13. Fishermen's Protective Act of 1967, as amended 1

Public Law 83-680 [H.R. 9584], 68 Stat. 883, approved August 27, 1954; as amended by Public Law 90-482 [S. 2261], 82 Stat. 729, approved August 12, 1968; Public Law 92-219 [H.R. 3304], 85 Stat. 286, approved December 23, 1971; Public Law 92-569 [H.R. 7117], 86 Stat. 182, approved October 26, 1972; Public Law 92-594 [S. 3545], 86 Stat. 1313, approved October 27, 1972; Public Law 94-265 [Fishery Conservation and Management Act of 1976; H.R. 200], 90 Stat. 331 at 360, approved April 13, 1976; Public Law 94-273 [Fiscal Year Adjustment Act; S. 2445], 90 Stat. 375 at 377, approved April 21, 1976; Public Law 95-194 [S. 1184], 91 Stat. 1413, approved November 18, 1977; Public Law 95–376 [H.R. 10878], 92 Stat. 714, approved September 18, 1978; Public Law 95-541 [Antarctic Conservation Act of 1978; H.R. 7749], 92 Stat. 2048, approved October 28, 1978; Public Law 96-61 [S. 917], 96 Stat. 407, approved August 15, 1979; Public Law 96-289 [H.R. 6614], 94 Stat. 605, approved June 28, 1980; Public Law 96-561 [American Fisheries Promotion Act; S. 2163], 94 Stat. 3275 at 3301, approved December 22, 1980; Public Law 97-68 [S. 1191], 95 Stat. 1040, approved October 26, 1981; Public Law 98-364 [H.R. 4997], 98 Stat. 440 at 444, approved July 17, 1984; Public Law 99-659 [S. 991], 100 Stat. 3706; approved November 14, 1986; Public Law 100-151 [H.R. 2893], 101 Stat. 884, approved November 3, 1987; Public Law 100-350 [H.R. 4621], 102 Stat. 660, approved June 27, 1988; and by Public Law 100–711 [Mammal Protection Act Amendments of 1988; H.R. 4189], 102 Stat. 4755 at 4772, approved November 23, 1988

AN ACT To protect the rights of vessels of the United States on the high seas and in territorial waters of foreign countries.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That for the purposes of this Act 2 the term "vessel of the United States" shall mean any private vessel documented or certificated under the laws of the United States. Notwithstanding any other law, the documentation or certification of any such vessel shall not be considered to be affected, for the purposes of this Act, in any manner or to any extent if at any time during any voyage for the purpose of fishing beyond the fishery conservation zone 3 (as defined in section 3(8) of the Magnuson Fishery Conservation and Management Act of 1976 (16 U.S.C. 1802(8)), the vessel is commanded by other than a citizen of the United States.4

Sec. 2.5 If

1 Public Law 90-482 provided that this Act may be cited as the "Fisherman's Protective Act of 1967".

2 22 U.S.C. 1971.

3 The term "fishery conservation zone" originally was defined in sec. 3(8) of the Magnuson Fishery Conservation and Management Act of 1976. Public Law 99-659 struck out par. 8, changed any reference to "fishery conservation zone" in that Act to be a reference to "exclusive economic zone", and provided a definition of "exclusive economic zone" in par. 6, which reads as follows:

"(6) The term 'exclusive economic zone' means the zone established by Proclamation Numbered 5030, dated March 10, 1983. For purposes of applying this Act, the inner boundary of that zone is a line coterminous with the seaward boundary of each of the coastal States.".

4 This sentence was added by sec. 14 of Public Law 95-541 (92 Stat. 2057).

522 U.S.C. 1972. Sec. 403(a) of the Magnuson Fishery Conservation and Management Act of 1976 (Public Law 94-265; 90 Stat. 360) amended and restated sec. 2. The amendments made by Sec. 403 became effective on Mar. 1, 1977. Sec. 2 formerly read as follows:

Continued

(1) any vessel of the United States is seized by a foreign country on the basis of claims to jurisdiction that are not recognized by the United States, or on the basis of claims to jurisdiction recognized by the United States but exercised in a manner inconsistent with international law as recognized by the United States;

(2) any general claim of any foreign country to exclusive fishery management authority is recognized by the United States, and any vessel of the United States is seized by such foreign country on the basis of conditions and restrictions under such claim, if such conditions and restrictions

(A) are unrelated to fishery conservation and management,

(B) fail to consider and take into account traditional fishing practices of vessels of the United States,

(C) are greater or more onerous than the conditions and restrictions which the United States applies to foreign fishing vessels subject to the exclusive fishery management authority of the United States (as established in title I of the Magnuson Fishery Conservation and Management Act of 1976), or

(D) fail to allow fishing vessels of the United States equitable access to fish subject to such country's exclusive fishery management authority;

the Secretary of State, unless there is clear and convincing credible evidence that the seizure did not meet the requirements under paragraph (1) or (2), as the case may be, shall immediately take such steps as are necessary-7

(i) for the protection of such vessel and for the health and welfare of its crew;

(ii) to secure the release of such vessel and its crew; and (iii) to determine the amount of any fine, license fee, registration fee, or other direct charge reimbursable under section 3(a) of this Act.

Sec. 3.8 (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

"Sec. 2. In any case where

"(a) a vessel of the United States is seized by a foreign country on the basis of rights or claims in territorial waters or the high seas which are not recognized by the United States; and

"(b) there is no dispute of material facts with respect to the location or activity of such vessel at the time of such seizure, the Secretary of State shall as soon as practicable take such action as he deems appropriate to attend to the welfare of such vessel and its crew while it is held by such country to secure the release of such vessel and crew, and to immediately ascertain the amount of any fine, fee, or other direct charge which may be reimbursable under section 3(a).". Sec. 303(a)(1) of Public Law 98-364 (98 Stat. 444) amended and restated par. (1). It previously read as follows:

"(1) any vessel of the United States is seized by a foreign country on the basis of claims by territorial waters or the high seas which are not recognized by the United States; or".

Sec. 303(c) of Public law 98-364 further stated that this amendment would apply with respect to seizures made after April 1, 1983, by foreign countries of vessels of the United States.

7 Sec. 303(a)(2) of Public Law 98-364 (98 Stat. 444) substituted the text to this point after subpar. (D) in lieu of the following: "and there is no dispute as to the material facts with respect to the location or activity of such vessel at the time of such seizure, the Secretary of State shall immediately take such steps as are necessary-".

Sec. 303(c) of Public Law 98-364 further stated that this amendment would apply with respect to seizures made after April 1, 1983, by foreign countries of vessels of the United States.

822 U.S.C. 1973. Public Law 90-482 amended sec. 3 by adding the words "license fee, registration fee, or any other direct charge." Public Law 92-569 redesignated sec. 3 as sec. 3(a), added the last sentence, and added a new subsec. (b).

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, the owners of the vessel shall be reimbursed by the Secretary of State in the amount 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. 10 Any reimbursement under this section shall be made from the Fishermen's Protective Fund established pursuant to section 9. (b) The Secretary of State shall make a determination and 11 certification under subsection (a) of this section as soon as possible after he is notified pursuant to section 2(b) of the amounts of the fines, fees, and other direct charges which were paid by the owners to secure the release of their vessel and crew. The amount of reimbursement made by the Secretary State 11 to the owners of any vessel under subsection (a) of this section shall constitute a lien on the vessel which may be recovered in proceedings by libel in rem in the district court of the United States for any district within which the vessel may be. Any such lien shall terminate on the ninetieth day after the date on which the Secretary of State 11 reimburses the owners under this section unless before such ninetieth day the United States initiates action to enforce the lien.

Sec. 4.12 The provisions of this Act shall not apply with respect to a seizure made by a country at war with the United States or a seizure made in accordance with the provisions of any applicable convention or treaty, if that treaty or convention was made with advice and consent to the Senate and was in force and effect for the United States and the seizing country at the time of the seizure. 13

Sec. 5.14 (a) The Secretary of State shall

9 Sec. 302(a)(1) of Public Law 98-364 (98 Stat. 444) substituted the phrase "Secretary of State in the amount certified by him" in lieu of the phrase "Secretary of the Treasury in the amount certified to him by the Secretary of State".

10 The words to this point beginning with "For purposes of this section," were added by sec. 403(a)(2) of the Magnuson Fishery Conservation and Management Act of 1976 (Public Law 94265; 90 Stat. 360). This amendment applies to seizures of vessels of the United States occurring on or after Dec. 31, 1974.

11 Sec. 302(a)(2) of Public Law 98-364 (98 Stat. 444) amended subsec. (b) by inserting the words "determination and" in the first sentence, and by substituting the reference to the Secretary of State in lieu of a reference to the Secretary of the Treasury.

12 22 U.S.C. 1974.

13 Sec. 303(b) of Public Law 98-364 (98 Stat. 444) substituted the words to this point in sec. 4 beginning with "any applicable convention or treaty," in lieu of the following: "any fishery convention or treaty to which the United States is a party." Sec. 303(c) of Public Law 98-364 further stated that this amendment would apply with respect to seizures made after April 1, 1983, by foreign countries of vessels of the United States.

14 22 U.S.C. 1975. Public Law 92-569 amended and restated sec. 5. Previously, sec. 5 read as follows:

"The Secretary of State shall take such action as he may deem appropriate to make and collect claims against a foreign country for amounts expended by the United States under the provisions of this Act (including payments made pursuant to section 7) because of the seizure of a vessel of the United States by such country. If such country fails or refuses to make payment in full within one hundred and twenty days after receiving notice of any such claim of the United States, the Secretary of State shall withhold, pending such payment, an amount equal to such unpaid claim from any funds programed for the current fiscal year for assistance to the government of such country (as shown in materials concerning such fiscal year presented to the ConContinued

(1) immediately notify a foreign country of

(A) any reimbursement made by him 15 under section 3 as a result of the seizure of a vessel of the United States by such country;

(B) any payment made pursuant to section 7 in connection with such seizure, and

(2) take such action as he deems appropriate to make and collect claims against such foreign country for the amounts so reimbursed and payments so made.

(b) If a foreign country fails or refuses to make payment in full on any claim made under subsection (a)(2) of this section within one hundred and twenty days after the date on which such country is notified pursuant to subsection (a)(1) of this section, the Secretary of State shall transfer an amount equal to such unpaid claim or unpaid portion thereof from any funds appropriated by Congress and programed for the current fiscal year for assistance to the government of such country under the Foreign Assistance Act of 1961 unless the President 16 certifies to the Congress that it is in the national interest not to do so in the particular instance (and if such funds are insufficient to cover such claim, transfer shall be made from any funds so appropriated and programed for the next and any succeeding fiscal year) to (1) the Fishermen's Protective Fund established pursuant to section 9 if the amount is transferred with respect to an unpaid claim for a reimbursement made under section 3, or (2) the separate account established in the Treasury of the United States pursuant to section 7(c) if the amount is transferred with respect to an unpaid claim for a payment made under section 7(a). Amounts transferred under this section shall not constitute satisfaction of any such claim of the United States against such foreign country.

Sec. 6.17 There are authorized to be appropriated such amounts as may be necessary to carry out the provisions of this Act.

Sec. 7.18 (a) The Secretary, upon receipt of an application filed with him at any time after the effective date of this section by the owner of any vessel of the United States which is documented or certificated as a commercial fishing vessel, shall enter into an agreement with such owner subject to the provisions of this section and such other terms and conditions as the Secretary deems appro

gress in connection with its consideration of amendments to the Foreign Assistance Act of 1961). Amounts withheld under this section shall not constitute satisfaction of any such claim of the United States against each foreign country.".

Previously, this section was amended and restated by Public Law 90-482.

15 Sec. 302(b) of Public Law 98-364 (98 Stat. 444) substituted "him" in lieu of a reference to the Secretary of the Treasury.

16 Executive Order 11772 (Mar. 21, 1974; 39 F.R. 10879) provided the following:

"DELEGATING CERTAIN AUTHORITY OF THE PRESIDENT TO THE SECRETARY OF STATE

"By virtue of the authority vested in me by the Fishermen's Protective Act of 1967, as amended (22 U.S.C. 1971, et seq.), and Section 301 of Title 3 of the United States Code, and as President of the United States of America, the Secretary of State is hereby designated and empowered to exercise, without ratification, or other action of the President, the function conferred upon the President by Section 5(b) of the Fishermen's Protective Act of 1967, as amended, of certifying to the Congress that it is in the national interest not to transfer to the Fishermen's Protective Fund or to the separate account established under the Act, pursuant to that Section, amounts appropriated by the Congress and programmed for assistance under the Foreign Assistance Act of 1961.".

17 22 U.S.C. 1976.

18 22 U.S.C. 1977. Sec. 7 was added by Public Law 90-482.

priate. Such agreement shall provide that, if said vessel is seized by a foreign country and detained under the conditions of section 2 of this Act, the Secretary shall guarantee

(1) the owner of such vessel for all actual costs, except those covered by section 3 of this Act, incurred by the owner during the seizure and detention period and as a direct result thereof, as determined by the Secretary, resulting (A) from any damage to, or destruction of, such vessel, or its fishing gear or other equipment, (B) from the loss of confiscation of such vessel, gear, or equipment, or (C) from dockage fees or utilities;

(2) the owner of such vessel and its crew for the market value of fish caught before seizure of such vessel and confiscated or spoiled during the period of detention; and

(3) the owner of such vessel and its crew for not to exceed 50 per centum of the gross income lost as a direct result of such seizure and detention, as determined by the Secretary of the Interior, based on the value of the average catch per day's fishing during the three most recent calendar years immediately preceding such seizure and detention of the vessel seized, or, if such experience is not available, then of all commercial fishing vessels of the United States engaged in the same fishery as that of the type and size of the seized vessel.

(b) Payments made by the Secretary under paragraphs (2) and (3) of subsection (a) of this section shall be distributed by the Secretary in accordance with the usual practices and procedures of the particular segment of the United States commercial fishing industry to which the seized vessel belongs relative to the sale of fish caught and the distribution of the proceeds of such sale.

(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. 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% 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. 19 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.20 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 this section.

19 This sentence was added by sec. 1 of Public Law 97-68 (95 Stat. 1040). 20 This sentence was added by sec. 4 of Public Law 92-569 (86 Stat. 1183).