[House Report 110-740]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-740
======================================================================
SHARK CONSERVATION ACT OF 2008
_______
July 8, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 5741]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 5741) to amend the High Seas Driftnet Fishing
Moratorium Protection Act and the Magnuson-Stevens Fishery
Conservation and Management Act to improve the conservation of
sharks, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Shark Conservation Act of 2008''.
SEC. 2. AMENDMENT OF HIGH SEAS DRIFTNET FISHING MORATORIUM PROTECTION
ACT.
Section 610(a) of the High Seas Driftnet Fishing Moratorium
Protection Act (16 U.S.C. 1826k(a)) is amended--
(1) by striking so much as precedes paragraph (1) and
inserting the following:
``(a) Identification.--The Secretary shall identify, and list in the
report under section 607--
``(1) a nation if--'';
(2) in paragraph (1) by redesignating subparagraphs (A) and
(B) as clauses (i) and (ii), respectively;
(3) by redesignating paragraphs (1) through (3) as
subparagraphs (A) through (C), respectively;
(4) by moving subparagraphs (A) through (C) (as so
redesignated) 2 ems to the right;
(5) in subparagraph (C) (as so redesignated) by striking the
period at the end and inserting ``; and''; and
(6) by adding at the end the following:
``(2) a nation if--
``(A) fishing vessels of that nation are engaged, or
have been engaged during the preceding calendar year,
in fishing activities or practices that target or
incidentally catch sharks; and
``(B) the nation has not adopted a regulatory program
to provide for the conservation of sharks, including
measures to prohibit removal of any of the fins of a
shark (including the tail) and discarding the carcass
of the shark at sea, that is comparable to that of the
United States, taking into account different
conditions.''.
SEC. 3. AMENDMENT OF MAGNUSON-STEVENS FISHERY CONSERVATION AND
MANAGEMENT ACT.
Section 307(1) of Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1857(1)) is amended--
(1) by amending subparagraph (P) to read as follows:
``(P)(i) to remove any of the fins of a shark
(including the tail) at sea;
``(ii) to have custody, control, or possession of any
shark fin aboard a fishing vessel unless it is
naturally attached to the corresponding carcass;
``(iii) to transfer any shark fin from one vessel to
another vessel at sea, or to receive any shark fin in
such transfer, without the fin naturally attached to
the corresponding carcass; or
``(iv) to land any shark fin that is not naturally
attached to the corresponding carcass, or to land any
shark carcass without the fins (including the tail)
naturally attached;''; and
(2) by striking the matter following subparagraph (R).
Purpose of the Bill
The purpose of H.R. 5741 is to amend the High Seas Driftnet
Fishing Moratorium Protection Act and the Magnuson-Stevens
Fishery Conservation and Management Act to improve the
conservation of sharks.
Background and Need for Legislation
Sharks are long-lived apex predators with a life history
strategy featuring slow growth, delayed maturation, long
gestation, and the production of few young, making them
particularly vulnerable to fishing pressure. Sharks have been
increasingly exploited in recent decades, both as bycatch in
the pelagic longline fisheries from the 1960s onward, and as
targets in direct fisheries that expanded rapidly in the 1980s.
As a result, scalloped hammerhead, white, and thresher sharks
are each estimated to have declined by over 75% in the past 15
years.\1\ Globally, large predator species such as sharks are
estimated to have declined by as much as 90%.\2\
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\1\Baum, Julia K. et al., Collapse and Conservation of Shark
Populations in the Northwest Atlantic, Science, April 15, 2008.
\2\Meyer, RA and Boris Worm. Nature, May 15, 2003, pp. 280-283.
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Removing these top predators drastically changes the marine
food web structure, diversity and ecosystem health. The
practice of shark finning--which is driving much of this
decline--is fueled by the shark fin trade, which in turn is
driven by rapid economic growth in Asia. Reducing shark finning
is imperative to conserving sharks and the marine ecosystems of
which they are a part.
Congress enacted the Shark Finning Prohibition Act of 2000
to prohibit U.S. fishermen from removing the fins of sharks and
discarding the carcass at sea (known as finning), and from
landing or transporting shark fins without the corresponding
carcass. Since the passage of the U.S. law, many other
countries and regional fisheries management organizations have
adopted similar bans. Recent developments with respect to
application of the U.S. law, however, as well as the
ineffectiveness of some international efforts, led to the
introduction of the Shark Conservation Act of 2008 to further
bolster the conservation of these important predator species.
As originally introduced in 2000, the U.S. prohibition only
banned the practice of shark finning, but during consideration
of the bill it became clear that the Committee was very
concerned with the possibility that vessels could circumvent a
ban by going to the high seas and buying fins and then
transporting them ashore or to other vessels.
On April 13, 2000, during the legislative hearing of the
Subcommittee on Fisheries, Wildlife and Oceans on this Act,
Congressman Eni F. H. Faleomavaega (D-AS) expressed this
concern, stating, ``Many shark fins never make it to port, but
are transshipped at sea to foreign fishing vessels. The volume
and value of these transshipments are poorly documented * * * I
am forced to ask: How are we ever going to eliminate the
practice of shark finning if we allow transshipments to take
place under our noses * * *?'' During the May 8, 2000
Subcommittee markup, Congressman Faleomavaega successfully
offered an amendment to address the transshipment concern by
prohibiting the custody, control, or possession of shark fins
on fishing vessels or the landing of shark fins without the
corresponding carcass by any vessel. With this amendment, the
Committee assumed that finning, as well as transshipment would
be successfully prohibited.
In particular, the Committee believed that the concerns
regarding transshipment had been addressed based on the
definition of fishing vessel found in the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson). Because the
Shark Finning Prohibition Act was an amendment to the
prohibited acts section of Magnuson, the definitions in
Magnuson applied to the prohibitions in the bill. Specifically,
Magnuson defines a fishing vessel as `` any vessel, boat, ship,
or other craft which is used for, equipped to be used for, or
of a type which is normally used for--(A) fishing; or (B)
aiding or assisting one or more vessels at sea in the
performance of any activity relating to fishing, including, but
not limited to, preparation, supply, storage, refrigeration,
transportation, or processing.'' (emphasis added) Recent events
have made further changes to the law necessary to ensure that
the transport vessels, which Congress thought it had
encompassed in 2000 are, in fact, subject to the law.
The Shark Conservation Act of 2008 includes several
measures to strengthen the implementation and enforcement of
the Shark Finning Prohibition Act and to confirm the original
intent of Congress to prevent shark finning and the
transshipment and landing of shark fins without carcasses.
First, the bill would eliminate an enforcement loophole
related to the transport of shark fins by prohibiting the
transfer of shark fins from one vessel to another at sea
without the corresponding carcass. This loophole was brought to
light when the Ninth Circuit Court of Appeals ruled that a U.S.
vessel, which had purchased fins from several fishing vessels
engaged in finning on the high seas to transport them to
Guatemala, was not considered a fishing vessel under the
definition of such vessels found in Magnuson (despite what
Congress had assumed when they passed the bill in 2000) and
therefore not subject to the prohibition on transporting fins
without the corresponding carcasses. H.R. 5741, therefore, adds
the new prohibition regarding the transfer of fins from one
vessel to another at sea without the corresponding carcass.
This would preclude a vessel from circumventing the ban on
finning by going out and purchasing the illegally harvested
fins on the high seas and then transporting them back to U.S.
ports or elsewhere. It would not preclude container vessels or
other vessels from transporting fins that were harvested
legally and then brought to shore.
Second, the bill would address the difficulty that has
become apparent in enforcing the statute's percentage-based
standard. It would delete the rebuttable presumption that any
shark fins landed were taken, held, or landed in violation of
the law if the total weight of shark fins landed or found on
board exceeds five percent of the total weight of shark
carcasses. This ``fin to carcass'' ratio was intended to
provide a mechanism for enforcing the finning prohibition by
ensuring that the amount of fins landed is proportional to the
amount of bodies. However, it has proven very difficult to
determine whether a given set of fins belong to a particular
dressed carcass. Agency law enforcement personnel have reported
incidents of fishermen mixing fins and carcasses for maximum
profit and continuing to discard less desirable, finned sharks
at sea. As an alternative to the rebuttable presumption, H.R.
5741 would require that sharks be landedwith fins naturally
attached. This ``fins attached'' requirement also applies to the
custody, transfer of fins at sea from one vessel to another, and to the
landing of shark fins.
Finally, H.R. 5741 would amend the High Seas Driftnet
Fishing Moratorium Protection Act to allow the Secretary of
Commerce to identify and list nations that have fishing vessels
that have not adopted a regulatory program for the conservation
of sharks that is similar to that of the U.S. This amendment
would further promote the conservation of sharks
internationally and provide a more equal playing field for U.S.
fishermen.
Committee Action
H.R. 5741 was introduced on April 9, 2008 by Representative
Madeleine Bordallo (D-GU). The bill was referred to the
Committee on Natural Resources, and within the Committee to the
Subcommittee on Fisheries, Wildlife and Oceans.
On April 16, 2008, the Subcommittee held a hearing on the
bill. Dr. Rebecca Lent, Director of NOAA Fisheries' Office of
International Affairs expressed concerns about removing the
rebuttable presumption absent an alternative enforcement
mechanism. Dr. Lent referred to the requirement included in the
then-proposed rule for Amendment 2 to the Highly Migratory
Species Fishery Management Plan for Atlantic and Gulf of Mexico
sharks to require that sharks be landed with fins naturally
attached, while noting the absence of such a requirement in the
Pacific. Captain Michael Giglio, Chief of the Office of Law
Enforcement, U.S. Coast Guard, also supported the fins-attached
approach proposed by NOAA in the Atlantic, stating that, ``This
will significantly aid at-sea enforcement with respect to
Atlantic sharks, but we still face challenges in the Pacific
due to the current regulatory regime.'' (Landing sharks with
the fins naturally attached has, however, been required under
Hawaii state law since 2000.)
On June 4, 2008, the Subcommittee met to mark up the bill.
Responding to the concerns raised by the Administration,
Congresswoman Bordallo (D-GU) offered an amendment in the
nature of a substitute to restore the rebuttable presumption
that was eliminated in the bill as introduced. The amendment
also tightened the language intended to close the loophole
related to vessel transport of fins. It was adopted by voice
vote. The bill was then forwarded, as amended, to the Full
Committee.
On June 11, 2008, the Full Natural Resources Committee met
to consider the bill. Representative Eni Faleomavaega (D-AS)
offered an amendment once again striking the rebuttable
presumption but providing an alternative enforcement mechanism
by requiring that sharks be landed with fins naturally
attached. It was adopted by voice vote. The bill, as amended,
was then ordered favorably reported to the House of
Representatives by voice vote.
Section-by-Section Analysis
Section 1. Short title
Section 1 provides that this bill may be cited as the
``Shark Conservation Act of 2008''.
Section 2. Amendment of High Seas Driftnet Fishing Moratorium
Protection Act
Section 2 authorizes the Secretary of Commerce to list a
nation if its fishing vessels are engaged in fishing activities
that target or incidentally catch sharks and if the nation has
not adopted a regulatory program to conserve sharks, including
prohibiting shark finning, that is comparable to that of the
U.S.
Section 3. Amendment of Magnuson-Stevens Fishery Conservation and
Management Act
Section 3 prohibits shark finning, possessing a shark fin
that is not attached to the carcass on a fishing vessel,
transferring a shark fin that is not attached to the carcass
from one vessel to another at sea, or landing a shark fin that
is not attached to the carcass. Section 3 also strikes the
rebuttable presumption in section 307(1) of the Magnuson-
Stevens Fishery Conservation and Management Act.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) 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 this bill. However, clause 3(d)(3)(B)
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 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the High Seas Driftnet
Fishing Moratorium Protection Act and the Magnuson-Stevens
Fishery Conservation and Management Act to improve the
conservation of sharks.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII 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 this bill from the Director of the Congressional Budget
Office:
H.R. 5741--Shark Conservation Act of 2008
Summary: H.R. 5741 would prohibit certain activities that
may involve shark finning (the practice of removing a shark's
fins and discarding its carcass). The legislation also would
direct the National Oceanic and Atmospheric Administration
(NOAA) to identify foreign nations that do not sufficiently
regulate fishing practices that harm sharks.
Based on information provided by NOAA and assuming the
availability of appropriated funds, CBO estimates that
implementing H.R. 5741 would cost $5 million over the 2009-2013
period. Enacting the legislation would not affect revenues or
direct spending.
H.R. 5741 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would not affect
the budgets of state, local, or tribal governments.
H.R. 5741 would impose a private-sector mandate, as defined
in UMRA, by requiring that shark fins aboard fishing vessels,
shark fins transferred or received at sea, and shark fins
landed at a U.S. port be naturally attached to the carcass. CBO
estimates that the cost of complying with the mandate would
fall well below the annual threshold established in UMRA for
private-sector mandates ($136 million in 2008, adjusted
annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 5741 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year in millions of dollars--
--------------------------------------------------
2009 2010 2011 2012 2013 2009-2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level................................ 1 1 1 1 1 5
Estimated Outlays............................................ 1 1 1 1 1 5
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that H.R.
5741 will be enacted by the end of fiscal year 2008 and that
the necessary amounts will be appropriated for each year.
H.R. 5741 would require NOAA to identify any nation that
has not adopted a conservation program for sharks similar to
that of the United States if fishing vessels of that nation
catch sharks. The bill also would amend the Mangnuson-Stevens
Fishery Conservation and Management Act to prohibit fishing
vessels from possessing shark fins that are not naturally
attached to a carcass. Based on information provided by NOAA,
CBO estimates that the agency would need $1 million for each of
fiscal years 2009 through 2013 to expand existing reports on
fishing practices, to enforce new prohibitions on possessing
shark fins, and to help foreign nations improve their shark
conservation efforts by hiring new regulators and developing
new laws and enforcement mechanisms.
Estimated impact on state, local, and tribal governments:
H.R. 5741 contains no intergovernmental mandates as defined in
UMRA and would not affect the budgets of state, local, or
tribal governments.
Estimated impact on the private sector: H.R. 5741 would
impose a private-sector mandate as defined in UMRA. The bill
would make it unlawful to possess shark fins aboard fishing
vessels, transfer or receive shark fins at sea, or land shark
fins at a U.S. port without the fin naturally attached to the
carcass. CBO estimates that the cost to comply with the mandate
would fall well below the annual threshold established in UMRA
for private-sector mandates ($136 million in 2008, adjusted
annually for inflation).
Current law prohibits the possession of a shark fin on a
fishing vessel and the landing of a shark fin at a U.S. port
without the corresponding carcass. By requiring fins to be
naturally attached to the shark, the bill would impose an
additional mandate on owners and operators of those vessels.
Because the National Marine Fisheries Service has issued a
final rule with the same requirement for sharks harvested in
the Atlantic Ocean, the mandate would apply only to vessels in
the Pacific Ocean. If the requirement for Pacific sharks is
implemented in a manner similar to the rule for Atlantic
sharks, leaving fins attached by a flap of skin would be
considered naturally attached and compliant with the mandate.
Compared to leaving the fins completely attached, that process
would provide for easier storage aboard the vessel and removal
of the fin once landed. CBO expects that the mandate in the
bill would be enforced in this manner and thus would not impose
significant additional costs on owners and operators of
vessels.
The bill also would impose a mandate on the owners and
operators of certain U.S. vessels by prohibiting the vessels
from receiving shark fins at sea that are not naturally
attached to the carcass. The cost would be any net loss in
income to the owners and operators of those vessels. CBO
estimates that the cost would not be significant in relation to
the threshold established in UMRA.
Estimate prepared by: Federal Costs: Deborah Reis and
Jeffrey Lafave; Impact on State, Local, and Tribal Governments:
Neil Hood; Impact on the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Earmark Statement
H.R. 5741 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) 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):
SECTION 610 OF THE HIGH SEAS DRIFTNET FISHING MORATORIUM PROTECTION ACT
SEC. 610. EQUIVALENT CONSERVATION MEASURES.
[(a) Identification.--The Secretary shall identify, and list
in the report under section 607, a nation if--]
(a) Identification.--The Secretary shall identify, and list
in the report under section 607--
(1) a nation if--
[(1)] (A) fishing vessels of that nation are
engaged, or have been engaged during the
preceding calendar year in fishing activities
or practices;
[(A)] (i) in waters beyond any
national jurisdiction that result in
bycatch of a protected living marine
resource; or
[(B)] (ii) beyond the exclusive
economic zone of the United States that
result in bycatch of a protected living
marine resource shared by the United
States;
[(2)] (B) the relevant international
organization for the conservation and
protection of such resources or the relevant
international or regional fishery organization
has failed to implement effective measures to
end or reduce such bycatch, or the nation is
not a party to, or does not maintain
cooperating status with, such organization; and
[(3)] (C) the nation has not adopted a
regulatory program governing such fishing
practices designed to end or reduce such
bycatch that is comparable to that of the
United States, taking into account different
conditions[.]; and
(2) a nation if--
(A) fishing vessels of that nation are
engaged, or have been engaged during the
preceding calendar year, in fishing activities
or practices that target or incidentally catch
sharks; and
(B) the nation has not adopted a regulatory
program to provide for the conservation of
sharks, including measures to prohibit removal
any of the fins of a shark (including the tail)
and discarding the carcass of the shark at sea,
that is comparable to that of the United
States, taking into account different
conditions.
* * * * * * *
----------
SECTION 307 OF THE MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT
ACT
SEC. 307. PROHIBITED ACTS.
It is unlawful--
(1) for any person--
(A) * * *
* * * * * * *
[(P)(i) to remove any of the fins of a shark
(including the tail) and discard the carcass of
the shark at sea;
[(ii) to have custody, control, or possession
of any such fin aboard a fishing vessel without
the corresponding carcass; or
[(iii) to land any such fin without the
corresponding carcass;]
(P)(i) to remove any of the fins of a shark
(including the tail) at sea;
(ii) to have custody, control, or possession
of any shark fin aboard a fishing vessel unless
it is naturally attached to the corresponding
carcass;
(iii) to transfer any shark fin from one
vessel to another vessel at sea, or to receive
any shark fin in such transfer, without the fin
naturally attached to the corresponding
carcass; or
(iv) to land any shark fin that is not
naturally attached to the corresponding
carcass, or to land any shark carcass without
the fins (including the tail) naturally
attached;
* * * * * * *
[For purposes of subparagraph (P) there is a rebuttable
presumption that any shark fins landed from a fishing
vessel or found on board a fishing vessel were taken,
held, or landed in violation of subparagraph (P) if the
total weight of shark fins landed or found on board
exceeds 5 percent of the total weight of shark
carcasses landed or found on board.]
* * * * * * *
ADDITIONAL VIEWS
Due to an mistaken court ruling, a loophole was opened in
the Shark Finning Prohibition Act of 2000 (Act) which allowed
fishermen to transfer fins at sea to transshipment vessels.
This was clearly a violation of the Act, but the court ruled
otherwise. The primary reason for the Shark Finning Prohibition
Act of 2000 was to require fishermen to land the carcasses of
the sharks they had caught so that fishery managers could
determine the level and type of shark species being harvested.
For fish species such as sharks that have long life
histories, good management is critical and in order to have
good management for the shark fisheries, we need to have
accurate data on the types and numbers of sharks being taken by
fishermen. It is also important to respect the expertise of the
fishery managers. It is important that those Councils that
authorize shark harvests and the National Marine Fisheries
Service (NMFS) determine whether this legislation, as amended,
works for the fisheries they manage or not. It is important
that not only will this legislation produce better information
for fishery managers, but also for enforcement purposes.
A proposal to require similar landing requirements for east
coast shark fisheries--which are managed by NMFS--has just been
finalized; however, the west coast shark fisheries are managed
by at least two Councils and we have not heard back from them
whether such a requirement would be acceptable. I am concerned
that this legislation may be viewed as short-circuiting the
ability of people from the industry to comment on the proposal
through the normal Council process and that is unfortunate.
The court was clearly wrong in their decision and I am glad
that we are overriding the court decision in this case. I hope
that the legislation, as amended, will clarify the intent of
the original legislation and will not cause unintended
consequences that make enforcement more difficult.
Don Young.