House Passes Bill to Strengthen Enforcement Against Illegal Fish Imports

The provisions relating to fish and fish products from countries that have vessels engaged in IUU pertain, variously, to broadened enforcement authority; new detention, search, and seizure authorities for imports and exports; increased maximum penalties for violations of fishing law; and the extension of sanctions and penalties to countries certified to be in violation of binding conservation measures adopted by international agreements or organizations, etc.

HSDFMPA Enforcement Authority Would be Broadened to Include Additional Federal/State Agencies

H.R. 1080 would amend the High Seas Driftnet Fishing Moratorium Protection Act (HSDFMPA) to expand enforcement authority beyond the Departments of Commerce and Homeland Security (DHS) by allowing the Secretaries of those agencies to, 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, to perform enforcement duties.¹ Thus, if enacted, H.R. 1080 would allow other Federal agencies, including Customs and Border Protection, to perform enforcement activities, if agreed to by the Secretary of Commerce or DHS.

Federal/State Agencies Could Detain Goods/Retain Proceeds for 5 Days, Etc.

Officers authorized by the Secretaries of Commerce or DHS, or the head of any Federal or State agency that has entered into an agreement to enforce the provisions of HSDFMPA (and any of the other fishing acts listed) would be authorized to perform the following enforcement activities:

Detain for up to 5 days shipments of fish or fish product imported into, landed on, introduced into, exported from, or transported within the jurisdiction of the United States (or, if the fish or fish product is deemed to be perishable, sell and retain the resulting proceeds for up to 5 days);

Search or inspect any facility or conveyance used or employed in, or which reasonably appears to be used or employed in, the storage, processing, transport, or trade of fish or fish products;

Inspect records pertaining to the storage, processing, transport, or trade of fish or fish products;

Make an arrest;

Execute and serve subpoenas, arrest warrants, and search warrants issued in accordance with the Federal Rules of Criminal Procedure, or other warrants or civil or criminal processes issued by an officer or court of competent jurisdiction; and

Search and seize.

Prohibited Acts Would be Subject to Penalty

Actions subject to penalty under the bill would include:

Refusing to permit an authorized enforcement officer to board, search, or inspect a vessel, aircraft, vehicle, or shoreside facility to conduct a search, investigation, or inspection;

Assaulting, resisting, opposing, impeding, intimidating, or interfering with an inspection officer;

Resisting arrest;

Interfering with, delaying, or preventing the apprehension, arrest, or detention of a person known to have committed a prohibited act; and

Assaulting, resisting, opposing, impeding, intimidating, sexually harassing, bribing, or interfering with any observer or data collector carrying out HSDFMPA enforcement responsibilities.

Maximum Penalties of Up to $100,000 per Violation, and/or 6 Months Imprisonment, Etc.

The prohibited acts listed above would be punishable by a civil penalty not to exceed $100,000 for each violation (with each day of a continuing violation constituting a separate offense) and/or up to six months imprisonment. In cases where the enforcing officer is subject to or fears bodily harm, the penalties would increase to $200,000 and up to 10 years in prison. As under current law, penalties would be enforced by the Secretary of Commerce and the Secretary of Homeland Security.

Vessels Engaged in IUU Would be Listed, Subject to Possible Action

H.R. 1080 would authorizethe development and publication of a list of vessels engaged in IUU or fishing-related activities in support of IUU, (including vessels or owners identified by an international fishery management organization or arrangement made pursuant to an international fishery agreement). The bill would authorize appropriateaction against listed vessels and vessel owners, including action against fish, fish parts, or fish products from such vessels.

Nations That Fail to Address IUU Would be Listed, Receive Negative Certification

During the previous three years, nations that have failed to effectively address IUU, and/or that have violated conservation and management measures required under an international fishery management program to which the U.S. is a party, also would be identified and listed and would be issued a negative IUU certification.

Exception for U.S. comparable practices. Under the bill, the Secretary of Commerce may, however, establish a procedure to authorize-on a shipment-by-shipment, shipper-by-shipper, or other basis-the importation of fish or fish products from a vessel of a nation issued a negative IUU certification if the Secretary determines that such imports were harvested by practices that do not result in bycatch of a protected marine species, or were harvested by practices that are comparable to those of the U.S.

Scope of MSA Would be Expanded

Under current law, it is unlawful for any person to import, export, transport, sell, acquire, or purchase in interstate or foreign commerce any fish taken, possessed, transported, or sold in violation ofany foreign law or regulation. H.R. 1080 would expand the scope of the Magnuson-Stevens Fishery Conservation and Management Act to include fish that are in violation of treaties orthat are in contravention of any binding conservation measure adopted by an international agreement or organization to which the U.S. is a party.

¹In addition to expanded enforcement authority for HSDFMPA, H.R. 1080 would expand enforcement authority in the same manner to the following fishing laws: the Pacific Salmon Treaty Act, the Dolphin Protection Consumer Information Act, the Tuna Conventions Act, the North Pacific Anadromous Stocks Act, the South Pacific Tuna Act, the Antarctic Marine Living Resources Convention Act, the Atlantic Tunas Convention Act, the Northwest Atlantic Fisheries Convention Act, and the Western and Central Pacific Fisheries Convention Implementation Act.

(See ITT's Online Archives or 03/04/09 news, 09030405, for BP summary of NMFS' proposed rule to ban fish and fish products from countries "negatively certified" for IUU activities and bycatch.)

H.R. 1080 available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h1080rfs.txt.pdf.

H.R. 1080 summary (from the Library of Congress) available at http://thomas.loc.gov/cgi-bin/bdquery/z?d111:HR01080:@@@D&summ2=m&.