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Maritime Issues
(Released January 1998)


Review Article

The CNIE has provided five reports researched and produced by the research arm of Congress, the Congressional Research Service (CRS). The CRS is a part of the Library of Congress, and is in no way affiliated with the CNIE or CSA.

The first report, Maritime Economic Regulation and the 105th Congress (November 6, 1997) addresses the body of laws pertaining to American shipping and the unique regulatory status they obtain. In particular, the report deals with the shipping cartels and conference rates, public disclosure of contracts and the treatment of American shippers vis-a-vis international carriers. The report also deals with the Ocean Shipping Reform Act of 1997, of which the consolidation of the Federal Maritime Commission with the Surface Transportation Board is proposed.

The second report, Magnuson Fishery Conservation and Management Act Reauthorization (December 4, 1996), discusses the renewal of legislation that established federal fishery management jurisdiction at 200 miles. Intending to preserve the offshore breeding habitats of American fisheries against depletion, the bill established regional fishery management councils under federal regulation. The major issues of the reauthorization bill are habitat degradation, overfishing, catch waste, and funding.

The next two reports narrow the focus on preservation to particular species. The first of these, Dolphin Protection and Tuna Seining (August 29, 1997) addresses the efforts to reduce the incidental killing of dolphins by fleets in pursuit of the yellowfin tuna. The 1972 Marine Mammal Protection Act attempted to reduce dolphin mortality as a result of purse seining, but with the reduction of American fleets fishing the Eastern Tropical Pacific, this issue has increasingly become an international one. Subsequent international treaties dealing with this issue are discussed.

The other species-specific report also has an international cast: Norwegian Commercial Whaling: Issues for Congress (December 31, 1996). At dispute here is the very question of whether or not the Minke whale is threatened with extinction, and, secondly, whether Norway's proposed harvesting of 580 Minkes (1997) constitutes an unwarranted harvest. The United States has supported a total ban on commercial whaling for 20 years; Norway cites a study estimating the Minke whale population at over 100,000. Whether or not to invoke economic sanctions (as provided for in the Pelly Amendment) is discussed.

The last report addresses the pre-eminent international maritime treaty, the 1982 Law of the Sea Convention. This report, The Law of the Sea Convention and U.S. Policy (September 30, 1997) analyzes this comprehensive treaty, which covers not only economic and preservation issues, but the projection of naval power and the freedom of scientific research. In particular, the report addresses the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention. The major stumbling block for Congress is a lack of protection to Western deep sea mining interests, and the creation of a new global governing body, the International Seabed Authority (ISA).

© Copyright 1998, All Rights Reserved, CSA


CRS Reports

Maritime Economic Regulation and the 105th Congress


Ocean common carriers (primarily containerships and often called ocean liners) are exempt from the antitrust laws to set rates as a group (called a conference) under prescribed conditions on single line rates, i.e., commodities that are not interlined with another carrier. Very few commodities are interlined. When competitors set rates as a group, the action is called conference rate-making or cartel rate-making.

Rates for ocean shipping (compiled into written or electronic form called "tariffs") must be filed with the Federal Maritime Commission (FMC or Commission), which makes the rates available for public inspection.

The Commission is an independent regulatory agency responsible for maritime economic regulation and other matters associated with international ocean transportation, as discussed below.

The United States is the only country in the world that maintains a separate agency to enforce maritime economic regulation. However, Canada, Japan, and some other major U.S. trading partners have antitrust exemptions associated with ocean transportation; and some countries have government control or ownership of ocean ship lines, including China and Japan.

S. 414, the Ocean Shipping Reform Act of 1997, passed the Senate Committee on Commerce, Science, and Transportation by a vote of 20 to 0 on May 1, 1997.

The bill would consolidate the FMC and the Surface Transportation Board (STB) into a new agency, the Intermodal Transportation Board (ITB). The STB is an independent regulatory agency that is, for administrative purposes, located within the U.S. Department of Transportation (DOT).

The bill would repeal the requirement in current law that requires the essential terms of a contract to be made available to all shippers similarly situated. The bill would reduce the information in a contract that must be made available to the public.

The bill would reduce the notice period for conference member independent actions on conference tariffs from 10 days to 5 days.

The bill would require that rates be made available electronically to the ITB and to the public, but they would no longer have to be filed with a regulatory agency.

Some shippers would like S. 414 amended to eliminate the antitrust exemptions that allow cartel rate-setting on single line rates, that allow pooling agreements and joint service agreements among carriers, and that allow carriers to negotiate service contracts as a group with customers.

Some seaports and shore-side labor unions would like S. 414 amended to require public disclosure of more service contract information so that they can monitor trade flows for use in negotiations with carriers, but such information is not required from non-U.S.-flag carriers who complete with U.S.-flag carriers.

Some shippers would like S. 414 amended to require public disclosure of only aggregated service contract information, rather than the detailed information required by the bill.

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Magnuson Fishery Conservation and Management Act Reauthorization


Historically, coastal states managed marine sport and commercial fisheries in nearshore waters, where most marine seafood was caught. However, as fishing techniques improved and offshore resources were discovered, more fishers ventured farther offshore.

The role of the federal government in marine fisheries began to grow as foreign nations increased fishery catches off U.S. coasts in the 1950s. Enactment of the Magnuson Fishery Conservation and Management Act (MFCMA) in 1976 extended federal fishery jurisdiction to 200 miles offshore and established the current federal fishery management regime. Today, individual states manage marine fisheries in inshore and coastal waters with interstate coordination accomplished through three regional (Atlantic, Gulf, and Pacific) marine fishery commissions, created through interstate compacts approved by Congress. Beyond state jurisdiction (generally 3 miles) out to 200 miles, the federal government manages fish and shellfish resources for which management plans have been developed under the MFCMA.

Under provisions of the MFCMA, eight Regional Fishery Management Councils were established for the New England, Mid-Atlantic, South Atlantic, Caribbean, Gulf of Mexico, Pacific, Western Pacific, and North Pacific regions. The eight Councils prepare fishery management plans (FMPs) for fisheries requiring active federal management.

The MFCMA was most recently reauthorized and extensively amended in 1990 (P.L. 101-627); the current authorization for appropriations expired at the end of FY1993. The issue for the 104th Congress was whether, and if so, under what conditions, to continue the existing regime for fishery conservation and management in offshore federal waters.

Congress reviewed the direction and criteria provided by the MFCMA for allocating seafood catch among domestic interests in an era of mounting demands for these resources. Two primary reauthorization and amendment bills were introduced -- H.R. 39 and S. 39. S. 39 was passed by both the Senate and House in the last days of the 104th Congress, and was signed by President Clinton as P.L. 104-297 on Oct. 11, 1996.

Both House and Senate bills focused on the major challenges facing marine fishery managers, which can be roughly grouped into four areas -- habitat degradation, overfishing, bycatch (discards and other waste), and funding. Provisions on individual transferable quotas (ITQs) are also controversial. (See CRS Report 95-849 for background.)

Major issues addressed during reauthorization included: 1) how to better conserve fish stocks and restore overfished populations, 2) how to assure that membership on regional councils is fair and balanced, 3) whether to specify in more detail the approaches that should be taken to address overcapitalization through access limitation, 4) whether to remove the restriction on fee collection to permit user fees and other charges that could be directed to fund conservation and management activities, 5) whether to provide for more emphasis on social benefits that might better preserve traditional small fishers; and 6) how to strengthen provisions for habitat restoration and protection.

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Dolphin Protection and Tuna Seining


Schools of yellowfin tuna associate with dolphins in the eastern tropical Pacific (ETP) Ocean. U.S. fishermen began to exploit this resource in the late 1950s by encircling the dolphins with large purse seine nets to capture the yellowfin tuna swimming beneath them.

Despite efforts to release the entrapped dolphins (which were of no value to U.S. fishermen) while landing the tuna, dolphins became entangled in the nets and drowned. By the early 1970s, as many as 300,000 or more dolphins may have been drowned each year by U.S. tuna seiners in the ETP.

From its inception in 1972, one of the goals of the Marine Mammal Protection Act (MMPA) was to reduce the incidental mortality of dolphins in the ETP tuna fishery. Regulations promulgated under MMPA authority set standards for tuna seining and motivated technological improvements that reduced dolphin mortalities in this fishery -- by 1977, annual dolphin mortality by U.S. tuna seiners had declined to about 25,450 animals. Despite the extensive mortalities, no ETP dolphin population has been listed as endangered or threatened under the U.S. Endangered Species Act. However, two ETP dolphin stocks were listed as depleted under the MMPA.

The ETP purse seine fishery was dominated by U.S. vessels through the 1960s and into the 1970s. By the 1980s, the U.S. fleet was declining, and more foreign vessels were entering the fishery. With this shift, total dolphin mortality began to increase again until more than 100,000 dolphins were killed by foreign tuna purse seine vessels in 1986. In April 1990, the three largest U.S. tuna processors announced that they would no longer purchase tuna caught in association with dolphins. This action caused many U.S. tuna seiners to relocate to the western Pacific. Congress responded by enacting the Dolphin Protection Consumer Information Act to set standards for labeling tuna as "dolphin-safe," and the International Dolphin Conservation Act of 1992 to prohibit the sale, purchase, transport, or shipment in the United States of any tuna that was not dolphin-safe.

In response, foreign nations strengthened their programs for protecting dolphins during tuna seining through the non-binding International Dolphin Conservation Program developed by the Inter-American Tropical Tuna Commission. However, foreign nations barred from the U.S. tuna market became increasingly vocal that the United States should recognize their success in reducing dolphin mortalities by reopening the U.S. market to their tuna.

A Declaration of Panama was signed by 12 nations including the United States in October 1995, agreeing to modify U.S. law in exchange for binding commitments for further progress in dolphin protection. Four bills, introduced in the 104th Congress to implement the Declaration of Panama, differed on how U.S. law should be changed, particularly whether the definition of "dolphin-safe" tuna should be modified.

This issue remained unresolved in the 104th Congress, and was taken up by the 105th Congress where compromise language was passed in H.R. 408. This measure was signed by President Clinton as P.L. 105-42 on August 15, 1997.

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Norwegian Commercial Whaling: Issues for Congress


On May 16, 1996, 23 Members of Congress sent a letter to President Clinton expressing their concern over Norway's announcement that it intended to permit its whalers to kill as many as 425 minke whales that year. The co-signers urged the President "to take decisive action to prevent Norway from resuming its illicit whale harvesting," including the possible use of economic sanctions. For its 1997 hunt, Norway has increased its quota to 580 animals.

The Norwegian government strongly argues that their whaling activities are neither irresponsible from an ecological standpoint nor illicit from a legal one. According to a 1996 abundance estimate, as yet unreviewed by the International Whaling Commission's (IWC) Scientific Committee, there are about 118,000 minke whales in the northeast and central Atlantic Ocean that are accessible to Norwegian whalers; if the abundance estimate is accurate, Norway's self-imposed 1996 hunt quota of 425 is unlikely to significantly reduce the minke whale population. Because the Norwegian government lodged an official objection when the IWC established a moratorium on commercial whaling in 1986 by adopting zero quotas for such whaling, Norway is not bound by the moratorium. Norway complied with the moratorium until 1993, when it resumed commercial whaling.

For more than two decades, the United States government has supported a moratorium on commercial whaling. After working to ensure that any resumption of commercial whaling would be sustainable, the U.S. government began in the early 1990s to oppose more forcefully all commercial whaling. Most opponents of commercial whaling object on ethical or ecological grounds; however, important political considerations also arise in the debate. The current dispute with Norway over whaling is affected by a number of such factors, not least among them being that Norway has long been one of America's closest allies. U.S. policymakers may consider a number of options vis-a-vis Norway, ranging from pressuring Norway with trade sanctions, as urged by several environmental groups, to supporting a quota for northeastern Atlantic minke whales, calculated using the catch-limit formula developed by the IWC's Scientific Committee, as urged by the Norwegians.

Some analysts view the Norwegian whaling issue as one chapter of a continuing international debate over the interconnections between trade and environment, in which the United States has considered the use of economic sanctions as one method of reaching beyond its traditional jurisdiction, compelling other nations to adopt similar environmental goals.

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The Law of the Sea Convention and U.S. Policy


On October 7, 1994, President Clinton transmitted to the Senate the 1982 United Nations Convention on the Law of the Sea and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention. The package was referred to the Senate Committee on Foreign Relations. On November 16, 1994, the U.N. Law of the Sea Convention entered into force but without accession by the United States. The 1994 Agreement entered into force on July 28, 1996, again without U.S. ratification. While provisional application of the Agreement ended, the United States continues its provisional membership in the International Seabed Authority (ISA) and its organs and bodies through November 16, 1998.

The major part of the 1982 Law of the Sea Convention had been supported by U.S. Administrations, beginning with President Reagan, as fulfilling U.S. interests in having a comprehensive legal framework relating to competing uses of the world's oceans. However, the United States and many industrialized countries found some of the provisions relating to deep seabed mining in Part XI and Annexes III and IV of the Convention contrary to their interests and would not sign or act to ratify the Convention. Among the unacceptable elements were a decisionmaking process in the ISA Council and Assembly that would not give the United States or other Western industrialized countries influence commensurate with their interests; "Review Conference" provisions that would allow Convention amendments to enter into force without express U.S. approval; stipulations relating to mandatory transfer of private technology; provisions that would deter rather than promote future development of deep seabed mineral resources by incorporating economic principles inconsistent with free market philosophy; and the absence of assured access to future deep seabed mineral resources. The Clinton Administration maintains that the provisions of the 1994 Agreement and Annex correct the objectionable elements in the Convention on deep seabed issues.

A number of questions face the Senate as it considers the Convention/Agreement package. Does the Agreement sufficiently resolve opposing concerns expressed above about the deep seabed mining provisions? Are the compulsory dispute settlement provisions and the U.S. declaration acceptable to the Senate? What is the impact of U.S. adherence on current U.S. statutes? What changes must be made by legislation? What precedent does U.S. acceptance of the Convention/Agreement definition of the common heritage of mankind concept establish? Were the provisional application procedures used for the 1994 Agreement a good or bad precedent for the U.S. treaty process? What is the nature of U.S. commitments undertaken in decisions of the ISA Council? Should Congress have a role and under what circumstances? What authority should Congress exert over the expenses of another international organization -- the ISA?

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