16 U.S.C. § 1826j

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 1826j - Illegal, unreported, or unregulated fishing

(a) Identification

(1) Identification for actions of fishing vessels

The Secretary shall, based on a cumulative compilation and analysis of data collected and provided by international fishery management organizations and other nations and organizations, identify, and list in the report under section 1826h of this title, a nation if any fishing vessel of that nation is engaged, or has been engaged at any point during the preceding 3 years, in illegal, unreported, or unregulated fishing-

(A) that undermines the effectiveness of measures required by an international fishery management organization, taking into account whether the relevant international fishery management organization has failed to implement effective measures to end the illegal, unreported, or unregulated fishing activity by that nation or the nation is not a party to, or does not maintain cooperating status with, such organization; or

(B) where no international fishery management organization exists with a mandate to regulate the fishing activity in question.

(2) For actions of a nation

The Secretary shall identify, and list in such report, a nation engaging in or endorsing illegal, unreported, or unregulated fishing. In determining which nations to list in such report, the Secretary shall consider the following:

(A) Any nation that is violating, or has violated at any point during the 3 years preceding the date of the determination, conservation and management measures, including catch and other data reporting obligations and requirements, required under an international fishery management agreement to which the United States is a party.

(B) Any nation that is failing, or has failed in the 3-year period preceding the date of the determination, to effectively address or regulate illegal, unreported, or unregulated fishing within its fleets in any areas where its vessels are fishing.

(C) Any nation that fails to discharge duties incumbent upon it under international law or practice as a flag, port, or coastal state to take action to prevent, deter, and eliminate illegal, unreported, or unregulated fishing.

(D) Any nation that has been identified as producing for export to the United States seafood-related goods through forced labor or oppressive child labor (as those terms are defined in section 11329 of the Don Young Coast Guard Authorization Act of 2022) in the most recent List of Goods Produced by Child Labor or Forced Labor in accordance with the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7101 et seq.).

(3) Application to other entities

Where the provisions of this Act are applicable to nations, they shall also be applicable, as appropriate, to other entities that have competency to enter into international fishery management agreements.

(4) Timing

The Secretary shall make an identification under paragraph (1) or (2) at any time that the Secretary has sufficient information to make such identification.

(b) Notification

The Secretary shall notify the President and that nation of such an identification.

(c) Consultation

No later than 60 days after submitting a report to Congress under section 1826h of this title, the Secretary, acting through the Secretary of State, shall-

(1) notify nations listed in the report of the requirements of this section;

(2) initiate consultations for the purpose of encouraging such nations to take the appropriate corrective action with respect to the offending activities of their fishing vessels identified in the report; and

(3) notify any relevant international fishery management organization of the actions taken by the United States under this section.

(d) IUU certification procedure

(1) Certification

The Secretary shall establish a procedure, consistent with the provisions of subchapter II of chapter 5 of title 5, for determining if a nation identified under subsection (a) and listed in the report under section 1826h of this title has taken appropriate corrective action with respect to the offending activities identified in the report under section 1826h of this title. The certification procedure shall provide for notice and an opportunity for comment by any such nation. The Secretary shall determine, on the basis of the procedure, and certify to the Congress no later than 90 days after the date on which the Secretary promulgates a final rule containing the procedure, and biennially thereafter in the report under section 1826h of this title-

(A) whether the government of each nation identified under subsection (a) has provided documentary evidence that it has taken corrective action with respect to the offending activities identified in the report; or

(B) whether the relevant international fishery management organization has implemented measures that are effective in ending the illegal, unreported, or unregulated fishing activity by vessels of that nation.

(2) Alternative procedure

The Secretary may establish a procedure to authorize, on a shipment-by-shipment, shipper-by-shipper, or other basis the importation of fish or fish products from a vessel of a nation issued a negative certification under paragraph (1) if the Secretary determines that-

(A) the vessel has not engaged in illegal, unreported, or unregulated fishing under an international fishery management agreement to which the United States is a party; or

(B) the vessel is not identified by an international fishery management organization as participating in illegal, unreported, or unregulated fishing activities.

(3) Effect of certification determination

(A) Effect of negative certification

The provisions of subsection (a) and paragraphs (3) and (4) of subsection (b) of section 1826a of this title shall apply to any nation that, after being identified and notified under subsection (b) has failed to take the appropriate corrective actions for which the Secretary has issued a negative certification under this subsection.

(B) Effect of positive certification

The provisions of subsection (a) and paragraphs (3) and (4) of subsection (b) of section 1826a of this title shall not apply to any nation identified under subsection (a) for which the Secretary has issued a positive certification under this subsection.

(e) Illegal, unreported, or unregulated fishing defined

(1) In general

In this Act the term "illegal, unreported, or unregulated fishing" has the meaning established under paragraph (2).

(2) Secretary to define term within legislative guidelines

Within 3 months after January 12, 2007, the Secretary shall publish a definition of the term "illegal, unreported, or unregulated fishing" for purposes of this Act.

(3) Guidelines

The Secretary shall include in the definition, at a minimum-

(A) fishing activities that violate conservation and management measures required under an international fishery management agreement to which the United States is a party, including catch limits or quotas, capacity restrictions, bycatch reduction requirements, and shark conservation measures;

(B) overfishing of fish stocks shared by the United States, for which there are no applicable international conservation or management measures or in areas with no applicable international fishery management organization or agreement, that has adverse impacts on such stocks; and

(C) fishing activity that has an adverse impact on seamounts, hydrothermal vents, and cold water corals located beyond national jurisdiction, for which there are no applicable conservation or management measures or in areas with no applicable international fishery management organization or agreement.

(f) Authorization of appropriations

There are authorized to be appropriated to the Secretary for fiscal years 2007 through 2013 such sums as are necessary to carry out this section.

16 U.S.C. § 1826j

Pub. L. 104-43, title VI, §609, as added Pub. L. 109-479, title IV, §403(a), Jan. 12, 2007, 120 Stat. 3628; amended Pub. L. 111-348, title I, §102(b), Jan. 4, 2011, 124 Stat. 3669; Pub. L. 114-81, title I, §101(c), (e), (g) (1), (2), (i)(2)-(4), Nov. 5, 2015, 129 Stat. 654, 655; Pub. L. 114-327, title IV, §401(c), Dec. 16, 2016, 130 Stat. 1995; Pub. L. 117-263 title CXIII, §11337, Dec. 23, 2022, 136 Stat. 4102; Pub. L. 117-328, div. S, title IV, §401(1), Dec. 29, 2022, 136 Stat. 5274.

EDITORIAL NOTES

REFERENCES IN TEXTSection 11329 of the Don Young Coast Guard Authorization Act of 2022, referred to in subsec. (a)(2)(D), is section 11329 of div. K of Pub. L. 117-263 which is set out as a note under section 1885a of this title.The Trafficking Victims Protection Act of 2000, referred to in subsec. (a)(2)(D), is div. A of Pub. L. 106-386, 114 Stat. 1466, which is classified principally to chapter 78 (§7101 et seq.) of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 7101 of Title 22 and Tables. This Act, referred to in subsecs. (a)(3) and (e)(1), (2), probably means title VI of Pub. L. 104-43, 109 Stat. 391, known as the High Seas Driftnet Fishing Moratorium Protection Act, which is classified generally to sections 1826d to 1826k of this title. For complete classification of title VI to the Code, see Short Title of 1995 Amendment note set out under section 1801 of this title and Tables.

CODIFICATIONSection was enacted as part of the High Seas Driftnet Fishing Moratorium Protection Act, and also as part of the Fisheries Act of 1995, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

AMENDMENTS2022-Subsec. (a)(2). Pub. L. 117-263, §11337(a)(1), added par. (2) and struck out former par. (2). Prior to amendment, text read as follows: "Taking into account the factors described under subsection (a)(1), the Secretary shall also identify, and list in such report, a nation- "(A) if it is violating, or has violated at any point during the preceding 3 years, conservation and management measures required under an international fishery management agreement to which the United States is a party and the violations undermine the effectiveness of such measures; or"(B) if it is failing, or has failed in the preceding 3-year period, to effectively address or regulate illegal, unreported, or unregulated fishing in areas described under paragraph (1)(B)." Subsec. (a)(4). Pub. L. 117-263, §11337(a)(2), added par. (4).Subsec. (d)(3). Pub. L. 117-263, §11337(b)(1), added par. (3) and struck out former par. (3) which related to effect of certification.Subsecs. (e) to (g). Pub. L. 117-328, §401(1), redesignated subsecs. (f) and (g) as (e) and (f), respectively, and struck out former subsec. (e) which related to recordkeeping requirements. Pub. L. 117-263, §11337(b)(2), (3), added subsec. (e) and redesignated former subsecs. (e) and (f) as (f) and (g), respectively. 2016-Subsec. (a)(1). Pub. L. 114-327 substituted "any fishing vessel of that nation is engaged, or has" for "fishing vessels of that nation are engaged, or have" in introductory provisions. 2015-Subsec. (a). Pub. L. 114-81, §101(g)(1), (2), designated existing provisions as par. (1), inserted heading, and, in introductory provisions, inserted ",based on a cumulative compilation and analysis of data collected and provided by international fishery management organizations and other nations and organizations," after "shall" and substituted "3 years" for "2 years"; redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), realigned margins, and, in subpar. (A), inserted "that undermines the effectiveness of measures required by an international fishery management organization, taking into account whether" before "the relevant" and struck out "vessels of" after "activity by"; and added pars. (2) and (3).Subsec. (b). Pub. L. 114-81, §101(c), amended subsec. (b) generally. Prior to amendment, text read as follows: "An identification under subsection (a) or section 1826k(a) of this title is deemed to be an identification under section 1826a(b)(1)(A) of this title, and the Secretary shall notify the President and that nation of such identification."Subsec. (d)(1). Pub. L. 114-81, §101(i)(2), struck out "of its fishing vessels" after "offending activities" in introductory provisions.Subsec. (d)(1)(A). Pub. L. 114-81, §101(i)(3), struck out "of its fishing vessels" after "offending activities".Subsec. (d)(2). Pub. L. 114-81, §101(i)(4), in introductory provisions, substituted "to authorize" for "for certification", inserted "the importation" after "or other basis", struck out "harvesting" before "nation", and substituted "issued a negative certification under paragraph (1)" for "not certified under paragraph (1)". Subsec. (d)(3)(A)(i). Pub. L. 114-81, §101(e), struck out "that has not been certified by the Secretary under this subsection, or" after "subsection (a)".2011-Subsec. (e)(3)(A). Pub. L. 111-348 substituted "bycatch reduction requirements, and shark conservation measures;" for "and bycatch reduction requirements;".

STATUTORY NOTES AND RELATED SUBSIDIARIES

CONSTRUCTIONNothing in amendment by Pub. L. 111-348 to be construed as affecting, altering, or diminishing the authority of the Secretary of Commerce to establish such conservation and management measures as the Secretary considers necessary and appropriate under sections 1852(a)(3) and 1854(g) of this title, see section 104 of Pub. L. 111-348 set out as a note under section 1826i of this title.

Secretary: The term "Secretary" means the Secretary of Commerce or his designee.
State: The term "State" means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and any other Commonwealth, territory, or possession of the United States.
bycatch: The term "bycatch" means fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards. Such term does not include fish released alive under a recreational catch and release fishery management program.
conservation and management: The term "conservation and management" refers to all of the rules, regulations, conditions, methods, and other measures (A) which are required to rebuild, restore, or maintain, and which are useful in rebuilding, restoring, or maintaining, any fishery resource and the marine environment; and (B) which are designed to assure that-(i) a supply of food and other products may be taken, and that recreational benefits may be obtained, on a continuing basis;(ii) irreversible or long-term adverse effects on fishery resources and the marine environment are avoided; and(iii) there will be a multiplicity of options available with respect to future uses of these resources.
fish: The term "fish" means finfish, mollusks, crustaceans, and all other forms of marine animal and plant life other than marine mammals and birds.
fishery: The term "fishery" means-(A) one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and(B) any fishing for such stocks.
fishing vessel: The term "fishing vessel" means 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.
fishing: The term "fishing" means-(A) the catching, taking, or harvesting of fish;(B) the attempted catching, taking, or harvesting of fish;(C) any other activity which can reasonably be expected to result in the catching, taking, or harvesting of fish; or(D) any operations at sea in support of, or in preparation for, any activity described in subparagraphs (A) through (C).Such term does not include any scientific research activity which is conducted by a scientific research vessel.
high seas: The term "high seas" means all waters beyond the territorial sea of the United States and beyond any foreign nation's territorial sea, to the extent that such sea is recognized by the United States.
overfishing: The terms "overfishing" and "overfished" mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis.