16 USC 973 - Definitions

Collapse to view only § 973. Definitions

§ 973. Definitions
§ 973a. Application to other laws
§ 973b. Regulations
§ 973c. Prohibited acts
§ 973d. Exceptions
§ 973e. Criminal offenses
§ 973f. Civil penalties
§ 973g. Licenses
§ 973h. Enforcement
§ 973i. Findings by Secretary
§ 973j. Reporting requirements; disclosure of information
§ 973k. Closed Area stowage requirements
§ 973l. Observers
§ 973m. Technical assistance
§ 973n. Arbitration
§ 973o. Disposition of fees, penalties, forfeitures, and other moneys
§ 973p. Additional agreements
§ 973q. Secretary of State to act for United States
§ 973r. Authorization of appropriations

§ 973. DefinitionsAs 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 described in paragraph 1(a) of Annex I of the Treaty.

(5) The term “Closed Area” means any of the closed areas identified in Schedule 2 of Annex I of 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;

(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) aircraft use, relating to the activities described in this paragraph except for flights in emergencies involving the health or safety of crew members 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 commercial fishing, and which is documented under the laws of the United States.

(8) The term “Licensing Area” means all waters in the Treaty Area except for—

(A) those waters subject to the jurisdiction of the United States in accordance with international law;

(B) those waters within Closed Areas; and

(9) The term “licensing period” means the period of validity of licenses issued in accordance with the Treaty.

(10) The term “Limited Area” means any area so identified in Schedule 3 of Annex I of the Treaty.

(11) The term “operator” means any person who is in charge of, directs or controls a vessel, including the owner, charterer, and master.

(12) The term “Pacific Island Party” means a Pacific Island nation which is a party to the Treaty.

(13) The term “Party” means a nation which is a party to the Treaty.

(14) 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.

(15) The term “Secretary” means the Secretary of Commerce, or the designee of the Secretary of Commerce.

(16) 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.

(17) 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.

(18) The term “Treaty Area” means the area so described in paragraph 1(k) of Article 1 of the Treaty.

(Pub. L. 100–330, § 2, June 7, 1988, 102 Stat. 591.)

§ 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.

(Pub. L. 100–330, § 3, June 7, 1988, 102 Stat. 592; Pub. L. 104–208, div. A, title I, § 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41.)

§ 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.

(Pub. L. 100–330, § 4, June 7, 1988, 102 Stat. 592.)

§ 973c. Prohibited acts

(a) Except as provided in section 973d of this title, 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) who has entered into a fishing arrangement under paragraph 3 of Article 3 of the Treaty, to violate the terms and conditions of such fishing arrangement if the Secretary of State has decided under section 973p of this title that Article 4 and paragraph 6 of Article 5 of the Treaty shall apply to the arrangement;

(4) to use a vessel for fishing in any Limited Area in violation of any requirement in Schedule 3 of Annex I of the Treaty;

(5) to use a vessel for fishing in any Closed Area;

(6) 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;

(7) to intentionally destroy evidence which could be used to determine if a violation of this chapter or the Treaty has occurred;

(8) 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;

(9) to refuse to comply with the instructions of an Authorized Officer or Authorized Party Officer relating to fishing activities under the Treaty;

(10) 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;

(11) to resist a lawful arrest for any act prohibited by this section;

(12) 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; or

(13) 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.

(b) Except as provided in section 973d of this title, 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 operate a vessel in such a way as to disrupt or in any other way adversely affect the activities of traditional and locally based fishermen and fishing vessels;

(6) to use a vessel to fish in a manner inconsistent with an order issued by the Secretary under section 973i of this title; or

(7) 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.

(Pub. L. 100–330, § 5, June 7, 1988, 102 Stat. 592.)

§ 973d. Exceptions

(a) The prohibitions of section 973c of this title and the licensing requirements of section 973g of this title shall not apply to fishing for albacore tuna by vessels using the trolling method or to fishing by vessels using the longline method in the high seas areas of the Treaty area.

(b) The prohibitions of section 973c(a)(4), (a)(5), and (b)(3) of this title shall not apply to fishing under the terms and conditions of an arrangement which has been reached under paragraph 3 of Article 3 of the Treaty and which, pursuant to a decision by the Secretary of State under section 973p of this title, is covered by Article 4 and paragraph 6 of Article 5 of the Treaty.

(Pub. L. 100–330, § 6, June 7, 1988, 102 Stat. 594; Pub. L. 108–219, title IV, § 402, Apr. 13, 2004, 118 Stat. 617.)

§ 973e. Criminal offenses

(a) Prohibited acts

(b) Sentence and fine

(Pub. L. 100–330, § 7, June 7, 1988, 102 Stat. 594.)

§ 973f. Civil penalties

(a) Determination of liability; amount; participation by Secretary of State in assessment proceeding

(b) Judicial review of assessment; procedures applicable

(d) In rem liability for civil penalty; jurisdiction; maritime lien on vessel

(e) Compromise, etc., of civil penalty

(f) Conduct of hearings

(g) Waiver of referral to Attorney General

If a vessel used in a violation of section 973c(a)(1), (2), (3), (4), (5), (6), (7), (8), (9), or (13) 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, all Limited Areas closed to fishing, 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.

(Pub. L. 100–330, § 8, June 7, 1988, 102 Stat. 594; Pub. L. 100–350, § 4(1), (2), June 27, 1988, 102 Stat. 660.)

§ 973g. Licenses

(a) Issuance; establishment of procedures; designation of agent for service of legal process in license application; reception and response to process

(b) Forwarding and transmittal of vessel license application

(1) In the initial year of implementation, fees for the first 40 vessel licenses shall be at least $50,000 each, for any 10 vessel licenses in addition to the first 40 shall be $60,000 each, and for vessel licenses in addition to the first 50 shall be in accordance with Annex II of the Treaty.

(2) After such initial year, fees for vessel licenses shall be paid in accordance with fee schedules established under Annex II of the Treaty and published by the Secretary.

(d) Period of validity

(e) Allocation system

(f) Minimum fees required to be received in initial year of implementation for forwarding and transmittal of license applications

(g) Grounds for denial of forwarding of license application

The Secretary, in consultation with the Secretary of State, may determine that a license application should not be forwarded to the Administrator for one of the following reasons:

(1) where the application is not in accordance with the Treaty or the procedures established by the Secretary;

(2) where the owner or charterer is the subject of proceedings under the bankruptcy laws of the United States, unless reasonable financial assurances have been provided to the Secretary;

(3) where the owner or charterer 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;

(4) where the owner or charterer has not paid any penalty which has become final, assessed by the Secretary in accordance with this chapter.

(h) Grandfathering of vessels documented before November 3, 1995

Notwithstanding the requirements of—

(1)section 1 of the Act of August 26, 1983 (97 Stat. 587; 46 U.S.C. 12108); 1

1 See References in Text note below.

(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— 2

2 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 Treaty Area, including those waters subject to the jurisdiction of the United States in accordance with international law, subject to the provisions of the treaty 3

3 So in original. Probably should be capitalized.

and this chapter, provided that no such vessel fishing in the Treaty Area intentionally deploys a purse seine net to encircle any dolphin or other marine mammal in the course of fishing under the provisions of the Treaty or this chapter.

(Pub. L. 100–330, § 9, June 7, 1988, 102 Stat. 596; Pub. L. 104–43, title VIII, § 801, Nov. 3, 1995, 109 Stat. 395.)

§ 973h. Enforcement

(a) Federal responsibilities; utilization of personnel, etc., of other Federal and State agencies

(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.

(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 paragraph 8 of Article 4 of 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 Article 10 of 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; or

(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;

(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;

(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 1

1 See References in Text note below.

of title 14.

(e) Exclusive jurisdiction

(Pub. L. 100–330, § 10, June 7, 1988, 102 Stat. 597.)

§ 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, all Limited Areas, 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 paragraph 2 of Article 3 of 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 within the Treaty Area 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 section 973c(a)(4), (a)(5), (b)(2), or (b)(3) of this title;

(B) used an aircraft in violation of section 973c(b)(7) of this title; or

(b) Order of vessel to leave waters where Pacific Island Party investigating alleged Treaty infringement

(d) Prohibition on judicial review of orders

(e) Enforcement of orders by Attorney General

(Pub. L. 100–330, § 11, June 7, 1988, 102 Stat. 598; Pub. L. 100–350, § 4(3), June 27, 1988, 102 Stat. 660.)

§ 973j. Reporting requirements; disclosure of information

(a) Holders of licenses shall comply with the reporting requirements of part 4 of Annex I to the Treaty.

(b) Information provided by license holders in Schedules 5 and 6 of Annex I of the Treaty shall be provided to the Secretary for transmittal to the Administrator and to an entity designated by the license holder. Such information thereafter shall not be released and shall be maintained as confidential by the Secretary, including information requested under the Freedom of Information Act [5 U.S.C. 552], unless disclosure is required under court order or unless the information is essential for an enforcement action under section 973c, 973h(b), 973h(c), or 973i of this title, or any other proper law enforcement action.

(Pub. L. 100–330, § 12, June 7, 1988, 102 Stat. 599.)

§ 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. In particular, the boom shall be lowered as far as possible so that the vessel cannot be used for fishing, but so that the skiff is accessible for use in emergency situations; the helicopter, if any, shall be tied down; and launches shall be secured.

(Pub. L. 100–330, § 13, June 7, 1988, 102 Stat. 599.)

§ 973l. Observers

(a) Required access and assistance; scope of authorities

The operator and each member of the crew of a vessel shall allow and assist any individual identified as an observer under the Treaty by the Pacific Island Parties—

(1) to board the vessel for scientific, compliance, monitoring and other functions at the point and time notified by the Pacific Island Parties to the Secretary;

(2) without interfering unduly with the lawful operation of the vessel, to have full access to and use of facilities and equipment on board the vessel which the observer may determine are necessary to carry out observer duties; have full access to the bridge, fish on board, and areas which may be used to hold, process, weigh, and store fish; remove samples; have full access to the vessel’s records, including its log and documentation for the purpose of inspection and copying; and gather any other information relating to fisheries in the Licensing Area;

(3) to disembark at the point and time notified by the Pacific Island Parties to the Secretary; and

(4) to carry out observer duties safely.

(b) Free provision of food, etc., while on vessel

(Pub. L. 100–330, § 14, June 7, 1988, 102 Stat. 599.)

§ 973m. Technical assistance

The United States tuna industry shall provide $250,000 annually in technical assistance, including provision of assistance by technicians, in response to requests coordinated through the Administrator. The Secretary of State shall designate an entity to coordinate the provision of such technical assistance as provided by the United States tuna industry and to provide an annual report to the Secretary of State regarding the provision of such technical assistance.

(Pub. L. 100–330, § 15, June 7, 1988, 102 Stat. 600.)

§ 973n. Arbitration

In the event of a dispute requiring the establishment of an arbitral tribunal under Article 6 of the Treaty, the Secretary of State, in consultation with the Secretary, shall appoint the arbitrator to be appointed by the United States under paragraph 3 of that Article, and shall represent the United States in reaching agreement under such paragraph with each Pacific Island Party involved concerning the appointment of the presiding arbitrator of the tribunal.

(Pub. L. 100–330, § 16, June 7, 1988, 102 Stat. 600.)

§ 973o. Disposition of fees, penalties, forfeitures, and other moneys

To the extent required by Article 4 of 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.

(Pub. L. 100–330, § 17, June 7, 1988, 102 Stat. 600.)

§ 973p. Additional agreements

Within 30 days after the Secretary of State’s receipt of notice from a Pacific Island Party that it has concluded an arrangement pursuant to paragraph 3 of Article 3 of the Treaty, the Secretary of State shall consult with the Secretary concerning whether the procedures of Article 4 and paragraph 6 of Article 5 of the Treaty should be made applicable to such arrangement. At the conclusion of the consultations the Pacific Island Party and all other persons agreeing to the arrangement shall be notified by the Secretary of State of the resulting decision.

(Pub. L. 100–330, § 18, June 7, 1988, 102 Stat. 600.)

§ 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.

(Pub. L. 100–330, § 19, June 7, 1988, 102 Stat. 600.)

§ 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.

(Pub. L. 100–330, § 20, June 7, 1988, 102 Stat. 601; Pub. L. 102–523, § 3(b), Oct. 26, 1992, 106 Stat. 3433.)