I 115th CONGRESS 2d Session H. R. 5763 IN THE HOUSE OF REPRESENTATIVES May 10, 2018 Mr. Lowenthal (for himself, Mr. Fitzpatrick , Mr. Cartwright , Mr. DeFazio , Mr. Grijalva , Ms. Lee , Mr. Ted Lieu of California , Mr. McNerney , Mr. Pocan , Mr. Polis , Mr. Quigley , Mr. Schiff , and Ms. Norton ) introduced the following bill; which was referred to the Committee on Natural Resources , and in addition to the Committee on Foreign Affairs , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To implement the Agreement on the Conservation of Albatrosses and Petrels, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the Albatross and Petrel Conservation Act . (b) Table of contents The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Definitions. Title I—Conservation Measures Sec. 101. Reestablishment of species. Sec. 102. Management of nonnative species. Sec. 103. Habitat conservation and restoration. Sec. 104. Management of human activities. Sec. 105. Education and public awareness. Title II—Prohibited Acts, Permits, and Exemptions Sec. 201. Prohibited acts. Sec. 202. Authorization of take. Sec. 203. Exemption. Title III—Penalties and Enforcement Sec. 301. Enforcement. Title IV—Agreement Authority Sec. 401. Agreement authority. Sec. 402. Reporting. Sec. 403. General coordination. Title V—International Cooperation and Assistance Sec. 501. Cooperation among nations. Title VI—Bycatch and Equivalent Conservation Sec. 601. Protected living marine resources. Title VII—Miscellaneous Provisions Sec. 701. Regulatory authority. Sec. 702. Administration. Sec. 703. Effective date. 2. Definitions In this Act: (1) Advisory committee The term Advisory Committee means the Advisory Committee established by Article IX of the Agreement. (2) Agreement Each of the terms Agreement on the Conservation of Albatrosses and Petrels and Agreement means the Agreement on the Conservation of Albatrosses and Petrels, done at Cape Town, South Africa, on February 2, 2001. (3) Covered albatrosses and petrels The terms covered albatrosses and petrels and covered albatross or petrel mean any species, subspecies, population, or individual within the taxonomic order Procellariiformes that is listed under Annex I of the Agreement, whether dead or alive, including any part, egg, derivative nest, or product of such a species, subspecies, population, or individual. (4) Antarctica The term Antarctica means the area south of 60 degrees south latitude. (5) Breeding site The term breeding site means— (A) a location in the wild at which any covered albatross or petrel eggs, tended by the parent birds, have successfully hatched at any time in the previous 5 years; or (B) a location where reestablishment of breeding covered albatrosses and petrels is underway. (6) Conservation measure The term conservation measure means any action taken for the purpose of achieving or maintaining the favorable conservation status of covered albatrosses and petrels. (7) Disturb and disturbance Each of the terms disturb and disturbance means any act that interferes with the natural behavioral patterns of covered albatrosses and petrels, including migration, brooding, nesting, breeding, feeding, or sheltering, to a point at which such behavioral patterns are abandoned or significantly altered. (8) Favorable conservation status The term favorable conservation status has the meaning given the term in Article I of the Agreement. (9) Habitat The term habitat means any area within the range, that contains suitable living conditions for covered albatrosses and petrels, including appropriate nesting and foraging areas. (10) Magnuson-Stevens Act The term Magnuson-Stevens Act means the Magnuson-Stevens Fishery Conservation and Management Act ( 16 U.S.C. 1801 et seq.). (11) Party The term Party means any country (including the United States) or regional economic integration organization that has ratified or acceded to the Agreement. (12) Person The term person means— (A) any individual (whether or not a citizen or national of the United States); (B) any corporation, partnership, association, or other entity (whether or not existing under the laws of any State); and (C) any Federal, State, local, or foreign government or any entity of such a government. (13) Range The term range means— (A) all land or water that any covered albatrosses and petrels inhabit, stay in temporarily, cross, or over-fly, at any time during migration, breeding, feeding, or aggregating; and (B) any other areas that the Secretary or the Secretary of Commerce determines have been used for any of those purposes. (14) Range state The term range state means any country— (A) that exercises jurisdiction over any part of a range; or (B) the flagged vessels of which are engaged outside of the jurisdictional limits of the country in take, or in an activity that has the potential to take. (15) Regional Fishery Management Council The term Regional Fishery Management Council means any Regional Fishery Management Council established by section 302(a)(1) of the Magnuson-Stevens Act ( 16 U.S.C. 1852(a)(1) ). (16) Secretariat The term Secretariat means the Secretariat established by the Parties to the Agreement pursuant to paragraph 11 of Article VIII. (17) Secretary The term Secretary means the Secretary of the Interior. (18) Take The term take means to harmfully interfere with, harass, pursue, hunt, shoot, wound, kill, trap, capture, destroy, possess, or collect. (19) United States The term United States means— (A) each of the several States; (B) the District of Columbia; (C) the Commonwealth of Puerto Rico; (D) the United States Virgin Islands; (E) American Samoa; (F) Guam; (G) the Commonwealth of the Northern Mariana Islands; and (H) any other commonwealth, territory, or possession of the United States. (20) Waters subject to the jurisdiction of the united states The term waters subject to the jurisdiction of the United States means— (A) the waters of the United States territorial sea under Presidential Proclamation 5928, dated December 27, 1988 ( 43 U.S.C. 1331 note); (B) the exclusive economic zone (as defined in section 107 of title 46, United States Code); and (C) the areas referred to as eastern special areas in Article 3(1) of the Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, signed at Washington, June 1, 1990 (T. Doc. 101–22), including those areas east of the maritime boundary, as defined in that Agreement, that lie within 200 nautical miles of the baselines from which the breadth of the territorial sea of Russia is measured but beyond 200 nautical miles of the baselines from which the breadth of the territorial sea of the United States is measured. I Conservation Measures 101. Reestablishment of species The Secretary, in consultation with the Secretary of Commerce, as appropriate, may carry out activities, based on the best available scientific information, to reestablish covered albatrosses and petrels within the range. 102. Management of nonnative species (a) In general The Secretary or the Secretary of Commerce, as appropriate, in consultation with each other and with the heads of other relevant Federal agencies, and consistent with this Act and any other applicable law, may carry out activities to prevent the introduction of, eradicate, or control invasive and nonnative species that have or may have an adverse effect on covered albatrosses and petrels. (b) Included activities The activities under subsection (a) may include— (1) implementation of management plans for such invasive or nonnative species; (2) research on and development of practical and effective techniques to eradicate or control invasive or nonnative species; (3) development of regional assessments on established and newly discovered populations of invasive or nonnative species; (4) development of decision-support tools to prevent the introduction or establishment of invasive or nonnative species; (5) development of rapid response approaches and techniques; (6) documentation of— (A) any invasive or nonnative species that coexist with humans; and (B) delineation of areas in which eradication or control of those species would be most effective and cost efficient; (7) eradication or control of established populations or individuals of invasive or nonnative species; and (8) outreach and education related to— (A) the impacts of invasive or nonnative species on covered albatrosses and petrels; and (B) the techniques to eradicate or control those species. 103. Habitat conservation and restoration (a) Authority of Secretary (1) Use of other authorities The Secretary may use authority available under any other laws for the protection of wildlife to conserve, protect, and restore breeding sites of covered albatrosses and petrels, including authority under— (A) the Migratory Bird Conservation Act ( 16 U.S.C. 715 et seq.); (B) the Fish and Wildlife Coordination Act ( 16 U.S.C. 661 et seq.); (C) the Fish and Wildlife Act of 1956 ( 16 U.S.C. 742a , et seq.); and (D) any other cooperative or land-acquisition authority vested in the Secretary. (2) Management plans and conservation measures The Secretary, in consultation with the Secretary of Commerce, may develop and implement management plans and undertake measures for the conservation and protection of covered albatross and petrel habitat. (b) Authority of Secretary of Commerce The Secretary of Commerce, in consultation with the Secretary, may— (1) develop and implement management plans and undertake conservation measures in marine habitats to ensure the sustainability of living marine resources that provide food for such covered albatrosses and petrels; and (2) use authority under law to conserve and protect marine habitat important to the conservation of covered albatrosses and petrels, including such authority under— (A) the National Marine Sanctuaries Act ( 16 U.S.C. 1431 et seq.); and (B) the Magnuson-Stevens Act. 104. Management of human activities (a) Pollutants and marine debris (1) Research The Secretary and the Secretary of Commerce may undertake scientific research to assess the effects of pollutants and marine debris on covered albatrosses and petrels. (2) Marine debris The Secretary and the Secretary of Commerce may each develop and implement conservation measures to minimize the effects of, or threats posed by, marine debris on covered albatrosses and petrels. (b) Prevention, minimization, or mitigation of take and disturbance The Secretary and the Secretary of Commerce— (1) in consultation with each other and consistent with the Migratory Bird Treaty Act ( 16 U.S.C. 703 et seq.) and any other authority, may develop and implement measures, including by issuing regulations, to prevent, minimize, or mitigate— (A) the take of covered albatrosses and petrels— (i) on lands or in waters subject to the jurisdiction of the United States; and (ii) by vessels and nationals of the United States located outside the jurisdiction of the United States; and (B) the disturbance of covered albatrosses and petrels— (i) on lands or in waters subject to the jurisdiction of the United States; and (ii) by vessels and nationals of the United States located outside the jurisdiction of the United States; and (2) shall— (A) notify the Secretary of the department in which the Coast Guard is operating of any actions taken under this subsection, to ensure a coordinated effort to prevent, minimize, or mitigate the taking of covered albatrosses and petrels; and (B) if determined necessary, request that the applicable Secretary take additional action to prevent or minimize take of covered albatrosses and petrels. (c) Measures To address bycatch in fisheries (1) In general The Secretary of Commerce, in consultation with the Regional Fishery Management Council with jurisdiction over the relevant fishery under the Magnuson-Stevens Act, may develop and undertake measures to minimize the bycatch of covered albatrosses and petrels in the fishery. (2) Monitoring The Secretary of Commerce, in consultation with such Regional Fishery Management Council, may engage in— (A) regional assessments of covered albatrosses and petrels interactions with fishing gear to determine the extent and nature of such interactions; (B) collection of covered albatrosses and petrels bycatch data, including through onboard-observer programs— (i) to determine the nature and extent of covered albatrosses and petrels interactions with United States fisheries; and (ii) to evaluate the effectiveness of any prescribed mitigation measures; and (C) research on bycatch-mitigation measures to develop the most practical and effective deterrent measures that reduce such bycatch. (3) Disclosure of information (A) In general In carrying out this subsection, the Secretary of Commerce may disclose, as necessary and appropriate, information collected under this Act to the Food and Agriculture Organization of the United Nations, regional fishery-management organizations, or arrangements made pursuant to an international fishery-management agreement, if such organizations or arrangements have policies and procedures to safeguard such information from unintended or unauthorized disclosure. (B) International fishery agreement defined In this paragraph the term international fishery agreement has the meaning given the term in section 3 of the Magnuson-Stevens Act ( 16 U.S.C. 1802 ). 105. Education and public awareness The Secretary, and the Secretary of Commerce, in consultation with relevant Regional Fishery Management Councils and others, may— (1) make information on the conservation status of covered albatrosses and petrels, the threats facing covered albatrosses and petrels, and any actions taken under the Agreement available to— (A) the scientific, fishing, and seabird conservation communities; (B) the public; (C) relevant local authorities; (D) other decisionmakers; (E) other Parties; and (F) other countries; (2) cooperate with other Parties, the Secretariat, and other persons to develop training programs and general information products and exchange resource materials regarding such conservation; and (3) provide training programs to ensure that personnel responsible for the implementation of this Act have adequate knowledge to implement it effectively. II Prohibited Acts, Permits, and Exemptions 201. Prohibited acts (a) In general Except as authorized by a permit, authorization, or exemption under section 202 or 203, it is unlawful— (1) to take any covered albatross or petrel; (2) to commit any act with respect to covered albatrosses or petrels that would be prohibited by section 2 of the Migratory Bird Treaty Act ( 16 U.S.C. 703(a) ) if covered albatrosses or petrels were treated as migratory birds for purposes of that section; or (3) to attempt to engage in any act described in paragraph (1) or (2) of this subsection. (b) Applicability (1) In general Except as provided in paragraph (2), the prohibitions under this Act apply— (A) on lands and in waters subject to the jurisdiction of the United States; and (B) to vessels and nationals of the United States on lands or in waters beyond the jurisdiction of the United States. (2) Limitation This section shall not apply with respect to any covered albatross or petrel lawfully taken before the effective date of this Act. (c) Other prohibited conduct It is unlawful— (1) to violate this Act or any regulation or permit issued under this Act; (2) to refuse permission to board, search, or inspect any vessel that is subject to the control of that person to an officer authorized under section 301(b) to conduct any search, investigation, or inspection to enforce this Act or any regulation or permit issued under this Act; (3) to forcibly assault, resist, oppose, impede, intimidate, or interfere with any officer authorized under section 301(b) in the conduct of any search, investigation, or inspection under this Act; (4) to resist a lawful arrest or detention for any act prohibited by this Act or any regulation or permit issued under this Act; or (5) to interfere with, delay, or prevent, by any means, the apprehension, arrest, or detention of another person, knowing that the other person has committed an act prohibited by this Act or any regulation or permit issued under this Act. 202. Authorization of take (a) Permits and regulatory authorization (1) In general The Secretary, in consultation with the Secretary of Commerce, as appropriate, may, subject to the limitations of the terms of the Agreement and other applicable law, authorize by permit or regulation the deliberate taking of any covered albatrosses and petrels— (A) to enhance the propagation, reestablishment, or survival of those covered albatrosses and petrels; (B) on a selective basis and to a limited extent, for scientific, educational, or similar purposes; (C) to accommodate the traditional needs and practices of indigenous people; (D) for the purposes of assistance or salvage pursuant to the Migratory Bird Treaty Act ( 16 U.S.C. 703 et seq.); or (E) in other exceptional circumstances as determined by the Secretary. (2) Other take The Secretary may authorize by permit or regulation the take of covered albatrosses or petrels not otherwise provided for in this Act that is incidental to otherwise lawful activities. (3) Limitations A permit or regulatory authorization under this subsection— (A) shall be limited in area and duration of application; and (B) shall not— (i) result in the elimination of the favorable conservation status for any covered albatrosses and petrels; or (ii) authorize any activity otherwise prohibited by any other statute or regulation. (4) Access to breeding sites Any permit or other regulatory authorization under this subsection that authorizes access to breeding sites of covered albatrosses and petrels, including for purposes of scientific research, shall contain terms and conditions to minimize unnecessary disturbance to covered albatrosses and petrels, and to minimize the impact on their habitats. (b) Exceptions The taking of covered albatrosses and petrels is not prohibited by this Act if— (1) the taking is necessary to avoid imminent suffering, serious injury, additional injury, or death to any covered albatrosses and petrels hooked or entangled in fishing gear or debris; (2) reasonable care is taken to ensure the safe and expeditious release of the covered albatrosses and petrels; and (3) the taking is reported to the Secretary of Commerce in a timely manner. 203. Exemption (a) Military activities (1) In general It shall not be a violation of this Act for personnel of the Department of Defense to take covered albatrosses and petrels incidental to military activities. (2) Vessels and aircraft This Act shall not apply to vessels and aircraft entitled to sovereign immunity under international law. (3) Guidance to avoid or minimize take The Secretary, in consultation with the Secretary of Commerce and the Secretary of Defense, may issue guidance to minimize, to the extent practicable, the take of covered albatrosses and petrels that is incidental to military activities. (b) Coast Guard activities (1) Law enforcement Nothing in this section shall be considered to limit the authority of the Coast Guard to enforce this or any other Federal law under section 89 of title 14, United States Code. (2) Emergency response It shall not be a violation of this Act for the Coast Guard to take any covered albatrosses and petrels incidental to any emergency response or search and rescue activity. (c) Other activities Take of any covered albatrosses and petrels is not unlawful if the take was caused by any officer who is authorized by the Secretary, the Secretary of Commerce, or the head of any Federal or State agency that has entered into an agreement with the Secretary or the Secretary of Commerce under section 403, to enforce this Act while performing official duties. (d) Bycatch of covered albatrosses and petrels in fisheries It shall not be a violation of this Act for any person to take covered albatrosses and petrels as bycatch incidental to otherwise lawful fishing activities, if carried out in accordance with applicable measures to minimize the bycatch of covered albatrosses and petrels undertaken pursuant to section 104(c). III Penalties and Enforcement 301. Enforcement (a) Responsibility (1) In general This Act, and any regulations or permits issued under this Act, shall be enforced by the Secretary, the Secretary of Commerce, and the Secretary of the department in which the Coast Guard is operating. (2) Administration Subject to the limitations of section 1385 of title 18, United States Code, the Secretary, the Secretary of Commerce, and the Secretary of the department in which the Coast Guard is operating may, by agreement, on a reimbursable basis or otherwise, use the personnel, services, equipment (including aircraft and vessels), and facilities of the Coast Guard, and of any State agency in the performance of duties under this Act. (b) Powers of authorized officers (1) Authorities under Magnuson-Stevens Act The Secretary of Commerce, the Secretary of the department in which the Coast Guard is operating, and the head of any Federal or State agency that has entered into an agreement with either such Secretary under this section may, if the agreement so provides, authorize officers who are under the administrative jurisdiction of such Secretary or agency to enforce the provisions of this Act or any regulation promulgated under this Act. Any officer so authorized may enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though section 311 of the Magnuson-Stevens Act were incorporated into and made a part of this Act. (2) Authorities under Migratory Bird Treaty Act The Secretary of the Interior and the head of any Federal or State agency that has entered into an agreement with the Secretary under this section may, if the agreement so provides, authorize officers who are under the administrative jurisdiction of such Secretary or agency to enforce the provisions of this Act or any regulation promulgated under this Act. Any officer so authorized may enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though section 5 of the Migratory Bird Treaty Act ( 16 U.S.C. 706 ) were incorporated into and made a part of this Act. (c) Penalties (1) Persons and vessels subject to the jurisdiction of the Secretary of Commerce Any person or vessel that is subject to the jurisdiction of the Secretary of Commerce and that violates this Act or any permit or regulation issued under this Act shall be subject to the penalties, and entitled to the privileges and immunities, provided in the Magnuson-Stevens Act in the same manner and by the same means as though sections 308 through 311 of that Act ( 16 U.S.C. 1858 through 1861) were incorporated into and made a part of this Act. (2) Persons and vessels subject to the jurisdiction of the Secretary of the Interior Any person or vessel that is subject to the jurisdiction of the Secretary of the Interior and that violates this Act or permit or regulation issued under this Act shall be subject to the penalties, and entitled to the privileges and immunities, provided in the Migratory Bird Treaty Act ( 16 U.S.C. 703 et seq.) in the same manner and by the same means as though section 6 of that Act ( 16 U.S.C. 707 ) were incorporated into and made a part of this Act. IV Agreement Authority 401. Agreement authority (a) In general The Secretary and the Secretary of Commerce shall each designate an office or program of the United States Fish and Wildlife Service and of the National Marine Fisheries Service, respectively, that shall jointly— (1) function as the United States Authority in accordance with Article VII of the Agreement, to undertake, monitor, and control all activities carried out in the implementation and enforcement of the Agreement within the respective jurisdictions of the United States Fish and Wildlife Service and the National Marine Fisheries Service; and (2) designate a United States Representative in accordance with Article IX of the Agreement and designate a contact point for the United States in accordance with Article VII of the Agreement. (b) Role of United States authority The Authority designated under subsection (a) shall, for the purposes of the Agreement— (1) monitor all activities that may have an impact on the conservation status of those covered albatrosses and petrels for which the United States is a range state; and (2) designate a Contact Point as required by Article VII of the Agreement for communication with the Secretariat. 402. Reporting (a) Report to congress The Secretary, in consultation with the Secretary of Commerce, the Secretary of State, and any other Federal agency, as appropriate, shall not later than 1 year after the effective date of this Act, and every 4 years thereafter, submit a report to the Congress that includes— (1) the list of all covered albatrosses and petrels that are subject to this Act; (2) the status of all covered albatrosses and petrels that occur in the United States and within the waters subject to the jurisdiction of the United States; and (3) actions taken and those conservation measures believed necessary to achieve and maintain a favorable conservation status for covered albatrosses and petrels. (b) Report to the advisory committee The Secretary and the Secretary of Commerce may jointly provide to the Advisory Committee, through the Secretariat, a report on the implementation of the Agreement by the United States. 403. General coordination In carrying out this Act, the Secretary and the Secretary of Commerce— (1) shall work together and may request that other Federal agencies take actions, to achieve or maintain a favorable conservation status for covered albatrosses and petrels; and (2) shall consult with the heads of other Federal agencies when taking actions on lands or waters owned by the United States and under the jurisdiction of those Federal agencies. V International Cooperation and Assistance 501. Cooperation among nations (a) In general The Secretary, the Secretary of Commerce, and the Secretary of State may cooperate with other countries to achieve and maintain a favorable conservation status of covered albatrosses and petrels, including by— (1) the development of systems for collecting and analyzing data and exchanging information; (2) the exchange of information regarding adoption and enforcement of legislative and other management approaches to conservation of covered albatrosses and petrels; (3) the implementation of education and awareness programs for users of areas in which covered albatrosses and petrels may be encountered; (4) the design and implementation of comprehensive programs for public information in relation to the conservation of covered albatrosses and petrels; (5) the development and implementation of training programs on conservation techniques and measures to mitigate threats affecting covered albatrosses and petrels; (6) the exchange of expertise, techniques, and knowledge; and (7) entering into cooperative arrangements, including, as appropriate, international agreements. (b) Assistance The Secretary and the Secretary of Commerce, in cooperation with the Secretary of State, may provide training, technical, and financial support to the Secretariat, other international and intergovernmental organizations, and other countries, to assist in implementing the objectives of the Agreement. VI Bycatch and Equivalent Conservation 601. Protected living marine resources Section 610(e) of the High Seas Driftnet Fishing Moratorium Protection Act ( 16 U.S.C. 1826k(e) ) is amended by striking paragraph (1) and inserting the following: (1) except as provided in paragraph (2), means nontarget fish, sea turtles, seabirds, or marine mammals that are protected under United States law or international agreement, including— (A) the Marine Mammal Protection Act of 1972 ( 16 U.S.C. 1361 et seq.); (B) the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq.); (C) the Shark Finning Prohibition Act ( 16 U.S.C. 1822 note; Public Law 106–557 ), including amendments made by that Act; (D) the Convention on International Trade in Endangered Species of Wild Fauna and Flora and Fauna, done at Washington March 3, 1973 (27 UST 1087, TIAS 8249); and (E) the Albatross and Petrel Conservation Act ; but . VII Miscellaneous Provisions 701. Regulatory authority (a) Regulations (1) In general Except as otherwise provided in this section— (A) the Secretary of Commerce may develop and issue regulations as necessary to implement the Agreement and this Act with respect to sections 103(b), 104(c), 203(d), and 601 of this Act; (B) the Secretary and the Secretary of Commerce may jointly develop and issue regulations as necessary to implement the Agreement and this Act with respect to sections 102, 105, 401, and 403; and (C) the Secretary and the Secretary of Commerce may each issue regulations as necessary to implement the Agreement and this Act with respect to sections 104(a)(2), 104(b), and 201. (b) Consultation In issuing regulations under this Act, the Secretary and the Secretary of Commerce shall consult each other. (c) Antarctica In issuing regulations under this Act, the Secretary and the Secretary of Commerce shall consult with the Director of the National Science Foundation (or the designee of such Director) on implementation related to Antarctica. 702. Administration (a) In general Except as specified in section 601, nothing in this Act repeals, supersedes, overrides, or modifies any provision of Federal law. (b) Effect on lands and waters (1) Concurrence required Nothing in this Act authorizes the Secretary or the Secretary of Commerce to carry out any activities under this Act on land or in waters under the area-based management jurisdiction of the other, unless the Secretary and the Secretary of Commerce agree. (2) Consultation In those areas in which neither the Secretary nor the Secretary of Commerce has explicit area-based management jurisdiction, the Secretary and the Secretary of Commerce shall carry out this Act in consultation with each other. 703. Effective date This Act takes effect on the date that is 180 days after the date of enactment of this Act.