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[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1221 Introduced in Senate (IS)]

105th CONGRESS
  1st Session
                                S. 1221

    To amend title 46 of the United States Code to prevent foreign 
  ownership and control of United States flag vessels employed in the 
 fisheries in the navigable waters and exclusive economic zone of the 
   United States, to prevent the issuance of fishery endorsements to 
                certain vessels, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                           September 25, 1997

Mr. Stevens (for himself, Mr. Breaux, Mr. Murkowski, and Mr. Hollings) 
introduced the following bill; which was read twice and referred to the 
           Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL

 
    To amend title 46 of the United States Code to prevent foreign 
  ownership and control of United States flag vessels employed in the 
 fisheries in the navigable waters and exclusive economic zone of the 
   United States, to prevent the issuance of fishery endorsements to 
                certain vessels, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``American Fisheries 
Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
                     TITLE I--STANDARD OF OWNERSHIP

Sec. 101. Findings and purposes.
Sec. 102. Standard of ownership.
Sec. 103. Enforcement of standard.
                TITLE II--ANTI-REFLAGGING ACT EXCEPTIONS

Sec. 201. Restrictions on build and rebuild savings clause.
Sec. 202. Repeal of ownership savings clause.
                TITLE III--PHASE OUT OF CERTAIN VESSELS

Sec. 301. Restriction on fishery endorsements.
Sec. 302. Restriction on loan guarantees.

                     TITLE I--STANDARD OF OWNERSHIP

SEC. 101. FINDINGS AND PURPOSES.

    (a) Findings.--The Congress finds that--
            (1) non-United States citizens own and control many United 
        States flag fishing vessels and are harvesting significant 
        amounts of fishery resources in the navigable waters and 
        exclusive economic zone of the United States that could 
        otherwise be harvested by citizens of the United States;
            (2) in the largest fishery in the exclusive economic zone 
        of the United States (the Bering Sea pollock fishery), 
        Norwegian and Japanese entities control a substantial majority 
        of the harvesting and processing through the ownership and 
        control of United States-flag fishing vessels, including 
        factory trawlers and large trawlers;
            (3) these levels of ownership and control of United States 
        flag fishing vessels by non-United States citizens are 
        inconsistent with the intent and requirements of the Commercial 
        Fishing Industry Vessel Anti-Reflagging Act of 1987 (Public Law 
        100-239);
            (4) the foreign rebuilding requirements of section 4(a)(4) 
        of such Act were misinterpreted in a manner that rewarded the 
        very speculation Congress sought to prevent with the passage of 
        that Act, resulting in a far greater number of foreign-rebuilt 
        vessels entering the fisheries off Alaska than Congress 
        intended to allow;
            (5) under customary international law, including the United 
        Nations Convention on the Law of the Sea, a coastal state has 
        sovereign rights for the purpose of exploiting, conserving, and 
        managing the living marine resources in its navigable waters 
        and exclusive economic zone, including the sovereign right for 
        its citizens to harvest and process the entire allowable catch 
        within its exclusive economic zone if they have sufficient 
        capacity;
            (6) the United States must have a meaningful and 
        enforceable standard of ownership and control for United States 
        flag vessels employed in the fisheries of the United States in 
        order to ensure that citizens of the United States are given 
        first priority in the harvesting and processing of the 
        allowable catch in the exclusive economic zone of the United 
        States;
            (7) consistent with customary international law, the 
        Magnuson-Stevens Fishery Conservation and Management Act allows 
        fishing vessels of other nations to harvest or process the 
        portion of the allowable catch within the exclusive economic 
        zone of the United States that United States flag fishing 
        vessels do not have the capacity to harvest or process; and
            (8) fishing vessels greater than 165 feet in registered 
        length, of more than 750 gross registered tons, or that have 
        engines capable of producing a total of more than 3,000 shaft 
        horsepower, including factory trawlers and other trawlers that 
        exceed these measurements--
                    (A) are less likely than smaller, less powerful 
                vessels with smaller gear to avoid bycatch and minimize 
                the mortality of bycatch that cannot be avoided;
                    (B) have been a cause of overfishing in fisheries 
                both within the navigable waters and exclusive economic 
                zone of the United States and elsewhere throughout the 
                world; and
                    (C) are more likely to be owned by investors and 
                under pressure to produce profits at the expense of the 
                long-term health of fishery resources.
    (b) Purposes.--The purposes of this Act are to--
            (1) establish a meaningful and enforceable standard of 
        United States citizen ownership and control for United States 
        flag vessels employed in the fisheries in the navigable water 
        and exclusive economic zone of the United States;
            (2) revoke existing fishery endorsements within a 
        reasonable period of time and prohibit the issuance of new 
        fishery endorsements for United States flag vessels that do not 
        meet this standard;
            (3) begin to phase out the use of fishing vessels greater 
        than 165 feet in registered length, of more than 750 gross 
        registered tons, or that have engines capable of producing a 
        total of more than 3,000 shaft horsepower in the navigable 
        waters and exclusive economic zone of the United States by 
        prohibiting the issuance of new fishery endorsements to vessels 
        which exceed these limits;
            (4) place a capacity reduction burden on the fishing 
        vessels that came through the loophole created by the 
        misinterpretation of section 4(a)(4) of the Commercial Fishing 
        Vessel Anti-Reflagging Act; and
            (5) prohibit Federal loan guarantees for the construction 
        of new fishing vessels greater than 165 feet in registered 
        length, of more than 750 gross registered tons, or that have 
        engines capable of producing a total of more than 3,000 shaft 
        horsepower, or for the rebuilding or improvement of existing 
        vessels which would result in a fishing vessel which exceeds 
        these limits.

SEC. 102. STANDARD OF OWNERSHIP.

    (a) Clarification of Documentation Standard.--Section 12102(a) of 
title 46, United States Code, is amended in paragraph (4) by striking 
``president or other chief executive officer'' and inserting in lieu 
thereof ``chief executive officer, by whatever title,''.
    (b) Standard for Fishery Endorsements.--Section 12102(c) of title 
46, United States Code, is amended to read as follows--
    ``(c)(1) A vessel owned by a corporation, partnership, association, 
trust, joint venture, or other entity is not eligible for a fishery 
endorsement under section 12108 of this title unless at least 75 per 
centum of the controlling interest in such entity, in the aggregate, is 
owned by citizens of the United States.
    ``(2) The Secretary shall apply section 2(c) of the Shipping Act, 
1916 (46 App. U.S.C. 802(c)) in determining under this subsection 
whether at least 75 per centum of the controlling interest in an entity 
is owned by citizens of the United States.''.
    (c) Effective Date for Vessels Which Meet Current Standard.--A 
vessel owned by an entity which satisfies the controlling interest 
requirements of section 12102(c) of title 46, United States Code, as 
that section was in effect prior to the amendments made by this Act, 
and for which a fishery endorsement was in effect on September 25, 
1997, shall not be required to comply with paragraphs (1) and (2) of 
section 12102(c) of title 46, United States Code, as amended by this 
Act, until the date that is eighteen months from the date of the 
enactment of this Act, provided such entity does not, prior to such 
compliance date, fail to satisfy the controlling interest requirements 
of section 12102(c) of title 46, United States Code, as that section 
was in effect prior to the amendments made by this Act.

SEC. 103. ENFORCEMENT OF STANDARD.

    (a) Maritime Administration.--(1) To demonstrate compliance with 
section 12102(c) of title 46, United States Code, as amended by this 
Act, with respect to vessels of more than 100 gross registered tons, an 
affidavit of United States citizenship setting forth all relevant facts 
regarding vessel ownership and control by citizens of the United States 
shall be filed with the Administrator of the Maritime Administration on 
an annual basis. Regulations to implement this paragraph shall conform 
to the extent practicable with the regulations establishing the form of 
citizenship affidavit set forth in part 355 of title 46, Code of 
Federal Regulations, as in effect on September 25, 1997.
    (2) Transfers of ownership and control shall be rigorously 
scrutinized by the Administrator, with particular attention given to 
leases, charters, mortgages, financing, or other arrangements involving 
other than the purchase over extended periods of time of all, or 
substantially all, of the living marine resources harvested by a 
fishing vessel. Regulations to implement this paragraph shall prohibit 
impermissible transfers of ownership or control.
    (3) The Administrator, on a regular basis, shall provide the 
Commandant of the United States Coast Guard with a list of, and 
relevant information about, all vessels that the Administrator 
determines meet the requirements of section 12102(c) of title 46, 
United States Code, as amended by this Act.
    (b) Coast Guard.--The Secretary of Transportation shall establish 
such requirements as are reasonable and necessary to demonstrate 
compliance with section 12102(c) of title 46, United States Code, as 
amended by this Act, with respect to vessels of less than or equal to 
100 gross registered tons.
    (c) Endorsements Revoked.--The Secretary of Transportation shall 
revoke the fishery endorsement of--
            (1) any vessel of less than or equal to 100 gross 
        registered tons that does not demonstrate compliance under 
        subsection (b) with section 12102(c) of title 46, United States 
        Code; and
            (2) any vessel of more than 100 gross registered tons that 
        is not identified on the list provided by the Administrator 
        under subsection (a)(4) as meeting the requirements of section 
        12102(c) of title 46, United States Code.
    (d) Regulations.--Regulations to implement this section shall be 
promulgated within 6 months of the date of the enactment of this Act.
    (e) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out the provisions 
of this Act.
    (f) Penalty.--Section 12122 of title 46, United States Code, is 
amended by inserting at the end the following new subsection:
    ``(c) In addition to penalties under subsections (a) and (b), the 
owner of a documented vessel for which a fishery endorsement has been 
issued is liable to the United States Government for a civil penalty of 
up to $100,000 for each day in which such vessel has engaged in fishing 
(as such term is defined in section 3 of the Magnuson-Stevens Fishery 
Conservation and Management Act (16 U.S.C. 1802)) within the navigable 
waters or exclusive economic zone of the United States, if the owner or 
the representative or agent of the owner knowingly falsified or 
concealed a material fact, or knowingly make a false statement or 
representation with respect to the eligibility of the vessel under 
section 12102(c) in applying for such fishery endorsement.''.
    (g) Review of Transfers.--Section 9(c)(1) of the Shipping Act, 1916 
(46 U.S.C. 808(c)(1)) is amended by striking ``in a vessel that has 
been operated only as a fishing vessel, fish processing vessel, or fish 
tender vessel (as defined in section 2101 of title 46, United States 
Code) or''.

                TITLE II--ANTI-REFLAGGING ACT EXCEPTIONS

SEC. 201. RESTRICTIONS ON BUILD AND REBUILD SAVINGS CLAUSE.

    (a) Repeal.--Notwithstanding section 4 of the Commercial Fishing 
Industry Vessel Anti-Reflagging Act of 1987 (Public Law 100-239; 46 
U.S.C. 12108 note), a certificate of documentation may not be endorsed 
with a fishery endorsement for a vessel which does not meet the 
requirements of paragraphs (2) and (3) of section 12108(a) of title 46, 
United States Code, unless the certificate of documentation for such 
vessel was endorsed with a fishery endorsement that was effective on 
September 25, 1997 and the vessel otherwise qualifies for a fishery 
endorsement, including under sections 12102(c) and 12108(e) of title 
46, United States Code, as amended by this Act.
    (b) Restriction.--Notwithstanding subsection (a) or any other 
provision of law, any fishing vessel (as defined in section 2101 of 
title 46, United States Code) which--
            (1) had a fishery endorsement in effect on September 25, 
        1997;
            (2) is greater than 165 feet in registered length, of more 
        than 750 gross registered tons, or has an engine or engines 
        capable of producing a total of more than 3,000 shaft 
        horsepower; and
            (3) was built in the United States and was--
                    (A) purchased or contracted for purchase prior to 
                July 29, 1987 for use in the fisheries of the United 
                States;
                    (B) rebuilt in a foreign shipyard under a contract 
                entered into prior to June 12, 1988;
                    (C) delivered after such rebuilding and issued a 
                fishery endorsement prior to July 29, 1990; and
                    (d) not owned or controlled by the same entity 
                during the occurrence of each of the events described 
                in subparagraphs (A) through (C);
shall be ineligible for a fishery endorsement under section 12108 of 
title 46, United States Code, if the controlling interest in the entity 
that owns the fishing vessel on September 25, 1997 is materially 
changed after such date, unless a fishery endorsement for another 
fishing vessel of the same or greater registered length, gross 
registered tons, and shaft horsepower, which actively harvested fishery 
resources in the fisheries under the authority of the same Regional 
Fishery Management Council during the year prior to such material 
change, is permanently surrendered.

SEC. 202. REPEAL OF OWNERSHIP SAVINGS CLAUSE.

    (a) Repeal.--Section 7(b) of the Commercial Fishing Industry Anti-
Reflagging Act of 1987 (Public Law 100-239; 46 U.S.C. 12102 note) is 
hereby repealed.
    (b) Effective Date.--Subsection (a) shall take effect eighteen 
months after the date of the enactment of this Act.

            TITLE III--PHASE OUT OF CERTAIN FISHING VESSELS

SEC. 301. RESTRICTION ON FISHERY ENDORSEMENTS.

    (a) General Prohibition.--Section 12108 of title 46, United States 
Code, is amended by adding at the end the following new subsection:
    ``(e) A certificate of documentation may not be endorsed with a 
fishery endorsement for a fishing vessel that is greater than 165 feet 
in registered length, of more than 750 gross registered tons, or that 
has an engine or engines capable of producing a total of more than 
3,000 shaft horsepower unless--
            ``(1) the certificate of documentation for such vessel was 
        endorsed with a fishery endorsement that was effective on 
        September 25, 1997 and has not been surrendered at any time 
        thereafter; and
            ``(2) the registered length, gross registered tons, and 
        shaft horsepower do not exceed the length, tonnage, and 
        horsepower of such vessel on such date.''.
    (b) New England Fisheries.--(1) Notwithstanding any other provision 
of law, the Secretary of Commerce may not authorize or permit fishing 
vessels (as defined in section 2101 of title 46, United States Code) 
greater than 165 feet in registered length, of more than 750 gross 
registered tons, or that have an engine or engines capable of producing 
a total of more than 3,000 shaft horsepower to engage in directed 
fishing for Atlantic mackerel or Atlantic herring unless the 
participation of such vessels is specifically allowed in fishery 
management plans developed and implemented for those fisheries under 
the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 
1801 et seq.).
    (2) Within 5 days after the date of the enactment of this Act, the 
Secretary of Commerce shall revoke any permit issued before that date 
to any vessel described in subsection (a) which would permit such 
vessel to engage in directed fishing for Atlantic mackerel or Atlantic 
herring.
    (c) Replacement of Lost Vessels.--Notwithstanding section 12108(e) 
of title 46, United States Code, as added by this Act, the owner of an 
existing vessel greater than 165 feet in registered length, of more 
than 750 gross registered tons, or that has an engine or engines 
capable of producing a total of more than 3,000 shaft horsepower, and 
that had a valid fishery endorsement on September 25, 1997, may obtain 
a fishery endorsement for a replacement vessel in the event of the 
actual total loss or constructive total loss after September 25, 1997, 
of such existing vessel, provided that: (1) such loss was caused by an 
act of God, an act of war, a collision, an act or omission of a party 
other than the owner or agent of the vessel, or any other event not 
caused by the willful misconduct of the owner or agent; (2) the 
existing vessel actively harvested fishery resources in the exclusive 
economic zone of the United States during the year prior to such loss; 
(3) the replacement vessel is of the same or lesser registered length, 
gross registered tons, and shaft horsepower that the existing vessel; 
(4) the fishery endorsement for the new vessel is issued within 18 
months of the loss of the existing vessel; and (5) the replacement 
vessel otherwise qualifies under laws of the United States for a 
fishery endorsement.
    (d) Fishing Vessels Operating Beyond the Exclusive Economic Zone.--
Section 12108(e) of title 46, United States Code, as amended by this 
Act, shall not apply to a fishing vessel engaged in fishing exclusively 
for highly migratory species (as that term is defined in section 3 of 
the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 
1802)) primarily outside of the navigable waters and exclusive economic 
zone of the United States.

SEC. 302. RESTRICTION ON LOAN GUARANTEES.

    Section 302(b) of the Fisheries Financing Act (46 U.S.C. 1274 note) 
is amended--
            (1) by inserting ``(1)'' before ``Until October 1, 2001''; 
        and
            (2) by inserting at the end the following new paragraph:
            ``(2) No loans may be guaranteed by the Federal Government 
        for the construction or rebuilding of a vessel intended for use 
        as a fishing vessel (as defined in section 2101 of title 46, 
        United States Code), if such vessel will be greater than 165 
        feet in registered length, of more than 750 gross registered 
        tons, or have an engine or engines capable of producing a total 
        of more than 3,000 shaft horsepower, after such construction or 
        rebuilding is completed.''.
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