USC Chapter 16c

in effect

16 U.S.C. § 973 Definitions

As used in this chapter— (1) The term “Administrator” means the individual or organization designated by the Pacific Island Parties to act on their behalf under the Treaty and notified to the United States Government. (2) The term “Authorized Officer” means any officer who is authorized by the Secretary, or the Secretary of the department in which the Coast Guard is operating, or the head of any Federal or State agency which has entered into an enforcement agreement with the Secretary under section 973h(a) of this title. (3) The term “Authorized Party Officer” means any officer authorized by a Pacific Island Party to enforce the provisions of the Treaty. (4) The term “applicable national law” means any provision of law of a Pacific Island Party which is noticed and in effect in accordance with the Treaty. (5) The term “Closed Area” means any area within the jurisdiction of a Pacific Island Party that is closed to vessels pursuant to a national law of that Pacific Island Party and is noticed and in effect in accordance with the Treaty. (6) The term “fishing” means—(A) searching for, catching, taking, or harvesting fish; (B) attempting to search for, catch, take, or harvest fish; (C) engaging in any other activity which can reasonably be expected to result in the locating, catching, taking, or harvesting of fish for any purpose; (D) placing, searching for, or recovering fish aggregating devices or associated electronic equipment such as radio beacons; (E) any operations at sea directly in support of, or in preparation for, any activity described in this paragraph; or (F) use of any other vessel, vehicle, aircraft, or hovercraft for any activity described in this paragraph except for emergencies involving the health or safety of the crew or the safety of a vessel. (7) The term “fishing vessel” or “vessel” means any boat, ship, or other craft which is used for, equipped to be used for, or of a type normally used for ommercial purse seine fishing for tuna, and which is documented under the laws of the United States. (8) The term “Licensing Area” means all waters under the jurisdiction of a Pacific Island Party, except for internal waters, territorial seas, archipelagic waters, and any Closed Area. (9) The term “licensing period” means the period of validity of licenses issued in accordance with the Treaty. (10) The term “operator” means any person who is in charge of, directs or controls a vessel, including the owner, charterer, and master. (11) The term “Pacific Island Party” means a Pacific Island nation which is a party to the Treaty. (12) The term “person” means any individual (whether or not a citizen or national of the United States), any corporation, partnership, association, or other entity (whether or not organized or existing under the laws of any State), and any Federal, State, local, or foreign government or any entity of any such government. (13) The term “regional terms and conditions” means any of the terms or conditions attached by the Administrator to a license issued by the Administrator, as notified by the Secretary. (14) The term “Secretary” means the Secretary of Commerce, or the designee of the Secretary of Commerce. (15) The term “State” means each of the several States, the District of Columbia, the Commonwealths of Puerto Rico and the Northern Mariana Islands, American Samoa, the Virgin Islands, Guam, and any other Commonwealth, territory, or possession of the United States. (16) The term “Treaty” means the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America, signed in Port Moresby, Papua New Guinea, April 2, 1987, and its Annexes, Schedules, and implementing agreements.

16 U.S.C. § 973a Application to other laws

The seizure by a Pacific Island Party of a vessel of the United States shall not be determined to be a seizure described in section 1825(a)(4)(C) of this title or section 1972 of title 22 if the seizure is found by the Secretary of State to be in accordance with the provisions of the Treaty.

16 U.S.C. § 973b Regulations

The Secretary of Commerce, with the concurrence of the Secretary of State and after consultation with the Secretary of the department in which the Coast Guard is operating, shall issue regulations as may be necessary to carry out the purposes and objectives of the Treaty and this chapter. These regulations shall be made applicable as necessary to all persons and vessels subject to the jurisdiction of the United States, wherever located.

16 U.S.C. § 973c Prohibited acts

(a) It is unlawful for any person subject to the jurisdiction of the United States—(1) to violate any provision of this chapter or any regulation or order issued pursuant to this chapter; (2) to use a vessel for fishing in violation of an applicable national law; (3) to use a vessel for fishing in any Closed Area, except in accordance with an agreement pursuant to the Treaty; (4) to falsify any information required to be reported, notified, communicated, or recorded pursuant to a requirement of this chapter, or to fail to submit any required information, or to fail to report to the Secretary immediately any change in circumstances which has the effect of rendering any such information false, incomplete, or misleading; (5) to intentionally destroy evidence which could be used to determine if a violation of this chapter or the Treaty has occurred; (6) to refuse to permit any Authorized Officer or Authorized Party Officer to board a fishing vessel for purposes of conducting a search or inspection in connection with the enforcement of this chapter or the Treaty; (7) to refuse to comply with the instructions of an Authorized Officer or Authorized Party Officer relating to fishing activities under the Treaty; (8) to forcibly assault, resist, oppose, impede, intimidate, or interfere with—(A) any Authorized Officer or Authorized Party Officer in the conduct of a search or inspection in connection with the enforcement of this chapter or the Treaty; or (B) an observer in the conduct of observer duties under the Treaty; (9) to resist a lawful arrest for any act prohibited by this section; (10) 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; (11) to ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any fish taken or retained in violation of this chapter or any regulation, permit, or the Treaty, with the knowledge that the fish were so taken or retained; (12) to violate any of the regional terms and conditions; or (13) to violate any limit on an authorized fishing effort or catch. (b) It is unlawful for any person subject to the jurisdiction of the United States when in the Licensing Area—(1) to use a vessel to fish unless validly licensed as required by the Administrator; (2) to use a vessel for directed fishing for southern bluefin tuna or for fishing for any kinds of fish other than tunas, except that fish may be caught as an incidental by-catch; (3) to use a vessel for fishing by any method other than the purse-seine method; (4) to use any vessel to engage in fishing after the revocation of its license, or during the period of suspension of an applicable license; (5) to use a vessel to fish in a manner inconsistent with an order issued by the Secretary under section 973i of this title; or (6) except for circumstances involving force majeure and other emergencies involving the health or safety of crew members or the safety of the vessel, to use an aircraft in association with the fishing activities of a vessel unless it is identified in the license application for the vessel, or any amendment thereto.

16 U.S.C. § 973e Criminal offenses

(a) Prohibited actsA person is guilty of a criminal offense if he or she commits any act prohibited by paragraph (6), (8), (9), or (10) of section 973c(a) of this title. (b) Sentence and fineAny offense described in subsection (a) of this section is punishable by a fine of not more than $50,000, or imprisonment for not more than 6 months, or both; except that if in the commission of any such offense the person uses a dangerous weapon, engages in conduct that causes bodily injury to any Authorized Officer, Authorized Party Officer, or observer under the Treaty in the conduct of their duties, or places any such Authorized Officer, Authorized Party Officer, or observer in fear of imminent bodily injury, the offense is punishable by a fine of not more than $100,000 or imprisonment for not more than 10 years, or both. (c) JurisdictionThe district courts of the United States shall have jurisdiction over any offense described in this section.

16 U.S.C. § 973f Civil penalties

(a) Determination of liability; amount; participation by Secretary of State in assessment proceedingAny person who is found by the Secretary, after notice and an opportunity for a hearing in accordance with section 554 of title 5, to have committed an act prohibited by section 973c of this title, shall be liable to the United States for a civil penalty. Before issuing a notice of violation, the Secretary shall consult with the Secretary of State. The amount of the civil penalty shall be determined in accordance with considerations set forth in the Treaty and shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed, and with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. The amount of the civil penalty shall not exceed $250,000 for each violation. Upon written notice, the Secretary of State shall have the right to participate in any proceeding initiated to assess a civil penalty for violation of this chapter. (b) Judicial review of assessment; procedures applicableAny person against whom a civil penalty is assessed under subsection (a) of this section may obtain review thereof in the United States district court for the appropriate district by filing a complaint in such court within 30 days from the date of the order and by simultaneously serving a copy of the complaint by certified mail on the Secretary, the Attorney General of the United States, and the appropriate United States Attorney. The Secretary shall promptly file in the court a certified copy of the record upon which the violation was found or the penalty imposed. The findings and order of the Secretary shall be set aside or modified by the court if they are not found to be supported by substantial evidence, as provided in section 706(2) of title 5. (c) Failure to pay assessment of civil penalty; recovery by Attorney GeneralExcept as provided in subsection (g) of this section, if any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order, or after the appropriate court has entered final judgment in favor of the Secretary, the Secretary shall refer the matter to the Attorney General of the United States, who shall recover the amount assessed in any appropriate district court of the United States. (d) In rem liability for civil penalty; jurisdiction; maritime lien on vesselExcept as provided in subsection (g) of this section, a fishing vessel (including its fishing gear, furniture, appurtenances, stores, and cargo) used in the commission of an act prohibited by section 973c of this title shall be liable in rem for any civil penalty assessed for the violation under this section and may be proceeded against in any district court of the United States having jurisdiction thereof. The penalty shall constitute a maritime lien on the vessel which may be recovered in an action in rem in the district court of the United States having jurisdiction over the vessel. (e) Compromise, etc., of civil penaltyThe Secretary, after consultation with the Secretary of State, may compromise, modify, or remit, with or without conditions, any civil penalty which is subject to imposition or which has been imposed under this section. (f) Conduct of hearingsFor the purposes of conducting any hearing under this section, the Secretary may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and may administer oaths. Witnesses summoned shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States. In case of contempt or refusal to obey a subpoena served upon a person pursuant to this subsection, the district court of the United States for any district in which the person is found, resides, or transacts business, upon application by the United States and after notice to the person, shall have jurisdiction to issue an order requiring the person to appear and give testimony before the Secretary or to appear and produce documents before the Secretary, or both, and any failure to obey the order of the court may be punished by the court as a contempt thereof. (g) Waiver of referral to Attorney GeneralIf a vessel used in a violation of paragraph (1), (2), (3), (4), (5), (6), (7), (11), (12), or (13) of section 973c(a) or section 973c(b) of this title for which a civil penalty has been assessed—(1) had a valid license under the Treaty at the time of the violation, and (2) within 60 days after the penalty assessment has become final, leaves and remains outside of the Licensing Area and all Closed Areas until the final penalty has been paid, there shall be no referral to the Attorney General under subsection (c) of this section or in rem action under subsection (d) of this section in connection with such civil penalty.

16 U.S.C. § 973g Licenses

(a) Issuance; establishment of procedures; designation of agent for service of legal process in license application; reception and response to processLicenses to fish in the Licensing Area, to be issued by the Administrator in accordance with the Treaty, may be requested from the Secretary by operators of vessels, under procedures established by the Secretary. The license application shall designate an agent for the service of legal process to be located in Port Moresby, Papua New Guinea. The applicant shall ensure that the designated agent for service of process, acting on behalf of the license holder, will receive and respond to any legal process issued in accordance with the Treaty and will, within 21 days after notification, travel if necessary for this purpose to any Pacific Island Party at no expense to that Party. (b) Forwarding of vessel license applicationIn accordance with subsection (e), and except as provided in subsection (f), the Secretary shall forward a vessel license application to the Administrator whenever such application is in accordance with application procedures established by the Secretary. (c) FeesFees required under the Treaty shall be paid in accordance with the Treaty and any procedures established by the Secretary. (d) Period of validityLicenses shall be valid for the licensing period specified by the Administrator. (e) Allocation systemThe Secretary may establish a system of allocating licenses in the event more applications are received than there are licenses available. (f) Grounds for denial of forwarding of license applicationThe Secretary, in consultation with the Secretary of State, may determine that a license application should not be forwarded to the Administrator if—(1) the application is not in accordance with the Treaty or the procedures established by the Secretary; or (2) the owner or charterer—(A) is the subject of proceedings under the bankruptcy laws of the United States, unless reasonable financial assurances have been provided to the Secretary; (B) has not established to the satisfaction of the Secretary that the fishing vessel is fully insured against all risks and liabilities normally provided in maritime liability insurance; or (C) has not paid any penalty which has become final, assessed by the Secretary in accordance with this chapter. (g) Grandfathering of vessels documented before November 3, 1995Notwithstanding the requirements of—(1) section 12113 of title 46; (2) the general permit issued on December 1, 1980, to the American Tunaboat Association under section 1374(h)(1) of this title; and (3) sections 1374(h)(2) and 1416(a) of this title— 11 So in original. The dash probably should be a semicolon. any vessel documented under the laws of the United States as of November 3, 1995, for which a license has been issued under subsection (a) may fish for tuna in the Licensing Area, and on the high seas and in waters subject to the jurisdiction of the United States west of 146 west longitude and east of 129.5 east longitude in accordance with international law, subject to the provisions of the Treaty, this chapter, and other applicable law, provided that no such vessel intentionally deploys a purse seine net to encircle any dolphin or other marine mammal in the course of fishing.

16 U.S.C. § 973h Enforcement

(a) Federal responsibilities; utilization of personnel, etc., of other Federal and State agenciesThe provisions of this chapter shall be enforced by the Secretary in cooperation with the Secretary of State. The Secretary, after consultation with the Secretary of State, may by agreement, on a reimbursable basis or otherwise, utilize the personnel, services, equipment (including aircraft and vessels), and facilities of any other Federal agency and of any State agency in the performance of these duties. (b) Investigation and report of alleged Treaty infringement involving U.S. vessel; notice requirements to operator of vessel; comments, information, or evidence by operator(1) The Secretary shall, at the request of a Pacific Island Party made to the Secretary of State, fully investigate any alleged infringement of the Treaty involving a vessel of the United States, and report as soon as practicable, and in any case within 2 months, to that Party through the Secretary of State on any action taken or proposed by the Secretary in regard to the alleged infringement. (2) Upon commencement of an investigation under paragraph (1) of this subsection, the Secretary shall notify the operator of any vessel concerned regarding—(A) the nature of the investigation; (B) the right of the operator to submit comments, information, or evidence bearing on the investigation and to receive, upon the operator’s timely written request to the Secretary, an opportunity to present such comments, information, or evidence orally to the Secretary or the Secretary’s representative within 30 days after receipt of such notification. (c) Notice requirements to Pacific Island Party concerning institution and outcome of legal proceedings(1) Prior to instituting any legal proceedings under this chapter for any action which involves an alleged infringement of the Treaty in waters within the jurisdiction of a Pacific Island Party, the Secretary, through the Secretary of State, shall notify the Pacific Island Party in accordance with the Treaty that the proceedings will be instituted. Such notice shall include a statement of the facts believed to show an infringement of the Treaty and the nature of the proposed proceedings, including any proposed charges and any proposed penalties. The Secretary shall not institute such proceedings if the Pacific Island Party objects within 30 days after the effective date of the notice under the Treaty. (2) The Pacific Island Party exercising jurisdiction over the waters involved in such a legal proceeding shall be promptly notified by the Secretary, through the Secretary of State, concerning the outcome of the proceeding. (d) Searches and seizures by Authorized Officers; limitations on powers(1) Any Authorized Officer may—(A) with or without a warrant or other process—(i) arrest any person, if he has reasonable cause to believe that the person has committed any act subject to prosecution under section 973e of this title; (ii) board, and search or inspect, any fishing vessel which is subject to the provisions of this chapter; (iii) seize samples of fish or items for evidence (other than the vessel or its fishing gear or equipment) related to any violation of any provision of this chapter; or (iv) order a vessel into the most convenient port of the United States for investigation when an investigation has been requested by a Pacific Island Party in accordance with the Treaty and when such an order is necessary to gather information for such an investigation; (B) execute any warrant or other process issued by any court of competent jurisdiction; (C) exercise any other lawful authority; and (D) investigate alleged violations of the Treaty to the same extent authorized to investigate alleged violations of this chapter. (2) To the extent possible, Authorized Officers shall exercise their powers under paragraph (1)(A)(ii), (iii), and (iv) of this subsection so as not to interfere unduly with the lawful operation of the vessel. (3) Nothing in this chapter shall be construed to limit the enforcement of this or other applicable Federal laws under section 89 11 See References in Text note below. of title 14. (e) Exclusive jurisdictionThe district courts of the United States shall have exclusive jurisdiction over any case or controversy arising under the provisions of this chapter.

16 U.S.C. § 973i Findings by Secretary

(a) Order of vessel to leave waters upon failure to submit to jurisdiction of Pacific Island Party; procedure applicableFollowing any investigation conducted in accordance with section 973h(b) of this title, the Secretary, with the concurrence of the Secretary of State, and upon the request of the Pacific Island Party concerned, may order a fishing vessel which has not submitted to the jurisdiction of that Pacific Island Party to leave immediately the Licensing Area and all Closed Areas upon making a finding—(1) that the fishing vessel—(A) while fishing in the Licensing Area did not have a license under the Treaty to fish in the Licensing Area, and that under the Treaty, such fishing is not authorized to be conducted in the Licensing Area without a license; (B) was involved in any incident in which an Authorized Officer, Authorized Party Officer, or observer was allegedly assaulted with resultant bodily harm, physically threatened, forcefully resisted, refused boarding, or subjected to physical intimidation or physical interference in the performance of duties as authorized by this chapter or the Treaty; (C) has not made full payment within 60 days of any amount due as a result of a final judgment or other final determination deriving from a violation in waters under the jurisdiction of a Pacific Island Party; or (D) was not represented by an agent for service of process in accordance with the Treaty; or (2) that there is probable cause to believe that the fishing vessel—(A) was used in violation of paragraph (3) of section 973c(a) or paragraph (2) or (3) of section 973c(b) of this title; (B) used an aircraft in violation of section 973c(b)(6) of this title; or (C) was involved in an incident in which section 973c(a)(5) of this title was violated. (b) Order of vessel to leave waters where Pacific Island Party investigating alleged Treaty infringementUpon being advised by the Secretary of State that proper notification to Parties has been made under the Treaty that a Pacific Island Party is investigating an alleged infringement of the Treaty by a vessel in waters under the jurisdiction of such Pacific Island Party, the Secretary shall order the vessel to leave such waters until the Secretary of State notifies the Secretary that such order is no longer necessary. (c) Rescission of ordersThe Secretary shall rescind any order issued on the basis of a finding under subsection (a)(1)(C) or (D) of this section as soon as the Secretary determines that the facts underlying the finding do not apply. (d) Prohibition on judicial review of ordersNo order issued in accordance with this section is subject to judicial review. (e) Enforcement of orders by Attorney GeneralUpon a request by the Secretary, the Attorney General shall commence a civil action for appropriate relief, including permanent or temporary injunction, to enforce any order issued by the Secretary under this section.

16 U.S.C. § 973j Disclosure of information

(a) Prohibited disclosure of certain informationPursuant to section 552(b)(3) of title 5, except as provided in subsection (b), the Secretary shall keep confidential and may not disclose the following information:(1) Information provided to the Secretary by the Administrator that the Administrator has designated confidential. (2) Information collected by observers. (3) Information submitted to the Secretary by any person in compliance with the requirements of this chapter. (b) Authorized disclosure of certain informationThe Secretary may disclose information described in subsection (a)—(1) if disclosure is ordered by a court; (2) if the information is used by a Federal employee—(A) for enforcement; or (B) in support of the homeland security missions and non-homeland security missions of the Coast Guard as defined in section 468 of title 6; 11 See References in Text note below. (3) if the information is used by a Federal employee or an employee of a Fishery Management Council for the administration of the Treaty or fishery management and monitoring; (4) to the Administrator, in accordance with the requirements of the Treaty and this chapter; (5) to the secretariat or equivalent of an international fisheries management organization of which the United States is a member, in accordance with the requirements or decisions of such organization, and insofar as possible, in accordance with an agreement that prevents public disclosure of the identity of any person that submits such information; (6) if the Secretary has obtained written authorization from the person providing such information, and disclosure does not violate other requirements of this chapter; or (7) in an aggregate or summary form that does not directly or indirectly disclose the identity of any person that submits such information. (c) Savings clause(1) Nothing in this section shall be construed to adversely affect the authority of Congress, including a Committee or Member thereof, to obtain any record or information. (2) The absence of a provision similar to paragraph (1) in any other provision of law shall not be construed to limit the ability of the Senate or the House of Representatives, including a Committee or Member thereof, to obtain any record or information.

16 U.S.C. § 973k Closed Area stowage requirements

At all times while a vessel is in a Closed Area, the fishing gear of the vessel shall be stowed in such a manner as not to be readily available for fishing and in accordance with any requirements established by the Secretary.

16 U.S.C. § 973m Fisheries-related assistance

The Secretary and the Secretary of State may provide assistance to a Pacific Island Party to benefit such Pacific Island Party from the development of fisheries resources and the operation of fishing vessels that are licensed pursuant to the Treaty, including— (1) technical assistance; (2) training and capacity building opportunities; (3) facilitation of the implementation of private sector activities or partnerships; and (4) other activities as determined appropriate by the Secretary and the Secretary of State.

16 U.S.C. § 973n Arbitration

In the event of a dispute requiring the establishment of an arbitral tribunal under the Treaty, the Secretary of State, in consultation with the Secretary, shall appoint the arbitrator to be appointed by the United States under the Treaty, shall determine the location of the arbitration, and shall represent the United States in reaching agreement under the Treaty with each Pacific Island Party involved concerning the appointment of the presiding arbitrator of the tribunal.

16 U.S.C. § 973o Disposition of fees, penalties, forfeitures, and other moneys

To the extent required by the Treaty, an amount equivalent to the total value of any fine, penalty, or other amount collected as a result of any action, judicial or otherwise, taken pursuant to sections 973e and 973f of this title shall be paid by the United States through the Secretary of State to the Administrator as soon as reasonably possible following the date that such amount is collected.

16 U.S.C. § 973p Additional agreements

The Secretary may establish procedures for review of any agreements for additional fishing access entered into pursuant to the Treaty.

16 U.S.C. § 973q Secretary of State to act for United States

The Secretary of State is authorized to receive on behalf of the United States reports, requests, and other communications from the Administrator and to act thereon directly or by reference to the appropriate authorities. The Secretary of State, after consultations with the Secretary, may accept or reject, on behalf of the United States, changes or amendments to Annex I of the Treaty and its Schedules and Annex II to the Treaty and its Schedules.

16 U.S.C. § 973r Authorization of appropriations

(a) There are authorized to be appropriated for fiscal years 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, and 2002 such sums as may be necessary for carrying out the purposes and provisions of the Treaty and this chapter including—(1) for fiscal years 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, and 2002, an amount not to exceed $350,000 annually to the Department of Commerce for administrative expenses; and (2) for fiscal years 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, and 2002, an amount not to exceed $50,000 annually to the Department of State for administrative expenses. (b) Funds appropriated for the purposes of the Treaty may be used notwithstanding any of the provisions of the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.) or of any appropriations Act that imposes restrictions on the maintenance or use of cash transfer assistance, which are inconsistent with the provisions of the Treaty.