105, provided that: "Not later than 1 year after the date of enactment of this Act [Dec. 23, 2022], the Secretary shall promulgate such regulations as may be necessary to carry out this subtitle [subtitle E (§§11329–11341) of title CXIII of div. K of Pub. L. 117–263, see Tables for classification] and the amendments made by this subtitle."
[For definition of "Secretary" as used in section 11341 of Pub. L. 117–263, set out above, see section 11329 of Pub. L. 117–263, set out as a note under section 1885a of this title.]

High Seas Driftnet Fisheries Enforcement; Congressional Statement of Findings and Policy
Pub. L. 102–582, §2, Nov. 2, 1992, 106 Stat. 4900, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that:
"(a) Findings.—Congress makes the following findings:
"(1) Large-scale driftnet fishing on the high seas is highly destructive to the living marine resources and ocean ecosystems of the world's oceans, including anadromous fish and other living marine resources of the United States.
"(2) The cumulative effects of large-scale driftnet fishing pose a significant threat to the marine ecosystem, and slow-reproducing species like marine mammals, sharks, and seabirds may require many years to recover.
"(3) Members of the international community have reviewed the best available scientific data on the impacts of large-scale pelagic driftnet fishing, and have failed to conclude that this practice has no significant adverse impacts which threaten the conservation and sustainable management of living marine resources.
"(4) The United Nations, via General Assembly Resolutions numbered 44–225, 45–197, and most recently 46–215 (adopted on December 20, 1991), has called for a worldwide moratorium on all high seas driftnet fishing by December 31, 1992, in all the world's oceans, including enclosed seas and semi-enclosed seas.
"(5) The United Nations has commended the unilateral, regional, and international efforts undertaken by members of the international community and international organizations to implement and support the objectives of the General Assembly resolutions.
"(6) Operative paragraph (4) of United Nations General Assembly Resolution numbered 46–215 specifically 'encourages all members of the international community to take measures individually and collectively to prevent large-scale pelagic driftnet fishing operations on the high seas of the world's oceans and seas'.
"(7) The United States, in section 307(1)(M) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1857(1)(M)), has specifically prohibited the practice of large-scale driftnet fishing by United States nationals and vessels both within the exclusive economic zone of the United States and beyond the exclusive economic zone of any nation.
"(8) The Senate, through Senate Resolution 396 of the One Hundredth Congress (approved on March 18, 1988), has called for a moratorium on fishing in the Central Bering Sea and the United States has taken concrete steps to implement such moratorium through international negotiations.
"(9) Despite the continued evidence of a decline in the fishery resources of the Bering Sea and the multiyear cooperative negotiations undertaken by the United States, the Russian Federation, Japan, and other concerned fishing nations, some nations refuse to agree to measures to reduce or eliminate unregulated fishing practices in the waters of the Bering Sea beyond the exclusive economic zones of the United States and the Russian Federation.
"(10) In order to ensure that the global moratorium on large-scale driftnet fishing called for in United Nations General Assembly Resolution numbered 46–215 takes effect by December 31, 1992, and that unregulated fishing practices in the waters of the Central Bering Sea are reduced or eliminated, the United States should take the actions described in this Act [see Short Title of 1992 Amendments note set out under section 1801 of this title] and encourage other nations to take similar action.
"(b) Policy.—It is the stated policy of the United States to—
"(1) implement United Nations General Assembly Resolution numbered 46–215, approved unanimously on December 20, 1991, which calls for an immediate cessation to further expansion of large-scale driftnet fishing, a 50 percent reduction in existing large-scale driftnet fishing effort by June 30, 1992, and a global moratorium on the use of large-scale driftnets beyond the exclusive economic zone of any nation by December 31, 1992;
"(2) bring about a moratorium on fishing in the Central Bering Sea, or an international conservation and management agreement to which the United States and the Russian Federation are parties that regulates fishing in the Central Bering Sea; and
"(3) secure a permanent ban on the use of destructive fishing practices, and in particular large-scale driftnets, by persons or vessels fishing beyond the exclusive economic zone of any nation."