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104th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 104-47
FISHERMEN'S PROTECTIVE ACT AMENDMENTS
February 23, 1995.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
Mr. Young of Alaska, from the Committee on Resources, submitted the
R E P O R T
[To accompany H.R. 716]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 716) to amend the Fishermen's Protection Act, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
Purpose of the Bill
The purpose of H.R. 716 is to amend the Fishermen's
Protective Act (FPA) to expand the use of the Fishermen's
Protective Fund, to extend the effective date of section 7 of
the FPA, and to amend provisions relating to the collection of
fees from participating fishermen.
Background and Need For Legislation
The Fishermen's Protective Act of 1967 (22 U.S.C. 1971 et
seq.) established a program under which the Secretary of State
may compensate fishermen for fines paid to secure the release
of fishing vessels and crew which have been illegally seized by
a foreign government. These repayments are to be made from the
Fishermen's Protective Fund established under section 9 of the
FPA. The FPA also established a voluntary insurance program
financed through contributions from fishermen to compensate
fishermen who suffer lost income as a result of the seizure.
Payments under this program are made from the Fishermen's
Guaranty Fund under section 7 of the FPA.
On June 15, 1994, in the aftermath of a breakdown in
negotiations between the United States and Canada on Pacific
salmon fishing rights, the Government of Canada imposed a $1500
(Canadian) transit fee on U.S. commercial fishing vessels
passing through certain waters adjacent to Canada. The
Department of State judged the fee inconsistent with
international law. The Canadian Government has since lifted the
fee; however, this did not occur until after 258 vessels had
already been forced to pay it.
H.R. 716 was introduced by Chairman Don Young on January
26, 1995, along with Congressman Jim Saxton and Congressman
Gerry Studds, and was referred to the Committee on Resources.
The bill was subsequently referred to the Subcommittee on
Fisheries, Wildlife and Oceans.
On January 25, 1995, the Subcommittee on Fisheries,
Wildlife and Oceans held a hearing on H.R. 716, and other
issues. Ambassador David A. Colson, Deputy Assistant Secretary
of State for Oceans, and Mr. Rolland A. Schmitten, Assistant
Administrator for Fisheries, National Marine Fisheries Service,
testified for the Administration. Both witness discussed the
need to amend the Fishermen's Protective Act to enable the
United States Government to reimburse U.S. fishermen who paid
the Canadian transit fee.
On February 1, 1995, the Subcommittee on Fisheries,
Wildlife and Oceans met to consider H.R. 716. No amendments
were offered and the bill was ordered reported to the Full
Committee by voice vote.
On February 8, 1995, the full Committee on Resources met to
consider H.R. 716. No amendments were offered and the bill was
ordered reported to the House by voice vote, with the presence
of a quorum.
Sec. 1. Amendments to the Fishermen's Protective Act of 1967
This section expands the existing compensation program in
section 3 of the FPA to cover the reimbursement of fees paid by
a U.S. fishing vessel transiting waters of a foreign nation
when the fees are determined to be inconsistent with
international law. This section also authorizes the Secretary
of State to seek reimbursement from the nation imposing the
This section also clarifies the circumstances under which
fees may be collected by the Secretary of State from fishermen
participating in the Fishermen's Guaranty Fund, established
under section 7 of the FPA. This voluntary program provides
compensation to a fishing vessel owner for incidental costs,
such as the loss of gear or fish or damage to the vessel,
associated with an unfair seizure by a foreign nation. This
language clarifies the Secretary's authority to assess
reasonable fees on those participating in this program.
Finally, this section reactivates the Fishermen's Guaranty
Fund, which expired in 1993. The amendment allows money to be
deposited in this Fund until October 1, 1998, and removes an
obligation that a portion of the funds be appropriated by
Sec. 2. Clearance and entry of commercial fishing vessels
This section directs the Secretaries of State and Treasury
to take certain actions when a foreign nation imposes a fee on
U.S. commercial fishing vessels transiting that nation's
waters. Currently, Canadian fishing vessels routinely receive
U.S. Customs clearance by radio to enter U.S. waters at night.
This section would deny access to the West Coast and Alaskan
waters of the U.S. to any foreign fishing vessel registered in
a nation that charges a transit fee to U.S. vessels. Exceptions
are allowed in the case of an emergency, when a vessel is
operating under a treaty providing freedom of access, or if a
vessel master pays a fee to the U.S. equal to that charged to a
U.S. vessel. When paying the fee, the vessel master must do so
in person at a designated port of entry.
Violation of this section subjects the vessel master and/or
owner to civil penalties under the Magnuson Fishery
Conservation and Management Act.
Sec. 3. Technical correction
This section corrects an enrolling error in Public Law 103-
Committee Oversight Findings and Recommendations
Pursuant to clause 2(l)(3) of rule XI of the Rules of the
House of Representatives and clause 2(b)(1) of rule X of the
Rules of the House of Representatives, the Committee's
oversight findings and recommendations are reflected in the
body of this report.
Inflationary Impact Statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee estimates that the
enactment of H.R. 716 will have no significant inflationary
impact on prices and costs in the operation of the national
Cost of the Legislation
Clause 7 of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs which would be incurred in carrying out
H.R. 716. However, clause 7(d) of that Rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 403 of the Congressional Budget Act of 1974.
Compliance With House Rule XI
1. With respect to the requirements of clause 2(l)(3)(A) of
rule XI of the Rules of the House of Representatives, the
Subcommittee on Fisheries, Wildlife and Oceans held hearings on
H.R. 716 and other pending fisheries issues on January 25,
1995, and the oversight findings and recommendations of the
Committee are reflected in this report.
2. With respect to the requirement of clause 2(l)(3)(D) of
rule XI of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations from the Committee on Government Reform and
Oversight on the subject of H.R. 716.
3. With respect to the requirement of clause 2(l)(3)(C) of
rule XI of the Rules of the House of Representatives and
section 403 of the Congressional Budget Act of 1974, the
Committee has received the following cost estimate for H.R. 716
from the Director of the Congressional Budget Office.
Congressional Budget Office,
Washington, DC, February 15, 1995.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget office has
prepared the enclosed cost estimate for H.R. 716, a bill to
amend the Fishermen's Protective Act.
Enactment of H.R. 716 would affect direct spending and
receipts. Therefore, pay-as-you-go procedures would apply to
If you wish further details on this estimate, we will be
pleased to provide them.
Robert D. Reischauer, Director.
Congressional Budget Office Cost Estimate
1. Bill number: H.R. 716.
2. Bill title: A bill to amend the Fishermen's Protective
3. Bill status: As ordered reported by the House Committee
on Resources on February 8, 1995.
4. Bill purpose: H.R. 716 would extend the authority of the
State Department to reimburse fishermen from the Fishermen's
Protective Fund to include reimbursement for certain fees. The
bill would extend the authorization of the Fishermen's Guaranty
Fund through fiscal year 1998, and would repeal the requirement
that a certain percentage of deposits to this fund come from
appropriated funds. It also would permit the State Department
to collect fees regardless of whether the fee collections were
needed to carry out the purposes of the fund. In addition, the
bill would require the State Department to publish annually a
list of countries imposing certain fees. Commercial fishing
vessels registered in listed countries could not receive
clearance to enter certain waters of the United States except
under certain circumstances. Those vessels entering without
clearance would be subject to civil penalties.
5. Estimated cost to the Federal Government: CBO estimates
that enacting H.R. 716 would result in direct spending. The
following table summarizes CBO's estimates of the budgetary
impact of this bill.
1996 1997 1998 1999 2000
authority.. 0 0 0 ......... .........
outlays.... 0.3 0 0 ......... .........
revenues....... 0 0 0 0 0
The costs of this bill fall within budget function 370.
Direct Spending. H.R. 716 would extend the authorization of
the Fishermen's Guaranty Fund through fiscal year 1998. Based
on information from the State Department, CBO projects that
unobligated balances in the fund would become available for
spending as a result of enactment of this bill, and that
payments from the fund would total approximately $400,000
annually from 1996 through 1998. (Payments in excess of the
$2.9 million unobligated balance in the Fishermen's Guaranty
Fund could be made only to the extent provided in advance in
Under current law, the State Department may collect fees
for the Fishermen's Guaranty Fund only after receiving an
appropriation to the fund, and then only in an amount equal to
twice the appropriation. The bill would no longer require an
appropriation before permitting the State Department to collect
fees for the fund. Because collection of fees would no longer
require appropriations action, fee collections would reduce
direct spending. Based on information from the State
Department, CBO estimates that the department would collect
approximately $400,000 per year for fiscal years 1996 through
1998, offsetting the additional direct spending.
Enacting H.R. 716 also would make owners of various fishing
vessels eligible for payments totaling $284,000 from the
Fishermen's Protective Fund. The fund currently has sufficient
unobligated balances to make such payments, so we estimate that
the bill would result in additional outlays of $284,000 in
1996. This amount would be direct spending because the
expenditures would take place without further appropriation
Spending Subject to Appropriations. The bill would require
the State Department to publish a list of nations that charge
certain fees to U.S. commercial fishing vessels. CBO estimates
that compiling such a list would cost less than $5,000
Revenues. Commercial fishing vessel of nations appearing in
the list compiled by the State Department would be prohibited,
with certain exceptions, from entering certain waters of the
United States without paying a fee to the Department of the
Treasury. Any collections from these fees would be considered
governmental receipts; however, because no countries are
charging the fees in question to U.S. fishing vessels, CBO does
not expect that any fees would be collected as a result of
enactment of this provision.
The bill would make violators of this provision liable for
civil penalties. Receipts from civil penalties would be
governmental receipts. Again, because no nations are currently
charging the fees in question to U.S. fishing vessels, CBO
expects that there would be no violators, and therefore CBO
does not expect that any additional collections would result
from these civil penalties.
6. Comparison with spending under current law: H.R. 716
would lead to increased spending of $284,000 from the
Fishermen's Prospective Fund. This additional spending would
probably occur in 1996. CBO expects that there will be no
spending from this fund in 1995.
7. Pay-as-you-go considerations: Section 252 of the
Balanced Budget and Emergency Deficit Control Act of 1985 sets
up pay-as-you-go procedures for legislation affecting direct
spending or receipts through 1998. Because H.R. 716 would
affect direct spending and receipts, the bill would be subject
to pay-as-you-go procedures. The bill would permit the State
Department to collect about $400,000 per year in fees for the
1996-1998 period. The State Department also would be permitted
to make payments from unobligated balances of the Fishermen's
Guaranty Fund without appropriations action. This spending
would total approximately $400,000 per year for the 1996-1998
period. In addition, the bill would increase spending by
$284,000 in 1996 out of unobligated balances of the Fishermen's
The bill also would permit the Department of the Treasury
to collect fees under certain circumstances. These fee
collections would count as governmental receipts, but CBO does
not expect any fees to be collected. Finally, the bill would
make violators of certain provisions liable for civil
penalties. Collections from civil penalties would count as
governmental receipts, but because CBO does not expect
violations to occur, we do not expect that any civil penalties
would be collected. The following table summarizes the
estimated pay-as-you-go effect of the bill.
1996 1997 1998
Changes in receipts.............. 0 0 0
Changes in outlays............... 0 0 0
8. Estimated cost to state and local governments: None.
9. Estimate comparison: None.
10. Previous CBO estimate: None.
11. Estimate prepared by: John Webb (226-2860) and Melissa
12. Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.
The Committee has received a departmental report from the
Department of State dated February 7, 1995, on H.R. 716.
U.S. Department of State,
Washington, DC, February 7, 1995.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives.
Dear Mr. Chairman: This letter is to provide the Committee
with our views on H.R. 716, a bill to amend the Fishermen's
Protective Act. The Department of State supports H.R. 4852,
which was passed by the full House during the 103rd Congress.
In the detailed comments which are enclosed, we refer both
to H.R. 716 and to H.R. 4852.
In general, we are concerned that H.R. 716, which would
authorize us to reimburse fishermen who paid a ``transit fee''
to Canada last summer, be drafted in a manner that is
sufficiently flexible to allow us to make prompt payments to
the fishermen. We have other concerns, which are addressed in
our detailed comments as well. We hope that we can work with
you to conclude the drafting of this bill quickly, and in a
manner which will allow expeditious implementation.
As provided in current law, we will pursue all possible
avenues for reimbursement from Canada.
I hope this information is useful to you. Please do not
hesitate to call if we can be of further assistance.
Wendy R. Sherman,
Assistant Secretary, Legislative Affairs.
Comments On H.R. 716
In response to Canada's imposition of ``transit fees'' on
U.S. fishing vessels transiting the ``Inside Passage'' last
June, the Administration and concerned Members of Congress
suggested that fishermen pay the fee, under protest, and that
they file for reimbursement under the Fishermen's Protective
Act of 1967 (22 U.S.C. 1971-1980--the Act). Several bills to
amend the Act to give the Secretary of State the authority to
make this reimbursement were considered in the 103d Congress.
The Administration commented extensively on H.R. 3817 and on a
Senate bill, S. 2243. Title V of H.R. 4852, which was approved
by the full House on October 7, 1994, contained language
identical to S. 2243.
The Administration prefers the approach taken by H.R. 4852
in the last Congress. The remaining concerns with H.R. 716 are
set out below:
1. Free-standing Sec. 11
The Department prefers the addition of a new section to the
existing language of Fisherman's Protective Act to provide for
reimbursement of transit fees. In order to ensure that the
provisions regarding reimbursement for transit fees may
``sunset,'' once the Canadian problem is resolved, the
Administration supports the H.R. 4852 approach (i.e., a
separate section that addresses the specific problem). H.R. 716
proposes to amend 22 U.S.C. 1973, a section of the FPA which
was drafted to respond to other circumstances, to give the
Department authority to reimburse fishermen for these fees.
2. Authority to use unexpended balances of the FPF and FGF
The Department requires the flexibility to use unexpended
balances available in either the Fishermen's Protective Fund
(FPF) or the Fishermen's Guaranty Fund (FGF). H.R. 4852
provided the needed flexibility. The Department believes that
it is important to pay these claims quickly. In order to do so,
about 260 claims must be processed, certified for payment, and
paid. Thus, the Department must have maximum flexibility to
manage the claims process. Under current law, the FGF (22
U.S.C. 1977) is used to reimburse fishermen for losses
experienced under criteria in the FPA. The office responsible
for FGF claims has been the Department of State action office
for this problem from the start. It is prepared to deal with
these claims on a priority basis, but can do so only if the
legislation provides the needed flexibility.
H.R. 716 does not provide that flexibility. Under current
law the FPF (established under 22 U.S.C. 1973) reimburses
fishermen for fines and fees necessary to secure the release of
their vessels, when the seizures meet the criteria stated in
the FPA. This section of the FPA was drafted to address a
different situation than the one at hand. We believe it is best
not to broaden the scope of this section, but rather to add a
different section to address the specific problem.
3. Sunset provision
Reviewers of last year's draft legislation were concerned
that some might construe the establishment of a commitment to
reimburse transit fees as an entitlement and therefore
suggested that the provision expire, following a period of time
sufficient for fishermen involved to file their claims and be
reimbursed. The Department supports the language in SEC.
502.(g) of H.R. 4852, which terminates the authorization of the
free-standing transit fee (Section 11) portion of the FPA. H.R.
716 is a permanent change to the FPA, with no end point, and it
thus changes the scope of the Act significantly.
4. FGF fee collections
The collection of fees for participation in the FGF is not
related to the transit fee problem; both H.R. 4852 and H.R. 716
address a persistent technical problem concerning the match
between direct appropriations and fee collections
satisfactorily by deleting the third sentence in 22 U.S.C. 1977
5. Paygo problems
H.R. 716 would increase direct spending; therefore it is
subject to the pay-as-you-go requirement of the Omnibus Budget
Reconciliation Act of 1990. It is estimated that H.R. 716 would
increase direct spending by less than $500,000. The mechanism
established under the Fishermen's Protective Act at 22 U.S.C.
1975, calls for the Secretary of State to make claims from the
other government involved for any payments made under 22 U.S.C.
1973 or 22 U.S.C. 1977. The U.S. will pursue reimbursement for
transit fees from Canada through all possible avenues.
6. ``Unexpended balances''
Several reviewers of draft bills before the 103rd Congress
expressed concern that reimbursement to fishermen who paid
transit fees be limited to the portion of the unexpended
balance of funds in the 22 U.S.C. 1977 (FGF) account derived
from direct appropriations, rather than expend funds from the
portion derived from fee collections. Fees, direct
appropriations, and interest income are commingled in the FGF
account; no accurate accounting by source of funds is possible.
The language in H.R. 4852 is preferred over that in H.R. 716.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
FISHERMEN'S PROTECTIVE ACT OF 1967
* * * * * * *
Sec. 3. (a) In any case where a vessel of the United States
is seized by a foreign country under the conditions of section
2 and a fine, license fee, registration fee, or any other
direct charge must be paid in order to secure the prompt
release of the vessel and crew, or when a fee regarded by the
United States as being inconsistent with international law must
be paid for a vessel of the United States to transit the waters
of a foreign nation on a voyage between points in the United
States (including a point in the exclusive economic zone or an
area whose jurisdiction is in dispute), the owners of the
vessel shall be reimbursed by the Secretary of State in the
amount determined and certified by him as being the amount of
the fine, license fee, registration fee, or any other direct
charge actually paid. For purposes of this section, the term
``other direct charge'' means any levy, however characterized
or computed (including, but not limited to, any computation
based on the value of a vessel or the value of fish or other
property on board a vessel), which is imposed in addition to
any fine, license fee, or registration fee. Any reimbursement
under this section shall be made from the Fishermen's
Protective Fund established pursuant to section 9.
* * * * * * *
Sec. 5. (a) The Secretary of State shall--
(1) immediately notify a foreign country of--
(A) any reimbursement made by him under
section 3 as a result of the seizure of or
imposition of a fee regarded by the United
States as inconsistent with international law
on a vessel of the United States by such
* * * * * * *
Sec. 7. (a) * * *
* * * * * * *
(c) The Secretary shall from time to time establish by
regulation fees which shall be paid by the owners of vessels
entering into agreements under this section. Fees may be
collected regardless of whether needed to carry out the
purposes of subsection (a). Such fees shall be adequate (1) to
recover the costs of administering this section, and (2) to
cover a reasonable portion of any payments made by the
Secretary under this section. [The amount fixed by the
Secretary shall be predicated upon at least 33\1/3\ per centum
of the contribution by the Government.] All fees collected by
the Secretary shall be credited to a separate account
established in the Treasury of the United States which shall
remain available without fiscal year limitation to carry out
the provisions of this section. Those fees not currently needed
for payments under this section shall be kept on deposit or
invested in obligations of, or guaranteed by, the United States
and all revenues accruing from such deposits or investments
shall be credited to such separate account. If a transfer of
funds is made to the separate account under section 5(b)(2)
with respect to an unpaid claim and such claim is later paid,
the amount so paid shall be covered into the Treasury as
miscellaneous receipts. All payments under this section shall
be made first out of such fees so long as they are available,
and thereafter out of funds which are hereby authorized to be
appropriated to such account to carry out the provisions of
* * * * * * *
(e) The provisions of this section shall be effective until
[October 1, 1993] October 1, 1998, except that payments may be
made under this section only to such extent and in such amounts
as are provided in advance in appropriation Acts.
* * * * * * *
SECTION 15 OF THE MARINE MAMMAL PROTECTION ACT AMENDMENTS OF 1994
SEC. 15. TRANSITION RULE; IMPLEMENTING REGULATIONS.
(a) Transition Rule.--Section 114(a)(1) (16 U.S.C.
1383a(a)(1)) is amended by striking ``ending [April 1, 1994,]
May 1, 1994.'' and inserting in lieu thereof ``until superseded
by regulations prescribed under section 118, or until September
1, 1995, whichever is earlier,''.
* * * * * * *
SECTION 114 OF THE MARINE MAMMAL PROTECTION ACT OF 1972
Interim Exemption for Commercial Fisheries
Sec. 114. (a)(1) During the period beginning on the date of
enactment of this section and ending [May 1, 1994.] until
superseded by regulations prescribed under section 118, or
until September 1, 1995, whichever is earlier, except as
provided in paragraph (2), the provisions of this section,
rather than sections 101, 103, and 104, shall govern the
incidental taking of marine mammals in the course of commercial
fishing operations by persons using vessels of the United
States and vessels which have valid fishing permits issued by
the Secretary in accordance with section 204(b) of the Magnuson
Fishery Conservation and Management Act (16 U.S.C. 1824(b)). In
any event it shall be the immediate goal that the incidental
kill or serious injury of marine mammals permitted in the
course of commercial fishing operations be reduced to
insignificant levels approaching a zero mortality and serious
* * * * * * *