16 U.S.C. § 1826a — Denial of port privileges and sanctions

Page 2030 TITLE 16—CONSERVATION § 1826a fectiveness of the law, policy, and procedures governing enforcement of the exclusive management authority of the United States over anadromous species against fishing vessels engaged in fishing beyond the exclusive economic zone of any nation;’’. Subsec. (f). Pub. L. 104–297, § 105(f)(2), substituted ‘‘subsection (e)(4)’’ for ‘‘subsection (e)(6)’’. 1990—Pub. L. 101–627 amended section generally, sub- stituting provisions relating to large-scale driftnet fishing for provisions relating to transitional provi- sions. 1986—Subsec. (b). Pub. L. 99–659 substituted ‘‘exclu- sive economic zone’’ for ‘‘fishery conservation zone’’. Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. ABOLITION OF HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee on Merchant Marine and Fisheries of House of Representatives treat- ed as referring to Committee on Resources of House of Representatives in case of provisions relating to fish- eries, wildlife, international fishing agreements, ma- rine affairs (including coastal zone management) ex- cept for measures relating to oil and other pollution of navigable waters, or oceanography by section 1(b)(3) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. § 1826a. Denial of port privileges and sanctions for high seas large-scale driftnet fishing (a) Denial of port privileges (1) Publication of list Not later than 30 days after November 2, 1992, and periodically thereafter, the Secretary of Commerce, in consultation with the Sec- retary 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. (2) Denial of port privileges The Secretary of Homeland Security shall, in accordance with international law— (A) withhold or revoke the clearance re- quired 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 list- ed 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 certifi- cation has been received; (B) withhold or revoke the clearance re- quired by section 60105 of title 46 for fishing vessels of a nation that has been listed pur- suant to section 1826j(a) or 1826k(a) of this title in 2 or more consecutive reports as de- scribed 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, con- ducting an investigation, or taking other ap- propriate enforcement action. (3) Notification of nation 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 im- posed 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 (1) Identifications (A) Initial identifications Not later than January 10, 1993, the Sec- retary of Commerce shall— (i) identify each nation whose nationals or vessels are conducting large-scale driftnet fishing beyond the exclusive eco- nomic zone of any nation; and (ii) notify the President and that nation of the identification under clause (i). (B) Additional identifications At any time after January 10, 1993, when- ever 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 eco- nomic 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). (2) Consultations Not later than 30 days after a nation is iden- tified under paragraph (1)(B), the President shall enter into consultations with the govern- ment of that nation for the purpose of obtain- ing an agreement that will effect the imme- diate termination of large-scale driftnet fish- ing by the nationals or vessels of that nation beyond the exclusive economic zone of any na- tion. (3) Prohibition on imports of fish and fish products and sport fishing equipment (A) Prohibition The President— (i) upon receipt of notification of the identification of a nation under paragraph (1)(A) or a negative certification under sec- tion 1826j(d) of this title or section 1826k(c) of this title; or (ii) if the consultations with the govern- ment of a nation under paragraph (2) are Page 2031 TITLE 16—CONSERVATION § 1826a 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. (B) Implementation of prohibition With respect to an import prohibition di- rected under subparagraph (A), the Sec- retary 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. (C) Public notice of prohibition Before the effective date of any import prohibition under this paragraph, the Sec- retary of the Treasury shall provide public notice of the impending prohibition. (4) Additional economic sanctions (A) Determination of effectiveness of sanc- tions Not later than six months after the date the Secretary of Commerce identifies a na- tion under paragraph (1) or issues a negative certification under section 1826j(d) of this title or section 1826k(c) of this title, the Sec- retary 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 ves- sels beyond the exclusive economic zone of any nation, or to address the offending ac- tivities for which a nation received a nega- tive 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 prohi- bition. (B) Certification The Secretary of Commerce shall certify to the President each affirmative determina- tion under subparagraph (A) with respect to a nation. (C) Effect of certification Certification by the Secretary of Com- merce under subparagraph (B) is deemed to be a certification under section 1978(a) of title 22. (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 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 en- acted 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 Inter- course, 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 sec- tions 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 Mag- nuson-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 sec- tion 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 in- specting 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 ‘‘para- graph (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 fish- ing’’ after ‘‘driftnet fishing’’ and inserted ‘‘, or to ad- dress the offending activities for which a nation re- ceived a negative certification under section 1826j(d) or 1826k(c) of this title’’ after ‘‘beyond the exclusive eco- nomic 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 amend- ments made by this subtitle.’’ Page 2032 TITLE 16—CONSERVATION § 1826b 1 So in original. Probably should be preceded by ‘‘section’’. [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, pro- vided that: ‘‘(a) FINDINGS.—Congress makes the following find- ings: ‘‘(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 eco- system, 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 im- pacts of large-scale pelagic driftnet fishing, and have failed to conclude that this practice has no signifi- cant adverse impacts which threaten the conserva- tion and sustainable management of living marine re- sources. ‘‘(4) The United Nations, via General Assembly Res- olutions 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 fish- ing by December 31, 1992, in all the world’s oceans, in- cluding enclosed seas and semi-enclosed seas. ‘‘(5) The United Nations has commended the unilat- eral, regional, and international efforts undertaken by members of the international community and international organizations to implement and sup- port the objectives of the General Assembly resolu- tions. ‘‘(6) Operative paragraph (4) of United Nations Gen- eral Assembly Resolution numbered 46–215 specifi- cally ‘encourages all members of the international community to take measures individually and collec- tively 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 Man- agement 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 Na- tions General Assembly Resolution numbered 46–215 takes effect by December 31, 1992, and that unregu- lated 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 Decem- ber 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 destruc- tive fishing practices, and in particular large-scale driftnets, by persons or vessels fishing beyond the ex- clusive economic zone of any nation.’’ § 1826b. Duration of denial of port privileges and sanctions Any denial of port privileges or sanction under section 1826a of this title with respect to a na- tion shall remain in effect until such time as the Secretary of Commerce certifies to the Presi- dent and the Congress that such nation has ter- minated large-scale driftnet fishing by its na- tionals and vessels beyond the exclusive eco- nomic zone of any nation or effectively ad- dressed the offending activities for which the nation received a negative certification under 1826j(d) 1 or 1826k(c) of this title. (Pub. L. 102–582, title I, § 102, Nov. 2, 1992, 106 Stat. 4903; Pub. L. 109–479, title IV, § 403(b)(2), Jan. 12, 2007, 120 Stat. 3632; Pub. L. 114–81, title I, § 102(b), Nov. 5, 2015, 129 Stat. 656.) Editorial Notes CODIFICATION Section was enacted as part of the High Seas Driftnet Fisheries Enforcement Act, and not as part of the Mag- nuson-Stevens Fishery Conservation and Management Act which comprises this chapter. AMENDMENTS 2015—Pub. L. 114–81 struck out ‘‘or illegal, unre- ported, or unregulated fishing’’ after ‘‘driftnet fishing’’ and inserted ‘‘or effectively addressed the offending ac- tivities for which the nation received a negative certifi- cation under 1826j(d) or 1826j(c) of this title’’ before pe- riod at end. 2007—Pub. L. 109–479 inserted ‘‘or illegal, unreported, or unregulated fishing’’ after ‘‘driftnet fishing’’. § 1826c. Definitions In sections 1826a to 1826c of this title, the fol- lowing definitions apply: (1) Fish and fish products The term ‘‘fish and fish products’’ means any aquatic species (including marine mam- mals and plants) and all products thereof ex- ported from a nation, whether or not taken by fishing vessels of that nation or packed, proc- essed, or otherwise prepared for export in that nation or within the jurisdiction thereof. (2) Large-scale driftnet fishing (A) In general Except as provided in subparagraph (B), the term ‘‘large-scale driftnet fishing’’