[Senate Report 114-388]
[From the U.S. Government Publishing Office]
Calendar No. 692
114th Congress } { Report
SENATE
2d Session } { 114-388
_______________________________________________________________________
ACCESS FOR SPORTFISHING ACT OF 2016
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 3099
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
November 28, 2016.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
69-010 WASHINGTON : 2016
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred fourteenth congress
second session
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida
ROY BLUNT, Missouri MARIA CANTWELL, Washington
MARCO RUBIO, Florida CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas ED MARKEY, Massachusetts
DAN SULLIVAN, Alaska CORY BOOKER, New Jersey
RON JOHNSON, Wisconsin TOM UDALL, New Mexico
DEAN HELLER, Nevada JOE MANCHIN, West Virginia
CORY GARDNER, Colorado GARY PETERS, Michigan
STEVE DAINES, Montana
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Christopher Day, Democratic Deputy Staff Director
Clint Odom, Democratic General Counsel
Calendar No. 692
114th Congress } { Report
SENATE
2d Session } { 114-388
======================================================================
ACCESS FOR SPORTFISHING ACT OF 2016
_______
November 28, 2016.--Ordered to be printed
_______
Mr. Thune, from the Committee on Commerce, Science, and Transportation,
submitted the following
R E P O R T
[To accompany S. 3099]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 3099) to preserve and enhance
saltwater fishing opportunities for recreational anglers, and
for other purposes, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
Purpose of the Bill
The purpose of S. 3099 is to preserve and enhance saltwater
fishing opportunities for recreational anglers. The bill would
prohibit implementation and enforcement of restrictions on
recreational fishing in Biscayne National Park (BNP), Florida,
that were not developed with the Fish and Wildlife Conservation
Commission of Florida (FWC). It also would prohibit shark
feeding, except for harvesting purposes in the exclusive
economic zone (EEZ). Lastly, it would require the Secretary of
Commerce to issue a final rule to implement the Billfish
Conservation Act of 2012 (16 U.S.C. 1827a).
Background and Needs
Biscayne National Park
Located adjacent to Miami in Biscayne Bay, the BNP is the
largest marine park in the National Park system.\1\ In June
2015, BNP officials finalized an update of the BNP's General
Management Plan (GMP), which was last updated in 1983. BNP
officials approved a no-fishing marine reserve in more than
10,000 acres of the BNP's most popular and productive fishing
area, despite commitments made by BNP officials to work with
stakeholders and the State of Florida to explore less
restrictive options. This decision ran counter to the
recommendations from stakeholders, the BNP's own working group,
and the FWC.\2\ In particular, the FWC stated that the GMP was
not consistent with the memorandum of understanding (MOU)
between the FWC and the BNP,\3\ which states that, ``FWC and
the [BNP] agree to seek the least restrictive management
actions necessary to fully achieve mutual management goals for
the fishery resources of the Park and adjoining areas.
Furthermore, both parties recognize the FWC's belief that
marine reserves (no-take areas) are overly restrictive and that
less-restrictive management measures should be implemented
during the duration of this MOU.''\4\
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\1\National Park Service, ``Ocean Parks,'' at http://www.nps.gov/
subjects/oceans/ocean-parks.html.
\2\National Park Service, Biscayne National Park Final General
Management Plan/Environmental Impact Statement, Vol. 2, Appendices F
and G, April, 2015, at http://www.parkplanning.nps.gov/
document.cfm?parkID=353&projectID=11168d&ocumentID=65801.
\3\Letter from Nick Wiley, Executive Director, Florida Fish and
Wildlife Commission to Lauren Milligan, Office of Intergovernmental
Programs, Department of Environmental Protection, July 14, 2015.
\4\Memorandum of Understanding between the State of Florida, Fish
and Wildlife Conservation Commission and the National Park Service,
Biscayne National Park. FWC Agreement No. 12179 and NPS Agreement
number G525000001, October 5, 2012.
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Despite these facts, the BNP states in its GMP that no-take
zones are more effective for managing coral reef fisheries
populations than other less restrictive options, and further
states that less restrictive options would be difficult to
enforce. It is troubling that such statements are patently
focused on fisheries management and directly conflict with
provisions in the MOU under which no-take areas are not to be
considered for fisheries management unless other less
restrictive measures have been tried and have failed.
The Committee believes the GMP will unnecessarily prohibit
all recreational and commercial fishing in the 10,522 acre
Marine Reserve Zone. While the GMP notes that the Marine
Reserve Zone represents only 7 percent of the entire water area
of the BNP, it fails to consider that it also encompasses some
of the most popular and productive fishing grounds in the
Biscayne Bay. There is insufficient scientific basis to support
fisheries closures in the GMP. The GMP cites scientific studies
relative to restoration of coral reef systems, but the validity
of these studies appears to be tenuous at best, and the broad
assumptions and conclusions in the GMP regarding the
effectiveness of no fishing zones are unaccompanied by serious
analysis, metrics, or other quantifiable measures to support
them.
The Committee also is concerned that the input and
interests of the State of Florida, the FWC, and numerous
boaters and anglers provided during the GMP planning process
and prior to the selection of the preferred alternative were
not given any meaningful consideration by the BNP. To select
the preferred alternative as the BNP did, with little if any
meaningful engagement with the State of Florida, is completely
inconsistent with the manner in which the State and the BNP
historically have managed fishing activity in the Biscayne Bay.
Since 1970, the State of Florida has conveyed a significant
amount of acreage to the BNP to be incorporated into the BNP,
and the BNP has, through its MOU with the FWC, agreed to share
responsibilities and authorities regarding fisheries management
and enforcement.
The Committee also notes that implementation of the Marine
Reserve Zone by the BNP would be inconsistent with Florida's
federally approved Coastal Zone Management Program under the
Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.).
Had the BNP adhered to the cooperative process established
under its MOU with the FWC, it would likely have avoided such
inconsistencies with the Florida Coastal Zone Management
Program.
For all these reasons, the Committee believes that the BNP
and FWC need to revisit the proposed Marine Reserve Zone to
ensure that any fishing restrictions imposed upon recreational,
charter, and commercial fishermen in the Biscayne Bay are the
least restrictive measures necessary to achieve conservation
and management goals.
Shark Feeding
Some dive charters introduce food (chum) to attract sharks
to their clients so they can see and photograph the sharks.
This is extremely dangerous because the divers may or may not
be in a cage and are at risk of attacks. Sharks also may learn
to associate divers with food since divers are feeding the
sharks directly from their hands. Marine biologists and other
interested parties agree that sharks attack humans because they
mistake humans for marine life.\5\ Concerns about the increased
likelihood of shark attacks apply both to the divers
participating in feeding trips and to other divers who
encounter previously fed sharks during non-feeding trips. These
concerns have led to State bans on the feeding of sharks for
all purposes (excluding feeding sharks for the purpose of
harvesting).\6\ Other than in the case of Federal waters off
Hawaii, no similar bans exist in Federal waters.
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\5\National Oceanic and Atmospheric Administration, ``NOAA
Fisheries Fact Sheet - Frequently Asked Questions About Sharks,'' at
http://www.nmfs.noaa.gov/sharks/FS_faq.html.
\6\Florida Fish and Wildlife Conservation Commission, ``Regulations
for Feeding Fish, Shark, or other Marine Species,'' at http://
myfwc.com/fishing/saltwater/recreational/feeding-fish.
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Billfish Conservation Act of 2012
More than two decades ago, the United States banned the
commercial sale and harvest of Atlantic-caught billfish
(marlin, sailfish, and spearfish), in order to maximize
recreational opportunities for these relatively rare fish.
Catch-and-release recreational angling for billfish generates
many millions of dollars in economic benefits to the U.S.
economy each year.\7\ On October 5, 2012, President Obama
signed into law the Billfish Conservation Act of 2012,
effectively banning the importation of all billfish into the
continental United States.\8\ This legislation was in response
to declining billfish populations due to overfishing by non-
U.S. commercial fishing fleets. In an effort to conserve
billfish, the Billfish Conservation Act of 2012 prohibits the
sale of nearly all billfish. The sale of swordfish is still
allowed and billfish may be caught if landed and retained in
Hawaii. The Hawaii exemption was for the purpose of protecting
traditional fisheries and markets in that State.\9\ The
rulemaking to implement that Act has not been completed,
however, thus its passage has not yet yielded any conservation
benefits.
---------------------------------------------------------------------------
\7\Congressional Sportsmen's Foundation ``Billfish Conservation Act
of 2012 Passes the House of Representatives,'' press release, September
12, 2012, at http://sportsmenslink.org/the-media-room/news/billfish-
conservation-act-of-2012-passes-the-house-of-representatives.
\8\P.L. 112-183
\9\Congressional Sportsmen's Foundation ``Billfish Conservation Act
of 2012 Becomes Law,'' press release, October 16, 2012, at http://
sportsmenslink.org/the-media-room/news/billfish-conservation-act-of-
2012-passes-the-house-of-representatives.
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Summary of Provisions
If enacted, S. 3099 would do the following:
Prohibit implementation or enforcement of
restrictions on recreational fishing activities in the BNP that
were not developed in coordination and consultation with the
FWC.
Prohibit any person from engaging in shark
feeding, with the exception of harvest purposes, in the EEZ.
Require the Secretary of Commerce to issue a final
rule implementing the Billfish Conservation Act of 2012 not
later than 45 days after the date of enactment of this Act.
Legislative History
S. 3099 was introduced on June 23, 2016, by Senator Nelson
and is cosponsored by Senator Rubio. Related bills have been
introduced by Senators Cassidy and Rubio (S. 2807) and
Representative Ros-Lehtinen (H.R. 3310). S. 2807 and H.R. 3310
would have required the National Park Service to have approval
from State fish and wildlife agencies before closing State
marine or Great Lakes waters to recreational or commercial
fishing.
On June 29, 2016, the Committee met in open Executive
Session and, by voice vote, ordered S. 3099 to be reported
favorably without amendment.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 3099--Access for Sportfishing Act of 2016
S. 3099 would prohibit the National Park Service (NPS) from
implementing or enforcing restrictions on fishing in Biscayne
National Park in Florida, unless the restrictions are developed
in coordination with the Florida Fish and Wildlife Conservation
Commission (FWC) and are the least restrictive measures
necessary for effective management of the fishery. The bill
also would require the National Oceanic and Atmospheric
Administration (NOAA) to issue a final regulation implementing
the Billfish Conservation Act of 2012, which prohibits the sale
of billfish, within 45 days of enactment of the bill. Finally,
S. 3099 would amend the Magnuson-Stevens Fishery Conservation
and Management Act to prohibit people from feeding sharks in
federal waters.
Based on information from the NPS and the FWC about the
agencies' positions on fishing restrictions within the park,
CBO expects that the NPS would probably not choose to enter
into an agreement with the FWC to develop new fishing
regulations. As a result, CBO estimates that implementing the
legislation would not affect federal spending with respect to
management of Biscayne National Park.
Based on information from NOAA, CBO estimates that
implementing S. 3099 would cost less than $500,000 annually to
issue rules on the sale of billfish and to implement the
prohibition on feeding sharks. Any such spending would be
subject to the availability of appropriated funds. Enacting the
legislation could increase revenues and associated direct
spending; therefore, pay-as-you-go procedures apply.
S. 3099 would create new civil and criminal penalties for
feeding sharks; such penalties are recorded as revenues.
Because criminal penalties are deposited into the Crime Victims
Fund and later spent without further appropriations action, the
bill also could increase direct spending. However, CBO expects
that any additional revenues and subsequent direct spending
would not be significant in any year because the number of
civil and criminal violations would probably be small.
CBO estimates that enacting S. 3099 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2027.
S. 3099 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.
The bill contains private-sector mandates as defined in
UMRA. Specifically, the bill would prohibit anyone from feeding
sharks in U.S. waters for any purpose other than to harvest
sharks. It also would prohibit anyone from operating a vessel
for the purpose of carrying passengers to engage in or observe
shark feeding. The cost of the mandates would be the net income
forgone as a result of the prohibitions. Some diving operators
use bait to attract sharks so that their customers can get a
closer look. Feeding sharks is already banned in some state
waters, including California and Florida. However, some dive
operators have gotten around state bans by taking their
customers out of state waters and into adjacent federal waters.
The bill would make such practices illegal. Based on
information from the academic literature about the size of the
industry in the United States and in other countries, the rates
charged for charter trips, and the customer base for such
trips, CBO estimates that revenues generated by the industry
amount to about $10 million annually. Therefore, CBO estimates
that the cost of the mandate would fall well below the annual
threshold established in UMRA for private-sector mandates ($154
million in 2016, adjusted annually for inflation).
The CBO staff contacts for this estimate are Robert Reese
and Jon Sperl (for federal costs) and Logan Smith (for private-
sector mandates). The estimate was approved by H. Samuel
Papenfuss, Deputy Assistant Director for Budget Analysis.
Regulatory Impact
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
number of persons covered
S. 3099, as reported, would require the Secretary of
Commerce to issue a final rule implementing the Bill
Conservation Act of 2012. This would result in a prohibition of
the sale of billfish, except in very limited circumstances.
Very few people would be covered by this since there is no
commercial billfish fishery.
economic impact
The legislation is not expected to have a negative impact
on the Nation's economy.
privacy
The reported bill is not expected to impact the personal
privacy of individuals.
paperwork
S. 3099 would require the Secretary of Commerce to issue a
final rule implementing the Billfish Conservation Act of 2012
not later than 45 days after the date of enactment of this Act.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title.
This section would provide the short title of the bill, the
``Access for Sportfishing Act of 2016.''
Section 2. Fishery management measures in Biscayne National Park.
This section would prohibit the Secretary of the Interior
from implementing or enforcing any restrictions on recreational
fishing, charter fishing, or commercial fishing in the BNP
developed as part of a management plan adopted after December
31, 2014. In order for the Secretary of the Interior to
implement restrictions, they would need to be based on best
available science, developed in coordination with the FWC, and
be the least restrictive measures necessary for effective fish
conservation and management. ``Fish'', ``fishery resource'',
``fishing'', ``charter fishing'', ``commercial fishing'',
``conservation and management'', and ``recreational fishing''
would have the definitions given those terms in section 3 of
the Magnuson-Stevens Fishery Conservation and Management Act
(MSA) (16 U.S.C 1802).
Section 3. Shark Conservation Act of 2010.
This section would amend the Act 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 (Public Law 111-348; 124 Stat. 3668) to
prohibit any person from engaging in shark feeding or operating
a vessel for the purpose of carrying a passenger for hire to a
site to engage in shark feeding, with the exceptions of
regulations in the MSA that allow for feeding to attract sharks
for harvest within the EEZ. The amendment made by this section
would prohibit the refusal of an authorized officer to board a
fishing vessel for the purpose of enforcing this law. It would
prohibit any assault, resistance, or interference of such
authorized officers. The amendment made by this section would
outline the civil and criminal penalties associated with
violation of that Act. Nothing in that Act would supersede more
restrictive State laws or regulations regarding shark feeding
in State waters.
Section 4. Billfish Conservation Act of 2012.
This section would require the Secretary of Commerce to
issue a final rule implementing the Billfish Conservation Act
of 2012 not later than 45 days after the date of enactment of
this Act and clarify that an exemption provided for certain
traditional fisheries and markets applies to billfish landed
and retained locally.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, 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
material is printed in italic, existing law in which no change
is proposed is shown in roman):
AN ACT 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
[Public Law 111-348; 124 Stat. 3668]
[SEC. 104. OFFSET OF IMPLEMENTATION COST.
* * * * * * *
SEC. 104. PROHIBITION ON SHARK FEEDING.
(a) Prohibition.--Except as provided in section 317 of the
Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1866), it is unlawful for any person--
(1) to engage in shark feeding; or
(2) to operate a vessel for the purpose of carrying a
passenger for hire to any site to engage in shark
feeding or to observe shark feeding.
(b) Additional Prohibited Acts.--It is unlawful for any
person--
(1) to violate this section or any regulation
promulgated under this section;
(2) to refuse to permit any officer authorized to
enforce the provisions of this section to board a
fishing vessel subject to such person's control for
purposes of conducting any search or inspection in
connection with the enforcement of this section or any
regulation promulgated under the section;
(3) to forcibly assault, resist, oppose, impede,
intimidate, or interfere with any such authorized
officer in the conduct of any search or inspection
described in paragraph (2);
(4) to resist a lawful arrest for any act prohibited
by this section; or
(5) to interfere with, delay, or prevent, by any
means, the apprehension or arrest of another person,
knowing that such other person has committed any act
prohibited by this section.
(c) Limitation.--Any incidental feeding or attracting of a
shark in the course of educational or scientific research
conducted under a permit issued by the Secretary of Commerce or
lawful fishing under the Magnuson-Stevens Fishery Conservation
and Management Act (16 U.S.C. 1801 et seq.) shall not be
considered a violation of this section.
(d) Civil Penalty.--Any person who commits any act that is
unlawful under subsection (a) or subsection (b) of this section
shall be liable to the United States for a civil penalty under
section 308 of the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1858).
(e) Criminal Penalty.--Any person who commits an act that is
unlawful under paragraph (2), (3), (4), or (5) of subsection
(b) of this section is deemed to be guilty of an offense
punishable under section 309(b) of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1859(b)).
(f) Enforcement.--
(1) In general.--The Secretary of Commerce and the
Secretary of the department in which the Coast Guard is
operating shall prevent any person from violating this
section in the same manner, by the same means, and with
the same jurisdiction, powers, and duties as though
sections 308 through 311 of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C.
1858, 1859, 1860, 1861) were incorporated into and made
a part of this Act.
(2) Penalties and privileges.--Any person who
violates this section is subject to the penalties and
entitled to the privileges and immunities provided in
the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1801 et seq.) in the same
manner and by the same means as though sections 308
through 311 of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1858, 1859,
1860, 1861) were incorporated into and made a part of
this Act.
(g) Definitions.--In this section:
(1) Passenger for hire.--The term ``passenger for
hire'' has the meaning given that term in section
2101(21a) of title 46, United States Code.
(2) Shark feeding.--The term ``shark feeding'' means
the introduction of food or any other substance into
the water to feed or attract sharks for any purpose
other than to harvest sharks.
SEC. 105. RULE OF CONSTRUCTION.
Nothing in this Act or the amendments made by this Act shall
be construed as affecting, altering, or diminishing in any way
the authority of the Secretary of Commerce to establish such
conservation and management measures as the Secretary considers
appropriate under sections 302(a)(3) and 304(g) of the
Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1852(a)(3) and 1854(g)).
BILLFISH CONSERVATION ACT OF 2012
[Public Law 112-183; 126 Stat. 1422]
SEC. 4. PROHIBITION ON SALE OF BILLFISH.
[16 U.S.C. 1827a]
(a) Prohibition.--No person shall offer for sale, sell, or
have custody, control, or possession of for purposes of
offering for sale or selling billfish or products containing
billfish.
(b) Penalty.--For purposes of section 308(a) of the Magnuson-
Stevens Fishery Conservation and Management Act (16 U.S.C.
1858(a)), a violation of this section shall be treated as an
act prohibited by section 307 of that Act (16 U.S.C. 1857).
(c) Exemptions for Traditional Fisheries and Markets.--
(1) Subsection (a) does not apply to billfish caught
by US fishing vessels and landed and retained in the
State of Hawaii or Pacific Insular Areas as defined in
section 3(35) of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1802(35)).
(2) Subsection (a) does not apply to billfish landed
by foreign fishing vessels in the Pacific Insular Areas
when the foreign caught billfish is exported to non-US
markets or retained within Hawaii and the Pacific
Insular Areas for local consumption.
(d) Billfish Defined.--In this section the term
``billfish''--
(1) means any fish of the species--
(A) Makaira nigricans (blue marlin);
(B) Kajikia audax (striped marlin);
(C) Istiompax indica (black marlin);
(D) Istiophorus platypterus (sailfish);
(E) Tetrapturus angustirostris (shortbill
spearfish);
(F) Kajikia albida (white marlin);
(G) Tetrapturus georgii (roundscale
spearfish);
(H) Tetrapturus belone (Mediterranean
spearfish); and
(I) Tetrapturus pfluegeri (longbill
spearfish); and
(2) does not include the species Xiphias gladius
(swordfish).
[all]