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pdfMagnuson-Stevens
Fishery Conservation and
Management Act
U.S. DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
National Marine Fisheries Service
Magnuson-Stevens
Fishery Conservation and
Management Act
As Amended Through January 12, 2007
May 2007
Second Printing
U.S. Department of Commerce
Carlos M. Gutiérrez, Secretary
National Oceanic and Atmospheric Administration
Vice Admiral Conrad C. Lautenbacher, Jr., USN (Ret.)
Under Secretary for Oceans and Atmosphere
National Marine Fisheries Service
William T. Hogarth, Assistant Administrator for Fisheries
MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT
Public Law 94-265
As amended by the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act (P.L. 109-479)
AN ACT
To provide for the conservation and management of the fisheries,
and for other purposes.
TABLE OF CONTENTS
Sec. 2.
Sec. 3.
Sec. 4.
Findings, purposes, and policy .................................................................................. 1
Definitions ................................................................................................................... 4
Authorization of appropriations ............................................................................. 12
TITLE I—UNITED STATES RIGHTS AND AUTHORITY REGARDING FISH AND
FISHERY RESOURCES ...................................................................................... 13
Sec. 101. United States sovereign rights to fish and fishery management authority.......... 13
Sec. 102. Highly migratory species ......................................................................................... 13
TITLE II—FOREIGN FISHING AND INTERNATIONAL FISHERY AGREEMENTS 14
Sec. 201.
Sec. 202.
Sec. 203.
Sec. 204.
Sec. 205.
Sec. 206.
Foreign fishing .......................................................................................................... 14
International fishery agreements .......................................................................... 22
Congressional oversight of international fishery agreements .............................. 25
Permits for foreign fishing....................................................................................... 27
Import prohibitions.................................................................................................. 36
Large-scale driftnet fishing...................................................................................... 38
HIGH SEAS DRIFTNET FISHERIES ENFORCEMENT ACT .................................... 42
Sec. 101. Denial of port privileges and sanctions for high seas large-scale driftnet
fishing.................................................................................................................... 42
Sec. 102. Duration of denial of port privileges and sanctions........................................... 44
Sec. 104. Definitions ............................................................................................................. 45
HIGH SEAS DRIFTNET FISHING MORATORIUM PROTECTION ACT ............... 46
Sec. 603. Prohibition ............................................................................................................ 46
Sec. 604. Negotiations........................................................................................................... 46
Sec. 605. Certification .......................................................................................................... 47
Sec. 606. Enforcement.......................................................................................................... 47
Sec. 607. Biennial report on international compliance ..................................................... 48
Sec. 608. Action to strengthen international fishery management organizations .......... 49
Sec. 609. Illegal, unreported, or unregulated fishing ........................................................ 50
Sec. 610. Equivalent conservation measures...................................................................... 53
Sec. 207. International monitoring and compliance............................................................... 57
TITLE III—NATIONAL FISHERY MANAGEMENT PROGRAM.................................. 58
Sec. 301. National standards for fishery conservation and management............................ 58
Sec. 302. Regional fishery management councils .................................................................. 59
Sec. 303. Contents of fishery management plans................................................................... 74
Sec. 303A. Limited access privilege programs........................................................................ 79
Sec. 304. Action by the Secretary............................................................................................ 88
Sec. 305. Other requirements and authority.......................................................................... 97
Sec. 306. State jurisdiction..................................................................................................... 111
Sec. 307. Prohibited acts ........................................................................................................ 115
v
Sec. 308.
Sec. 309.
Sec. 310.
Sec. 311.
Sec. 312.
Sec. 313.
Sec. 314.
Sec. 315.
Sec. 316.
Sec. 317.
Sec. 318.
Sec. 319.
Sec. 320.
Civil penalties and permit sanctions ..................................................................... 119
Criminal offenses.................................................................................................... 121
Civil forfeitures....................................................................................................... 122
Enforcement............................................................................................................ 123
Transition to sustainable fisheries ..................................................................... 129
North Pacific fisheries conservation ..................................................................... 134
Northwest Atlantic ocean fisheries reinvestment program ................................ 140
Regional coastal disaster assistance, transition, and recovery program ........... 141
Bycatch reduction engineering program.............................................................. 144
Shark feeding .......................................................................................................... 145
Cooperative research and management program ............................................... 145
Herring study.......................................................................................................... 146
Restoration study.................................................................................................... 147
TITLE IV—FISHERY MONITORING AND RESEARCH .............................................. 148
Sec. 401.
Sec. 402.
Sec. 403.
Sec. 404
Sec. 405.
Sec. 406
Sec. 407
Sec. 408.
Registration and information management ......................................................... 148
Information collection............................................................................................ 152
Observers ................................................................................................................ 154
Fisheries research ................................................................................................... 155
Incidental harvest research ................................................................................... 156
Fisheries systems research ..................................................................................... 158
Gulf of Mexico red snapper research ................................................................... 159
Deep sea coral research and technology program............................................... 161
Appendix .................................................................................................................................. 162
Numbers in boldface indicate the number of the Public Law that amended the following
provision.
*Bracketed material with an asterisk is text that is added, or replaces underlined
language, and will be effective on the date the Agreement between the United States and
the Union of Soviet Socialist Republics on the Maritime Boundary enters into force for the
United States. See P.L. 102-251 and P.L. 104-297.
vi
SEC. 2.
FINDINGS, PURPOSES, AND POLICY
16 U.S.C. 1801
(a) FINDINGS.—The Congress finds and declares the following:
(1) The fish off the coasts of the United States, the highly migratory species of the high
seas, the species which dwell on or in the Continental Shelf appertaining to the United
States, and the anadromous species which spawn in United States rivers or estuaries,
constitute valuable and renewable natural resources. These fishery resources contribute to
the food supply, economy, and health of the Nation and provide recreational opportunities.
104-297
(2) Certain stocks of fish have declined to the point where their survival is threatened,
and other stocks of fish have been so substantially reduced in number that they could
become similarly threatened as a consequence of (A) increased fishing pressure, (B) the
inadequacy of fishery resource conservation and management practices and controls, or (C)
direct and indirect habitat losses which have resulted in a diminished capacity to support
existing fishing levels.
(3) Commercial and recreational fishing constitutes a major source of employment and
contributes significantly to the economy of the Nation. Many coastal areas are dependent
upon fishing and related activities, and their economies have been badly damaged by the
overfishing of fishery resources at an ever-increasing rate over the past decade. The
activities of massive foreign fishing fleets in waters adjacent to such coastal areas have
contributed to such damage, interfered with domestic fishing efforts, and caused destruction
of the fishing gear of United States fishermen.
(4) International fishery agreements have not been effective in preventing or terminating
the overfishing of these valuable fishery resources. There is danger that irreversible effects
from overfishing will take place before an effective international agreement on fishery
management jurisdiction can be negotiated, signed, ratified, and implemented.
(5) Fishery resources are finite but renewable. If placed under sound management before
overfishing has caused irreversible effects, the fisheries can be conserved and maintained so
as to provide optimum yields on a continuing basis.
104-297
(6) A national program for the conservation and management of the fishery resources of
the United States is necessary to prevent overfishing, to rebuild overfished stocks, to insure
conservation, to facilitate long-term protection of essential fish habitats, and to realize the
full potential of the Nation's fishery resources.
95-354
(7) A national program for the development of fisheries which are underutilized or not
utilized by the United States fishing industry, including bottom fish off Alaska, is necessary
to assure that our citizens benefit from the employment, food supply, and revenue which
could be generated thereby.
1
16 U.S.C. 1801
MSA § 2
101-627
(8) The collection of reliable data is essential to the effective conservation, management,
and scientific understanding of the fishery resources of the United States.
104-297
(9) One of the greatest long-term threats to the viability of commercial and recreational
fisheries is the continuing loss of marine, estuarine, and other aquatic habitats. Habitat
considerations should receive increased attention for the conservation and management of
fishery resources of the United States.
104-297
(10) Pacific Insular Areas contain unique historical, cultural, legal, political, and
geographical circumstances which make fisheries resources important in sustaining their
economic growth.
109-479
(11) A number of the Fishery Management Councils have demonstrated significant
progress in integrating ecosystem considerations in fisheries management using the existing
authorities provided under this Act.
109-479
(12) International cooperation is necessary to address illegal, unreported, and unregulated
fishing and other fishing practices which may harm the sustainability of living marine
resources and disadvantage the United States fishing industry.
(b) PURPOSES.—It is therefore declared to be the purposes of the Congress in this Act—
99-659, 101-627, 102-251
(1) to take immediate action to conserve and manage the fishery resources found off the
coasts of the United States, and the anadromous species and Continental Shelf fishery
resources of the United States, by exercising (A) sovereign rights for the purposes of
exploring, exploiting, conserving, and managing all fish within the exclusive economic zone
established by Presidential Proclamation 5030, dated March 10, 1983, and (B) exclusive
fishery management authority beyond the exclusive economic zone over such anadromous
species and Continental Shelf fishery resources[, and fishery resources in the special areas]*;
(2) to support and encourage the implementation and enforcement of international fishery
agreements for the conservation and management of highly migratory species, and to
encourage the negotiation and implementation of additional such agreements as necessary;
104-297
(3) to promote domestic commercial and recreational fishing under sound conservation
and management principles, including the promotion of catch and release programs in
recreational fishing;
2
16 U.S.C. 1801
MSA § 2
(4) to provide for the preparation and implementation, in accordance with national
standards, of fishery management plans which will achieve and maintain, on a continuing
basis, the optimum yield from each fishery;
101-627
(5) to establish Regional Fishery Management Councils to exercise sound judgment in
the stewardship of fishery resources through the preparation, monitoring, and revision of
such plans under circumstances (A) which will enable the States, the fishing industry,
consumer and environmental organizations, and other interested persons to participate in,
and advise on, the establishment and administration of such plans, and (B) which take into
account the social and economic needs of the States;
95-354, 96-561, 104-297
(6) to encourage the development by the United States fishing industry of fisheries which
are currently underutilized or not utilized by United States fishermen, including bottom fish
off Alaska, and to that end, to ensure that optimum yield determinations promote such
development in a non-wasteful manner; and
104-297
(7) to promote the protection of essential fish habitat in the review of projects conducted
under Federal permits, licenses, or other authorities that affect or have the potential to affect
such habitat.
(c) POLICY.—It is further declared to be the policy of the Congress in this Act—
(1) to maintain without change the existing territorial or other ocean jurisdiction of the
United States for all purposes other than the conservation and management of fishery
resources, as provided for in this Act;
(2) to authorize no impediment to, or interference with, recognized legitimate uses of the
high seas, except as necessary for the conservation and management of fishery resources, as
provided for in this Act;
101-627, 104-297
(3) to assure that the national fishery conservation and management program utilizes, and
is based upon, the best scientific information available; involves, and is responsive to the
needs of, interested and affected States and citizens; considers efficiency; draws upon
Federal, State, and academic capabilities in carrying out research, administration,
management, and enforcement; considers the effects of fishing on immature fish and
encourages development of practical measures that minimize bycatch and avoid unnecessary
waste of fish; and is workable and effective;
(4) to permit foreign fishing consistent with the provisions of this Act;
3
16 U.S.C. 1801-1802
MSA §§ 2-3
99-659, 101-627
(5) to support and encourage active United States efforts to obtain internationally
acceptable agreements which provide for effective conservation and management of fishery
resources, and to secure agreements to regulate fishing by vessels or persons beyond the
exclusive economic zones of any nation;
101-627
(6) to foster and maintain the diversity of fisheries in the United States; and
104-297
(7) to ensure that the fishery resources adjacent to a Pacific Insular Area, including
resident or migratory stocks within the exclusive economic zone adjacent to such areas, be
explored, developed, conserved, and managed for the benefit of the people of such area and
of the United States.
SEC. 3.
DEFINITIONS
16 U.S.C. 1802
As used in this Act, unless the context otherwise requires—
(1) The term "anadromous species" means species of fish which spawn in fresh or estuarine
waters of the United States and which migrate to ocean waters.
104-297
(2) 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.
104-297
(3) The term "charter fishing" means fishing from a vessel carrying a passenger for hire (as
defined in section 2101(21a) of title 46, United States Code) who is engaged in recreational
fishing.
104-297
(4) The term "commercial fishing" means fishing in which the fish harvested, either in whole
or in part, are intended to enter commerce or enter commerce through sale, barter or trade.
4
16 U.S.C. 1802
MSA § 3
(5) 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.
(6) The term "Continental Shelf" means the seabed and subsoil of the submarine areas
adjacent to the coast, but outside the area of the territorial sea, of the United States, to a depth of
200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the
exploitation of the natural resources of such areas.
99-659, 104-297
(7) The term "Continental Shelf fishery resources" means the following:
CNIDARIA
Bamboo Coral—Acanella spp.;
Black Coral—Antipathes spp.;
Gold Coral—Callogorgia spp.;
Precious Red Coral—Corallium spp.;
Bamboo Coral—Keratoisis spp.; and
Gold Coral—Parazoanthus spp.
CRUSTACEA
Tanner Crab—Chionoecetes tanneri;
Tanner Crab—Chionoecetes opilio;
Tanner Crab—Chionoecetes angulatus;
Tanner Crab—Chionoecetes bairdi;
King Crab—Paralithodes camtschatica;
King Crab—Paralithodes platypus;
King Crab—Paralithodes brevipes;
5
16 U.S.C. 1802
MSA § 3
Lobster—Homarus americanus;
Dungeness Crab—Cancer magister;
California King Crab—Paralithodes californiensis;
California King Crab—Paralithodes rathbuni;
Golden King Crab—Lithodes aequispinus;
Northern Stone Crab—Lithodes maja;
Stone Crab—Menippe mercenaria; and
Deep-sea Red Crab—Chaceon quinquedens.
MOLLUSKS
Red Abalone—Haliotis rufescens;
Pink Abalone—Haliotis corrugata;
Japanese Abalone—Haliotis kamtschatkana;
Queen Conch—Strombus gigas;
Surf Clam—Spisula solidissima; and
Ocean Quahog—Arctica islandica.
SPONGES
Glove Sponge—Spongia cheiris;
Sheepswool Sponge—Hippiospongia lachne;
Grass Sponge—Spongia graminea; and
Yellow Sponge—Spongia barbera.
If the Secretary determines, after consultation with the Secretary of State, that living organisms
of any other sedentary species are, at the harvestable stage, either—
(A) immobile on or under the seabed, or
(B) unable to move except in constant physical contact with the seabed or subsoil, of the
Continental Shelf which appertains to the United States, and publishes notices of such
determination in the Federal Register, such sedentary species shall be considered to be added
to the foregoing list and included in such term for purposes of this Act.
(8) The term "Council" means any Regional Fishery Management Council established under
section 302.
104-297
(9) The term "economic discards" means fish which are the target of a fishery, but which are
not retained because they are of an undesirable size, sex, or quality, or for other economic
reasons.
104-297
(10) The term "essential fish habitat" means those waters and substrate necessary to fish for
spawning, breeding, feeding or growth to maturity.
6
16 U.S.C. 1802
MSA § 3
99-659
(11) 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.
99-659, 101-627
(12) The term "fish" means finfish, mollusks, crustaceans, and all other forms of marine
animal and plant life other than marine mammals and birds.
(13) 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.
109-479
(14) The term ‘regional fishery association’ means an association formed for the mutual
benefit of members—
(A) to meet social and economic needs in a region or subregion; and
(B) comprised of persons engaging in the harvest or processing of fishery resources in
that specific region or subregion or who otherwise own or operate businesses substantially
dependent upon a fishery.
(15) The term "fishery resource" means any fishery, any stock of fish, any species of fish,
and any habitat of fish.
(16) 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.
104-297
(17) The term "fishing community" means a community which is substantially dependent on
or substantially engaged in the harvest or processing of fishery resources to meet social and
economic needs, and includes fishing vessel owners, operators, and crew and United States fish
processors that are based in such community.
7
16 U.S.C. 1802
MSA § 3
(18) 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.
(19) The term "foreign fishing" means fishing by a vessel other than a vessel of the United
States.
(20) 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.
101-627
(21) The term "highly migratory species" means tuna species, marlin (Tetrapturus spp. and
Makaira spp.), oceanic sharks, sailfishes (Istiophorus spp.), and swordfish (Xiphias gladius).
109-479
(22) The term ‘import’—
(A) means to land on, bring into, or introduce into, or attempt to land on, bring into, or
introduce into, any place subject to the jurisdiction of the United States, whether or not such
landing, bringing, or introduction constitutes an importation within the meaning of the
customs laws of the United States; but
(B) does not include any activity described in subparagraph (A) with respect to fish
caught in the exclusive economic zone or by a vessel of the United States.
104-297
(23) The term "individual fishing quota" means a Federal permit under a limited access
system to harvest a quantity of fish, expressed by a unit or units representing a percentage of the
total allowable catch of a fishery that may be received or held for exclusive use by a person.
Such term does not include community development quotas as described in section 305(i).
(24) The term "international fishery agreement" means any bilateral or multilateral treaty,
convention, or agreement which relates to fishing and to which the United States is a party.
101-627, 104-297
(25) The term "large-scale driftnet fishing" means a method of fishing in which a gillnet
composed of a panel or panels of webbing, or a series of such gillnets, with a total length of two
and one-half kilometers or more is placed in the water and allowed to drift with the currents and
winds for the purpose of entangling fish in the webbing.
8
16 U.S.C. 1802
MSA § 3
109-479
(26) The term ‘limited access privilege’—
(A) means a Federal permit, issued as part of a limited access system under section 303A
to harvest a quantity of fish expressed by a unit or units representing a portion of the total
allowable catch of the fishery that may be received or held for exclusive use by a person; and
(B) includes an individual fishing quota; but
(C) does not include community development quotas as described in section 305(i).
109-479
(27) The term ‘limited access system’ means a system that limits participation in a fishery to
those satisfying certain eligibility criteria or requirements contained in a fishery management
plan or associated regulation.
(28) The term "Marine Fisheries Commission" means the Atlantic States Marine Fisheries
Commission, the Gulf States Marine Fisheries Commission, or the Pacific States Marine
Fisheries Commission.
101-627
(29) The term "migratory range" means the maximum area at a given time of the year within
which fish of an anadromous species or stock thereof can be expected to be found, as
determined on the basis of scale pattern analysis, tagging studies, or other reliable scientific
information, except that the term does not include any part of such area which is in the waters of
a foreign nation.
(30) The term "national standards" means the national standards for fishery conservation and
management set forth in section 301.
101-627
(31) The term "observer" means any person required or authorized to be carried on a vessel
for conservation and management purposes by regulations or permits under this Act.
109-479
(32) The term ‘observer information’ means any information collected, observed, retrieved,
or created by an observer or electronic monitoring system pursuant to authorization by the
Secretary, or collected as part of a cooperative research initiative, including fish harvest or
processing observations, fish sampling or weighing data, vessel logbook data, vessel or
processor-specific information (including any safety, location, or operating condition
observations), and video, audio, photographic, or written documents.
9
16 U.S.C. 1802
MSA § 3
104-297
(33) The term "optimum", with respect to the yield from a fishery, means the amount of fish
which—
(A) will provide the greatest overall benefit to the Nation, particularly with respect to
food production and recreational opportunities, and taking into account the protection of
marine ecosystems;
(B) is prescribed as such on the basis of the maximum sustainable yield from the fishery,
as reduced by any relevant economic, social, or ecological factor; and
(C) in the case of an overfished fishery, provides for rebuilding to a level consistent with
producing the maximum sustainable yield in such fishery.
104-297
(34) 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.
104-297
(35) The term "Pacific Insular Area" means American Samoa, Guam, the Northern Mariana
Islands, Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway
Island, Wake Island, or Palmyra Atoll, as applicable, and includes all islands and reefs
appurtenant to such island, reef, or atoll.
(36) The term "person" means any individual (whether or not a citizen or national of the
United States), any corporation, partnership, association, or other entity (whether or not
organized or existing under the laws of any State), and any Federal, State, local, or foreign
government or any entity of any such government.
104-297
(37) The term "recreational fishing" means fishing for sport or pleasure.
104-297
(38) The term "regulatory discards" means fish harvested in a fishery which fishermen are
required by regulation to discard whenever caught, or are required by regulation to retain but
not sell.
(39) The term "Secretary" means the Secretary of Commerce or his designee.
10
16 U.S.C. 1802
MSA § 3
104-297
(40) The term "special areas" means the areas referred to as eastern special areas in Article
3(1) of the Agreement between the United States of America and the Union of Soviet Socialist
Republics on the Maritime Boundary, signed June 1, 1990. In particular, the term refers to
those areas east of the maritime boundary, as defined in that Agreement, that lie within 200
nautical miles of the baselines from which the breadth of the territorial sea of Russia is
measured but beyond 200 nautical miles of the baselines from which the breadth of the
territorial sea of the United States is measured.1
(41) 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.
(42) The term "stock of fish" means a species, subspecies, geographical grouping, or other
category of fish capable of management as a unit.
(43) The term "treaty" means any international fishery agreement which is a treaty within the
meaning of section 2 of article II of the Constitution.
101-627
(44) The term "tuna species" means the following:
Albacore Tuna—Thunnus alalunga;
Bigeye Tuna—Thunnus obesus;
Bluefin Tuna—Thunnus thynnus;
Skipjack Tuna—Katsuwonus pelamis; and
Yellowfin Tuna—Thunnus albacares.
(45) The term "United States", when used in a geographical context, means all the States
thereof.
1
Section 102(10) of Public Law 104-297 appears to codify the definition of "special areas" at paragraph 36
after the definition of "State." Section 405(a) of Public Law 104-297 appears to add a redundant definition of
"special areas" and create numerous numbering conflicts in the definitions. The editors assume Congress intends to
add one definition of "special areas" in alphabetical order.
11
16 U.S.C. 1802-1803
MSA §§ 3-4
95-354
(46) The term "United States fish processors" means facilities located within the United
States for, and vessels of the United States used or equipped for, the processing of fish for
commercial use or consumption.
95-354, 104-297
(47) The term "United States harvested fish" means fish caught, taken, or harvested by
vessels of the United States within any fishery regulated under this Act.
97-453, 100-239
(48) The term "vessel of the United States" means—
(A) any vessel documented under chapter 121 of title 46, United States Code;
(B) any vessel numbered in accordance with chapter 123 of title 46, United States Code,
and measuring less than 5 net tons;
(C) any vessel numbered in accordance with chapter 123 of title 46, United States Code,
and used exclusively for pleasure; or
(D) any vessel not equipped with propulsion machinery of any kind and used exclusively
for pleasure.
104-297
(49) The term "vessel subject to the jurisdiction of the United States" has the same meaning
such term has in section 3(c) of the Maritime Drug Law Enforcement Act (46 U.S.C. App.
1903(c)).
101-627
(50) The term "waters of a foreign nation" means any part of the territorial sea or exclusive
economic zone (or the equivalent) of a foreign nation, to the extent such territorial sea or
exclusive economic zone is recognized by the United States.
109-479
SEC. 4.
AUTHORIZATION OF APPROPRIATIONS.
16 U.S.C. 1803
There are authorized to be appropriated to the Secretary to carry out the provisions of this Act—
(1) $337,844,000 for fiscal year 2007;
(2) $347,684,000 for fiscal year 2008;
(3) $357,524,000 for fiscal year 2009;
(4) $367,364,000 for fiscal year 2010;
(5) $377,204,000 for fiscal year 2011;
(6) $387,044,000 for fiscal year 2012; and
(7) $396,875,000 for fiscal year 2013.
12
16 U.S.C. 1811-1812
MSA §§ 101-102
TITLE I—UNITED STATES RIGHTS AND AUTHORITY REGARDING FISH AND
FISHERY RESOURCES
SEC. 101. UNITED STATES SOVEREIGN RIGHTS TO FISH
AND FISHERY MANAGEMENT AUTHORITY
16 U.S.C. 1811
99-659, 102-251
(a) IN THE EXCLUSIVE ECONOMIC ZONE.—Except as provided in section 102, the
United States claims, and will exercise in the manner provided for in this Act, sovereign rights
and exclusive fishery management authority over all fish, and all Continental Shelf fishery
resources, within the exclusive economic zone [and special areas]*.
99-659, 101-627, 102-251
(b) BEYOND THE EXCLUSIVE ECONOMIC ZONE.—The United States claims, and
will exercise in the manner provided for in this Act, exclusive fishery management authority
over the following:
(1) All anadromous species throughout the migratory range of each such species beyond
the exclusive economic zone; except that that management authority does not extend to any
such species during the time they are found within any waters of a foreign nation.
(2) All Continental Shelf fishery resources beyond the exclusive economic zone.
[(3) All fishery resources in the special areas.]*
SEC. 102. HIGHLY MIGRATORY SPECIES
16 U.S.C. 1812
99-659, 101-627, 104-297, 109-479
(a) IN GENERAL.—The United States shall cooperate directly or through appropriate
international organizations with those nations involved in fisheries for highly migratory species
with a view to ensuring conservation and shall promote the achievement of optimum yield of
such species throughout their range, both within and beyond the exclusive economic zone.
109-479
(b) TRADITIONAL PARTICIPATION.—In managing any fisheries under an international
fisheries agreement to which the United States is a party, the appropriate Council or Secretary
shall take into account the traditional participation in the fishery, relative to other nations, by
fishermen of the United States on fishing vessels of the United States.
109-479
(c) PROMOTION OF STOCK MANAGEMENT.—If a relevant international fisheries
organization does not have a process for developing a formal plan to rebuild a depleted stock,
an overfished stock, or a stock that is approaching a condition of being overfished, the
provisions of this Act in this regard shall be communicated to and promoted by the United
States in the international or regional fisheries organization.
13
16 U.S.C. 1821
MSA § 201
TITLE II—FOREIGN FISHING AND INTERNATIONAL FISHERY AGREEMENTS
SEC. 201. FOREIGN FISHING
16 U.S.C. 1821
95-354, 99-659, 102-251, 104-297
(a) IN GENERAL.—After February 28, 1977, no foreign fishing is authorized within the
exclusive economic zone, [within the special areas,]* or for anadromous species or Continental
Shelf fishery resources beyond the exclusive economic zone [such zone or areas]*, unless such
foreign fishing—
(1) is authorized under subsections (b) or (c) or section 204(e), or under a permit issued
under section 204(d);
(2) is not prohibited by subsection (f); and
(3) is conducted under, and in accordance with, a valid and applicable permit issued
pursuant to section 204.
(b) EXISTING INTERNATIONAL FISHERY AGREEMENTS.—Foreign fishing described
in subsection (a) may be conducted pursuant to an international fishery agreement (subject to
the provisions of section 202(b) or (c)), if such agreement—
(1) was in effect on the date of enactment of this Act; and
(2) has not expired, been renegotiated, or otherwise ceased to be of force and effect with
respect to the United States.
(c) GOVERNING INTERNATIONAL FISHERY AGREEMENTS.—Foreign fishing
described in subsection (a) may be conducted pursuant to an international fishery agreement
(other than a treaty) which meets the requirements of this subsection if such agreement becomes
effective after application of section 203. Any such international fishery agreement shall
hereafter in this Act be referred to as a "governing international fishery agreement". Each
governing international fishery agreement shall acknowledge the exclusive fishery management
authority of the United States, as set forth in this Act. It is the sense of the Congress that each
such agreement shall include a binding commitment, on the part of such foreign nation and its
fishing vessels, to comply with the following terms and conditions:
(1) The foreign nation, and the owner or operator of any fishing vessel fishing pursuant to
such agreement, will abide by all regulations promulgated by the Secretary pursuant to this
Act, including any regulations promulgated to implement any applicable fishery
management plan or any preliminary fishery management plan.
14
16 U.S.C. 1821
MSA § 201
97-453, 104-297
(2) The foreign nation, and the owner or operator of any fishing vessel fishing pursuant to
such agreement, will abide by the requirement that—
(A) any officer authorized to enforce the provisions of this Act (as provided for in
section 311) be permitted—
(i) to board, and search or inspect, any such vessel at any time,
(ii) to make arrests and seizures provided for in section 311(b) whenever such
officer has reasonable cause to believe, as a result of such a search or inspection, that
any such vessel or any person has committed an act prohibited by section 307, and
(iii) to examine and make notations on the permit issued pursuant to section 204
for such vessel;
(B) the permit issued for any such vessel pursuant to section 204 be prominently
displayed in the wheelhouse of such vessel;
(C) transponders, or such other appropriate position-fixing and identification
equipment as the Secretary of the department in which the Coast Guard is operating
determines to be appropriate, be installed and maintained in working order on each such
vessel;
(D) United States observers required under subsection (h) be permitted to be stationed
aboard any such vessel and that all of the costs incurred incident to such stationing,
including the costs of data editing and entry and observer monitoring, be paid for, in
accordance with such subsection, by the owner or operator of the vessel;
(E) any fees required under section 204(b)(10) be paid in advance;
(F) agents be appointed and maintained within the United States who are authorized to
receive and respond to any legal process issued in the United States with respect to such
owner or operator; and
(G) responsibility be assumed, in accordance with any requirements prescribed by the
Secretary, for the reimbursement of United States citizens for any loss of, or damage to,
their fishing vessels, fishing gear, or catch which is caused by any fishing vessel of that
nation;
and will abide by any other monitoring, compliance, or enforcement requirement related to
fishery conservation and management which is included in such agreement.
95-354
(3) The foreign nation and the owners or operators of all of the fishing vessels of such
nation shall not, in any year, harvest an amount of fish which exceeds such nation's
allocation of the total allowable level of foreign fishing, as determined under subsection (e).
97-453
(4) The foreign nation will—
(A) apply, pursuant to section 204, for any required permits;
(B) deliver promptly to the owner or operator of the appropriate fishing vessel any
permit which is issued under that section for such vessel;
(C) abide by, and take appropriate steps under its own laws to assure that all such
owners and operators comply with, section 204(a) and the applicable conditions and
restrictions established under section 204(b)(7); and
15
16 U.S.C. 1821
MSA § 201
(D) take, or refrain from taking, as appropriate, actions of the kind referred to in
subsection (e)(1) in order to receive favorable allocations under such subsection.
96-561, 101-267, 109-479
(d) TOTAL ALLOWABLE LEVEL OF FOREIGN FISHING.—The total allowable level of
foreign fishing, if any, with respect to any fishery subject to the exclusive fishery management
authority of the United States, is that portion of the optimum yield of such fishery which cannot,
or will not be harvested by vessels of the United States, as determined in accordance with this
Act. Allocations of the total allowable level of foreign fishing are discretionary, except that the
total allowable level shall be zero for fisheries determined by the Secretary to have adequate or
excess domestic harvest capacity.
(e) ALLOCATION OF ALLOWABLE LEVEL.—
96-61, 96-561, 97-453, 97-623, 98-623, 99-659, 102-251
(1) (A) The Secretary of State, in cooperation with the Secretary, may make allocations to
foreign nations from the total allowable level of foreign fishing which is permitted with
respect to each fishery subject to the exclusive fishery management authority of the
United States.
(B) From the determinations made under subparagraph (A), the Secretary of State
shall compute the aggregate of all of the fishery allocations made to each foreign nation.
(C) The Secretary of State shall initially release to each foreign nation for harvesting
up to 50 percent of the allocations aggregate computed for such nation under
subparagraph (B), and such release of allocation shall be apportioned by the Secretary of
State, in cooperation with the Secretary, among the individual fishery allocations
determined for that nation under subparagraph (A). The basis on which each
apportionment is made under this subparagraph shall be stated in writing by the Secretary
of State.
(D) After the initial release of fishery allocations under subparagraph (C) to a foreign
nation, any subsequent release of an allocation for any fishery to such nation shall only
be made—
(i) after the lapse of such period of time as may be sufficient for purposes of
making the determination required under clause (ii); and
(ii) if the Secretary of State and the Secretary, after taking into account the size of
the allocation for such fishery and the length and timing of the fishing season,
determine in writing that such nation is complying with the purposes and intent of this
paragraph with respect to such fishery.
If the foreign nation is not determined under clause (ii) to be in such compliance, the
Secretary of State shall reduce, in a manner and quantity he considers to be appropriate
(I) the remainder of such allocation, or (II) if all of such allocation has been released, the
next allocation of such fishery, if any, made to such nation.
16
16 U.S.C. 1821
MSA § 201
(E) The determinations required to be made under subparagraphs (A) and (D)(ii), and
the apportionments required to be made under subparagraph (C), with respect to a foreign
nation shall be based on—
(i) whether, and to what extent, such nation imposes tariff barriers or nontariff
barriers on the importation, or otherwise restricts the market access, of both United
States fish and fishery products, particularly fish and fishery products for which the
foreign nation has requested an allocation;
(ii) whether, and to what extent, such nation is cooperating with the United States
in both the advancement of existing and new opportunities for fisheries exports from
the United States through the purchase of fishery products from United States
processors, and the advancement of fisheries trade through the purchase of fish and
fishery products from United States fishermen, particularly fish and fishery products
for which the foreign nation has requested an allocation;
(iii) whether, and to what extent, such nation and the fishing fleets of such nation
have cooperated with the United States in the enforcement of United States fishing
regulations;
(iv) whether, and to what extent, such nation requires the fish harvested from the
exclusive economic zone [or special areas]* for its domestic consumption;
(v) whether, and to what extent, such nation otherwise contributes to, or fosters the
growth of, a sound and economic United States fishing industry, including minimizing
gear conflicts with fishing operations of United States fishermen, and transferring
harvesting or processing technology which will benefit the United States fishing
industry;
(vi) whether, and to what extent, the fishing vessels of such nation have
traditionally engaged in fishing in such fishery;
(vii) whether, and to what extent, such nation is cooperating with the United States
in, and making substantial contributions to, fishery research and the identification of
fishery resources; and
(viii) such other matters as the Secretary of State, in cooperation with the
Secretary, deems appropriate.
96-61, 96-118
(2) (A) For the purposes of this paragraph—
(i) The term "certification" means a certification made by the Secretary that
nationals of a foreign country, directly or indirectly, are conducting fishing operations
or engaging in trade or taking which diminishes the effectiveness of the International
Convention for the Regulation of Whaling. A certification under this section shall
also be deemed a certification for the purposes of section 8(a) of the Fishermen's
Protective Act of 1967 (22 U.S.C. 1978(a)).
(ii) The term "remedial period" means the 365-day period beginning on the date on
which a certification is issued with respect to a foreign country.
17
16 U.S.C. 1821
MSA § 201
(B) If the Secretary issues a certification with respect to any foreign country, then
each allocation under paragraph (1) that—
(i) is in effect for that foreign country on the date of issuance; or
(ii) is not in effect on such date but would, without regard to this paragraph, be
made to the foreign country within the remedial period;
shall be reduced by the Secretary of State, in consultation with the Secretary, by not less
than 50 percent.
(C) The following apply for purposes of administering subparagraph (B) with respect
to any foreign country:
(i) If on the date of certification, the foreign country has harvested a portion, but
not all, of the quantity of fish specified under any allocation, the reduction under
subparagraph (B) for that allocation shall be applied with respect to the quantity not
harvested as of such date.
(ii) If the Secretary notified the Secretary of State that it is not likely that the
certification of the foreign country will be terminated under section 8(d) of the
Fishermen's Protective Act of 1967 before the close of the period for which an
allocation is applicable or before the close of the remedial period (whichever close
first occurs) the Secretary of State, in consultation with the Secretary, shall reallocate
any portion of any reduction made under subparagraph (B) among one or more
foreign countries for which no certification is in effect.
(iii) If the certification is terminated under such section 8(d) during the remedial
period, the Secretary of State shall return to the foreign country that portion of any
allocation reduced under subparagraph (B) that was not reallocated under clause (ii);
unless the harvesting of the fish covered by the allocation is otherwise prohibited
under this Act.
(iv) The Secretary may refund or credit, by reason of reduction of any allocation
under this paragraph, any fee paid under section 204.
(D) If the certification of a foreign country is not terminated under section 8(d) of the
Fishermen's Protective Act of 1967 before the close of the last day of the remedial period,
the Secretary of State—
(i) with respect to any allocation made to that country and in effect (as reduced
under subparagraph (B)) on such last day, shall rescind, effective on and after the day
after such last day, any unharvested portion of such allocation; and
(ii) may not thereafter make any allocation to that country under paragraph (1)
until the certification is terminated.
95-354
(f) RECIPROCITY.—Foreign fishing shall not be authorized for the fishing vessels of any
foreign nation unless such nation satisfies the Secretary and the Secretary of State that such
nation extends substantially the same fishing privileges to fishing vessels of the United States, if
any, as the United States extends to foreign fishing vessels.
18
16 U.S.C. 1821
MSA § 201
95-354
(g) PRELIMINARY FISHERY MANAGEMENT PLANS.—The Secretary, when notified
by the Secretary of State that any foreign nation has submitted an application under section
204(b), shall prepare a preliminary fishery management plan for any fishery covered by such
application if the Secretary determines that no fishery management plan for that fishery will be
prepared and implemented, pursuant to title III, before March 1, 1977. To the extent
practicable, each such plan—
(1) shall contain a preliminary description of the fishery and a preliminary determination
as to—
(A) the optimum yield from such fishery;
(B) when appropriate, the capacity and extent to which United States fish processors
will process that portion of such optimum yield that will be harvested by vessels of the
United States; and
(C) the total allowable level of foreign fishing with respect to such fishery;
(2) shall require each foreign fishing vessel engaged or wishing to engage in such fishery
to obtain a permit from the Secretary;
(3) shall require the submission of pertinent data to the Secretary, with respect to such
fishery, as described in section 303(a)(5); and
(4) may, to the extent necessary to prevent irreversible effects from overfishing, with
respect to such fishery, contain conservation and management measures applicable to foreign
fishing which—
(A) are determined to be necessary and appropriate for the conservation and
management of such fishery,
(B) are consistent with the national standards, the other provisions of this Act, and
other applicable law, and
(C) are described in section 303(b)(2), (3), (4), (5), and (7).
Each preliminary fishery management plan shall be in effect with respect to foreign fishing for
which permits have been issued until a fishery management plan is prepared and implemented,
pursuant to title III, with respect to such fishery. The Secretary may, in accordance with section
553 of title 5, United States Code, also prepare and promulgate interim regulations with respect
to any such preliminary plan. Such regulations shall be in effect until regulations implementing
the applicable fishery management plan are promulgated pursuant to section 305.
(h) FULL OBSERVER COVERAGE PROGRAM.—
96-561, 99-569, 102-251
(1) (A) Except as provided in paragraph (2), the Secretary shall establish a program under
which a United States observer will be stationed aboard each foreign fishing vessel while
that vessel is engaged in fishing within the exclusive economic zone [or special areas]*.
19
16 U.S.C. 1821
MSA § 201
(B) The Secretary shall by regulation prescribe minimum health and safety standards
that shall be maintained aboard each foreign fishing vessel with regard to the facilities
provided for the quartering of, and the carrying out of observer functions by, United
States observers.
99-659, 104-297, 109-479
(2) The requirement in paragraph (1) that a United States observer be placed aboard each
foreign fishing vessel may be waived by the Secretary if he finds that—
(A) in a situation where a fleet of harvesting vessels transfers its catch taken within
the exclusive economic zone [or special areas]* to another vessel, aboard which is a
United States observer, the stationing of United States observers on only a portion of the
harvesting vessel fleet will provide a representative sampling of the by-catch of the fleet
that is sufficient for purposes of determining whether the requirements of the applicable
management plans for the by-catch species are being complied with;
(B) in a situation where the foreign fishing vessel is operating under a Pacific Insular
Area fishing agreement, the Governor of the applicable Pacific Insular Area, in
consultation with the Western Pacific Council, has established an observer coverage
program or other monitoring program that the Secretary, in consultation with the Western
Pacific Management Council, determines is adequate to monitor harvest, bycatch, and
compliance with the laws of the United States by vessels fishing under the agreement;
(C) the time during which a foreign fishing vessel will engage in fishing within the
exclusive economic zone [or special areas]* will be of such short duration that the
placing of a United States observer aboard the vessel would be impractical; or
(D) for reasons beyond the control of the Secretary, an observer is not available.
97-453
(3) Observers, while stationed aboard foreign fishing vessels, shall carry out such
scientific, compliance monitoring, and other functions as the Secretary deems necessary or
appropriate to carry out the purposes of this Act; and shall cooperate in carrying out such
other scientific programs relating to the conservation and management of living resources as
the Secretary deems appropriate.
(4) In addition to any fee imposed under section 204(b)(10) of this Act and section 10(e)
of the Fishermen's Protective Act of 1967 (22 U.S.C. 1980(e)) with respect to foreign fishing
for any year after 1980, the Secretary shall impose, with respect to each foreign fishing
vessel for which a permit is issued under such section 204, a surcharge in an amount
sufficient to cover all the costs of providing a United States observer aboard that vessel. The
failure to pay any surcharge imposed under this paragraph shall be treated by the Secretary
as a failure to pay the permit fee for such vessel under section 204(b)(10). All surcharges
collected by the Secretary under this paragraph shall be deposited in the Foreign Fishing
Observer Fund established by paragraph (5).
20
16 U.S.C. 1821
MSA § 201
(5) There is established in the Treasury of the United States the Foreign Fishing Observer
Fund. The Fund shall be available to the Secretary as a revolving fund for the purpose of
carrying out this subsection. The Fund shall consist of the surcharges deposited into it as
required under paragraph (4). All payments made by the Secretary to carry out this
subsection shall be paid from the Fund, only to the extent and in the amounts provided for in
advance in appropriation Acts. Sums in the Fund which are not currently needed for the
purposes of this subsection shall be kept on deposit or invested in obligations of, or
guaranteed by, the United States.
97-453
(6) If at any time the requirement set forth in paragraph (1) cannot be met because of
insufficient appropriations, the Secretary shall, in implementing a supplementary observer
program:
(A) certify as observers, for the purposes of this subsection, individuals who are
citizens or nationals of the United States and who have the requisite education or
experience to carry out the functions referred to in paragraph (3);
(B) establish standards of conduct for certified observers equivalent to those
applicable to Federal personnel;
(C) establish a reasonable schedule of fees that certified observers or their agents shall
be paid by the owners and operators of foreign fishing vessels for observer services; and
(D) monitor the performance of observers to ensure that it meets the purposes of this
Act.
97-453, 99-659, 102-251, 104-297
(i) RECREATIONAL FISHING.—Notwithstanding any other provision of this title, foreign
fishing vessels which are not operated for profit may engage in recreational fishing within the
exclusive economic zone, [special areas,]* and the waters within the boundaries of a State
subject to obtaining such permits, paying such reasonable fees, and complying with such
conditions and restrictions as the Secretary and the Governor of the State (or his designee) shall
impose as being necessary or appropriate to insure that the fishing activity of such foreign
vessels within such zone, [areas,]* or waters, respectively, is consistent with all applicable
Federal and State laws and any applicable fishery management plan implemented under section
304. The Secretary shall consult with the Secretary of State and the Secretary of the
Department in which the Coast Guard is operating in formulating the conditions and restrictions
to be applied by the Secretary under the authority of this subsection.
21
16 U.S.C. 1822
MSA § 202
SEC. 202. INTERNATIONAL FISHERY AGREEMENTS
16 U.S.C. 1822
(a) NEGOTIATIONS.—The Secretary of State—
(1) shall renegotiate treaties as provided for in subsection (b);
(2) shall negotiate governing international fishery agreements described in section 201(c);
(3) may negotiate boundary agreements as provided for in subsection (d);
(4) shall, upon the request of and in cooperation with the Secretary, initiate and conduct
negotiations for the purpose of entering into international fishery agreements-(A) which allow fishing vessels of the United States equitable access to fish over
which foreign nations assert exclusive fishery management authority, and
(B) which provide for the conservation and management of anadromous species and
highly migratory species; and
(5) may enter into such other negotiations, not prohibited by subsection (c), as may be
necessary and appropriate to further the purposes, policy, and provisions of this Act.
99-659, 102-251
(b) TREATY RENEGOTIATION.—The Secretary of State, in cooperation with the
Secretary, shall initiate, promptly after the date of enactment of this Act, the renegotiation of
any treaty which pertains to fishing within the exclusive economic zone (or within the area that
will constitute such zone after February 28, 1977) [or special areas]*, or for anadromous species
or Continental Shelf fishery resources beyond such zone or area[s]*, and which is in any
manner inconsistent with the purposes, policy, or provisions of this Act, in order to conform
such treaty to such purposes, policy, and provisions. It is the sense of Congress that the United
States shall withdraw from any such treaty, in accordance with its provisions, if such treaty is
not so renegotiated within a reasonable period of time after such date of enactment.
99-659, 102-251, 104-297
(c) INTERNATIONAL FISHERY AGREEMENTS.—No international fishery agreement
(other than a treaty) which pertains to foreign fishing within the exclusive economic zone (or
within the area that will constitute such zone after February 28, 1977) [or special areas,]* or for
anadromous species or Continental Shelf fishery resources beyond such zone or area[s]*—
(1) which is in effect on June 1, 1976, may thereafter be renewed, extended, or amended;
or
(2) may be entered into after May 31, 1976;
by the United States unless it is in accordance with the provisions of section 201(c) or
section 204(e).
99-659
(d) BOUNDARY NEGOTIATIONS.—The Secretary of State, in cooperation with the
Secretary, may initiate and conduct negotiations with any adjacent or opposite foreign nation to
establish the boundaries of the exclusive economic zone of the United States in relation to any
such nation.
22
16 U.S.C. 1822
MSA § 202
101-627
(e) HIGHLY MIGRATORY SPECIES AGREEMENTS.—
(1) EVALUATION.—The Secretary of State, in cooperation with the Secretary, shall
evaluate the effectiveness of each existing international fishery agreement which pertains to
fishing for highly migratory species. Such evaluation shall consider whether the agreement
provides for—
(A) the collection and analysis of necessary information for effectively managing the
fishery, including but not limited to information about the number of vessels involved,
the type and quantity of fishing gear used, the species of fish involved and their location,
the catch and bycatch levels in the fishery, and the present and probable future condition
of any stock of fish involved;
(B) the establishment of measures applicable to the fishery which are necessary and
appropriate for the conservation and management of the fishery resource involved;
(C) equitable arrangements which provide fishing vessels of the United States with (i)
access to the highly migratory species that are the subject of the agreement and (ii) a
portion of the allowable catch that reflects the traditional participation by such vessels in
the fishery;
(D) effective enforcement of conservation and management measures and access
arrangements throughout the area of jurisdiction; and
(E) sufficient and dependable funding to implement the provisions of the agreement,
based on reasonable assessments of the benefits derived by participating nations.
(2) ACCESS NEGOTIATIONS.—The Secretary of State, in cooperation with the
Secretary, shall initiate negotiations with respect to obtaining access for vessels of the
United States fishing for tuna species within the exclusive economic zones of other nations
on reasonable terms and conditions.
(3) REPORTS.—The Secretary of State shall report to the Congress—
(A) within 12 months after the date of enactment of this subsection, on the results of
the evaluation required under paragraph (1), together with recommendations for
addressing any inadequacies identified; and
(B) within six months after such date of enactment, on the results of the access
negotiations required under paragraph (2).
(4) NEGOTIATION.—The Secretary of State, in consultation with the Secretary, shall
undertake such negotiations with respect to international fishery agreements on highly
migratory species as are necessary to correct inadequacies identified as a result of the
evaluation conducted under paragraph (1).
23
16 U.S.C. 1822
MSA § 202
(5) SOUTH PACIFIC TUNA TREATY.—It is the sense of the Congress that the United
States Government shall, at the earliest opportunity, begin negotiations for the purpose of
extending the Treaty on Fisheries Between the Governments of Certain Pacific Island States
and the Government of the United States of America, signed at Port Moresby, Papua New
Guinea, April 2, 1987, and it[s] Annexes, Schedules, and implementing agreements for an
additional term of 10 years on terms and conditions at least as favorable to vessels of the
United States and the United States Government.
99-659
(f) NONRECOGNITION.—It is the sense of the Congress that the United States
Government shall not recognize the claim of any foreign nation to an exclusive economic zone
(or the equivalent) beyond such nation's territorial sea, to the extent that such sea is recognized
by the United States, if such nation—
(1) fails to consider and take into account traditional fishing activity of fishing vessels of
the United States;
(2) fails to recognize and accept that highly migratory species are to be managed by
applicable international fishery agreements, whether or not such nation is a party to any such
agreement; or
(3) imposes on fishing vessels of the United States any conditions or restrictions which
are unrelated to fishery conservation and management.
102-251
(g) FISHERY AGREEMENT WITH UNION OF SOVIET SOCIALIST REPUBLICS.—
(1) The Secretary of State, in consultation with the Secretary, is authorized to negotiate
and conclude a fishery agreement with Russia of a duration of no more than 3 years,
pursuant to which—
(A) Russia will give United States fishing vessels the opportunity to conduct
traditional fisheries within the waters claimed by the United States prior to the conclusion
of the Agreement between the United States of America and the Union of Soviet Socialist
Republics on the Maritime Boundary, signed June 1, 1990, west of the maritime
boundary, including the western special area described in Article 3(2) of the Agreement;
(B) the United States will give fishing vessels of Russia the opportunity to conduct
traditional fisheries within waters claimed by the Union of Soviet Socialist Republics
prior to the conclusion of the Agreement referred to in subparagraph (A), east of the
maritime boundary, including the eastern special areas described in Article 3(1) of the
Agreement;
(C) catch data shall be made available to the government of the country exercising
fisheries jurisdiction over the waters in which the catch occurred; and
(D) each country shall have the right to place observers on board vessels of the other
country and to board and inspect such vessels.
(2) Vessels operating under a fishery agreement negotiated and concluded pursuant to
paragraph (1) shall be subject to regulations and permit requirements of the country in whose
waters the fisheries are conducted only to the extent such regulations and permit
requirements are specified in that agreement.
24
16 U.S.C. 1822-1823
MSA §§ 202-203
(3) The Secretary of Commerce may promulgate such regulations, in accordance with
section 553 of title 5, United States Code, as may be necessary to carry out the provisions of
any fishery agreement negotiated and concluded pursuant to paragraph (1).
104-297
(h) BYCATCH REDUCTION AGREEMENTS.—
(1) The Secretary of State, in cooperation with the Secretary, shall seek to secure an
international agreement to establish standards and measures for bycatch reduction that are
comparable to the standards and measures applicable to United States fishermen for such
purposes in any fishery regulated pursuant to this Act for which the Secretary, in
consultation with the Secretary of State, determines that such an international agreement is
necessary and appropriate.
(2) An international agreement negotiated under this subsection shall be—
(A) consistent with the policies and purposes of this Act; and
(B) subject to approval by Congress under section 203.
(3) Not later than January 1, 1997, and annually thereafter, the Secretary, in consultation
with the Secretary of State, shall submit to the Committee on Commerce, Science, and
Transportation of the Senate and the Committee on Resources of the House of
Representatives a report describing actions taken under this subsection.
SEC. 203. CONGRESSIONAL OVERSIGHT OF
INTERNATIONAL FISHERY AGREEMENTS
16 U.S.C. 1823
104-297
(a) IN GENERAL.—No governing international fishery agreement, bycatch reduction
agreement, or Pacific Insular Area fishery agreement shall become effective with respect to the
United States before the close of the first 120 calendar days (excluding any days in a period for
which the Congress is adjourned sine die) after the date on which the President transmits to the
House of Representatives and to the Senate a document setting forth the text of such governing
international fishery agreement, bycatch reduction agreement, or Pacific Insular Area fishery
agreement. A copy of the document shall be delivered to each House of Congress on the same
day and shall be delivered to the Clerk of the House of Representatives, if the House is not in
session, and to the Secretary of the Senate, if the Senate is not in session.
(b) REFERRAL TO COMMITTEES.—Any document described in subsection (a) shall be
immediately referred in the House of Representatives to the Committee on Merchant Marine
and Fisheries, and in the Senate to the Committees on Commerce and Foreign Relations.
25
16 U.S.C. 1823
MSA § 203
(c) CONGRESSIONAL PROCEDURES.—
(1) RULES OF THE HOUSE OF REPRESENTATIVES AND SENATE.—The
provisions of this section are enacted by the Congress—
(A) as an exercise of the rulemaking power of the House of Representatives and the
Senate, respectively, and they are deemed a part of the rules of each House, respectively,
but applicable only with respect to the procedure to be followed in that House in the case
of fishery agreement resolutions described in paragraph (2), and they supersede other
rules only to the extent that they are inconsistent therewith; and
(B) with full recognition of the constitutional right of either House to change the rules
(so far as they relate to the procedure of that House) at any time, and in the same manner
and to the same extent as in the case of any other rule of that House.
104-297
(2) DEFINITION.—For purposes of this subsection, the term "fishery agreement
resolution" refers to a joint resolution of either House of Congress—
(A) the effect of which is to prohibit the entering into force and effect of any
governing international fishery agreement, bycatch reduction agreement, or Pacific
Insular Area fishery agreement the text of which is transmitted to the Congress pursuant
to subsection (a); and
(B) which is reported from the Committee on Merchant Marine and Fisheries of the
House of Representatives or the Committee on Commerce or the Committee on Foreign
Relations of the Senate, not later than 45 days after the date on which the document
described in subsection (a) relating to that agreement is transmitted to the Congress.
(3) PLACEMENT ON CALENDAR. —Any fishery agreement resolution upon being
reported shall immediately be placed on the appropriate calendar.
(4) FLOOR CONSIDERATION IN THE HOUSE.—
(A) A motion in the House of Representatives to proceed to the consideration of any
fishery agreement resolution shall be highly privileged and not debatable. An
amendment to the motion shall not be in order, nor shall it be in order to move to
reconsider the vote by which the motion is agreed to or disagreed to.
(B) Debate in the House of Representatives on any fishery agreement resolution shall
be limited to not more than 10 hours, which shall be divided equally between those
favoring and those opposing the resolution. A motion further to limit debate shall not be
debatable. It shall not be in order to move to recommit any fishery agreement resolution
or to move to reconsider the vote by which any fishery agreement resolution is agreed to
or disagreed to.
(C) Motions to postpone, made in the House of Representatives with respect to the
consideration of any fishery agreement resolution, and motions to proceed to the
consideration of other business, shall be decided without debate.
(D) All appeals from the decisions of the Chair relating to the application of the Rules
of the House of Representatives to the procedure relating to any fishery agreement
resolution shall be decided without debate.
26
16 U.S.C. 1823-1824
MSA §§ 203-204
(E) Except to the extent specifically provided in the preceding provisions of this
subsection, consideration of any fishery agreement resolution shall be governed by the
Rules of the House of Representatives applicable to other bills and resolutions in similar
circumstances.
(5) FLOOR CONSIDERATION IN THE SENATE.—
(A) A motion in the Senate to proceed to the consideration of any fishery agreement
resolution shall be privileged and not debatable. An amendment to the motion shall not
be in order, nor shall it be in order to move to reconsider the vote by which the motion is
agreed to or disagreed to.
(B) Debate in the Senate on any fishery agreement resolution and on all debatable
motions and appeals in connection therewith shall be limited to not more than 10 hours.
The time shall be equally divided between, and controlled by, the majority leader and the
minority leader or their designees.
(C) Debate in the Senate on any debatable motion or appeal in connection with any
fishery agreement resolution shall be limited to not more than 1 hour, to be equally
divided between, and controlled by, the mover of the motion or appeal and the manager
of the resolution, except that if the manager of the resolution is in favor of any such
motion or appeal, the time in opposition thereto shall be controlled by the minority leader
or his designee. The majority leader and the minority leader, or either of them, may allot
additional time to any Senator during the consideration of any debatable motion or
appeal, from time under their control with respect to the applicable fishery agreement
resolution.
(D) A motion in the Senate to further limit debate is not debatable. A motion to
recommit any fishery agreement resolution is not in order.
SEC. 204. PERMITS FOR FOREIGN FISHING
16 U.S.C. 1824
99-659, 102-251
(a) IN GENERAL.—After February 28, 1977, no foreign fishing vessel shall engage in
fishing within the exclusive economic zone [within the special areas]*, or for anadromous
species or Continental Shelf fishery resources beyond such zone [or areas]*, unless such vessel
has on board a valid permit issued under this section for such vessel.
(b) APPLICATIONS AND PERMITS UNDER GOVERNING INTERNATIONAL
FISHERY AGREEMENTS.—
99-659
(1) ELIGIBILITY.—Each foreign nation with which the United States has entered into a
governing international fishery agreement shall submit an application to the Secretary of
State each year for a permit for each of its fishing vessels that wishes to engage in fishing
described in subsection (a). No permit issued under this section may be valid for longer than
a year; and section 558(c) of title 5, United States Code, does not apply to the renewal of any
such permit.
27
16 U.S.C. 1824
MSA § 204
(2) FORMS.—The Secretary, in consultation with the Secretary of State and the
Secretary of the department in which the Coast Guard is operating, shall prescribe the forms
for permit applications submitted under this subsection and for permits issued pursuant to
any such application.
95-354, 97-453, 99-659
(3) CONTENTS.—Any application made under this subsection shall specify—
(A) the name and official number or other identification of each fishing vessel for
which a permit is sought, together with the name and address of the owner thereof;
(B) the tonnage, hold capacity, speed, processing equipment, type and quantity of
fishing gear, and such other pertinent information with respect to characteristics of each
such vessel as the Secretary may require;
(C) each fishery in which each such vessel wishes to fish;
(D) the estimated amount of tonnage of fish which will be caught, taken, or harvested
in each such fishery by each such vessel during the time the permit is in force;
(E) the amount or tonnage of United States harvested fish, if any, which each such
vessel proposes to receive at sea from vessels of the United States; (F) the ocean area in
which, and the season or period during which, such fishing will be conducted; and (G) all
applicable vessel safety standards imposed by the foreign country, and shall include
written certification that the vessel is in compliance with those standards; and shall
include any other pertinent information and material which the Secretary may require.
95-354, 96-470, 97-453, 99-659
(4) TRANSMITTAL FOR ACTION.—Upon receipt of any application which complies
with the requirements of paragraph (3), the Secretary of State shall publish a notice of receipt
of the application in the Federal Register. Any such notice shall summarize the contents of
the applications from each nation included therein with respect to the matters described in
paragraph (3). The Secretary of State shall promptly transmit—
(A) such application, together with his comments and recommendations thereon, to
the Secretary;
(B) a copy of the application to the Secretary of the department in which the Coast
Guard is operating; and
(C) a copy or a summary of the application to the appropriate Council.
97-453
(5) ACTION BY COUNCIL.—After receiving a copy or summary of an application
under paragraph (4)(C), the Council may prepare and submit to the Secretary such written
comments on the application as it deems appropriate. Such comments shall be submitted
within 45 days after the date on which the application is received by the Council and may
include recommendations with respect to approval of the application and, if approval is
recommended, with respect to appropriate conditions and restrictions thereon. Any
interested person may submit comments to such Council with respect to any such
application. The Council shall consider any such comments in formulating its submission to
the Secretary.
28
16 U.S.C. 1824
MSA § 204
95-453, 99-659
(6) APPROVAL.—
(A) After receipt of any application transmitted under paragraph (4)(A), the Secretary
shall consult with the Secretary of State and, with respect to enforcement, with the
Secretary of the department in which the Coast Guard is operating. The Secretary, after
taking into consideration the views and recommendations of such Secretaries, and any
comments submitted by any Council under paragraph (5), may approve, subject to
subparagraph (B), the application, if he determines that the fishing described in the
application will meet the requirements of this Act, or he may disapprove all or any
portion of the application.
(B) (i) In the case of any application which specifies that one or more foreign fishing
vessels propose to receive at sea United States harvested fish from vessels of the
United States, the Secretary may approve the application unless the Secretary
determines, on the basis of the views, recommendations, and comments referred to in
subparagraph (A) and other pertinent information, that United States fish processors
have adequate capacity, and will utilize such capacity, to process all United States
harvested fish from the fishery concerned.
(ii) The amount or tonnage of United States harvested fish which may be received
at sea during any year by foreign fishing vessels under permits approved under this
paragraph may not exceed that portion of the optimum yield of the fishery concerned
which will not be utilized by United States fish processors.
(iii) In deciding whether to approve any application under this subparagraph, the
Secretary may take into account, with respect to the foreign nation concerned, such
other matters as the Secretary deems appropriate.
95-354, 104-297
(7) ESTABLISHMENT OF CONDITIONS AND RESTRICTIONS.—The Secretary
shall establish conditions and restrictions which shall be included in each permit issued
pursuant to any application approved under paragraph (6) or subsection (d) and which must
be complied with by the owner or operator of the fishing vessel for which the permit is
issued. Such conditions and restrictions shall include the following:
(A) All of the requirements of any applicable fishery management plan, or preliminary
fishery management plan, and any applicable Federal or State fishing regulations.
(B) The requirement that no permit may be used by any vessel other than the fishing
vessel for which it is issued.
(C) The requirements described in section 201(c)(1), (2), and (3).
(D) If the permit is issued other than pursuant to an application approved under
paragraph (6)(B) or subsection (d), the restriction that the foreign fishing vessel may not
receive at sea United States harvested fish from vessels of the United States.
(E) If the permit is issued pursuant to an application approved under paragraph (6)(B),
the maximum amount or tonnage of United States harvested fish which may be received
at sea from vessels of the United States.
(F) Any other condition and restriction related to fishery conservation and
management which the Secretary prescribes as necessary and appropriate.
29
16 U.S.C. 1824
MSA § 204
96-470
(8) NOTICE OF APPROVAL.—The Secretary shall promptly transmit a copy of each
application approved under paragraph (6) and the conditions and restrictions established
under paragraph (7) to—
(A) the Secretary of State for transmittal to the foreign nation involved;
(B) the Secretary of the department in which the Coast Guard is operating; and
(C) any Council which has authority over any fishery specified in such application.
(9) DISAPPROVAL OF APPLICATIONS.—If the Secretary does not approve any
application submitted by a foreign nation under this subsection, he shall promptly inform the
Secretary of State of the disapproval and his reasons therefore. The Secretary of State shall
notify such foreign nation of the disapproval and the reasons therefor. Such foreign nation,
after taking into consideration the reasons for disapproval, may submit a revised application
under this subsection.
96-561, 99-272, 101-627
(10) FEES.—
(A) Fees shall be paid to the Secretary by the owner or operator of any foreign fishing
vessel for which a permit has been issued pursuant to this section. The Secretary, in
consultation with the Secretary of State, shall establish a schedule of reasonable fees that
shall apply nondiscriminatorily to each foreign nation.
(B) Amounts collected by the Secretary under this paragraph shall be deposited in the
general fund of the Treasury.
(11) ISSUANCE OF PERMITS.—If a foreign nation notifies the Secretary of State of its
acceptance of the conditions and restrictions established by the Secretary under paragraph
(7), the Secretary of State shall promptly transmit such notification to the Secretary. Upon
payment of the applicable fees established pursuant to paragraph (10), the Secretary shall
thereupon issue to such foreign nation, through the Secretary of State, permits for the
appropriate fishing vessels of that nation. Each permit shall contain a statement of all
conditions and restrictions established under paragraph (7) which apply to the fishing vessel
for which the permit is issued.
30
16 U.S.C. 1824
MSA § 204
(c) REGISTRATION PERMITS.—The Secretary of State, in cooperation with the Secretary,
shall issue annually a registration permit for each fishing vessel of a foreign nation which is a
party to an international fishery agreement under which foreign fishing is authorized by section
201(b) and which wishes to engage in fishing described in subsection (a). Each such permit
shall set forth the terms and conditions contained in the agreement that apply with respect to
such fishing, and shall include the additional requirement that the owner or operator of the
fishing vessel for which the permit is issued shall prominently display such permit in the
wheelhouse of such vessel and show it, upon request, to any officer authorized to enforce the
provisions of this Act (as provided for in section 311). The Secretary of State, after
consultation with the Secretary and the Secretary of the department in which the Coast Guard is
operating, shall prescribe the form and manner in which applications for registration permits
may be made, and the forms of such permits. The Secretary of State may establish, require the
payment of, and collect fees for registration permits; except that the level of such fees shall not
exceed the administrative costs incurred by him in issuing such permits.
104-297
(d) TRANSSHIPMENT PERMITS—
(1) AUTHORITY TO ISSUE PERMITS.—The Secretary may issue a transshipment
permit under this subsection which authorizes a vessel other than a vessel of the United
States to engage in fishing consisting solely of transporting fish or fish products at sea from
a point within the exclusive economic zone or, with the concurrence of a State, within the
boundaries of that State, to a point outside the United States to any person who—
(A) submits an application which is approved by the Secretary under paragraph (3);
and
(B) pays a fee imposed under paragraph (7).
(2) TRANSMITTAL.—Upon receipt of an application for a permit under this subsection,
the Secretary shall promptly transmit copies of the application to the Secretary of State,
Secretary of the department in which the Coast Guard is operating, any appropriate Council,
and any affected State.
(3) APPROVAL OF APPLICATION.—The Secretary may approve, in consultation with
the appropriate Council or Marine Fisheries Commission, an application for a permit under
this section if the Secretary determines that—
(A) the transportation of fish or fish products to be conducted under the permit, as
described in the application, will be in the interest of the United States and will meet the
applicable requirements of this Act;
(B) the applicant will comply with the requirements described in section 201(c)(2)
with respect to activities authorized by any permit issued pursuant to the application;
(C) the applicant has established any bonds or financial assurances that may be
required by the Secretary; and
(D) no owner or operator of a vessel of the United States which has adequate capacity
to perform the transportation for which the application is submitted has indicated to the
Secretary an interest in performing the transportation at fair and reasonable rates.
31
16 U.S.C. 1824
MSA § 204
(4) WHOLE OR PARTIAL APPROVAL.—The Secretary may approve all or any
portion of an application under paragraph (3).
(5) FAILURE TO APPROVE APPLICATION.—If the Secretary does not approve any
portion of an application submitted under paragraph (1), the Secretary shall promptly inform
the applicant and specify the reasons therefor.
(6) CONDITIONS AND RESTRICTIONS.—The Secretary shall establish and include in
each permit under this subsection conditions and restrictions, including those conditions and
restrictions set forth in subsection (b)(7), which shall be complied with by the owner and
operator of the vessel for which the permit is issued.
(7) FEES.—The Secretary shall collect a fee for each permit issued under this subsection,
in an amount adequate to recover the costs incurred by the United States in issuing the
permit, except that the Secretary shall waive the fee for the permit if the foreign nation under
which the vessel is registered does not collect a fee from a vessel of the United States
engaged in similar activities in the waters of such foreign nation.
104-297
(e) PACIFIC INSULAR AREAS.—
(1) NEGOTIATION OF PACIFIC INSULAR AREA FISHERY AGREEMENTS.—The
Secretary of State, with the concurrence of the Secretary and in consultation with any
appropriate Council, may negotiate and enter into a Pacific Insular Area fishery agreement to
authorize foreign fishing within the exclusive economic zone adjacent to a Pacific Insular
Area—
(A) in the case of American Samoa, Guam, or the Northern Mariana Islands, at the
request and with the concurrence of, and in consultation with, the Governor of the Pacific
Insular Area to which such agreement applies; and
(B) in the case of a Pacific Insular Area other than American Samoa, Guam, or the
Northern Mariana Islands, at the request of the Western Pacific Council.
(2) AGREEMENT TERMS AND CONDITIONS.—A Pacific Insular Area fishery
agreement—
(A) shall not be considered to supersede any governing international fishery
agreement currently in effect under this Act, but shall provide an alternative basis for the
conduct of foreign fishing within the exclusive economic zone adjacent to Pacific Insular
Areas;
(B) shall be negotiated and implemented consistent only with the governing
international fishery agreement provisions of this title specifically made applicable in this
subsection;
(C) may not be negotiated with a nation that is in violation of a governing
international fishery agreement in effect under this Act;
32
16 U.S.C. 1824
MSA § 204
(D) shall not be entered into if it is determined by the Governor of the applicable
Pacific Insular Area with respect to agreements initiated under paragraph (1)(A), or the
Western Pacific Council with respect to agreements initiated under paragraph (1)(B), that
such an agreement will adversely affect the fishing activities of the indigenous people of
such Pacific Insular Area;
(E) shall be valid for a period not to exceed three years and shall only become
effective according to the procedures in section 203; and
(F) shall require the foreign nation and its fishing vessels to comply with the
requirements of paragraphs (1), (2), (3) and (4)(A) of section 201(c), section 201(d), and
section 201(h).
(3) PERMITS FOR FOREIGN FISHING.—
(A) Application for permits for foreign fishing authorized under a Pacific Insular
Areas fishing agreement shall be made, considered and approved or disapproved in
accordance with paragraphs (3), (4), (5), (6), (7) (A) and (B), (8), and (9) of subsection
(b), and shall include any conditions and restrictions established by the Secretary in
consultation with the Secretary of State, the Secretary of the department in which the
Coast Guard is operating, the Governor of the applicable Pacific Insular Area, and the
appropriate Council.
(B) If a foreign nation notifies the Secretary of State of its acceptance of the
requirements of this paragraph, paragraph (2)(F), and paragraph (5), including any
conditions and restrictions established under subparagraph (A), the Secretary of State
shall promptly transmit such notification to the Secretary. Upon receipt of any payment
required under a Pacific Insular Area fishing agreement, the Secretary shall thereupon
issue to such foreign nation, through the Secretary of State, permits for the appropriate
fishing vessels of that nation. Each permit shall contain a statement of all of the
requirements, conditions, and restrictions established under this subsection which apply
to the fishing vessel for which the permit is issued.
109-479
(4) MARINE CONSERVATION PLANS.—
(A) Prior to entering into a Pacific Insular Area fishery agreement, the Western
Pacific Council and the appropriate Governor shall develop a 3-year marine conservation
plan detailing uses for funds to be collected by the Secretary pursuant to such agreement.
Such plan shall be consistent with any applicable fishery management plan, identify
conservation and management objectives (including criteria for determining when such
objectives have been met), and prioritize planned marine conservation projects.
Conservation and management objectives shall include, but not be limited to—
33
16 U.S.C. 1824
MSA § 204
(i) Pacific Insular Area observer programs, or other monitoring programs, that the
Secretary determines are adequate to monitor the harvest, bycatch, and compliance
with the laws of the United States by foreign fishing vessels that fish under Pacific
Insular Area fishing agreements;
(ii) conduct of marine and fisheries research, including development of systems for
information collection, analysis, evaluation, and reporting;
(iii) conservation, education, and enforcement activities related to marine and
coastal management, such as living marine resource assessments, habitat monitoring
and coastal studies;
(iv) grants to the University of Hawaii for technical assistance projects by the
Pacific Island Network, such as education and training in the development and
implementation of sustainable marine resources development projects, scientific
research, and conservation strategies; and
(v) western Pacific community-based demonstration projects under section 112(b)
of the Sustainable Fisheries Act2 and other coastal improvement projects to foster and
promote the management, conservation, and economic enhancement of the Pacific
Insular Areas.
(B) In the case of American Samoa, Guam, and the Northern Mariana Islands, the
appropriate Governor, with the concurrence of the Western Pacific Council, shall develop
the marine conservation plan described in subparagraph (A) and submit such plan to the
Secretary for approval. In the case of other Pacific Insular Areas, the Western Pacific
Council shall develop and submit the marine conservation plan described in subparagraph
(A) to the Secretary for approval.
(C) If a Governor or the Western Pacific Council intends to request that the Secretary
of State renew a Pacific Insular Area fishery agreement, a subsequent 3-year plan shall be
submitted to the Secretary for approval by the end of the second year of the existing
3-year plan.
(5) RECIPROCAL CONDITIONS.—Except as expressly provided otherwise in this
subsection, a Pacific Insular Area fishing agreement may include terms similar to the terms
applicable to United States fishing vessels for access to similar fisheries in waters subject to
the fisheries jurisdiction of another nation.
2
The editors assume this reference should be to section 111(b) of the Sustainable Fisheries Act (P.L. 104-297).
See the note about Demonstration Projects after section 305 of the Magnuson-Stevens Act.
34
16 U.S.C. 1824
MSA § 204
(6) USE OF PAYMENTS BY AMERICAN SAMOA, GUAM, NORTHERN
MARIANA ISLANDS.—Any payments received by the Secretary under a Pacific Insular
Area fishery agreement for American Samoa, Guam, or the Northern Mariana Islands shall
be deposited into the United States Treasury and then covered over to the Treasury of the
Pacific Insular Area for which those funds were collected. Amounts deposited in the
Treasury of a Pacific Insular Area shall be available, without appropriation or fiscal year
limitation, to the Governor of the Pacific Insular Area—
(A) to carry out the purposes of this subsection;
(B) to compensate (i) the Western Pacific Council for mutually agreed upon
administrative costs incurred relating to any Pacific Insular Area fishery agreement for
such Pacific Insular Area, and (ii) the Secretary of State for mutually agreed upon travel
expenses for no more than 2 Federal representatives incurred as a direct result of
complying with paragraph (1)(A); and
(C) to implement a marine conservation plan developed and approved under
paragraph (4).
109-479
(7) WESTERN PACIFIC SUSTAINABLE FISHERIES FUND.—There is established in
the United States Treasury a Western Pacific Sustainable Fisheries Fund into which any
payments received by the Secretary under a Pacific Insular Area fishery agreement and any
funds or contributions received in support of conservation and management objectives under
a marine conservation plan for any Pacific Insular Area other than American Samoa, Guam,
or the Northern Mariana Islands shall be deposited. The Western Pacific Sustainable
Fisheries Fund shall be made available, without appropriation or fiscal year limitation, to the
Secretary, who shall provide such funds only to—
(A) the Western Pacific Council for the purpose of carrying out the provisions of this
subsection, including implementation of a marine conservation plan approved under
paragraph (4);
(B) the Secretary of State for mutually agreed upon travel expenses for no more than 2
Federal representatives incurred as a direct result of complying with paragraph (1)(B);
and
(C) the Western Pacific Council to meet conservation and management objectives in
the State of Hawaii if monies remain in the Western Pacific Sustainable Fisheries Fund
after the funding requirements of subparagraphs (A) and (B) have been satisfied.
Amounts deposited in such fund shall not diminish funding received by the Western
Pacific Council for the purpose of carrying out other responsibilities under this Act.
35
16 U.S.C. 1824-1825
MSA §§ 204-205
109-479
(8) USE OF FINES AND PENALTIES.—In the case of violations occurring within the
exclusive economic zone off American Samoa, Guam, or the Northern Mariana Islands,
amounts received by the Secretary which are attributable to fines or penalties imposed under
this Act, including such sums collected from the forfeiture and disposition or sale of property
seized subject to its authority, after payment of direct costs of the enforcement action to all
entities involved in such action, shall be deposited into the Treasury of the Pacific Insular
Area adjacent to the exclusive economic zone in which the violation occurred, to be used for
fisheries enforcement and for implementation of a marine conservation plan under paragraph
(4). In the case of violations by foreign vessels occurring within the exclusive economic
zones off Midway Atoll, Johnston Atoll, Kingman Reef, Palmyra Atoll, Jarvis, Howland,
Baker, and Wake Islands, amounts received by the Secretary attributable to fines and
penalties imposed under this Act, shall be deposited into the Western Pacific Sustainable
Fisheries Fund established under paragraph (7) of this subsection.
P.L. 104-297, sec. 105(e), MSA § 204 note
ATLANTIC HERRING TRANSSHIPMENT—Within 30 days of receiving an application, the
Secretary shall, under section 204(d) of the Magnuson Fishery Conservation and Management Act, as
amended by this Act [Public Law 104-297], issue permits to up to fourteen Canadian transport vessels
that are not equipped for fish harvesting or processing, for the transshipment, within the boundaries of the
State of Maine or within the portion of the exclusive economic zone east of the line 69 degrees 30 minutes
west and within 12 nautical miles from the seaward boundary of that State, of Atlantic herring harvested
by United States fishermen within the area described and used solely in sardine processing. In issuing a
permit pursuant to this subsection, the Secretary shall provide a waiver under section 201(h)(2)(C) of the
Magnuson Fishery Conservation and Management Act, as amended by this Act: Provided, That such
vessels comply with Federal or State monitoring and reporting requirements for the Atlantic herring
fishery, including the stationing of United States observers aboard such vessels, if necessary.
SEC. 205. IMPORT PROHIBITIONS
16 U.S.C. 1825
101-627
(a) DETERMINATIONS BY SECRETARY OF STATE.—If the Secretary of State
determines that—
(1) he has been unable, within a reasonable period of time, to conclude with any foreign
nation an international fishery agreement allowing fishing vessels of the United States
equitable access to fisheries over which that nation asserts exclusive fishery management
authority, including fisheries for tuna species, as recognized by the United States, in
accordance with fishing activities of such vessels, if any, and under terms not more
restrictive than those established under sections 201(c) and (d) and 204(b)(7) and (10),
because such nation has (A) refused to commence negotiations, or (B) failed to negotiate in
good faith;
36
16 U.S.C. 1825
MSA § 205
(2) any foreign nation is not allowing fishing vessels of the United States to engage in
fishing for tuna species in accordance with an applicable international fishery agreement,
whether or not such nation is a party thereto;
(3) any foreign nation is not complying with its obligations under any existing
international fishery agreement concerning fishing by fishing vessels of the United States in
any fishery over which that nation asserts exclusive fishery management authority; or
(4) any fishing vessel of the United States, while fishing in waters beyond any foreign
nation's territorial sea, to the extent that such sea is recognized by the United States, is seized
by any foreign nation—
(A) in violation of an applicable international fishery agreement;
(B) without authorization under an agreement between the United States and such
nation; or
(C) as a consequence of a claim of jurisdiction which is not recognized by the United
States;
he shall certify such determination to the Secretary of the Treasury.
(b) PROHIBITIONS.—Upon receipt of any certification from the Secretary of State under
subsection (a), the Secretary of the Treasury shall immediately take such action as may be
necessary and appropriate to prohibit the importation into the United States—
(1) of all fish and fish products from the fishery involved, if any; and
(2) upon recommendation of the Secretary of State, such other fish or fish products, from
any fishery of the foreign nation concerned, which the Secretary of State finds to be
appropriate to carry out the purposes of this section.
(c) REMOVAL OF PROHIBITION.—If the Secretary of State finds that the reasons for the
imposition of any import prohibition under this section no longer prevail, the Secretary of State
shall notify the Secretary of the Treasury, who shall promptly remove such import prohibition.
(d) DEFINITIONS.—As used in this section—
(1) The term "fish" includes any highly migratory species.
(2) The term "fish products" means any article which is produced from or composed of
(in whole or in part) any fish.
37
16 U.S.C. 1826
MSA § 206
101-627
SEC. 206. LARGE-SCALE DRIFTNET FISHING
16 U.S.C. 1826
(a) SHORT TITLE.—This section incorporates and expands upon provisions of the Driftnet
Impact Monitoring, Assessment, and Control Act of 1987 and may be cited as the ‘Driftnet Act
Amendments of 1990’.
(b) FINDINGS.—The Congress finds that—
(1) the continued widespread use of large-scale driftnets beyond the exclusive economic
zone of any nation is a destructive fishing practice that poses a threat to living marine
resources of the world's oceans, including but not limited to the North and South Pacific
Ocean and the Bering Sea;
(2) the use of large-scale driftnets is expanding into new regions of the world's oceans,
including the Atlantic Ocean and Caribbean Sea;
(3) there is a pressing need for detailed and reliable information on the number of
seabirds, sea turtles, nontarget fish, and marine mammals that become entangled and die in
actively fished large-scale driftnets and in large-scale driftnets that are lost, abandoned, or
discarded;
(4) increased efforts, including reliable observer data and enforcement mechanisms, are
needed to monitor, assess, control, and reduce the adverse impact of large-scale driftnet
fishing on living marine resources;
(5) the nations of the world have agreed in the United Nations, through General
Assembly Resolution Numbered 44-225, approved December 22, 1989, by the General
Assembly, that a moratorium should be imposed by June 30, 1992, on the use of large-scale
driftnets beyond the exclusive economic zone of any nation;
(6) the nations of the South Pacific have agreed to a moratorium on the use of largescale driftnets in the South Pacific through the Convention for the Prohibition of Fishing
with Long Driftnets in the South Pacific, which was agreed to in Wellington, New Zealand,
on November 29, 1989; and
38
16 U.S.C. 1826
MSA § 206
(7) increasing population pressures and new knowledge of the importance of living
marine resources to the health of the global ecosystem demand that greater responsibility be
exercised by persons fishing or developing new fisheries beyond the exclusive economic
zone of any nation.
(c) POLICY.—It is declared to be the policy of the Congress in this section that the United
States should—
(1) implement the moratorium called for by the United Nations General Assembly in
Resolution Numbered 44-225;
(2) support the Tarawa Declaration and the Wellington Convention for the Prohibition of
Fishing with Long Driftnets in the South Pacific; and
(3) secure a permanent ban on the use of destructive fishing practices, and in particular
large-scale driftnets, by persons or vessels fishing beyond the exclusive economic zone of
any nation.
(d) INTERNATIONAL AGREEMENTS.—The Secretary, through the Secretary of State
and the Secretary of the department in which the Coast Guard is operating, shall seek to secure
international agreements to implement immediately the findings, policy, and provisions of this
section, and in particular an international ban on large-scale driftnet fishing. The Secretary,
through the Secretary of State, shall include, in any agreement which addresses the taking of
living marine resources of the United States, provisions to ensure that—
(1) each large-scale driftnet fishing vessel of a foreign nation that is party to the
agreement, including vessels that may operate independently to develop new fishing areas,
which operate beyond the exclusive economic zone of any nation, is included in such
agreement;
(2) each large-scale driftnet fishing vessel of a foreign nation that is party to the
agreement, which operates beyond the exclusive economic zone of any nation, is equipped
with satellite transmitters which provide real-time position information accessible to the
United States;
(3) statistically reliable monitoring by the United States is carried out, through the use of
on-board observers or through dedicated platforms provided by foreign nations that are
parties to the agreement, of all target and nontarget fish species, marine mammals, sea
turtles, and sea birds entangled or killed by large-scale driftnets used by fishing vessels of
foreign nations that are parties to the agreement;
39
16 U.S.C. 1826
MSA § 206
(4) officials of the United States have the right to board and inspect for violations of the
agreement any large-scale driftnet fishing vessels operating under the flag of a foreign nation
that is party to the agreement at any time while such vessel is operating in designated areas
beyond the exclusive economic zone of any nation;
(5) all catch landed or transshipped at sea by large-scale driftnet fishing vessels of a
foreign nation that is a party to the agreement, and which are operated beyond the exclusive
economic zone of any nation, is reliably monitored and documented;
(6) time and area restrictions are imposed on the use of large-scale driftnets in order to
prevent interception of anadromous species;
(7) all large-scale driftnets used are constructed, insofar as feasible, with biodegradable
materials which break into segments that do not represent a threat to living marine resources;
(8) all large-scale driftnets are marked at appropriate intervals in a manner that
conclusively identifies the vessel and flag nation responsible for each such driftnet;
(9) the taking of nontarget fish species, marine mammals, sea turtles, seabirds, and
endangered species or other species protected by international agreements to which the
United States is a party is minimized and does not pose a threat to existing fisheries or the
long-term health of living marine resources; and
(10) definitive steps are agreed upon to ensure that parties to the agreement comply with
the spirit of other international agreements and resolutions concerning the use of large-scale
driftnets beyond the exclusive economic zone of any nation.
104-297
(e) REPORT.—Not later than January 1, 1991, and every year thereafter until the purposes
of this section are met, the Secretary, after consultation with the Secretary of State and the
Secretary of the department in which the Coast Guard is operating, shall submit to the
Committee on Commerce, Science, and Transportation of the Senate and the Committee on
Merchant Marine and Fisheries of the House of Representatives a report—
(1) describing the steps taken to carry out the provisions of this section, particularly
subsection (c);
(2) evaluating the progress of those efforts, the impacts on living marine resources,
including available observer data, and specifying plans for further action;
40
16 U.S.C. 1826
MSA § 206
(3) containing a list and description of any new fisheries developed by nations that
conduct, or authorize their nationals to conduct, large-scale driftnet fishing beyond the
exclusive economic zone of any nation; and
(4) containing a list of the nations that conduct, or authorize their nationals to conduct,
large-scale driftnet fishing beyond the exclusive economic zone of any nation in a manner
that diminishes the effectiveness of or is inconsistent with any international agreement
governing large-scale driftnet fishing to which the United States is a party or otherwise
subscribes.
104-297
(f) CERTIFICATION.—If at any time the Secretary, in consultation with the Secretary of
State and the Secretary of the department in which the Coast Guard is operating, identifies any
nation that warrants inclusion in the list described under subsection (e)(4), the Secretary shall
certify that fact to the President. Such certification shall be deemed to be a certification for the
purposes of section 8(a) of the Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)).
(g) EFFECT ON SOVEREIGN RIGHTS.—This section shall not serve or be construed to
expand or diminish the sovereign rights of the United States, as stated by Presidential
Proclamation Numbered 5030, dated March 10, 1983, and reflected in this Act or other existing
law.
(h) DEFINITION.—As used in this section, the term "living marine resources" includes fish,
marine mammals, sea turtles, and seabirds and other waterfowl.
41
16 U.S.C. 1826a
HSDFEA § 101
102-582
HIGH SEAS DRIFTNET FISHERIES ENFORCEMENT ACT
SEC.101.3 DENIAL OF PORT PRIVILEGES AND SANCTIONS 16 U.S.C. 1826a
FOR HIGH SEAS LARGE-SCALE DRIFTNET FISHING
(a) DENIAL OF PORT PRIVILEGES.—
(1) PUBLICATION OF LIST.—Not later than 30 days after November 2, 1992, and
periodically thereafter, the Secretary of Commerce, in consultation with the Secretary of
State, shall publish a list of nations whose nationals or vessels conduct large-scale driftnet
fishing beyond the exclusive economic zone of any nation.
(2) DENIAL OF PORT PRIVILEGES.—The Secretary of the Treasury shall, in
accordance with recognized principles of international law—
(A) withhold or revoke the clearance required by section 91 of the Appendix to Title
46 for any large-scale driftnet fishing vessel that is documented under the laws of the
United States or of a nation included on a list published under paragraph (1); and
(B) deny entry of that vessel to any place in the United States and to the navigable
waters of the United States.
(3) NOTIFICATION OF NATION.—Before the publication of a list of nations under
paragraph (1), the Secretary of State shall notify each nation included on that list
regarding—
(A) the effect of that publication on port privileges of vessels of that nation under
paragraph (1); and
(B) any sanctions or requirements, under this Act or any other law, that may be
imposed on that nation if nationals or vessels of that nation continue to conduct largescale driftnet fishing beyond the exclusive economic zone of any nation after
December 31, 1992.
3
The High Seas Driftnet Fisheries Enforcement Act (P.L. 102-582) is codified as 16 U.S.C. 1826a-c. The
section number refers to P.L. 102-582.
42
16 U.S.C. 1826a
HSDFEA § 101
(b) SANCTIONS.—
109-479
(1) IDENTIFICATIONS.—
(A) INITIAL IDENTIFICATIONS.—Not later than January 10, 1993, the Secretary
of Commerce shall—
(i) identify each nation whose nationals or vessels are conducting large-scale
driftnet fishing or illegal, unreported, or unregulated fishing beyond the exclusive
economic zone of any nation; and
(ii) notify the President and that nation of the identification under clause (i).
(B) ADDITIONAL IDENTIFICATIONS.—At any time after January 10, 1993,
whenever the Secretary of Commerce has reason to believe that the nationals or vessels of
any nation are conducting large-scale driftnet fishing or illegal, unreported, or unregulated
fishing beyond the exclusive economic zone of any nation, the Secretary of Commerce
shall—
(i) identify that nation; and
(ii) notify the President and that nation of the identification under clause (i).
109-479
(2) CONSULTATIONS.—Not later than 30 days after a nation is identified under
paragraph (1)(B), the President shall enter consultations with the government of that nation
for the purpose of obtaining an agreement that will effect the immediate termination of largescale driftnet fishing or illegal, unreported, or unregulated fishing by the nationals or vessels
of that nation beyond the exclusive economic zone of any nation.
(3) PROHIBITION ON IMPORTS OF FISH AND FISH PRODUCTS AND SPORT
FISHING EQUIPMENT.—
(A) PROHIBITION.—The President—
(i) upon receipt of notification of the identification of a nation under paragraph
(1)(A); or
(ii) if the consultations with the government of a nation under paragraph (2) are not
satisfactorily concluded within 90 days,
shall direct the Secretary of the Treasury to prohibit the importation into the United
States of fish and fish products and sport fishing equipment (as that term is defined in
section 4162 of Title 26) from that nation.
(B) IMPLEMENTATION OF PROHIBITION.—With respect to an import
prohibition directed under subparagraph (A), the Secretary of the Treasury shall
implement such prohibition not later than the date that is 45 days after the date on which
the Secretary has received the direction from the President.
43
16 U.S.C. 1826a-1826b
HSDFEA §§ 101-102
(C) PUBLIC NOTICE OF PROHIBITION.—Before the effective date of any import
prohibition under this paragraph, the Secretary of the Treasury shall provide public notice
of the impending prohibition.
109-479
(4) ADDITIONAL ECONOMIC SANCTIONS.—
(A) DETERMINATION OF EFFECTIVENESS OF SANCTIONS.—Not later than
six months after the date the Secretary of Commerce identifies a nation under paragraph
(1), the Secretary shall determine whether—
(i) any prohibition established under paragraph (3) is insufficient to cause that
nation to terminate large-scale driftnet fishing or illegal, unreported, or unregulated
fishing conducted by its nationals and vessels beyond the exclusive economic zone of
any nation; or
(ii) that nation has retaliated against the United States as a result of that
prohibition.
(B) CERTIFICATION.—The Secretary of Commerce shall certify to the President
each affirmative determination under subparagraph (A) with respect to a nation.
(C) EFFECT OF CERTIFICATION.—Certification by the Secretary of Commerce
under subparagraph (B) is deemed to be a certification under section 1978(a) of Title 22,
as amended by this Act.
102-582
SEC. 102.4 DURATION OF DENIAL OF PORT PRIVILEGES
AND SANCTIONS
16 U.S.C. 1826b
109-479
Any denial of port privileges or sanction under section 101 with respect to a nation shall remain
in effect until such time as the Secretary of Commerce certifies to the President and the
Congress that such nation has terminated large-scale driftnet fishing or illegal, unreported, or
unregulated fishing by its nationals and vessels beyond the exclusive economic zone of any
nation.
4
The High Seas Driftnet Fisheries Enforcement Act (P.L. 102-582) is codified as 16 U.S.C. 1826a-c. The
section number refers to P.L. 102-582.
44
16 U.S.C. 1826c
HSDFEA § 104
102-582
SEC.104.5 DEFINITIONS
16 U.S.C. 1826c
In this title [High Seas Driftnet Fisheries Enforcement Act], the following definitions apply:
(1) FISH AND FISH PRODUCTS.—The term "fish and fish products" means any aquatic
species (including marine mammals and plants) and all products thereof exported from a nation,
whether or not taken by fishing vessels of that nation or packed, processed, or otherwise
prepared for export in that nation or within the jurisdiction thereof.
(2) LARGE-SCALE DRIFTNET FISHING.—
(A) IN GENERAL.—Except as provided in subparagraph (B), the term "large-scale
driftnet fishing" means a method of fishing in which a gillnet composed of a panel or panels
of webbing, or a series of such gillnets, with a total length of two and one-half kilometers or
more is placed in the water and allowed to drift with the currents and winds for the purpose
of entangling fish in the webbing.
(B) EXCEPTION.—Until January 1, 1994, the term "large-scale driftnet fishing" does
not include the use in the northeast Atlantic Ocean of gillnets with a total length not to
exceed five kilometers if the use is in accordance with regulations adopted by the European
Community pursuant to the October 28, 1991, decision by the Council of Fisheries Ministers
of the Community.
(3) LARGE-SCALE DRIFTNET FISHING VESSEL.—The term "large-scale driftnet
fishing vessel means any vessel which is—
(A) used for, equipped to be used for, or of a type which is normally used for large-scale
driftnet fishing; or
(B) used for aiding or assisting one or more vessels at sea in the performance of largescale driftnet fishing, including preparation, supply, storage, refrigeration, transportation, or
processing.
5
The High Seas Driftnet Fisheries Enforcement Act (P.L. 102-582) is codified as 16 U.S.C. 1826a-c. The
section number refers to P.L. 102-582.
45
16 U.S.C. 1826d-1826e
HSDFMPA §§ 603-604
HIGH SEAS DRIFTNET FISHING MORATORIUM PROTECTION ACT
104-43
SEC. 603.6 PROHIBITION.
16 USC 1826d.
The United States, or any agency or official acting on behalf of the United States, may not
enter into any international agreement with respect to the conservation and management of
living marine resources or the use of the high seas by fishing vessels that would prevent full
implementation of the global moratorium on large-scale driftnet fishing on the high seas, as
such moratorium is expressed in Resolution 46/215 of the United Nations General Assembly.
104-43
SEC. 604.7 NEGOTIATIONS.
16 USC 1826e.
The Secretary of State, on behalf of the United States, shall seek to enhance the
implementation and effectiveness of the United Nations General Assembly resolutions and
decisions regarding the moratorium on large-scale driftnet fishing on the high seas through
appropriate international agreements and organizations.
6
The High Seas Driftnet Fishing Moratorium Protection Act (P.L. 104-43) is codified as 16 U.S.C. 1826d
k. The section number refers to P.L. 104-43.
7
The High Seas Driftnet Fishing Moratorium Protection Act (P.L. 104-43) is codified as 16 U.S.C. 1826d
k. The section number refers to P.L. 104-43.
46
16 U.S.C. 1826f-1826g
HSDFMPA §§ 605-606
104-43
SEC. 605.8 CERTIFICATION.
16 USC 1826f.
The Secretary of State shall determine in writing prior to the signing or provisional
application by the United States of any international agreement with respect to the conservation
and management of living marine resources or the use of the high seas by fishing vessels that
the prohibition contained in section 603 will not be violated if such agreement is signed or
provisionally applied.
104-43
SEC. 606.9 ENFORCEMENT.
16 USC 1826g.
The President shall utilize appropriate assets of the Department of Defense, the United
States Coast Guard, and other Federal agencies to detect, monitor, and prevent violations of the
United Nations moratorium on large-scale driftnet fishing on the high seas for all fisheries under
the jurisdiction of the United States and, in the case of fisheries not under the jurisdiction of the
United States, to the fullest extent permitted under international law.
8
The High Seas Driftnet Fishing Moratorium Protection Act (P.L. 104-43) is codified as 16 U.S.C. 1826d
k. The section number refers to P.L. 104-43.
9
The High Seas Driftnet Fishing Moratorium Protection Act (P.L. 104-43) is codified as 16 U.S.C. 1826d
k. The section number refers to P.L. 104-43.
47
16 U.S.C. 1826h
HSDFMPA § 607
109-479
SEC. 607.10 BIENNIAL REPORT ON INTERNATIONAL
COMPLIANCE.
16 USC 1826h.
The Secretary, in consultation with the Secretary of State, shall provide to Congress, by not
later than 2 years after the date of enactment of the Magnuson-Stevens Fishery Conservation
and Management Reauthorization Act of 2006, and every 2 years thereafter, a report that
includes—
(1) the state of knowledge on the status of international living marine resources shared by
the United States or subject to treaties or agreements to which the United States is a party,
including a list of all such fish stocks classified as overfished, overexploited, depleted,
endangered, or threatened with extinction by any international or other authority charged with
management or conservation of living marine resources;
(2) a list of nations whose vessels have been identified under section 609(a) or 610(a),
including the specific offending activities and any subsequent actions taken pursuant to section
609 or 610;
(3) a description of efforts taken by nations on those lists to comply [sic]11 take appropriate
corrective action consistent with sections 609 and 610, and an evaluation of the progress of
those efforts, including steps taken by the United States to implement those sections and to
improve international compliance;
(4) progress at the international level, consistent with section 608, to strengthen the efforts
of international fishery management organizations to end illegal, unreported, or unregulated
fishing; and
(5) steps taken by the Secretary at the international level to adopt international measures
comparable to those of the United States to reduce impacts of fishing and other practices
on protected living marine resources, if no international agreement to achieve such goal exists,
or if the relevant international fishery or conservation organization has failed to implement
effective measures to end or reduce the adverse impacts of fishing practices on such species.
10
The High Seas Driftnet Fishing Moratorium Protection Act (P.L. 104-43) is codified as 16 U.S.C.
1826d-k. The section number refers to P.L. 109-479.
11
So in original.
48
16 U.S.C. 1826i
HSDFMPA § 608
109-479
SEC. 608.12 ACTION TO STRENGTHEN INTERNATIONAL
FISHERY MANAGEMENT ORGANIZATIONS.
16 USC 1826i.
The Secretary, in consultation with the Secretary of State, and in cooperation with relevant
fishery management councils and any relevant advisory committees, shall take actions to
improve the effectiveness of international fishery management organizations in conserving and
managing fish stocks under their jurisdiction. These actions shall include—
(1) urging international fishery management organizations to which the United States is a
member—
(A) to incorporate multilateral market-related measures against member or nonmember
governments whose vessels engage in illegal, unreported, or unregulated fishing;
(B) to seek adoption of lists that identify fishing vessels and vessel owners engaged in
illegal, unreported, or unregulated fishing that can be shared among all members and other
international fishery management organizations;
(C) to seek international adoption of a centralized vessel monitoring system in order to
monitor and document capacity in fleets of all nations involved in fishing in areas under an
international fishery management organization’s jurisdiction;
(D) to increase use of observers and technologies needed to monitor compliance with
conservation and management measures established by the organization, including vessel
monitoring systems and automatic identification systems; and
(E) to seek adoption of stronger port state controls in all nations, particularly those
nations in whose ports vessels engaged in illegal, unreported, or unregulated fishing land or
transship fish;
(2) urging international fishery management organizations to which the United States is a
member, as well as all members of those organizations, to adopt and expand the use of marketrelated measures to combat illegal, unreported, or unregulated fishing, including—
12
The High Seas Driftnet Fishing Moratorium Protection Act (P.L. 104-43) is codified as 16 U.S.C.
1826d-k. The section number refers to P.L. 109-479.
49
16 U.S.C. 1826i-1826j
HSDFMPA §§ 608-609
(A) import prohibitions, landing restrictions, or other market-based measures needed to
enforce compliance with international fishery management organization measures, such as
quotas and catch limits;
(B) import restrictions or other market-based measures to prevent the trade or
importation of fish caught by vessels identified multilaterally as engaging in illegal,
unreported, or unregulated fishing; and
(C) catch documentation and certification schemes to improve tracking and
identification of catch of vessels engaged in illegal, unreported, or unregulated fishing,
including advance transmission of catch documents to ports of entry; and
(3) urging other nations at bilateral, regional, and international levels, including the
Convention on International Trade in Endangered Species of Fauna and Flora and the World
Trade Organization to take all steps necessary, consistent with international law, to adopt
measures and policies that will prevent fish or other living marine resources harvested by
vessels engaged in illegal, unreported, or unregulated fishing from being traded or imported into
their nation or territories.
109-479
SEC. 609.13 ILLEGAL, UNREPORTED, OR UNREGULATED
FISHING.
16 USC 1826j.
(a) IDENTIFICATION.—The Secretary shall identify, and list in the report under section
607, a nation if fishing vessels of that nation are engaged, or have been engaged at any point
during the preceding 2 years, in illegal, unreported, or unregulated fishing—
(1) the relevant international fishery management organization has failed to implement
effective measures to end the illegal, unreported, or unregulated fishing activity by vessels
of that nation or the nation is not a party to, or does not maintain cooperating status with,
such organization; or
(2) where no international fishery management organization exists with a mandate to
regulate the fishing activity in question.
13
The High Seas Driftnet Fishing Moratorium Protection Act (P.L. 104-43) is codified as 16 U.S.C.
1826d-k. The section number refers to P.L. 109-479.
50
16 U.S.C. 1826j
HSDFMPA § 609
(b) NOTIFICATION.—An identification under subsection (a) or section 610(a) is deemed
to be an identification under section 101(b)(1)(A) of the High Seas Driftnet Fisheries
Enforcement Act (16 U.S.C. 1826a(b)(1)(A)), and the Secretary shall notify the President and
that nation of such identification.
(c) CONSULTATION.—No later than 60 days after submitting a report to Congress under
section 607, 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 of title 5, United States Code, for determining if a
nation identified under subsection (a) and listed in the report under section 607 has taken
appropriate corrective action with respect to the offending activities of its fishing vessels
identified in the report under section 607. 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 607—
(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 of its fishing vessels 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 for
certification, on a shipment-by-shipment, shipper-by-shipper, or other basis of fish or fish
products from a vessel of a harvesting nation not certified 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.
51
16 U.S.C. 1826j
HSDFMPA § 609
(3) EFFECT OF CERTIFICATION.—
(A) IN GENERAL.—The provisions of section 101(a) and section 101(b)(3) and
(4) of this Act (16 U.S.C. 1826a(a), (b)(3), and (b)(4))—
(i) shall apply to any nation identified under subsection (a) that has not been
certified by the Secretary under this subsection, or for which the Secretary has
issued a negative certification under this subsection; but
(ii) shall not apply to any nation identified under subsection (a) for which the
Secretary has issued a positive certification under this subsection.
(B) EXCEPTIONS.—Subparagraph (A)(i) does not apply—
(i) to the extent that such provisions would apply to sport fishing equipment or
to fish or fish products not managed under the applicable international fishery
agreement; or
(ii) if there is no applicable international fishery agreement, to the extent that
such provisions would apply to fish or fish products caught by vessels not engaged
in illegal, unreported, or unregulated fishing.
(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 the date of enactment of the Magnuson-Stevens Fishery Conservation
and Management Reauthorization Act of 2006, 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, and bycatch reduction
requirements;
(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.
52
16 U.S.C. 1826k
HSDFMPA § 610
109-479
SEC. 610.14 EQUIVALENT CONSERVATION MEASURES.
16 USC 1826k.
(a) IDENTIFICATION.—The Secretary shall identify, and list in the report under section
607, a nation if—
(1) fishing vessels of that nation are engaged, or have been engaged during the
preceding calendar year in fishing activities or practices;
(A) in waters beyond any national jurisdiction that result in bycatch of a protected
living marine resource; or
(B) 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) 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) 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.
(b) CONSULTATION AND NEGOTIATION.—The Secretary, acting through the
Secretary of State, shall—
(1) notify, as soon as possible, other nations whose vessels engage in fishing activities
or practices described in subsection (a), about the provisions of this section and this Act;
(2) initiate discussions as soon as possible with all foreign governments which are
engaged in, or which have persons or companies engaged in, fishing activities or practices
described in subsection (a), for the purpose of entering into bilateral and multilateral treaties
with such countries to protect such species;
(3) seek agreements calling for international restrictions on fishing activities or
practices described in subsection (a) through the United Nations, the Food and Agriculture
Organization’s Committee on Fisheries, and appropriate international fishery management
bodies; and
14
The High Seas Driftnet Fishing Moratorium Protection Act (P.L. 104-43) is codified as 16 U.S.C.
1826d-k. The section number refers to P.L. 109-479.
53
16 U.S.C. 1826k
HSDFMPA § 610
(4) initiate the amendment of any existing international treaty for the protection and
conservation of such species to which the United States is a party in order to make such
treaty consistent with the purposes and policies of this section.
(c) CONSERVATION CERTIFICATION PROCEDURE.—
(1) DETERMINATION.—The Secretary shall establish a procedure consistent with the
provisions of subchapter II of chapter 5 of title 5, United States Code, for determining
whether the government of a harvesting nation identified under subsection (a) and listed in
the report under section 607—
(A) has provided documentary evidence of the adoption of a regulatory program
governing the conservation of the protected living marine resource that is comparable to
that of the United States, taking into account different conditions, and which, in the case
of pelagic longline fishing, includes mandatory use of circle hooks, careful handling
and release equipment, and training and observer programs; and
(B) has established a management plan containing requirements that will assist in
gathering species-specific data to support international stock assessments and
conservation enforcement efforts for protected living marine resources.
(2) PROCEDURAL REQUIREMENT.—The procedure established by the Secretary
under paragraph (1) shall include notice and opportunity for comment by any such nation.
(3) CERTIFICATION.—The Secretary shall certify to the Congress by January 31,
2007, and biennially thereafter whether each such nation has provided the documentary
evidence described in paragraph (1)(A) and established a management plan described in
paragraph (1)(B).
(4) ALTERNATIVE PROCEDURE.—The Secretary shall establish a procedure for
certification, on a shipment-by-shipment, shipper-by-shipper, or other basis of fish or fish
products from a vessel of a harvesting nation not certified under paragraph (3) if the
Secretary determines that such imports were harvested by practices that do not result in
bycatch of a protected marine species, or were harvested by practices that—
(A) are comparable to those of the United States, taking into account different
conditions, and which, in the case of pelagic longline fishing, includes mandatory use
of circle hooks, careful handling and release equipment, and training and observer
programs; and
(B) include the gathering of species specific data that can be used to support
international and regional stock assessments and conservation efforts for protected
living marine resources.
54
16 U.S.C. 1826k
HSDFMPA § 610
(5) EFFECT OF CERTIFICATION.—The provisions of section 101(a) and section
101(b)(3) and (4) of this Act (16 U.S.C. 1826a(a), (b)(3), and (b)(4)) (except to the extent
that such provisions apply to sport fishing equipment or fish or fish products not caught by
the vessels engaged in illegal, unreported, or unregulated fishing) shall apply to any nation
identified under subsection (a) that has not been certified by the Secretary under this
subsection, or for which the Secretary has issued a negative certification under this
subsection, but shall not apply to any nation identified under subsection (a) for which the
Secretary has issued a positive certification under this subsection.
(d) INTERNATIONAL COOPERATION AND ASSISTANCE.—To the greatest extent
possible consistent with existing authority and the availability of funds, the Secretary shall—
(1) provide appropriate assistance to nations identified by the Secretary under
subsection (a) and international organizations of which those nations are members to assist
those nations in qualifying for certification under subsection (c);
(2) undertake, where appropriate, cooperative research activities on species statistics
and improved harvesting techniques, with those nations or organizations;
(3) encourage and facilitate the transfer of appropriate technology to those nations or
organizations to assist those nations in qualifying for certification under subsection (c); and
(4) provide assistance to those nations or organizations in designing and implementing
appropriate fish harvesting plans.
(e) PROTECTED LIVING MARINE RESOURCE DEFINED.—In this section the term
‘protected living marine resource’—
(1) means non-target fish, sea turtles, or marine mammals that are protected under
United States law or international agreement, including the Marine Mammal Protection Act,
the Endangered Species Act, the Shark Finning Prohibition Act, and the Convention on
International Trade in Endangered Species of Wild Flora and Fauna; but
(2) does not include species, except sharks, managed under the Magnuson-Stevens
Fishery Conservation and Management Act, the Atlantic Tunas Convention Act, or any
international fishery management 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.
55
16 U.S.C. 1826d note
HSDFMPA § 602
P.L. 104-43, sec. 602
16 USC 1826d note.
FINDINGS.
The Congress finds that—
(1) Congress has enacted and the President has signed into law numerous Acts to control or prohibit
large-scale driftnet fishing both within the jurisdiction of the United States and beyond the exclusive
economic zone of any nation, including the Driftnet Impact Monitoring, Assessment, and Control Act of
1987 (title IV, Public Law 100-220), the Driftnet Act Amendments of 1990 (Public Law 101-627), and
the High Seas Driftnet Fisheries Enforcement Act (title I, Public Law 102-582);
(2) the United States is a party to the Convention for the Prohibition of Fishing with Long Driftnets in
the South Pacific, also known as the Wellington Convention;
(3) the General Assembly of the United Nations has adopted three resolutions and three decisions
which established and reaffirm a global moratorium on large-scale driftnet fishing on the high seas,
beginning with Resolution 44/225 in 1989 and most recently in Decision 48/445 in 1993;
(4) the General Assembly of the United Nations adopted these resolutions and decisions at the
request of the United States and other concerned nations;
(5) the best scientific information demonstrates the wastefulness and potentially destructive impacts
of large-scale driftnet fishing on living marine resources and seabirds; and
(6) Resolution 46/215 of the United Nations General Assembly calls on all nations, both individually
and collectively, to prevent large-scale driftnet fishing on the high seas.
56
16 U.S.C. 1829
MSA § 207
109-479
SEC. 207. INTERNATIONAL MONITORING AND COMPLIANCE.
16 U.S.C. 1829
(a) IN GENERAL.—The Secretary may undertake activities to promote improved
monitoring and compliance for high seas fisheries, or fisheries governed by international fishery
management agreements, and to implement the requirements of this title.
(b) SPECIFIC AUTHORITIES.—In carrying out subsection (a), the Secretary may—
(1) share information on harvesting and processing capacity and illegal, unreported and
unregulated fishing on the high seas, in areas covered by international fishery management
agreements, and by vessels of other nations within the United States exclusive economic
zone, with relevant law enforcement organizations of foreign nations and relevant
international organizations;
(2) further develop real time information sharing capabilities, particularly on harvesting
and processing capacity and illegal, unreported and unregulated fishing;
(3) participate in global and regional efforts to build an international network for
monitoring, control, and surveillance of high seas fishing and fishing under regional or
global agreements;
(4) support efforts to create an international registry or database of fishing vessels,
including by building on or enhancing registries developed by international fishery
management organizations;
(5) enhance enforcement capabilities through the application of commercial or
governmental remote sensing technology to locate or identify vessels engaged in illegal,
unreported, or unregulated fishing on the high seas, including encroachments into the
exclusive economic zone by fishing vessels of other nations;
(6) provide technical or other assistance to developing countries to improve their
monitoring, control, and surveillance capabilities; and
(7) support coordinated international efforts to ensure that all large-scale fishing vessels
operating on the high seas are required by their flag State to be fitted with vessel monitoring
systems no later than December 31, 2008, or earlier if so decided by the relevant flag State or
any relevant international fishery management organization.
57
16 U.S.C. 1851
MSA § 301
TITLE III—NATIONAL FISHERY MANAGEMENT PROGRAM
SEC. 301. NATIONAL STANDARDS FOR FISHERY
CONSERVATION AND MANAGEMENT
16 U.S.C. 1851
(a) IN GENERAL.—Any fishery management plan prepared, and any regulation
promulgated to implement any such plan, pursuant to this title shall be consistent with the
following national standards for fishery conservation and management:
98-623
(1) Conservation and management measures shall prevent overfishing while achieving,
on a continuing basis, the optimum yield from each fishery for the United States fishing
industry.
(2) Conservation and management measures shall be based upon the best scientific
information available.
(3) To the extent practicable, an individual stock of fish shall be managed as a unit
throughout its range, and interrelated stocks of fish shall be managed as a unit or in close
coordination.
(4) Conservation and management measures shall not discriminate between residents of
different States. If it becomes necessary to allocate or assign fishing privileges among
various United States fishermen, such allocation shall be (A) fair and equitable to all such
fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such
manner that no particular individual, corporation, or other entity acquires an excessive share
of such privileges.
104-297
(5) Conservation and management measures shall, where practicable, consider efficiency
in the utilization of fishery resources; except that no such measure shall have economic
allocation as its sole purpose.
(6) Conservation and management measures shall take into account and allow for
variations among, and contingencies in, fisheries, fishery resources, and catches.
(7) Conservation and management measures shall, where practicable, minimize costs and
avoid unnecessary duplication.
104-297, 109-479
(8) Conservation and management measures shall, consistent with the conservation
requirements of this Act (including the prevention of overfishing and rebuilding of
overfished stocks), take into account the importance of fishery resources to fishing
communities by utilizing economic and social data that meet the requirements of paragraph
(2), in order to (A) provide for the sustained participation of such communities, and (B) to
the extent practicable, minimize adverse economic impacts on such communities.
58
16 U.S.C. 1851-1852
MSA §§ 301-302
104-297
(9) Conservation and management measures shall, to the extent practicable, (A) minimize
bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such
bycatch.
104-297
(10) Conservation and management measures shall, to the extent practicable, promote the
safety of human life at sea.
97-453
(b) GUIDELINES.—The Secretary shall establish advisory guidelines (which shall not have
the force and effect of law), based on the national standards, to assist in the development of
fishery management plans.
SEC. 302. REGIONAL FISHERY MANAGEMENT COUNCILS
16 U.S.C. 1852
97-453, 101-627, 104-297
(a) ESTABLISHMENT.—
(1) There shall be established, within 120 days after the date of the enactment of this Act,
eight Regional Fishery Management Councils, as follows:
(A) NEW ENGLAND COUNCIL.—The New England Fishery Management Council
shall consist of the States of Maine, New Hampshire, Massachusetts, Rhode Island, and
Connecticut and shall have authority over the fisheries in the Atlantic Ocean seaward of
such States (except as provided in paragraph (3)). The New England Council shall have
17 voting members, including 11 appointed by the Secretary in accordance with
subsection (b)(2) (at least one of whom shall be appointed from each such State).
(B) MID-ATLANTIC COUNCIL.—The Mid-Atlantic Fishery Management Council
shall consist of the States of New York, New Jersey, Delaware, Pennsylvania, Maryland,
Virginia, and North Carolina and shall have authority over the fisheries in the Atlantic
Ocean seaward of such States (except North Carolina, and as provided in paragraph (3)).
The Mid-Atlantic Council shall have 21 voting members, including 13 appointed by the
Secretary in accordance with subsection (b)(2) (at least one of whom shall be appointed
from each such State).
(C) SOUTH ATLANTIC COUNCIL.—The South Atlantic Fishery Management
Council shall consist of the States of North Carolina, South Carolina, Georgia, and
Florida and shall have authority over the fisheries in the Atlantic Ocean seaward of such
States (except as provided in paragraph (3)). The South Atlantic Council shall have 13
voting members, including 8 appointed by the Secretary in accordance with subsection
(b)(2) (at least one of whom shall be appointed from each such State).
59
16 U.S.C. 1852
MSA § 302
109-479
(D) CARIBBEAN COUNCIL.—The Caribbean Fishery Management Council shall
consist of the Virgin Islands and the Commonwealth of Puerto Rico and shall have
authority over the fisheries in the Caribbean Sea and Atlantic Ocean seaward of such
States and of commonwealths, territories, and possessions of the United States in the
Caribbean Sea (except as provided in paragraph (3)). The Caribbean Council shall have 7
voting members, including 4 appointed by the Secretary in accordance with subsection
(b)(2) (at least one of whom shall be appointed from each such State).
(E) GULF COUNCIL.—The Gulf of Mexico Fishery Management Council shall
consist of the States of Texas, Louisiana, Mississippi, Alabama, and Florida and shall
have authority over the fisheries in the Gulf of Mexico seaward of such States (except as
provided in paragraph (3)). The Gulf Council shall have 17 voting members, including
11 appointed by the Secretary in accordance with subsection (b)(2) (at least one of whom
shall be appointed from each such State).
(F) PACIFIC COUNCIL.—The Pacific Fishery Management Council shall consist of
the States of California, Oregon, Washington, and Idaho and shall have authority over the
fisheries in the Pacific Ocean seaward of such States. The Pacific Council shall have 14
voting members, including 8 appointed by the Secretary in accordance with subsection
(b)(2) (at least one of whom shall be appointed from each such State), and including one
appointed from an Indian tribe with Federally recognized fishing rights from California,
Oregon, Washington, or Idaho in accordance with subsection (b)(5).
(G) NORTH PACIFIC COUNCIL.—The North Pacific Fishery Management Council
shall consist of the States of Alaska, Washington, and Oregon and shall have authority
over the fisheries in the Arctic Ocean, Bering Sea, and Pacific Ocean seaward of Alaska.
The North Pacific Council shall have 11 voting members, including 7 appointed by the
Secretary in accordance with subsection (b)(2) (5 of whom shall be appointed from the
State of Alaska and 2 of whom shall be appointed from the State of Washington).
(H) WESTERN PACIFIC COUNCIL.—The Western Pacific Fishery Management
Council shall consist of the States of Hawaii, American Samoa, Guam, and the Northern
Mariana Islands and shall have authority over the fisheries in the Pacific Ocean seaward
of such States and of the Commonwealths, territories, and possessions of the United
States in the Pacific Ocean area. The Western Pacific Council shall have 13 voting
members, including 8 appointed by the Secretary in accordance with subsection (b)(2) (at
least one of whom shall be appointed from each of the following States: Hawaii,
American Samoa, Guam, and the Northern Mariana Islands).
(2) Each Council shall reflect the expertise and interest of the several constituent States in
the ocean area over which such Council is granted authority.
60
16 U.S.C. 1852
MSA § 302
(3) The Secretary shall have authority over any highly migratory species fishery that is
within the geographical area of authority of more than one of the following Councils: New
England Council, Mid-Atlantic Council, South Atlantic Council, Gulf Council, and
Caribbean Council.
97-453, 99-659, 101-627, 102-582, 104-297
(b) VOTING MEMBERS.—
(1) The voting members of each Council shall be:
(A) The principal State official with marine fishery management responsibility and
expertise in each constituent State, who is designated as such by the Governor of the
State, so long as the official continues to hold such position, or the designee of such
official.
(B) The regional director of the National Marine Fisheries Service for the geographic
area concerned, or his designee, except that if two such directors are within such
geographical area, the Secretary shall designate which of such directors shall be the
voting member.
(C) The members required to be appointed by the Secretary in accordance with
paragraphs (2) and (5).
(2) (A) The members of each Council required to be appointed by the Secretary must be
individuals who, by reason of their occupational or other experience, scientific expertise,
or training, are knowledgeable regarding the conservation and management, or the
commercial or recreational harvest, of the fishery resources of the geographical area
concerned. Within nine months after the date of enactment of the Fishery Conservation
Amendments of 1990, the Secretary shall, by regulation, prescribe criteria for
determining whether an individual satisfies the requirements of this subparagraph.
(B) The Secretary, in making appointments under this section, shall, to the extent
practicable, ensure a fair and balanced apportionment, on a rotating or other basis, of the
active participants (or their representatives) in the commercial and recreational fisheries
under the jurisdiction of the Council. On January 31, 1991, and each year thereafter, the
Secretary shall submit to the Committee on Commerce, Science, and Transportation of
the Senate and the Committee on Merchant Marine and Fisheries of the House of
Representatives a report on the actions taken by the Secretary to ensure that such fair and
balanced apportionment is achieved. The report shall—
(i) list the fisheries under the jurisdiction of each Council, outlining for each
fishery the type and quantity of fish harvested, fishing and processing methods
employed, the number of participants, the duration and range of the fishery, and other
distinguishing characteristics;
(ii) assess the membership of each Council in terms of the apportionment of the
active participants in each such fishery; and
(iii) state the Secretary's plans and schedule for actions to achieve a fair and
balanced apportionment on the Council for the active participants in any such fishery.
61
16 U.S.C. 1852
MSA § 302
(C) The Secretary shall appoint the members of each Council from a list of individuals
submitted by the Governor of each applicable constituent State. A Governor may not
submit the names of individuals to the Secretary for appointment unless the Governor has
determined that each such individual is qualified under the requirements of subparagraph
(A) and unless the Governor has, to the extent practicable, first consulted with
representatives of the commercial and recreational fishing interests of the State regarding
those individuals. Each such list shall include the names and pertinent biographical data
of not less than three individuals for each applicable vacancy and shall be accompanied
by a statement by the Governor explaining how each such individual meets the
requirements of subparagraph (A). The Secretary shall review each list submitted by a
Governor to ascertain if the individuals on the list are qualified for the vacancy on the
basis of such requirements. If the Secretary determines that any individual is not
qualified, the Secretary shall notify the appropriate Governor of that determination. The
Governor shall then submit a revised list or resubmit the original list with an additional
explanation of the qualifications of the individual in question. An individual is not
eligible for appointment by the Secretary until that individual complies with the
applicable financial disclosure requirements under subsection (k).
109-479
(D)(i) The Governor of a State submitting a list of names of individuals for
appointment by the Secretary of Commerce to the Gulf of Mexico Fisheries
Management Council under subparagraph (C) shall include—
(I) at least 1 nominee each from the commercial, recreational, and charter
fishing sectors; and
(II) at least 1 other individual who is knowledgeable regarding the conservation
and management of fisheries resources in the jurisdiction of the Council.
(ii) Notwithstanding the requirements of subparagraph (C), if the Secretary
determines that the list of names submitted by the Governor does not meet the
requirements of clause (i) the Secretary shall—
(I) publish a notice in the Federal Register asking the residents of that State to
submit the names and pertinent biographical data of individuals who would meet
the requirement not met for appointment to the Council; and
(II) add the name of any qualified individual submitted by the public who meets
the unmet requirement to the list of names submitted by the Governor.
(iii) For purposes of clause (i) an individual who owns or operates a fish farm
outside of the United States shall not be considered to be a representative of the
commercial or recreational fishing sector.
(iv) The requirements of this subparagraph shall expire at the end of fiscal year
2012.
(E) Whenever the Secretary makes an appointment to a Council, the Secretary shall
make a public announcement of such appointment not less than 45 days before the first
day on which the individual is to take office as a member of the Council.
62
16 U.S.C. 1852
MSA § 302
(3) Each voting member appointed to a Council by the Secretary in accordance with
paragraphs (2) and (5) shall serve for a term of 3 years; except that the Secretary may
designate a shorter term if necessary to provide for balanced expiration to terms of office.
No member appointed after January 1, 1986, may serve more than three consecutive terms.
Any term in which an individual was appointed to replace a member who left office during
the term shall not be counted in determining the number of consecutive terms served by that
Council member.
(4) Successors to the voting members of any Council shall be appointed in the same
manner as the original voting members. Any individual appointed to fill a vacancy
occurring prior to the expiration of any term of office shall be appointed for the remainder of
that term.
109-479
(5) (A) The Secretary shall appoint to the Pacific Council one representative of an Indian
tribe with Federally recognized fishing rights from California, Oregon, Washington, or
Idaho from a list of not less than 3 individuals submitted by the tribal governments. The
Secretary, in consultation with the Secretary of the Interior and tribal governments, shall
establish by regulation the procedure for submitting a list under this subparagraph.
(B) Representation shall be rotated among the tribes taking into consideration—
(i) the qualifications of the individuals on the list referred to in subparagraph (A),
(ii) the various rights of the Indian tribes involved and judicial cases that set forth
how those rights are to be exercised, and
(iii) the geographic area in which the tribe of the representative is located.
(C) A vacancy occurring prior to the expiration of any term shall be filled in the same
manner as set out in subparagraphs (A) and (B), except that the Secretary may use the list
from which the vacating representative was chosen.
(D) The tribal representative appointed under subparagraph (A) may designate as an
alternate, during the period of the representative’s term, an individual knowledgeable
concerning tribal rights, tribal law, and the fishery resources of the geographical area
concerned.
(6) The Secretary may remove for cause any member of a Council required to be
appointed by the Secretary in accordance with paragraphs (2) or (5) if—
(A) the Council concerned first recommends removal by not less than two-thirds of
the members who are voting members and submits such removal recommendation to the
Secretary in writing together with a statement of the basis for the recommendation; or
(B) the member is found by the Secretary, after notice and an opportunity for a
hearing in accordance with section 554 of title 5, United States Code, to have committed
an act prohibited by section 307(1)(O).
63
16 U.S.C. 1852
MSA § 302
(c) NONVOTING MEMBERS.—
(1) The nonvoting members of each Council shall be:
(A) The regional or area director of the United States Fish and Wildlife Service for the
geographical area concerned, or his designee.
(B) The commander of the Coast Guard district for the geographical area concerned,
or his designee; except that, if two Coast Guard districts are within such geographical
area, the commander designated for such purpose by the commandant of the Coast Guard.
(C) The Executive Director of the Marine Fisheries Commission for the geographical
area concerned, if any, or his designee.
(D) One representative of the Department of State designated for such purpose by the
Secretary of State, or his designee.
(2) The Pacific Council shall have one additional nonvoting member who shall be
appointed by, and serve at the pleasure of, the Governor of Alaska.
96-561, 101-627, 104-297
(d) COMPENSATION AND EXPENSES.—The voting members of each Council who are
required to be appointed by the Secretary and who are not employed by the Federal Government
or any State or local government, shall receive compensation at the daily rate for GS-15, step 7
of the General Schedule, when engaged in the actual performance of duties for such Council.
The voting members of each Council, any nonvoting member described in subsection (c)(1)(C),
and the nonvoting member appointed pursuant to subsection (c)(2) shall be reimbursed for
actual expenses incurred in the performance of such duties, and other nonvoting members and
Council staff members may be reimbursed for actual expenses.
101-627
(e) TRANSACTION OF BUSINESS.—
(1) A majority of the voting members of any Council shall constitute a quorum, but one or
more such members designated by the Council may hold hearings. All decisions of any
Council shall be by majority vote of the voting members present and voting.
(2) The voting members of each Council shall select a Chairman for such Council from
among the voting members.
(3) Each Council shall meet at appropriate times and places in any of the constituent
States of the Council at the call of the Chairman or upon the request of a majority of its
voting members.
(4) If any voting member of a Council disagrees with respect to any matter which is
transmitted to the Secretary by such Council, such member may submit a statement to the
Secretary setting forth the reasons for such disagreement. The regional director of the
National Marine Fisheries Service serving on the Council, or the regional director's designee,
shall submit such a statement, which shall be made available to the public upon request, if
the regional director disagrees with any such matter.
64
16 U.S.C. 1852
MSA § 302
104-297
(5) At the request of any voting member of a Council, the Council shall hold a roll call
vote on any matter before the Council. The official minutes and other appropriate records of
any Council meeting shall identify all roll call votes held, the name of each voting member
present during each roll call vote, and how each member voted on each roll call vote.
97-453
(f) STAFF AND ADMINISTRATION.—
(1) Each Council may appoint, and assign duties to, an executive director and such other
full- and part-time administrative employees as the Secretary determines are necessary to the
performance of its functions.
(2) Upon the request of any Council, and after consultation with the Secretary, the head
of any Federal agency is authorized to detail to such Council, on a reimbursable basis, any of
the personnel of such agency, to assist such Council in the performance of its functions
under this Act.
(3) The Secretary shall provide to each Council such administrative and technical support
services as are necessary for the effective functioning of such Council.
(4) The Administrator of General Services shall furnish each Council with such offices,
equipment, supplies, and services as he is authorized to furnish to any other agency or
instrumentality of the United States.
(5) The Secretary and the Secretary of State shall furnish each Council with relevant
information concerning foreign fishing and international fishery agreements.
(6) Each Council shall determine its organization, and prescribe its practices and
procedures for carrying out its functions under this Act, in accordance with such uniform
standards as are prescribed by the Secretary. The procedures of a Council, and of its
scientific and statistical committee and advisory panels established under subsection (g),
must be consistent with the procedural guidelines set forth in subsection [i](2). Each
Council shall publish and make available to the public a statement of its organization,
practices, and procedures.
(7) The Secretary shall pay—
(A) the compensation and expenses provided for in subsection (d);
(B) appropriate compensation to employees appointed under paragraph (1);
(C) the amounts required for reimbursement of other Federal agencies under
paragraphs (2) and (4);
(D) the actual expenses of the members of the committees and panels established
under subsection (g); and
(E) such other costs as the Secretary determines are necessary to the performance of
the functions of the Councils.
65
16 U.S.C. 1852
MSA § 302
101-627, 109-479
(g) COMMITTEES AND ADVISORY PANELS.—
(1)(A) Each Council shall establish, maintain, and appoint the members of a scientific
and statistical committee to assist it in the development, collection, evaluation, and peer
review of such statistical, biological, economic, social, and other scientific information as
is relevant to such Council’s development and amendment of any fishery management
plan.
(B) Each scientific and statistical committee shall provide its Council ongoing
scientific advice for fishery management decisions, including recommendations for
acceptable biological catch, preventing overfishing, maximum sustainable yield, and
achieving rebuilding targets, and reports on stock status and health, bycatch, habitat
status, social and economic impacts of management measures, and sustainability of
fishing practices.
(C) Members appointed by the Councils to the scientific and statistical committees
shall be Federal employees, State employees, academicians, or independent experts and
shall have strong scientific or technical credentials and experience.
(D) Each member of a scientific and statistical committee shall be treated as an
affected individual for purposes of paragraphs (2), (3)(B), (4), and (5)(A) of subsection
(j). The Secretary shall keep disclosures made pursuant to this subparagraph on file.
(E) The Secretary and each Council may establish a peer review process for that
Council for scientific information used to advise the Council about the conservation and
management of the fishery. The review process, which may include existing committees
or panels, is deemed to satisfy the requirements of the guidelines issued pursuant to
section 515 of the Treasury and General Government Appropriations Act for Fiscal year
2001 (Public Law 106–554—Appendix C; 114 Stat. 2763A–153).
(F) In addition to the provisions of section 302(f)(7), the Secretary shall, subject to the
availability of appropriations, pay a stipend to members of the scientific and statistical
committees or advisory panels who are not employed by the Federal Government or a
State marine fisheries agency.
(G) A science and statistical committee shall hold its meetings in conjunction with the
meeting of the Council, to the extent practicable.
(2) Each Council shall establish such advisory panels as are necessary or appropriate to
assist it in carrying out its functions under this Act.
(3) (A) Each Council shall establish and maintain a fishing industry advisory committee
which shall provide information and recommendations on, and assist in the development
of, fishery management plans and amendments to such plans.
(B) Appointments to a committee established under subparagraph (A) shall be made
by each Council in such a manner as to provide fair representation to commercial fishing
interests in the geographical area of authority of the Council.
66
16 U.S.C. 1852
MSA § 302
104-297
(4) The Secretary shall establish advisory panels to assist in the collection and evaluation
of information relevant to the development of any fishery management plan or plan
amendment for a fishery to which subsection (a)(3) applies. Each advisory panel shall
participate in all aspects of the development of the plan or amendment; be balanced in its
representation of commercial, recreational, and other interests; and consist of not less than 7
individuals who are knowledgeable about the fishery for which the plan or amendment is
developed, selected from among—
(A) members of advisory committees and species working groups appointed under
Acts implementing relevant international fishery agreements pertaining to highly
migratory species; and
(B) other interested persons.
(5) Decisions and recommendations made by committees and panels established under
this subsection shall be considered to be advisory in nature.
95-354, 97-453, 101-627
(h) FUNCTIONS.—Each Council shall, in accordance with the provisions of this Act—
104-297
(1) for each fishery under its authority that requires conservation and management,
prepare and submit to the Secretary (A) a fishery management plan, and (B) amendments to
each such plan that are necessary from time to time (and promptly whenever changes in
conservation and management measures in another fishery substantially affect the fishery for
which such plan was developed);
104-297
(2) prepare comments on any application for foreign fishing transmitted to it under
section 204(b)(4)(C) or section 204(d), and any fishery management plan or amendment
transmitted to it under section 304(c)(4);
(3) conduct public hearings, at appropriate times and in appropriate locations in the
geographical area concerned, so as to allow all interested persons an opportunity to be heard
in the development of fishery management plans and amendments to such plans, and with
respect to the administration and implementation of the provisions of this Act (and for
purposes of this paragraph, the term "geographical area concerned" may include an area
under the authority of another Council if the fish in the fishery concerned migrate into, or
occur in, that area or if the matters being heard affect fishermen of that area; but not unless
such other Council is first consulted regarding the conduct of such hearings within its area);
(4) submit to the Secretary such periodic reports as the Council deems appropriate, and
any other relevant report which may be requested by the Secretary;
67
16 U.S.C. 1852
MSA § 302
104-297
(5) review on a continuing basis, and revise as appropriate, the assessments and
specifications made pursuant to section 303(a)(3) and (4) with respect to the optimum yield
from, the capacity and extent to which United States fish processors will process United
States harvested fish from, and the total allowable level of foreign fishing in, each fishery
(except as provided in section subsection (a)(3)) within its geographical area of authority;
109-479
(6) develop annual catch limits for each of its managed fisheries that may not exceed the
fishing level recommendations of its scientific and statistical committee or the peer review
process established under subsection (g);
109-479
(7) develop, in conjunction with the scientific and statistical committee, multi-year
research priorities for fisheries, fisheries interactions, habitats, and other areas of research
that are necessary for management purposes, that shall—
(A) establish priorities for 5-year periods;
(B) be updated as necessary; and
(C) be submitted to the Secretary and the regional science centers of the National
Marine Fisheries Service for their consideration in developing research priorities and
budgets for the region of the Council; and
(8) conduct any other activities which are required by, or provided for in, this Act or
which are necessary and appropriate to the foregoing functions.
97-453, 99-659, 101-627
(i) PROCEDURAL MATTERS.—
109-479
(1) The Federal Advisory Committee Act (5 U.S.C. App. 2) shall not apply to the
Councils, the Council coordination committee established under subsection (l), or to the
scientific and statistical committees or other committees or advisory panels established under
subsection (g).
104-297, 109-479
(2) The following guidelines apply with respect to the conduct of business at meetings of
a Council, of the Council coordination committee established under subsection (l), and of the
scientific and statistical committees or other committees or advisory panels established under
subsection (g):
(A) Unless closed in accordance with paragraph (3), each regular meeting and each
emergency meeting shall be open to the public.
(B) Emergency meetings shall be held at the call of the chairman or equivalent
presiding officer.
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MSA § 302
(C) Timely public notice of each regular meeting and each emergency meeting,
including the time, place, and agenda of the meeting, shall be provided by any means that
will result in wide publicity in the major fishing ports of the region (and in other major
fishing ports having a direct interest in the affected fishery), except that e-mail
notification and website postings alone are not sufficient. Timely notice of each regular
meeting shall also be published in the Federal Register. The published agenda of the
meeting may not be modified to include additional matters for Council action without
public notice or within 14 days prior to the meeting date, unless such modification is to
address an emergency action under section 305(c), in which case public notice shall be
given immediately.
(D) Interested persons shall be permitted to present oral or written statements
regarding the matters on the agenda at meetings. All written information submitted to a
Council by an interested person shall include a statement of the source and date of such
information. Any oral or written statement shall include a brief description of the
background and interests of the person in the subject of the oral or written statement.
(E) Detailed minutes of each meeting of the Council, except for any closed session,
shall be kept and shall contain a record of the persons present, a complete and accurate
description of matters discussed and conclusions reached, and copies of all statements
filed. The Chairman shall certify the accuracy of the minutes of each such meeting and
submit a copy thereof to the Secretary. The minutes shall be made available to any court
of competent jurisdiction.
(F) Subject to the procedures established under paragraph (4), and the guidelines
prescribed by the Secretary under section 402(b), relating to confidentiality, the
administrative record, including minutes required under subparagraph (E), of each
meeting, and records or other documents which were made available to or prepared for or
by the Council, committee, or panel incident to the meeting, shall be available for public
inspection and copying at a single location in the offices of the Council or the Secretary,
as appropriate.
109-479
(3) (A) Each Council, the Council Coordination Committee established under subsection
(l), scientific and statistical committee, other committees, and advisory panel—
(i) shall close any meeting, or portion thereof, that concerns matters or information
that bears a national security classification; and
(ii) may close any meeting, or portion thereof, that concerns matters or information
that pertains to national security, employment matters, or briefings on litigation in
which the Council is interested; and
69
16 U.S.C. 1852
MSA § 302
(B) If any meeting or portion is closed, the Council concerned shall provide notice by
any means that will result in wide publicity in the major fishing ports of the region (and in
other major fishing ports having a direct interest in the affected fishery), except that e
mail notification and website postings alone are not sufficient, including in that
notification the time and place of the meeting. This subparagraph does not require
notification regarding any brief closure of a portion of a meeting in order to discuss
employment or other internal administrative matters. Subparagraphs (D) and (F) of
paragraph (2) shall not apply to any meeting or portion thereof that is so closed.
(4) Each Council shall establish appropriate procedures applicable to it and to its
committee and advisory panels for ensuring confidentiality of the statistics that may be
submitted to it by Federal or State authorities, and may be voluntarily submitted to it by
private persons; including, but not limited to, procedures for the restriction of Council
employee access and the prevention of conflicts of interest; except that such procedures, in
the case of statistics submitted to the Council by a State or by the Secretary under section
402(b), must be consistent with the laws and regulations of that State, or with the procedures
of the Secretary, as the case may be, concerning the confidentiality of the statistics.
(5) Each Council shall specify those procedures that are necessary or appropriate to
ensure that the committees and advisory panels established under subsection (g) are
involved, on a continuing basis, in the development and amendment of fishery management
plans.
(6) At any time when a Council determines it appropriate to consider new information
from a State or Federal agency or from a Council advisory body, the Council shall give
comparable consideration to new information offered at that time by interested members of
the public. Interested parties shall have a reasonable opportunity to respond to new data or
information before the Council takes final action on conservation and management
measures.
99-659, 104-297
(j) DISCLOSURE OF FINANCIAL INTEREST AND RECUSAL.—
104-297
(1) For the purposes of this subsection—
(A) the term “affected individual” means an individual who—
(i) is nominated by the Governor of a State for appointment as a voting member of
a Council in accordance with subsection (b)(2); or
(ii) is a voting member of a Council appointed—
(I) under subsection (b)(2); or
(II) under subsection (b)(5) who is not subject to disclosure and recusal
requirements under the laws of an Indian tribal government; and
(B) the term “designated official” means a person with expertise in Federal
conflict-of-interest requirements who is designated by the Secretary, in consultation with
the Council, to attend Council meetings and make determinations under paragraph (7)(B).
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16 U.S.C. 1852
MSA § 302
109-479
(2) Each affected individual must disclose any financial interest held by—
(A) that individual;
(B) the spouse, minor child, or partner of that individual; and
(C) any organization (other than the Council) in which that individual is serving as an
officer, director, trustee, partner, or employee;
in any harvesting, processing, lobbying, advocacy, or marketing activity that is being, or
will be, undertaken within any fishery over which the Council concerned has jurisdiction,
or with respect to an individual or organization with a financial interest in such activity.
104-297
(3) The disclosure required under paragraph (2) shall be made—
(A) in the case of an affected individual referred to in paragraph (1)(A)(i), before
appointment by the Secretary; and
(B) in the case of an affected individual referred to in paragraph (1)(A)(ii), within 45
days of taking office.
104-297
(4) An affected individual referred to in paragraph (1)(A)(ii) must update his or her
disclosure form at any time any such financial interest is acquired, or substantially changed,
by any person referred to in paragraph (2)(A), (B), or (C).
104-297, 109-479
(5) The financial interest disclosures required by this subsection shall—
(A) be made on such forms, in accordance with such procedures, and at such times, as
the Secretary shall by regulation prescribe;
(B) be kept on file by the Council and made available on the Internet and for public
inspection at the Council offices during reasonable hours; and
(C) be kept on file by the Secretary for use in reviewing determinations under
paragraph 7(B) and made available for public inspection at reasonable hours.
104-297
(6) The participation by an affected individual referred to in paragraph (1)(A)(ii) in
an action by a Council during any time in which that individual is not in compliance with
the regulations prescribed under paragraph (5) may not be treated as cause for the
invalidation of that action.
71
16 U.S.C. 1852
MSA § 302
104-297
(7) (A) After the effective date of regulations promulgated under subparagraph (F) of this
paragraph, an affected individual required to disclose a financial interest under paragraph
(2) shall not vote on a Council decision which would have a significant and predictable
effect on such financial interest. A Council decision shall be considered to have a
significant and predictable effect on a financial interest if there is a close causal link
between the Council decision and an expected and substantially disproportionate benefit
to the financial interest of the affected individual relative to the financial interests of other
participants in the same gear type or sector of the fishery. An affected individual who
may not vote may participate in Council deliberations relating to the decision after
notifying the Council of the voting recusal and identifying the financial interest that
would be affected.
(B) At the request of an affected individual, or upon the initiative of the appropriate
designated official, the designated official shall make a determination for the record
whether a Council decision would have a significant and predictable effect on a financial
interest.
(C) Any Council member may submit a written request to the Secretary to review any
determination by the designated official under subparagraph (B) within 10 days of such
determination. Such review shall be completed within 30 days of receipt of the request.
(D) Any affected individual who does not vote in a Council decision in accordance
with this subsection may state for the record how he or she would have voted on such
decision if he or she had voted.
(E) If the Council makes a decision before the Secretary has reviewed a determination
under subparagraph (C), the eventual ruling may not be treated as cause for the
invalidation or reconsideration by the Secretary of such decision.
(F) The Secretary, in consultation with the Councils and by not later than one year
from the date of enactment of the Sustainable Fisheries Act, shall promulgate regulations
which prohibit an affected individual from voting in accordance with subparagraph (A),
and which allow for the making of determinations under subparagraphs (B) and (C).
104-297
(8) Section 208 of title 18, United States Code, does not apply to an affected individual
referred to in paragraph (1)(A)(ii) during any time in which that individual is in compliance
with the regulations prescribed under paragraph (5).
109-479
(9) On January 1, 2008, and annually thereafter, the Secretary shall submit a report to the
Senate Committee on Commerce, Science, and Transportation and the House of
Representatives Committee on Resources on action taken by the Secretary and the Councils
to implement the disclosure of financial interest and recusal requirements of this subsection,
including identification of any conflict of interest problems with respect to the Councils and
scientific and statistical committees and recommendations for addressing any such problems.
72
16 U.S.C. 1852
MSA § 302
109-479
(k) COUNCIL TRAINING PROGRAM.—
(1) TRAINING COURSE.—Within 6 months after the date of enactment of the
Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, the
Secretary, in consultation with the Councils and the National Sea Grant College Program,
shall develop a training course for newly appointed Council members. The course may cover
a variety of topics relevant to matters before the Councils, including—
(A) fishery science and basic stock assessment methods;
(B) fishery management techniques, data needs, and Council procedures;
(C) social science and fishery economics;
(D) tribal treaty rights and native customs, access, and other rights related to Western
Pacific indigenous communities;
(E) legal requirements of this Act, including conflict of interest and disclosure
provisions of this section and related policies;
(F) other relevant legal and regulatory requirements, including the National
Environmental Policy Act (42 U.S.C. 4321 et seq.);
(G) public process for development of fishery management plans;
(H) other topics suggested by the Council; and
(I) recreational and commercial fishing information, including fish harvesting
techniques, gear types, fishing vessel types, and economics for the fisheries within each
Council’s jurisdiction.
(2) MEMBER TRAINING.—The training course shall be available to both new and
existing Council members, staff from the regional offices and regional science centers of the
National Marine Fisheries Service, and may be made available to committee or advisory
panel members as resources allow.
(3) REQUIRED TRAINING.—Council members appointed after the date of enactment of
the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006
shall complete a training course that meets the requirements of this section not later than 1
year after the date on which they were appointed. Any Council member who has completed a
training course within 24 months before the date of enactment of the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act of 2006 shall be considered to
have met the training requirement of this paragraph.
109-479
(l) COUNCIL COORDINATION COMMITTEE.—The Councils may establish a Council
coordination committee consisting of the chairs, vice chairs, and executive directors of each of
the 8 Councils described in subsection (a)(1), or other Council members or staff, in order to
discuss issues of relevance to all Councils, including issues related to the implementation of this
Act.
73
16 U.S.C. 1853
MSA § 303
SEC. 303. CONTENTS OF FISHERY MANAGEMENT PLANS
16 U.S.C. 1853
95-354, 99-659, 101-627, 104-297
(a) REQUIRED PROVISIONS.—Any fishery management plan which is prepared by any
Council, or by the Secretary, with respect to any fishery, shall—
(1) contain the conservation and management measures, applicable to foreign fishing and
fishing by vessels of the United States, which are—
(A) necessary and appropriate for the conservation and management of the fishery to
prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote
the long-term health and stability of the fishery;
(B) described in this subsection or subsection (b), or both; and
(C) consistent with the national standards, the other provisions of this Act, regulations
implementing recommendations by international organizations in which the United States
participates (including but not limited to closed areas, quotas, and size limits), and any
other applicable law;
(2) contain a description of the fishery, including, but not limited to, the number of
vessels involved, the type and quantity of fishing gear used, the species of fish involved and
their location, the cost likely to be incurred in management, actual and potential revenues
from the fishery, any recreational interest in the fishery, and the nature and extent of foreign
fishing and Indian treaty fishing rights, if any;
(3) assess and specify the present and probable future condition of, and the maximum
sustainable yield and optimum yield from, the fishery, and include a summary of the
information utilized in making such specification;
(4) assess and specify—
(A) the capacity and the extent to which fishing vessels of the United States, on an
annual basis, will harvest the optimum yield specified under paragraph (3),
(B) the portion of such optimum yield which, on an annual basis, will not be harvested
by fishing vessels of the United States and can be made available for foreign fishing, and
(C) the capacity and extent to which United States fish processors, on an annual basis,
will process that portion of such optimum yield that will be harvested by fishing vessels
of the United States;
109-479
(5) specify the pertinent data which shall be submitted to the Secretary with respect to
commercial, recreational, charter fishing, and fish processing in the fishery, including, but
not limited to, information regarding the type and quantity of fishing gear used, catch by
species in numbers of fish or weight thereof, areas in which fishing was engaged in, time of
fishing, number of hauls, economic information necessary to meet the requirements of this
Act, and the estimated processing capacity of, and the actual processing capacity utilized by,
United States fish processors;
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16 U.S.C. 1853
MSA § 303
(6) consider and provide for temporary adjustments, after consultation with the Coast
Guard and persons utilizing the fishery, regarding access to the fishery for vessels otherwise
prevented from harvesting because of weather or other ocean conditions affecting the safe
conduct of the fishery; except that the adjustment shall not adversely affect conservation
efforts in other fisheries or discriminate among participants in the affected fishery;
(7) describe and identify essential fish habitat for the fishery based on the guidelines
established by the Secretary under section 305(b)(1)(A), minimize to the extent practicable
adverse effects on such habitat caused by fishing, and identify other actions to encourage the
conservation and enhancement of such habitat;
(8) in the case of a fishery management plan that, after January 1, 1991, is submitted to
the Secretary for review under section 304(a) (including any plan for which an amendment is
submitted to the Secretary for such review) or is prepared by the Secretary, assess and
specify the nature and extent of scientific data which is needed for effective implementation
of the plan;
109-479
(9) include a fishery impact statement for the plan or amendment (in the case of a plan or
amendment thereto submitted to or prepared by the Secretary after October 1, 1990) which
shall assess, specify, and analyze the likely effects, if any, including the cumulative
conservation, economic, and social impacts, of the conservation and management measures
on, and possible mitigation measures for—
(A) participants in the fisheries and fishing communities affected by the plan or
amendment;
(B) participants in the fisheries conducted in adjacent areas under the authority of
another Council, after consultation with such Council and representatives of those
participants; and
(C) the safety of human life at sea, including whether and to what extent such
measures may affect the safety of participants in the fishery;
(10) specify objective and measurable criteria for identifying when the fishery to which
the plan applies is overfished (with an analysis of how the criteria were determined and the
relationship of the criteria to the reproductive potential of stocks of fish in that fishery) and,
in the case of a fishery which the Council or the Secretary has determined is approaching an
overfished condition or is overfished, contain conservation and management measures to
prevent overfishing or end overfishing and rebuild the fishery;
(11) establish a standardized reporting methodology to assess the amount and type of
bycatch occurring in the fishery, and include conservation and management measures that, to
the extent practicable and in the following priority—
(A) minimize bycatch; and
(B) minimize the mortality of bycatch which cannot be avoided;
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16 U.S.C. 1853
MSA § 303
(12) assess the type and amount of fish caught and released alive during recreational
fishing under catch and release fishery management programs and the mortality of such fish,
and include conservation and management measures that, to the extent practicable, minimize
mortality and ensure the extended survival of such fish;
109-479
(13) include a description of the commercial, recreational, and charter fishing sectors
which participate in the fishery, including its economic impact, and, to the extent practicable,
quantify trends in landings of the managed fishery resource by the commercial, recreational,
and charter fishing sectors;
109-479
(14) to the extent that rebuilding plans or other conservation and management measures
which reduce the overall harvest in a fishery are necessary, allocate, taking into
consideration the economic impact of the harvest restrictions or recovery benefits on the
fishery participants in each sector, any harvest restrictions or recovery benefits fairly and
equitably among the commercial, recreational, and charter fishing sectors in the fishery and;
109-479
(15) establish a mechanism for specifying annual catch limits in the plan (including a
multiyear plan), implementing regulations, or annual specifications, at a level such that
overfishing does not occur in the fishery, including measures to ensure accountability.
97-453, 99-659, 101-627, 102-251, 104-297
(b) DISCRETIONARY PROVISIONS.—Any fishery management plan which is prepared
by any Council, or by the Secretary, with respect to any fishery, may—
(1) require a permit to be obtained from, and fees to be paid to, the Secretary, with
respect to—
(A) any fishing vessel of the United States fishing, or wishing to fish, in the exclusive
economic zone [or special areas,]* or for anadromous species or Continental Shelf fishery
resources beyond such zone [or areas]*;
(B) the operator of any such vessel; or
(C) any United States fish processor who first receives fish that are subject to the plan;
109-479
(2)(A) designate zones where, and periods when, fishing shall be limited, or shall not be
permitted, or shall be permitted only by specified types of fishing vessels or with
specified types and quantities of fishing gear;
(B) designate such zones in areas where deep sea corals are identified under section
408, to protect deep sea corals from physical damage from fishing gear or to prevent loss
or damage to such fishing gear from interactions with deep sea corals, after considering
long-term sustainable uses of fishery resources in such areas; and
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MSA § 303
(C) with respect to any closure of an area under this Act that prohibits all fishing,
ensure that such closure—
(i) is based on the best scientific information available;
(ii) includes criteria to assess the conservation benefit of the closed area;
(iii) establishes a timetable for review of the closed area’s performance that is
consistent with the purposes of the closed area; and
(iv) is based on an assessment of the benefits and impacts of the closure, including
its size, in relation to other management measures (either alone or in combination with
such measures), including the benefits and impacts of limiting access to: users of the
area, overall fishing activity, fishery science, and fishery and marine conservation;
(3) establish specified limitations which are necessary and appropriate for the
conservation and management of the fishery on the—
(A) catch of fish (based on area, species, size, number, weight, sex, bycatch, total
biomass, or other factors);
(B) sale of fish caught during commercial, recreational, or charter fishing, consistent
with any applicable Federal and State safety and quality requirements; and
(C) transshipment or transportation of fish or fish products under permits issued
pursuant to section 204;
(4) prohibit, limit, condition, or require the use of specified types and quantities of fishing
gear, fishing vessels, or equipment for such vessels, including devices which may be
required to facilitate enforcement of the provisions of this Act;
109-479
(5) incorporate (consistent with the national standards, the other provisions of this Act,
and any other applicable law) the relevant fishery conservation and management measures of
the coastal States nearest to the fishery and take into account the different circumstances
affecting fisheries from different States and ports, including distances to fishing grounds and
proximity to time and area closures;
109-479
(6) establish a limited access system for the fishery in order to achieve optimum yield if,
in developing such system, the Council and the Secretary take into account—
(A) present participation in the fishery;
(B) historical fishing practices in, and dependence on, the fishery;
(C) the economics of the fishery;
(D) the capability of fishing vessels used in the fishery to engage in other fisheries;
(E) the cultural and social framework relevant to the fishery and any affected fishing
communities;
(F) the fair and equitable distribution of access privileges in the fishery; and
(G) any other relevant considerations;
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16 U.S.C. 1853
MSA § 303
(7) require fish processors who first receive fish that are subject to the plan to submit data
which are necessary for the conservation and management of the fishery;
(8) require that one or more observers be carried on board a vessel of the United States
engaged in fishing for species that are subject to the plan, for the purpose of collecting data
necessary for the conservation and management of the fishery; except that such a vessel shall
not be required to carry an observer on board if the facilities of the vessel for the quartering
of an observer, or for carrying out observer functions, are so inadequate or unsafe that the
health or safety of the observer or the safe operation of the vessel would be jeopardized;
(9) assess and specify the effect which the conservation and management measures of the
plan will have on the stocks of naturally spawning anadromous fish in the region;
(10) include, consistent with the other provisions of this Act, conservation and
management measures that provide harvest incentives for participants within each gear
group to employ fishing practices that result in lower levels of bycatch or in lower levels of
the mortality of bycatch;
(11) reserve a portion of the allowable biological catch of the fishery for use in scientific
research;
109-479
(12) include management measures in the plan to conserve target and non-target species
and habitats, considering the variety of ecological factors affecting fishery populations; and
(14)[sic]15 prescribe such other measures, requirements, or conditions and restrictions as
are determined to be necessary and appropriate for the conservation and management of the
fishery.
97-453, 104-297
(c) PROPOSED REGULATIONS.—Proposed regulations which the Council deems
necessary or appropriate for the purposes of—
(1) implementing a fishery management plan or plan amendment shall be submitted to the
Secretary simultaneously with the plan or amendment under section 304; and
(2) making modifications to regulations implementing a fishery management plan or plan
amendment may be submitted to the Secretary at any time after the plan or amendment is
approved under section 304.
15
So in original.
78
16 U.S.C. 1853 note, 1853a
MSA §§ 303 note, 303A
P.L. 109-479, sec. 104(b), MSA § 303 note
16 U.S.C. 1853 note
EFFECTIVE DATES; APPLICATION TO CERTAIN SPECIES.—The amendment made by
16
subsection (a)(10) —
(1) shall, unless otherwise provided for under an international agreement in which the United States
participates, take effect—
(A) in fishing year 2010 for fisheries determined by the Secretary to be subject to overfishing; and
(B) in fishing year 2011 for all other fisheries; and
(2) shall not apply to a fishery for species that have a life cycle of approximately 1 year unless the
Secretary has determined the fishery is subject to overfishing of that species; and
(3) shall not limit or otherwise affect the requirements of section 301(a)(1) or 304(e) of the MagnusonStevens Fishery Conservation and Management Act (16 U.S.C. 1851(a)(1) or 1854(e), respectively).
109-479
SEC. 303A. LIMITED ACCESS PRIVILEGE PROGRAMS.
16 U.S.C. 1853a
(a) IN GENERAL.—After the date of enactment of the Magnuson-Stevens Fishery
Conservation and Management Reauthorization Act of 2006, a Council may submit, and the
Secretary may approve, for a fishery that is managed under a limited access system, a limited
access privilege program to harvest fish if the program meets the requirements of this section.
(b) NO CREATION OF RIGHT, TITLE, OR INTEREST.—Limited access privilege, quota
share, or other limited access system authorization established, implemented, or managed under
this Act—
(1) shall be considered a permit for the purposes of sections 307, 308, and 309;
(2) may be revoked, limited, or modified at any time in accordance with this Act,
including revocation if the system is found to have jeopardized the sustainability of the stock
or the safety of fishermen;
(3) shall not confer any right of compensation to the holder of such limited access
privilege, quota share, or other such limited access system authorization if it is revoked,
limited, or modified;
(4) shall not create, or be construed to create, any right, title, or interest in or to any fish
before the fish is harvested by the holder; and
(5) shall be considered a grant of permission to the holder of the limited access privilege
or quota share to engage in activities permitted by such limited access privilege or quota
share.
16
Section 104(a)(10) of P.L. 109-479 added section 303(a)(15).
79
16 U.S.C. 1853a
MSA § 303A
(c) REQUIREMENTS FOR LIMITED ACCESS PRIVILEGES.—
(1) IN GENERAL.—Any limited access privilege program to harvest fish submitted by a
Council or approved by the Secretary under this section shall—
(A) if established in a fishery that is overfished or subject to a rebuilding plan, assist in
its rebuilding;
(B) if established in a fishery that is determined by the Secretary or the Council to
have over-capacity, contribute to reducing capacity;
(C) promote—
(i) fishing safety;
(ii) fishery conservation and management; and
(iii) social and economic benefits;
(D) prohibit any person other than a United States citizen, a corporation, partnership,
or other entity established under the laws of the United States or any State, or a permanent
resident alien, that meets the eligibility and participation requirements established in the
program from acquiring a privilege to harvest fish, including any person that acquires a
limited access privilege solely for the purpose of perfecting or realizing on a security
interest in such privilege;
(E) require that all fish harvested under a limited access privilege program be
processed on vessels of the United States or on United States soil (including any territory
of the United States);
(F) specify the goals of the program;
(G) include provisions for the regular monitoring and review by the Council and the
Secretary of the operations of the program, including determining progress in meeting the
goals of the program and this Act, and any necessary modification of the program to meet
those goals, with a formal and detailed review 5 years after the implementation of the
program and thereafter to coincide with scheduled Council review of the relevant fishery
management plan (but no less frequently than once every 7 years);
(H) include an effective system for enforcement, monitoring, and management of the
program, including the use of observers or electronic monitoring systems;
(I) include an appeals process for administrative review of the Secretary’s decisions
regarding initial allocation of limited access privileges;
(J) provide for the establishment by the Secretary, in consultation with appropriate
Federal agencies, for an information collection and review process to provide any
additional information needed to determine whether any illegal acts of anti-competition,
anti-trust, price collusion, or price fixing have occurred among regional fishery
associations or persons receiving limited access privileges under the program; and
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16 U.S.C. 1853a
MSA § 303A
(K) provide for the revocation by the Secretary of limited access privileges held by any
person found to have violated the antitrust laws of the United States.
(2) WAIVER.—The Secretary may waive the requirement of paragraph (1)(E) if the
Secretary determines that—
(A) the fishery has historically processed the fish outside of the United States; and
(B) the United States has a seafood safety equivalency agreement with the country
where processing will occur.
(3) FISHING COMMUNITIES.—
(A) IN GENERAL.—
(i) ELIGIBILITY.—To be eligible to participate in a limited access privilege
program to harvest fish, a fishing community shall—
(I) be located within the management area of the relevant Council;
(II) meet criteria developed by the relevant Council, approved by the Secretary,
and published in the Federal Register;
(III) consist of residents who conduct commercial or recreational fishing,
processing, or fishery-dependent support businesses within the Council’s
management area; and
(IV) develop and submit a community sustainability plan to the Council and the
Secretary that demonstrates how the plan will address the social and economic
development needs of coastal communities, including those that have not
historically had the resources to participate in the fishery, for approval based on
criteria developed by the Council that have been approved by the Secretary and
published in the Federal Register.
(ii) FAILURE TO COMPLY WITH PLAN.—The Secretary shall deny or revoke
limited access privileges granted under this section for any person who fails to comply
with the requirements of the community sustainability plan. Any limited access
privileges denied or revoked under this section may be reallocated to other eligible
members of the fishing community.
81
16 U.S.C. 1853a
MSA § 303A
(B) PARTICIPATION CRITERIA.—In developing participation criteria for eligible
communities under this paragraph, a Council shall consider—
(i) traditional fishing or processing practices in, and dependence on, the fishery;
(ii) the cultural and social framework relevant to the fishery;
(iii) economic barriers to access to fishery;
(iv) the existence and severity of projected economic and social impacts associated
with implementation of limited access privilege programs on harvesters, captains,
crew, processors, and other businesses substantially dependent upon the fishery in the
region or subregion;
(v) the expected effectiveness, operational transparency, and equitability of the
community sustainability plan; and
(vi) the potential for improving economic conditions in remote coastal
communities lacking resources to participate in harvesting or processing activities in
the fishery.
(4) REGIONAL FISHERY ASSOCIATIONS.—
(A) IN GENERAL.—To be eligible to participate in a limited access privilege program
to harvest fish, a regional fishery association shall—
(i) be located within the management area of the relevant Council;
(ii) meet criteria developed by the relevant Council, approved by the Secretary,
and published in the Federal Register;
(iii) be a voluntary association with established by-laws and operating procedures;
(iv) consist of participants in the fishery who hold quota share that are designated
for use in the specific region or subregion covered by the regional fishery association,
including commercial or recreational fishing, processing, fishery-dependent support
businesses, or fishing communities;
(v) not be eligible to receive an initial allocation of a limited access privilege but
may acquire such privileges after the initial allocation, and may hold the annual fishing
privileges of any limited access privileges it holds or the annual fishing privileges that
is [sic]17 members contribute; and
(vi) develop and submit a regional fishery association plan to the Council and the
Secretary for approval based on criteria developed by the Council that have been
approved by the Secretary and published in the Federal Register.
(B) FAILURE TO COMPLY WITH PLAN.—The Secretary shall deny or revoke
limited access privileges granted under this section to any person participating in a
regional fishery association who fails to comply with the requirements of the regional
fishery association plan.
17
So in original.
82
16 U.S.C. 1853a
MSA § 303A
(C) PARTICIPATION CRITERIA.—In developing participation criteria for eligible
regional fishery associations under this paragraph, a Council shall consider—
(i) traditional fishing or processing practices in, and dependence on, the fishery;
(ii) the cultural and social framework relevant to the fishery;
(iii) economic barriers to access to fishery;
(iv) the existence and severity of projected economic and social impacts associated
with implementation of limited access privilege programs on harvesters, captains,
crew, processors, and other businesses substantially dependent upon the fishery in the
region or subregion;
(v) the administrative and fiduciary soundness of the association; and
(vi) the expected effectiveness, operational transparency, and equitability of the
fishery association plan.
(5) ALLOCATION.—In developing a limited access privilege program to harvest fish a
Council or the Secretary shall—
(A) establish procedures to ensure fair and equitable initial allocations, including
consideration of—
(i) current and historical harvests;
(ii) employment in the harvesting and processing sectors;
(iii) investments in, and dependence upon, the fishery; and
(iv) the current and historical participation of fishing communities;
(B) consider the basic cultural and social framework of the fishery, especially
through—
(i) the development of policies to promote the sustained participation of small
owner-operated fishing vessels and fishing communities that depend on the fisheries,
including regional or port-specific landing or delivery requirements; and
(ii) procedures to address concerns over excessive geographic or other
consolidation in the harvesting or processing sectors of the fishery;
(C) include measures to assist, when necessary and appropriate, entry-level and small
vessel owner-operators, captains, crew, and fishing communities through set-asides of
harvesting allocations, including providing privileges, which may include set-asides or
allocations of harvesting privileges, or economic assistance in the purchase of limited
access privileges;
(D) ensure that limited access privilege holders do not acquire an excessive share of
the total limited access privileges in the program by—
(i) establishing a maximum share, expressed as a percentage of the total limited
access privileges, that a limited access privilege holder is permitted to hold, acquire, or
use; and
(ii) establishing any other limitations or measures necessary to prevent an
inequitable concentration of limited access privileges; and
83
16 U.S.C. 1853a
MSA § 303A
(E) authorize limited access privileges to harvest fish to be held, acquired, used by, or
issued under the system to persons who substantially participate in the fishery, including
in a specific sector of such fishery, as specified by the Council.
(6) PROGRAM INITIATION.—
(A) LIMITATION.—Except as provided in subparagraph (D), a Council may initiate a
fishery management plan or amendment to establish a limited access privilege program to
harvest fish on its own initiative or if the Secretary has certified an appropriate petition.
(B) PETITION.—A group of fishermen constituting more than 50 percent of the
permit holders, or holding more than 50 percent of the allocation, in the fishery for which
a limited access privilege program to harvest fish is sought, may submit a petition to the
Secretary requesting that the relevant Council or Councils with authority over the fishery
be authorized to initiate the development of the program. Any such petition shall clearly
state the fishery to which the limited access privilege program would apply. For
multispecies permits in the Gulf of Mexico, only those participants who have
substantially fished the species proposed to be included in the limited access program
shall be eligible to sign a petition for such a program and shall serve as the basis for
determining the percentage described in the first sentence of this subparagraph.
(C) CERTIFICATION BY SECRETARY.—Upon the receipt of any such petition, the
Secretary shall review all of the signatures on the petition and, if the Secretary determines
that the signatures on the petition represent more than 50 percent of the permit holders, or
holders of more than 50 percent of the allocation in the fishery, as described by
subparagraph (B), the Secretary shall certify the petition to the appropriate Council or
Councils.
(D) NEW ENGLAND AND GULF REFERENDUM.—
(i) Except as provided in clause (iii) for the Gulf of Mexico commercial red
snapper fishery, the New England and Gulf Councils may not submit, and the
Secretary may not approve or implement, a fishery management plan or amendment
that creates an individual fishing quota program, including a Secretarial plan, unless
such a system, as ultimately developed, has been approved by more than 2⁄3 of those
voting in a referendum among eligible permit holders, or other persons described in
clause (v), with respect to the New England Council, and by a majority of those voting
in the referendum among eligible permit holders with respect to the Gulf Council. For
multispecies permits in the Gulf of Mexico, only those participants who have
substantially fished the species proposed to be included in the individual fishing quota
program shall be eligible to vote in such a referendum. If an individual fishing quota
program fails to be approved by the requisite number of those voting, it may be revised
and submitted for approval in a subsequent referendum.
84
16 U.S.C. 1853a
MSA § 303A
(ii) The Secretary shall conduct a referendum under this subparagraph, including
notifying all persons eligible to participate in the referendum and making available to
them information concerning the schedule, procedures, and eligibility requirements for
the referendum process and the proposed individual fishing quota program. Within 1
year after the date of enactment of the Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act of 2006, the Secretary shall publish guidelines and
procedures to determine procedures and voting eligibility requirements for referenda
and to conduct such referenda in a fair and equitable manner.
(iii) The provisions of section 407(c) of this Act shall apply in lieu of this
subparagraph for an individual fishing quota program for the Gulf of Mexico
commercial red snapper fishery.
(iv) Chapter 35 of title 44, United States Code, (commonly known as the
Paperwork Reduction Act) does not apply to the referenda conducted under this
subparagraph.
(v) The Secretary shall promulgate criteria for determining whether additional
fishery participants are eligible to vote in the New England referendum described in
clause (i) in order to ensure that crew members who derive a significant percentage of
their total income from the fishery under the proposed program are eligible to vote in
the referendum.
(vi) In this subparagraph, the term ‘individual fishing quota’ does not include a
sector allocation.
(7) TRANSFERABILITY.—In establishing a limited access privilege program, a Council
shall—
(A) establish a policy and criteria for the transferability of limited access privileges
(through sale or lease), that is consistent with the policies adopted by the Council for the
fishery under paragraph (5); and
(B) establish, in coordination with the Secretary, a process for monitoring of transfers
(including sales and leases) of limited access privileges.
(8) PREPARATION AND IMPLEMENTATION OF SECRETARIAL PLANS.—This
subsection also applies to a plan prepared and implemented by the Secretary under section
304(c) or 304(g).
(9) ANTITRUST SAVINGS CLAUSE.—Nothing in this Act shall be construed to
modify, impair, or supersede the operation of any of the antitrust laws. For purposes of the
preceding sentence, the term ‘antitrust laws’ has the meaning given such term in subsection
(a) of the first section of the Clayton Act, except that such term includes section 5 of the
Federal Trade Commission Act to the extent that such section 5 applies to unfair methods of
competition.
85
16 U.S.C. 1853a
MSA § 303A
(d) AUCTION AND OTHER PROGRAMS.—In establishing a limited access privilege
program, a Council shall consider, and may provide, if appropriate, an auction system or other
program to collect royalties for the initial, or any subsequent, distribution of allocations in a
limited access privilege program if—
(1) the system or program is administered in such a way that the resulting distribution of
limited access privilege shares meets the program requirements of this section; and
(2) revenues generated through such a royalty program are deposited in the Limited
Access System Administration Fund established by section 305(h)(5)(B) and available
subject to annual appropriations.
(e) COST RECOVERY.—In establishing a limited access privilege program, a Council
shall—
(1) develop a methodology and the means to identify and assess the management, data
collection and analysis, and enforcement programs that are directly related to and in support
of the program; and
(2) provide, under section 304(d)(2), for a program of fees paid by limited access
privilege holders that will cover the costs of management, data collection and analysis, and
enforcement activities.
(f) CHARACTERISTICS.—A limited access privilege established after the date of
enactment of the Magnuson-Stevens Fishery Conservation and Management Reauthorization
Act of 2006 is a permit issued for a period of not more than 10 years that—
(1) will be renewed before the end of that period, unless it has been revoked, limited, or
modified as provided in this subsection;
(2) will be revoked, limited, or modified if the holder is found by the Secretary, after
notice and an opportunity for a hearing under section 554 of title 5, United States Code, to
have failed to comply with any term of the plan identified in the plan as cause for revocation,
limitation, or modification of a permit, which may include conservation requirements
established under the plan;
(3) may be revoked, limited, or modified if the holder is found by the Secretary, after
notice and an opportunity for a hearing under section 554 of title 5, United States Code, to
have committed an act prohibited by section 307 of this Act; and
(4) may be acquired, or reacquired, by participants in the program under a mechanism
established by the Council if it has been revoked, limited, or modified under paragraph (2) or
(3).
86
16 U.S.C. 1853a
MSA § 303A
(g) LIMITED ACCESS PRIVILEGE ASSISTED PURCHASE PROGRAM.—
(1) IN GENERAL.—A Council may submit, and the Secretary may approve and
implement, a program which reserves up to 25 percent of any fees collected from a fishery
under section 304(d)(2) to be used, pursuant to section 53706(a)(7) of title 46, United States
Code, to issue obligations that aid in financing—
(A) the purchase of limited access privileges in that fishery by fishermen who fish
from small vessels; and
(B) the first-time purchase of limited access privileges in that fishery by entry level
fishermen.
(2) ELIGIBILITY CRITERIA.—A Council making a submission under paragraph (1)
shall recommend criteria, consistent with the provisions of this Act, that a fisherman must
meet to qualify for guarantees under subparagraphs (A) and (B) of paragraph (1) and the
portion of funds to be allocated for guarantees under each subparagraph.
(h) EFFECT ON CERTAIN EXISTING SHARES AND PROGRAMS.—Nothing in this
Act, or the amendments made by the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006, shall be construed to require a reallocation or a reevaluation of
individual quota shares, processor quota shares, cooperative programs, or other quota programs,
including sector allocation in effect before the date of enactment of the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act of 2006.
(i) TRANSITION RULES.—
(1) IN GENERAL.—The requirements of this section shall not apply to any quota
program, including any individual quota program, cooperative program, or sector allocation
for which a Council has taken final action or which has been submitted by a Council to the
Secretary, or approved by the Secretary, within 6 months after the date of enactment of the
Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006,
except that—
(A) the requirements of section 303(d) of this Act in effect on the day before the date
of enactment of that Act shall apply to any such program;
(B) the program shall be subject to review under subsection (c)(1)(G) of this section
not later than 5 years after the program implementation; and
(C) nothing in this subsection precludes a Council from incorporating criteria
contained in this section into any such plans.
(2) PACIFIC GROUNDFISH PROPOSALS.—The requirements of this section, other
than subparagraphs (A) and (B) of subsection (c)(1) and subparagraphs (A), (B), and (C) of
paragraph (1) of this subsection, shall not apply to any proposal authorized under section
302(f) of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act
of 2006 that is submitted within the timeframe prescribed by that section.
87
16 U.S.C. 1853a note, 1854
MSA §§ 303A note, 304
P.L. 109-479, sec. 106(e), MSA § 303A note
16 U.S.C. 1853a note
APPLICATION WITH AMERICAN FISHERIES ACT.—Nothing in section 303A of the MagnusonStevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), as added by subsection
(a) [P.L. 109-479], shall be construed to modify or supersede any provision of the American Fisheries Act
(46 U.S.C. 12102 note; 16 U.S.C. 1851 note; et alia).
P.L. 104-297, sec. 108(i), MSA § 303 note
EXISTING QUOTA PLANS.—Nothing in this Act [P.L.104-297] or the amendments made by this Act
shall be construed to require a reallocation of individual fishing quotas under any individual fishing quota
program approved by the Secretary before January 4, 1995.
SEC. 304. ACTION BY THE SECRETARY
16 U.S.C. 1854
104-297
(a) REVIEW OF PLANS.—
(1) Upon transmittal by the Council to the Secretary of a fishery management plan or
plan amendment, the Secretary shall—
(A) immediately commence a review of the plan or amendment to determine whether
it is consistent with the national standards, the other provisions of this Act, and any other
applicable law; and
(B) immediately publish in the Federal Register a notice stating that the plan or
amendment is available and that written information, views, or comments of interested
persons on the plan or amendment may be submitted to the Secretary during the 60-day
period beginning on the date the notice is published.
(2) In undertaking the review required under paragraph (1), the Secretary shall—
(A) take into account the information, views, and comments received from interested
persons;
(B) consult with the Secretary of State with respect to foreign fishing; and
(C) consult with the Secretary of the department in which the Coast Guard is
operating with respect to enforcement at sea and to fishery access adjustments referred to
in section 303(a)(6).
(3) The Secretary shall approve, disapprove, or partially approve a plan or amendment
within 30 days of the end of the comment period under paragraph (1) by written notice to the
Council. A notice of disapproval or partial approval shall specify—
(A) the applicable law with which the plan or amendment is inconsistent;
(B) the nature of such inconsistencies; and
(C) recommendations concerning the actions that could be taken by the Council to
conform such plan or amendment to the requirements of applicable law.
If the Secretary does not notify a Council within 30 days of the end of the comment period
of the approval, disapproval, or partial approval of a plan or amendment, then such plan or
amendment shall take effect as if approved.
88
16 U.S.C. 1854
MSA § 304
(4) If the Secretary disapproves or partially approves a plan or amendment, the Council
may submit a revised plan or amendment to the Secretary for review under this subsection.
(5) For purposes of this subsection and subsection (b), the term “immediately” means on
or before the 5th day after the day on which a Council transmits to the Secretary a fishery
management plan, plan amendment, or proposed regulation that the Council characterizes as
final.
104-297
(b) REVIEW OF REGULATIONS.—
(1) Upon transmittal by the Council to the Secretary of proposed regulations prepared
under section 303(c), the Secretary shall immediately initiate an evaluation of the proposed
regulations to determine whether they are consistent with the fishery management plan, plan
amendment, this Act and other applicable law. Within 15 days of initiating such evaluation
the Secretary shall make a determination and—
(A) if that determination is affirmative, the Secretary shall publish such regulations in
the Federal Register, with such technical changes as may be necessary for clarity and an
explanation of those changes, for a public comment period of 15 to 60 days; or
(B) if that determination is negative, the Secretary shall notify the Council in writing
of the inconsistencies and provide recommendations on revisions that would make the
proposed regulations consistent with the fishery management plan, plan amendment, this
Act, and other applicable law.
(2) Upon receiving a notification under paragraph (1)(B), the Council may revise the
proposed regulations and submit them to the Secretary for reevaluation under paragraph (1).
(3) The Secretary shall promulgate final regulations within 30 days after the end of the
comment period under paragraph (1)(A). The Secretary shall consult with the Council
before making any revisions to the proposed regulations, and must publish in the Federal
Register an explanation of any differences between the proposed and final regulations.
97-453, 99-659, 104-297
(c) PREPARATION AND REVIEW OF SECRETARIAL PLANS.—
(1) The Secretary may prepare a fishery management plan, with respect to any fishery, or
any amendment to any such plan, in accordance with the national standards, the other
provisions of this Act, and any other applicable law, if—
(A) the appropriate Council fails to develop and submit to the Secretary, after a
reasonable period of time, a fishery management plan for such fishery, or any necessary
amendment to such a plan, if such fishery requires conservation and management;
(B) the Secretary disapproves or partially disapproves any such plan or amendment, or
disapproves a revised plan or amendment, and the Council involved fails to submit a
revised or further revised plan or amendment; or
(C) the Secretary is given authority to prepare such plan or amendment under this
section.
89
16 U.S.C. 1854
MSA § 304
In preparing any such plan or amendment, the Secretary shall consult with the Secretary of
State with respect to foreign fishing and with the Secretary of the department in which the
Coast Guard is operating with respect to enforcement at sea. The Secretary shall also
prepare such proposed regulations as he deems necessary or appropriate to carry out each
plan or amendment prepared by him under this paragraph.
(2) In preparing any plan or amendment under this subsection, the Secretary shall—
(A) conduct public hearings, at appropriate times and locations in the geographical
areas concerned, so as to allow interested persons an opportunity to be heard in the
preparation and amendment of the plan and any regulations implementing the plan; and
(B) consult with the Secretary of State with respect to foreign fishing and with the
Secretary of the department in which the Coast Guard is operating with respect to
enforcement at sea.
109-479
(3) Notwithstanding paragraph (1) for a fishery under the authority of a Council, the
Secretary may not include in any fishery management plan, or any amendment to any such
plan, prepared by him, a provision establishing a limited access system, including any
limited access privilege program unless such system is first approved by a majority of the
voting members, present and voting, of each appropriate Council.
(4) Whenever the Secretary prepares a fishery management plan or plan amendment
under this section, the Secretary shall immediately—
(A) for a plan or amendment for a fishery under the authority of a Council, submit
such plan or amendment to the appropriate Council for consideration and comment; and
(B) publish in the Federal Register a notice stating that the plan or amendment is
available and that written information, views, or comments of interested persons on the
plan or amendment may be submitted to the Secretary during the 60-day period
beginning on the date the notice is published.
(5) Whenever a plan or amendment is submitted under paragraph (4)(A), the appropriate
Council must submit its comments and recommendations, if any, regarding the plan or
amendment to the Secretary before the close of the 60-day period referred to in paragraph
(4)(B). After the close of such 60-day period, the Secretary, after taking into account any
such comments and recommendations, as well as any views, information, or comments
submitted under paragraph (4)(B), may adopt such plan or amendment.
(6) The Secretary may propose regulations in the Federal Register to implement any plan
or amendment prepared by the Secretary. In the case of a plan or amendment to which
paragraph (4)(A) applies, such regulations shall be submitted to the Council with such plan
or amendment. The comment period on proposed regulations shall be 60 days, except that
the Secretary may shorten the comment period on minor revisions to existing regulations.
90
16 U.S.C. 1854
MSA § 304
(7) The Secretary shall promulgate final regulations within 30 days after the end of the
comment period under paragraph (6). The Secretary must publish in the Federal Register an
explanation of any substantive differences between the proposed and final rules. All final
regulations must be consistent with the fishery management plan, with the national standards
and other provisions of this Act, and with any other applicable law.
97-453, 104-297
(d) ESTABLISHMENT OF FEES.—
(1) The Secretary shall by regulation establish the level of any fees which are authorized
to be charged pursuant to section 303(b)(1). The Secretary may enter into a cooperative
agreement with the States concerned under which the States administer the permit system
and the agreement may provide that all or part of the fees collected under the system shall
accrue to the States. The level of fees charged under this subsection shall not exceed the
administrative costs incurred in issuing the permits.
109-479
(2)(A) Notwithstanding paragraph (1), the Secretary is authorized and shall collect a fee
to recover the actual costs directly related to the management, data collection, and
enforcement of any—
(i) limited access privilege program; and
(ii) community development quota program that allocates a percentage of the total
allowable catch of a fishery to such program.
(B) Such fee shall not exceed 3 percent of the ex-vessel value of fish harvested under
any such program, and shall be collected at either the time of the landing, filing of a
landing report, or sale of such fish during a fishing season or in the last quarter of the
calendar year in which the fish is harvested.
(C)(i) Fees collected under this paragraph shall be in addition to any other fees
charged under this Act and shall be deposited in the Limited Access System
Administration Fund established under section 305(h)(5)(B).
(ii) Upon application by a State, the Secretary shall transfer to such State up to 33
percent of any fee collected pursuant to subparagraph (A) under a community
development quota program and deposited in the Limited Access System
Administration Fund in order to reimburse such State for actual costs directly incurred
in the management and enforcement of such program.
91
16 U.S.C. 1854
MSA § 304
104-297
(e) REBUILDING OVERFISHED FISHERIES.—
(1) The Secretary shall report annually to the Congress and the Councils on the status of
fisheries within each Council's geographical area of authority and identify those fisheries
that are overfished or are approaching a condition of being overfished. For those fisheries
managed under a fishery management plan or international agreement, the status shall be
determined using the criteria for overfishing specified in such plan or agreement. A fishery
shall be classified as approaching a condition of being overfished if, based on trends in
fishing effort, fishery resource size, and other appropriate factors, the Secretary estimates
that the fishery will become overfished within two years.
(2) If the Secretary determines at any time that a fishery is overfished, the Secretary shall
immediately notify the appropriate Council and request that action be taken to end
overfishing in the fishery and to implement conservation and management measures to
rebuild affected stocks of fish. The Secretary shall publish each notice under this paragraph
in the Federal Register.
109-479
(3) Within 2 years after an identification under paragraph (1) or notification under
paragraphs (2) or (7), the appropriate Council (or the Secretary, for fisheries under section
302(a)(3)) shall prepare and implement a fishery management plan, plan amendment, or
proposed regulations for the fishery to which the identification or notice applies—
(A) to end overfishing immediately in the fishery and to rebuild affected stocks of
fish; or
(B) to prevent overfishing from occurring in the fishery whenever such fishery is
identified as approaching an overfished condition.
109-479
(4) For a fishery that is overfished, any fishery management plan, amendment, or
proposed regulations prepared pursuant to paragraph (3) or paragraph (5) for such fishery
shall—
(A) specify a time period for rebuilding the fishery that shall—
(i) be as short as possible, taking into account the status and biology of any
overfished stocks of fish, the needs of fishing communities, recommendations by
international organizations in which the United States participates, and the interaction
of the overfished stock of fish within the marine ecosystem; and
(ii) not exceed 10 years, except in cases where the biology of the stock of fish,
other environmental conditions, or management measures under an international
agreement in which the United States participates dictate otherwise;
(B) allocate both overfishing restrictions and recovery benefits fairly and equitably
among sectors of the fishery; and
(C) for fisheries managed under an international agreement, reflect traditional
participation in the fishery, relative to other nations, by fishermen of the United States.
92
16 U.S.C. 1854
MSA § 304
(5) If, within the 2-year period beginning on the date of identification or notification that
a fishery is overfished, the Council does not submit to the Secretary a fishery management
plan, plan amendment, or proposed regulations required by paragraph (3)(A), the Secretary
shall prepare a fishery management plan or plan amendment and any accompanying
regulations to stop overfishing and rebuild affected stocks of fish within 9 months under
subsection (c).
(6) During the development of a fishery management plan, a plan amendment, or
proposed regulations required by this subsection, the Council may request the Secretary to
implement interim measures to reduce overfishing under section 305(c) until such measures
can be replaced by such plan, amendment, or regulations. Such measures, if otherwise in
compliance with the provisions of this Act, may be implemented even though they are not
sufficient by themselves to stop overfishing of a fishery.
(7) The Secretary shall review any fishery management plan, plan amendment, or
regulations required by this subsection at routine intervals that may not exceed two years. If
the Secretary finds as a result of the review that such plan, amendment, or regulations have
not resulted in adequate progress toward ending overfishing and rebuilding affected fish
stocks, the Secretary shall—
(A) in the case of a fishery to which section 302(a)(3) applies, immediately make
revisions necessary to achieve adequate progress; or
(B) for all other fisheries, immediately notify the appropriate Council. Such
notification shall recommend further conservation and management measures which the
Council should consider under paragraph (3) to achieve adequate progress.
101-627, 104-297
(f) FISHERIES UNDER AUTHORITY OF MORE THAN ONE COUNCIL.—
(1) Except as provided in paragraph (3)18, if any fishery extends beyond the geographical
area of authority of any one Council, the Secretary may—
(A) designate which Council shall prepare the fishery management plan for such
fishery and any amendment to such plan; or
(B) may require that the plan and amendment be prepared jointly by the Councils
concerned.
No jointly prepared plan or amendment may be submitted to the Secretary unless it is
approved by a majority of the voting members, present and voting, of each Council
concerned.
(2) The Secretary shall establish the boundaries between the geographical areas of
authority of adjacent Councils.
18
Former paragraph (3) now appears at section 302(a)(3) and section 304(g).
93
16 U.S.C. 1854
MSA § 304
104-297
(g) ATLANTIC HIGHLY MIGRATORY SPECIES.—
(1) PREPARATION AND IMPLEMENTATION OF PLAN OR PLAN
AMENDMENT.—The Secretary shall prepare a fishery management plan or plan
amendment under subsection (c) with respect to any highly migratory species fishery to
which section 302(a)(3) applies. In preparing and implementing any such plan or
amendment, the Secretary shall—
(A) consult with and consider the comments and views of affected Councils,
commissioners and advisory groups appointed under Acts implementing relevant
international fishery agreements pertaining to highly migratory species, and the advisory
panel established under section 302(g);
(B) establish an advisory panel under section 302(g) for each fishery management
plan to be prepared under this paragraph;
(C) evaluate the likely effects, if any, of conservation and management measures on
participants in the affected fisheries and minimize, to the extent practicable, any
disadvantage to United States fishermen in relation to foreign competitors;
(D) with respect to a highly migratory species for which the United States is
authorized to harvest an allocation, quota, or at a fishing mortality level under a relevant
international fishery agreement, provide fishing vessels of the United States with a
reasonable opportunity to harvest such allocation, quota, or at such fishing mortality
level;
(E) review, on a continuing basis (and promptly whenever a recommendation
pertaining to fishing for highly migratory species has been made under a relevant
international fishery agreement), and revise as appropriate, the conservation and
management measures included in the plan;
(F) diligently pursue, through international entities (such as the International
Commission for the Conservation of Atlantic Tunas), comparable international fishery
management measures with respect to fishing for highly migratory species; and
(G) ensure that conservation and management measures under this subsection-(i) promote international conservation of the affected fishery;
(ii) take into consideration traditional fishing patterns of fishing vessels of the
United States and the operating requirements of the fisheries;
(iii) are fair and equitable in allocating fishing privileges among United States
fishermen and do not have economic allocation as the sole purpose; and
(iv) promote, to the extent practicable, implementation of scientific research
programs that include the tagging and release of Atlantic highly migratory species.
109-479
(2) CERTAIN FISH EXCLUDED FROM “BYCATCH” DEFINITION.—
Notwithstanding section 3(2), fish harvested in a commercial fishery managed by the
Secretary under this subsection or the Atlantic Tunas Convention Act of 1975 (16 U.S.C.
971d), or highly migratory species harvested in a commercial fishery managed by a Council
under this Act or the Western and Central Pacific Fisheries Convention Implementation Act,
that are not regulatory discards and that are tagged and released alive under a scientific
tagging and release program established by the Secretary shall not be considered bycatch for
purposes of this Act.
94
16 U.S.C. 1854
MSA § 304
104-297
(h) REPEAL OR REVOCATION OF A FISHERY MANAGEMENT PLAN.—The
Secretary may repeal or revoke a fishery management plan for a fishery under the authority of a
Council only if the Council approves the repeal or revocation by a three-quarters majority of the
voting members of the Council.
109-479
(i)[sic]19 ENVIRONMENTAL REVIEW PROCESS.—
(1) PROCEDURES.—The Secretary shall, in consultation with the Councils and the
Council on Environmental Quality, revise and update agency procedures for compliance with
the National Environmental Policy Act (42 U.S.C. 4231 et seq.). The procedures shall—
(A) conform to the time lines for review and approval of fishery management plans
and plan amendments under this section; and
(B) integrate applicable environmental analytical procedures, including the time
frames for public input, with the procedure for the preparation and dissemination of
fishery management plans, plan amendments, and other actions taken or approved
pursuant to this Act in order to provide for timely, clear and concise analysis that is useful
to decision makers and the public, reduce extraneous paperwork, and effectively involve
the public.
(2) USAGE.—The updated agency procedures promulgated in accordance with this
section used by the Councils or the Secretary shall be the sole environmental impact
assessment procedure for fishery management plans, amendments, regulations, or other
actions taken or approved pursuant to this Act.
(3) SCHEDULE FOR PROMULGATION OF FINAL PROCEDURES.—The Secretary
shall—
(A) propose revised procedures within 6 months after the date of enactment of the
Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006;
(B) provide 90 days for public review and comments; and
(C) promulgate final procedures no later than 12 months after the date of enactment
of that Act.
(4) PUBLIC PARTICIPATION.—The Secretary is authorized and directed, in
cooperation with the Council on Environmental Quality and the Councils, to involve the
affected public in the development of revised procedures, including workshops or other
appropriate means of public involvement.
19
So in original. P.L. 109-479 added two subsections as 304(i).
95
16 U.S.C. 1854, 1854 note
MSA §§ 304, 304 note
109-479
(i) [sic]20 INTERNATIONAL OVERFISHING.—The provisions of this subsection shall
apply in lieu of subsection (e) to a fishery that the Secretary determines is overfished or
approaching a condition of being overfished due to excessive international fishing pressure, and
for which there are no management measures to end overfishing under an international
agreement to which the United States is a party. For such fisheries—
(1) the Secretary, in cooperation with the Secretary of State, [sic]20a immediately take
appropriate action at the international level to end the overfishing; and
(2) within 1 year after the Secretary’s determination, the appropriate Council, or
Secretary, for fisheries under section 302(a)(3) shall—
(A) develop recommendations for domestic regulations to address the relative impact
of fishing vessels of the United States on the stock and, if developed by a Council, the
Council shall submit such recommendations to the Secretary; and
(B) develop and submit recommendations to the Secretary of State, and to the
Congress, for international actions that will end overfishing in the fishery and rebuild the
affected stocks, taking into account the relative impact of vessels of other nations and
vessels of the United States on the relevant stock.
P.L. 109-479, sec. 104(d), MSA § 304 note
16 U.S.C. 1854 note
21
EFFECTIVE DATE FOR SUBSECTION (c).—The amendments made by subsection (c) shall take
effect 30 months after the date of enactment of this Act.
P.L. 101-627, sec. 108(k), MSA § 304 note
16 U.S.C. 1854 note
INTERIM MANAGEMENT OF HIGHLY MIGRATORY SPECIES FISHERIES.—
Notwithstanding the amendments made by subsections (a) and (g) [of section 108 of Pub. L. 101-627],
any fishery management plan or amendment which—
(1) addresses a highly migratory species fishery to which section 304(f)(3) of the Magnuson Fishery
Conservation and Management Act (as amended by this Act [101-627]) applies,
(2) was prepared by one or more Regional Fishery Management Councils, and
(3) was in force and effect on January 1, 1990,
shall remain in force and effect until superseded by a fishery management plan prepared by the Secretary,
and regulations implementing that plan.
20
20a
21
So in original. P.L. 109-479 added two subsections as 304(i).
So in original.
Section 104(c) of P.L. 109-479 amended section 304(e)(3)-(5).
96
16 U.S.C. 1854 note, 1855
MSA §§ 304 note, 305
P.L. 104-297, sec. 109(h), MSA § 304 note
16 U.S.C. 1854 note
COMPREHENSIVE MANAGEMENT SYSTEM FOR ATLANTIC PELAGIC LONGLINE
FISHERY.—
(1) The Secretary of Commerce shall—
(A) establish an advisory panel under section 302(g)(4) of the Magnuson Fishery Conservation and
Management Act, as amended by this Act, for pelagic longline fishing vessels that participate in
fisheries for Atlantic highly migratory species;
(B) conduct surveys and workshops with affected fishery participants to provide information and
identify options for future management programs;
(C) to the extent practicable and necessary for the evaluation of options for a comprehensive
management system, recover vessel production records; and
(D) complete by January 1, 1998, a comprehensive study on the feasibility of implementing a
comprehensive management system for pelagic longline fishing vessels that participate in fisheries for
Atlantic highly migratory species, including, but not limited to, individual fishing quota programs and
other limited access systems.
(2) Based on the study under paragraph (1)(D) and consistent with the requirements of the Magnuson
Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), in cooperation with affected
participants in the fishery, the United States Commissioners on the International Commission for the
Conservation of Atlantic Tunas, and the advisory panel established under paragraph (1)(A), the Secretary
of Commerce may, after October 1, 1998, implement a comprehensive management system pursuant to
section 304 of such Act (16 U.S.C. 1854) for pelagic longline fishing vessels that participate in fisheries
for Atlantic highly migratory species. Such a system may not implement an individual fishing quota
program until after October 1, 2000.
P.L. 104-297, sec. 109(j), MSA § 304 note
16 U.S.C. 1854 note
AMERICAN LOBSTER FISHERY.—Section 304(h) of the Magnuson Fishery Conservation and
Management Act, as amended by this Act [Public Law 104-297], shall not apply to the American Lobster
Fishery Management Plan.
SEC. 305. OTHER REQUIREMENTS AND AUTHORITY
16 U.S.C. 1855
104-297
(a) GEAR EVALUATION AND NOTIFICATION OF ENTRY—
(1) Not later than 18 months after the date of enactment of the Sustainable Fisheries Act,
the Secretary shall publish in the Federal Register, after notice and an opportunity for public
comment, a list of all fisheries—
(A) under the authority of each Council and all fishing gear used in such fisheries,
based on information submitted by the Councils under section 303(a); and
(B) to which section 302(a)(3) applies and all fishing gear used in such fisheries.
(2) The Secretary shall include with such list guidelines for determining when fishing
gear or a fishery is sufficiently different from those listed as to require notification under
paragraph (3).
97
16 U.S.C. 1855
MSA § 305
(3) Effective 180 days after the publication of such list, no person or vessel may employ
fishing gear or engage in a fishery not included on such list without giving 90 days advance
written notice to the appropriate Council, or the Secretary with respect to a fishery to which
section 302(a)(3) applies. A signed return receipt shall serve as adequate evidence of such
notice and as the date upon which the 90-day period begins.
(4) A Council may submit to the Secretary any proposed changes to such list or such
guidelines the Council deems appropriate. The Secretary shall publish a revised list, after
notice and an opportunity for public comment, upon receiving any such proposed changes
from a Council.
(5) A Council may request the Secretary to promulgate emergency regulations under
subsection (c) to prohibit any persons or vessels from using an unlisted fishing gear or
engaging in an unlisted fishery if the appropriate Council, or the Secretary for fisheries to
which section 302(a)(3) applies, determines that such unlisted gear or unlisted fishery would
compromise the effectiveness of conservation and management efforts under this Act.
(6) Nothing in this subsection shall be construed to permit a person or vessel to engage in
fishing or employ fishing gear when such fishing or gear is prohibited or restricted by
regulation under a fishery management plan or plan amendment, or under other applicable
law.
104-297
(b) FISH HABITAT.—
(1) (A) The Secretary shall, within 6 months of the date of enactment of the Sustainable
Fisheries Act, establish by regulation guidelines to assist the Councils in the description
and identification of essential fish habitat in fishery management plans (including adverse
impacts on such habitat) and in the consideration of actions to ensure the conservation
and enhancement of such habitat. The Secretary shall set forth a schedule for the
amendment of fishery management plans to include the identification of essential fish
habitat and for the review and updating of such identifications based on new scientific
evidence or other relevant information.
(B) The Secretary, in consultation with participants in the fishery, shall provide each
Council with recommendations and information regarding each fishery under that
Council's authority to assist it in the identification of essential fish habitat, the adverse
impacts on that habitat, and the actions that should be considered to ensure the
conservation and enhancement of that habitat.
(C) The Secretary shall review programs administered by the Department of
Commerce and ensure that any relevant programs further the conservation and
enhancement of essential fish habitat.
(D) The Secretary shall coordinate with and provide information to other Federal
agencies to further the conservation and enhancement of essential fish habitat.
(2) Each Federal agency shall consult with the Secretary with respect to any action
authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by
such agency that may adversely affect any essential fish habitat identified under this Act.
98
16 U.S.C. 1855
MSA § 305
(3) Each Council—
(A) may comment on and make recommendations to the Secretary and any Federal or
State agency concerning any activity authorized, funded, or undertaken, or proposed to
be authorized, funded, or undertaken, by any Federal or State agency that, in the view of
the Council, may affect the habitat, including essential fish habitat, of a fishery resource
under its authority; and
(B) shall comment on and make recommendations to the Secretary and any Federal or
State agency concerning any such activity that, in the view of the Council, is likely to
substantially affect the habitat, including essential fish habitat, of an anadromous fishery
resource under its authority.
(4) (A) If the Secretary receives information from a Council or Federal or State agency or
determines from other sources that an action authorized, funded, or undertaken, or
proposed to be authorized, funded, or undertaken, by any State or Federal agency would
adversely affect any essential fish habitat identified under this Act, the Secretary shall
recommend to such agency measures that can be taken by such agency to conserve such
habitat.
(B) Within 30 days after receiving a recommendation under subparagraph (A), a
Federal agency shall provide a detailed response in writing to any Council commenting
under paragraph (3) and the Secretary regarding the matter. The response shall include a
description of measures proposed by the agency for avoiding, mitigating, or offsetting the
impact of the activity on such habitat. In the case of a response that is inconsistent with
the recommendations of the Secretary, the Federal agency shall explain its reasons for not
following the recommendations.
97-453, 101-627, 104-297
(c) EMERGENCY ACTIONS AND INTERIM MEASURES.—
(1) If the Secretary finds that an emergency or overfishing exists or that interim measures
are needed to reduce overfishing for any fishery, he may promulgate emergency22
regulations or interim measures necessary to address the emergency or overfishing, without
regard to whether a fishery management plan exists for such fishery.
22
Section 110(b)(2) of Public Law 104-297 appears to insert "or overfishing" after "emergency" each place
it appears in section 305(c)(1) and (2). The editors assume Congress did not intend to insert "or overfishing"
between the words "emergency" and "regulations".
99
16 U.S.C. 1855
MSA § 305
(2) If a Council finds that an emergency or overfishing exists or that interim measures are
needed to reduce overfishing for any fishery within its jurisdiction, whether or not a fishery
management plan exists for such fishery—
(A) the Secretary shall promulgate emergency22 regulations or interim measures under
paragraph (1) to address the emergency or overfishing if the Council, by unanimous vote
of the members who are voting members, requests the taking of such actions; and
(B) the Secretary may promulgate emergency22 regulations or interim measures under
paragraph (1) to address the emergency or overfishing if the Council, by less than a
unanimous vote, requests the taking of such action.
109-479
(3) Any emergency regulation or interim measure which changes any existing fishery
management plan or amendment shall be treated as an amendment to such plan for the period
in which such regulation is in effect. Any emergency regulation or interim measure
promulgated under this subsection—
(A) shall be published in the Federal Register together with the reasons therefor;
(B) shall, except as provided in subparagraph (C), remain in effect for not more than
180 days after the date of publication, and may be extended by publication in the Federal
Register for one additional period of not more than 186 days, provided the public has had
an opportunity to comment on the emergency regulation or interim measure, and, in the
case of a Council recommendation for emergency regulations or interim measures, the
Council is actively preparing a fishery management plan, plan amendment, or proposed
regulations to address the emergency or overfishing on a permanent basis;
(C) that responds to a public health emergency or an oil spill may remain in effect
until the circumstances that created the emergency no longer exist, Provided, That the
public has an opportunity to comment after the regulation is published, and, in the case of
a public health emergency, the Secretary of Health and Human Services concurs with the
Secretary's action; and
(D) may be terminated by the Secretary at an earlier date by publication in the Federal
Register of a notice of termination, except for emergency regulations or interim measures
promulgated under paragraph (2) in which case such early termination may be made only
upon the agreement of the Secretary and the Council concerned.
101-627
(d) RESPONSIBILITY OF THE SECRETARY.—The Secretary shall have general
responsibility to carry out any fishery management plan or amendment approved or prepared by
him, in accordance with the provisions of this Act. The Secretary may promulgate such
regulations, in accordance with section 553 of title 5, United States Code, as may be necessary
to discharge such responsibility or to carry out any other provision of this Act.
97-453, 101-627, 104-297
(e) EFFECT OF CERTAIN LAWS ON CERTAIN TIME REQUIREMENTS.—
The Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.), the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), and Executive Order Numbered 12866, dated September 30, 1993, shall
be complied with within the time limitations specified in subsections (a), (b), and (c) of section
304 as they apply to the functions of the Secretary under such provisions.
100
16 U.S.C. 1855
MSA § 305
101-627
(f) JUDICIAL REVIEW.—
(1) Regulations promulgated by the Secretary under this Act and actions described in
paragraph (2) shall be subject to judicial review to the extent authorized by, and in
accordance with, chapter 7 of title 5, United States Code, if a petition for such review is filed
within 30 days after the date on which the regulations are promulgated or the action is
published in the Federal Register, as applicable; except that—
(A) section 705 of such title is not applicable, and
(B) the appropriate court shall only set aside any such regulation or action on a ground
specified in section 706(2)(A), (B), (C), or (D) of such title.
(2) The actions referred to in paragraph (1) are actions that are taken by the Secretary
under regulations which implement a fishery management plan, including but not limited to
actions that establish the date of closure of a fishery to commercial or recreational fishing.
(3) (A) Notwithstanding any other provision of law, the Secretary shall file a response to
any petition filed in accordance with paragraph (1), not later than 45 days after the date
the Secretary is served with that petition, except that the appropriate court may extend the
period for filing such a response upon a showing by the Secretary of good cause for that
extension.
(B) A response of the Secretary under this paragraph shall include a copy of the
administrative record for the regulations that are the subject of the petition.
(4) Upon a motion by the person who files a petition under this subsection, the
appropriate court shall assign the matter for hearing at the earliest possible date and shall
expedite the matter in every possible way.
104-297
(g) NEGOTIATED CONSERVATION AND MANAGEMENT MEASURES.—
(1)(A) In accordance with regulations promulgated by the Secretary pursuant to this
paragraph, a Council may establish a fishery negotiation panel to assist in the
development of specific conservation and management measures for a fishery under its
authority. The Secretary may establish a fishery negotiation panel to assist in the
development of specific conservation and management measures required for a fishery
under section 304(e)(5), for a fishery for which the Secretary has authority under section
304(g), or for any other fishery with the approval of the appropriate Council.
(B) No later than 180 days after the date of enactment of the Sustainable Fisheries
Act, the Secretary shall promulgate regulations establishing procedures, developed in
cooperation with the Administrative Conference of the United States, for the
establishment and operation of fishery negotiation panels. Such procedures shall be
comparable to the procedures for negotiated rulemaking established by subchapter III of
chapter 5 of Title 5, United States Code.
101
16 U.S.C. 1855
MSA § 305
(2) If a negotiation panel submits a report, such report shall specify all the areas where
consensus was reached by the panel, including, if appropriate, proposed conservation and
management measures, as well as any other information submitted by members of the
negotiation panel. Upon receipt, the Secretary shall publish such report in the Federal
Register for public comment.
(3) Nothing in this subsection shall be construed to require either a Council or the
Secretary, whichever is appropriate, to use all or any portion of a report from a negotiation
panel established under this subsection in the development of specific conservation and
management measures for the fishery for which the panel was established.
104-297
(h) CENTRAL REGISTRY SYSTEM FOR LIMITED ACCESS SYSTEM PERMITS.—
109-479
(1) Within 6 months after the date of enactment of the Sustainable Fisheries Act, the
Secretary shall establish an exclusive central registry system (which may be administered on
a regional basis) for limited access system permits established under section 303(b)(6) or
other Federal law, including limited access privileges, which shall provide for the
registration of title to, and interests in, such permits, as well as for procedures for changes in
the registration of title to such permits upon the occurrence of involuntary transfers, judicial
or nonjudicial foreclosure of interests, enforcement of judgments thereon, and related
matters deemed appropriate by the Secretary. Such registry system shall—
(A) provide a mechanism for filing notice of a nonjudicial foreclosure or enforcement
of a judgment by which the holder of a senior security interest acquires or conveys
ownership of a permit, and in the event of a nonjudicial foreclosure, by which the
interests of the holders of junior security interests are released when the permit is
transferred;
(B) provide for public access to the information filed under such system,
notwithstanding section 402(b); and
(C) provide such notice and other requirements of applicable law that the Secretary
deems necessary for an effective registry system.
(2) The Secretary shall promulgate such regulations as may be necessary to carry out this
subsection, after consulting with the Councils and providing an opportunity for public
comment. The Secretary is authorized to contract with non-Federal entities to administer the
central registry system.
(3) To be effective and perfected against any person except the transferor, its heirs and
devisees, and persons having actual notice thereof, all security interests, and all sales and
other transfers of permits described in paragraph (1), shall be registered in compliance with
the regulations promulgated under paragraph (2). Such registration shall constitute the
exclusive means of perfection of title to, and security interests in, such permits, except for
Federal tax liens thereon, which shall be perfected exclusively in accordance with the
Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.). The Secretary shall notify both the
buyer and seller of a permit if a lien has been filed by the Secretary of the Treasury against
the permit before collecting any transfer fee under paragraph (5) of this subsection.
102
16 U.S.C. 1855
MSA § 305
(4) The priority of security interests shall be determined in order of filing, the first filed
having the highest priority. A validly-filed security interest shall remain valid and perfected
notwithstanding a change in residence or place of business of the owner of record. For the
purposes of this subsection, “security interest” shall include security interests, assignments,
liens and other encumbrances of whatever kind.
(5) (A) Notwithstanding section 304(d)(1), the Secretary shall collect a reasonable fee of
not more than one-half of one percent of the value of a limited access system permit upon
registration of the title to such permit with the central registry system and upon the
transfer of such registered title. Any such fee collected shall be deposited in the Limited
Access System Administration Fund established under subparagraph (B).
(B) There is established in the Treasury a Limited Access System Administration
Fund. The Fund shall be available, without appropriation or fiscal year limitation, only
to the Secretary for the purposes of—
(i) administering the central registry system; and
(ii) administering and implementing this Act in the fishery in which the fees were
collected. Sums in the Fund that are not currently needed for these purposes shall be
kept on deposit or invested in obligations of, or guaranteed by, the United States.
104-297
(i) ALASKA AND WESTERN PACIFIC COMMUNITY DEVELOPMENT
PROGRAMS.—
109-241, 109-479
(1) WESTERN ALASKA COMMUNITY DEVELOPMENT QUOTA PROGRAM.—
(A) IN GENERAL.—There is established the western Alaska community
development quota program in order—
(i) to provide eligible western Alaska villages with the opportunity to participate
and invest in fisheries in the Bering Sea and Aleutian Islands Management Area;
(ii) to support economic development in western Alaska;
(iii) to alleviate poverty and provide economic and social benefits for residents of
western Alaska; and
(iv) to achieve sustainable and diversified local economies in western Alaska.
103
16 U.S.C. 1855
MSA § 305
(B) PROGRAM ALLOCATION.—
(i) IN GENERAL.—Except as provided in clause (ii), the annual percentage of the
total allowable catch, guideline harvest level, or other annual catch limit allocated to
the program in each directed fishery of the Bering Sea and Aleutian Islands shall be
the percentage approved by the Secretary, or established by Federal law, as of March
1, 2006, for the program. The percentage for each fishery shall be either a directed
fishing allowance or include both directed fishing and nontarget needs based on
existing practice with respect to the program as of March 1, 2006, for each fishery.
(ii) EXCEPTIONS.—Notwithstanding clause (i)—
(I) the allocation under the program for each directed fishery of the Bering Sea
and Aleutian Islands (other than a fishery for halibut, sablefish, pollock, and crab)
shall be a total allocation (directed and nontarget combined) of 10.7 percent
effective January 1, 2008; and
(II) the allocation under the program in any directed fishery of the Bering Sea
and Aleutian Islands (other than a fishery for halibut, sablefish, pollock, and crab)
established after the date of enactment of this subclause shall be a total allocation
(directed and nontarget combined) of 10.7 percent.
The total allocation (directed and nontarget combined) for a fishery to which
subclause (I) or (II) applies may not be exceeded.
(iii) PROCESSING AND OTHER RIGHTS.—Allocations to the program include
all processing rights and any other rights and privileges associated with such
allocations as of March 1, 2006.
(iv) REGULATION OF HARVEST.—The harvest of allocations under the
program for fisheries with individual quotas or fishing cooperatives shall be regulated
by the Secretary in a manner no more restrictive than for other participants in the
applicable sector, including with respect to the harvest of nontarget species.
(C) ALLOCATIONS TO ENTITIES.—Each entity eligible to participate in the
program shall be authorized under the program to harvest annually the same percentage of
each species allocated to the program under subparagraph (B) that it was authorized by
the Secretary to harvest of such species annually as of March 1, 2006, except to the extent
that its allocation is adjusted under subparagraph (H). Such allocation shall include all
processing rights and any other rights and privileges associated with such allocations as of
March 1, 2006. Voluntary transfers by and among eligible entities shall be allowed,
whether before or after harvesting. Notwithstanding the first sentence of this
subparagraph, seven-tenths of one percent of the total allowable catch, guideline harvest
level, or other annual catch limit, within the amount allocated to the program by subclause
(I) or subclause (II) of subparagraph (B)(ii), shall be allocated among the eligible entities
by the panel established in subparagraph (G), or allocated by the Secretary based on the
nontarget needs of eligible entities in the absence of a panel decision.
104
16 U.S.C. 1855
MSA § 305
(D) ELIGIBLE VILLAGES.—The following villages shall be eligible to participate
in the program through the following entities:
(i) The villages of Akutan, Atka, False Pass, Nelson Lagoon, Nikolski, and Saint
George through the Aleutian Pribilof Island Community Development Association.
(ii) The villages of Aleknagik, Clark’s Point, Dillingham, Egegik, Ekuk, Ekwok,
King Salmon/Savonoski, Levelock, Manokotak, Naknek, Pilot Point, Port Heiden,
Portage Creek, South Naknek, Togiak, Twin Hills, and Ugashik through the Bristol
Bay Economic Development Corporation.
(iii) The village of Saint Paul through the Central Bering Sea Fishermen’s
Association.
(iv) The villages of Chefornak, Chevak, Eek, Goodnews Bay, Hooper Bay,
Kipnuk, Kongiganak, Kwigillingok, Mekoryuk, Napakiak, Napaskiak, Newtok,
Nightmute, Oscarville, Platinum, Quinhagak, Scammon Bay, Toksook Bay,
Tuntutuliak, and Tununak through the Coastal Villages Region Fund.
(v) The villages of Brevig Mission, Diomede, Elim, Gambell, Golovin, Koyuk,
Nome, Saint Michael, Savoonga, Shaktoolik, Stebbins, Teller, Unalakleet, Wales, and
White Mountain through the Norton Sound Economic Development Corporation.
(vi) The villages of Alakanuk, Emmonak, Grayling, Kotlik, Mountain Village, and
Nunam Iqua through the Yukon Delta Fisheries Development Association.
(E) ELIGIBILITY REQUIREMENTS FOR PARTICIPATING ENTITIES.—To be
eligible to participate in the program, an entity referred to in subparagraph (D) shall meet
the following requirements:
(i) BOARD OF DIRECTORS.—The entity shall be governed by a board of
directors. At least 75 percent of the members of the board shall be resident fishermen
from the entity’s member villages. The board shall include at least one director
selected by each such member village.
(ii) PANEL REPRESENTATIVE.—The entity shall elect a representative to serve
on the panel established by subparagraph (G).
(iii) OTHER INVESTMENTS.—The entity may make up to 20 percent of its
annual investments in any combination of the following:
(I) For projects that are not fishery-related and that are located in its region.
(II) On a pooled or joint investment basis with one or more other entities
participating in the program for projects that are not fishery-related and that are
located in one or more of their regions.
(III) For matching Federal or State grants for projects or programs in its
member villages without regard to any limitation on the Federal or State share, or
restriction on the source of any non-Federal or non-State matching funds, of any grant
program under any other provision of law.
(iv) FISHERY-RELATED INVESTMENTS.—The entity shall make the
remainder percent of its annual investments in fisheries-related projects or for other
purposes consistent with the practices of the entity prior to March 1, 2006.
105
16 U.S.C. 1855
MSA § 305
(v) ANNUAL STATEMENT OF COMPLIANCE.—Each year the entity,
following approval by its board of directors and signed by its chief executive officer,
shall submit a written statement to the Secretary and the State of Alaska that
summarizes the purposes for which it made investments under clauses (iii) and (iv)
during the preceding year.
(vi) OTHER PANEL REQUIREMENTS.—The entity shall comply with any other
requirements established by the panel under subparagraph (G).
(F) ENTITY STATUS, LIMITATIONS, AND REGULATION.—The entity—
(i) shall be subject to any excessive share ownership, harvesting, or processing
limitations in the fisheries of the Bering Sea and Aleutian Islands Management Area
only to the extent of the entity’s proportional ownership, excluding any program
allocations, and notwithstanding any other provision of law;
(ii) shall comply with State of Alaska law requiring annual reports to the entity’s
member villages summarizing financial operations for the previous calendar year,
including general and administrative costs and compensation levels of the top 5
highest paid personnel;
(iii) shall comply with State of Alaska laws to prevent fraud that are administered
by the Alaska Division of Banking and Securities, except that the entity and the State
shall keep confidential from public disclosure any information if the disclosure would
be harmful to the entity or its investments; and
(iv) is exempt from compliance with any State law requiring approval of financial
transactions, community development plans, or amendments thereto, except as
required by subparagraph (H).
(G) ADMINISTRATIVE PANEL.—
(i) ESTABLISHMENT.—There is established a community development quota
program panel.
(ii) MEMBERSHIP.—The panel shall consist of 6 members. Each entity
participating in the program shall select one member of the panel.
(iii) FUNCTIONS.—The panel shall—
(I) administer those aspects of the program not otherwise addressed in this
paragraph, either through private contractual arrangement or through
recommendations to the North Pacific Council, the Secretary, or the State of
Alaska, as the case may be; and
(II) coordinate and facilitate activities of the entities under the program.
(iv) UNANIMITY REQUIRED.—The panel may act only by unanimous vote of
all 6 members of the panel and may not act if there is a vacancy in the membership of
the panel.
106
16 U.S.C. 1855
MSA § 305
(H) DECENNIAL REVIEW AND ADJUSTMENT OF ENTITY
ALLOCATIONS.—
(i) IN GENERAL.—During calendar year 2012 and every 10 years thereafter, the
State of Alaska shall evaluate the performance of each entity participating in the
program based on the criteria described in clause (ii).
(ii) CRITERIA.—The panel shall establish a system to be applied under this
subparagraph that allows each entity participating in the program to assign relative
values to the following criteria to reflect the particular needs of its villages:
(I) Changes during the preceding 10-year period in population, poverty level,
and economic development in the entity’s member villages.
(II) The overall financial performance of the entity, including fishery and
nonfishery investments by the entity.
(III) Employment, scholarships, and training supported by the entity.
(IV) Achieving of the goals of the entity’s community development plan.
(iii) ADJUSTMENT OF ALLOCATIONS.—After the evaluation required by
clause (i), the State of Alaska shall make a determination, on the record and after an
opportunity for a hearing, with respect to the performance of each entity participating
in the program for the criteria described in clause (ii). If the State determines that the
entity has maintained or improved its overall performance with respect to the criteria,
the allocation to such entity under the program shall be extended by the State for the
next 10-year period. If the State determines that the entity has not maintained or
improved its overall performance with respect to the criteria—
(I) at least 90 percent of the entity’s allocation for each species under
subparagraph (C) shall be extended by the State for the next 10-year period; and
(II) the State may determine, or the Secretary may determine (if State law
prevents the State from making the determination), and implement an appropriate
reduction of up to 10 percent of the entity’s allocation for each species under
subparagraph (C) for all or part of such 10-year period.
(iv) REALLOCATION OF REDUCED AMOUNT.—If the State or the Secretary
reduces an entity’s allocation under clause (iii), the reduction shall be reallocated
among other entities participating in the program whose allocations are not reduced
during the same period in proportion to each such entity’s allocation of the applicable
species under subparagraph (C).
(I) SECRETARIAL APPROVAL NOT REQUIRED.—Notwithstanding any other
provision of law or regulation thereunder, the approval by the Secretary of a
community development plan, or an amendment thereof, under the program is not
required.
107
16 U.S.C. 1855
MSA § 305
(J) COMMUNITY DEVELOPMENT PLAN DEFINED.—In this paragraph, the term
‘community development plan’ means a plan, prepared by an entity referred to in
subparagraph (D), for the program that describes how the entity intends—
(i) to harvest its share of fishery resources allocated to the program, or
(ii) to use its share of fishery resources allocated to the program, and any revenue
derived from such use, to assist its member villages with projects to advance
economic development, but does not include a plan that allocates fishery resources to
the program.
(2) (A) The Western Pacific Council and the Secretary may establish a western Pacific
community development program for any fishery under the authority of such Council in
order to provide access to such fishery for western Pacific communities that participate in
the program.
(B) To be eligible to participate in the western Pacific community development
program, a community shall—
(i) be located within the Western Pacific Regional Fishery Management Area;
(ii) meet criteria developed by the Western Pacific Council, approved by the
Secretary and published in the Federal Register;
(iii) consist of community residents who are descended from the aboriginal people
indigenous to the area who conducted commercial or subsistence fishing using
traditional fishing practices in the waters of the Western Pacific region;
(iv) not have previously developed harvesting or processing capability sufficient to
support substantial participation in fisheries in the Western Pacific Regional Fishery
Management Area; and
(v) develop and submit a Community Development Plan to the Western Pacific
Council and the Secretary.
(C) In developing the criteria for eligible communities under subparagraph (B)(ii), the
Western Pacific Council shall base such criteria on traditional fishing practices in or
dependence on the fishery, the cultural and social framework relevant to the fishery, and
economic barriers to access to the fishery.
(D) For the purposes of this subsection “Western Pacific Regional Fishery
Management Area” means the area under the jurisdiction of the Western Pacific Council,
or an island within such area.
(E) Notwithstanding any other provision of this Act, the Western Pacific Council shall
take into account traditional indigenous fishing practices in preparing any fishery
management plan.
(3) The Secretary shall deduct from any fees collected from a community development
quota program under section 304(d)(2) the costs incurred by participants in the program for
observer and reporting requirements which are in addition to observer and reporting
requirements of other participants in the fishery in which the allocation to such program has
been made.
108
16 U.S.C. 1855
MSA § 305
(4) After the date of enactment of the Sustainable Fisheries Act, the North Pacific
Council and Western Pacific Council may not submit to the Secretary a community
development quota program that is not in compliance with this subsection.
109-479
(j) WESTERN PACIFIC AND NORTHERN PACIFIC REGIONAL MARINE
EDUCATION AND TRAINING.—
(1) IN GENERAL.—The Secretary shall establish a pilot program for regionally-based
marine education and training programs in the Western Pacific and the Northern Pacific to
foster understanding, practical use of knowledge (including native Hawaiian, Alaskan
Native, and other Pacific Islander-based knowledge), and technical expertise relevant to
stewardship of living marine resources. The Secretary shall, in cooperation with the Western
Pacific and the North Pacific Regional Fishery Management Councils, regional educational
institutions, and local Western Pacific and Northern Pacific community training entities,
establish programs or projects that will improve communication, education, and training on
marine resource issues throughout the region and increase scientific education for marinerelated professions among coastal community residents, including indigenous Pacific
islanders, Native Hawaiians, Alaskan Natives, and other underrepresented groups in the
region.
(2) PROGRAM COMPONENTS.—The program shall—
(A) include marine science and technology education and training programs focused
on preparing community residents for employment in marine related professions,
including marine resource conservation and management, marine science, marine
technology, and maritime operations;
(B) include fisheries and seafood-related training programs, including programs for
fishery observers, seafood safety and seafood marketing, focused on increasing the
involvement of coastal community residents in fishing, fishery management, and seafoodrelated operations;
(C) include outreach programs and materials to educate and inform consumers about
the quality and sustainability of wild fish or fish products farmed through responsible
aquaculture, particularly in Hawaii, Alaska, the Western Pacific, the Northern Pacific, and
the Central Pacific;
(D) include programs to identify, with the fishing industry, methods and technologies
that will improve the data collection, quality, and reporting and increase the sustainability
of fishing practices, and to transfer such methods and technologies among fisheries
sectors and to other nations in the Western, Northern, and Central Pacific;
(E) develop means by which local and traditional knowledge (including Pacific
islander, Native Hawaiian, and Alaskan Native knowledge) can enhance science-based
management of fishery resources of the region; and
(F) develop partnerships with other Western Pacific Island and Alaskan agencies,
academic institutions, and other entities to meet the purposes of this section.
109
16 U.S.C. 1855, 1855 note
MSA §§ 305, 305 note
109-479
(k) MULTISPECIES GROUNDFISH.—
(1) IN GENERAL.—Within 60 days after the date of enactment of the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act of 2006, the Secretary of
Commerce shall determine whether fishing in State waters—
(A) without a New England multispecies groundfish fishery permit on regulated
species within the multispecies complex is not consistent with the applicable Federal
fishery management plan; or
(B) without a Federal bottomfish and seamount groundfish permit in the Hawaiian
archipelago on regulated species within the complex is not consistent with the applicable
Federal fishery management plan or State data are not sufficient to make such a
determination.
(2) CURE.—If the Secretary makes a determination that such actions are not consistent
with the plan, the Secretary shall, in consultation with the Council, and after notifying the
affected State, develop and implement measures to cure the inconsistency pursuant to section
306(b).
P.L. 109-479, sec. 116(b)(2), MSA § 305 note
16 U.S.C. 1855 note
EFFECTIVE DATE.—The allocation percentage in subclause (I) of section 305(i)(1)(B)(ii) of the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1855(i)(1)(B)(ii)), as amended
by paragraph (1) of this subsection, shall be in effect in 2007 with respect to any sector of a fishery to
which such subclause applies and in which a fishing cooperative is established in 2007, and such sector’s
2007 allocation shall be reduced by a pro rata amount to accomplish such increased allocation to the
program. For purposes of section 305(i)(1) of that Act and of this subsection, the term ‘‘fishing
cooperative’’ means a fishing cooperative whether or not authorized by a fishery management council
or Federal agency, if a majority of the participants in the sector are participants in the fishing cooperative.
P.L. 104-297, sec. 110(e), MSA § 305 note
REGISTRY TRANSITION.—Security interests on permits described under section 305(h)(1) of the
Magnuson Fishery Conservation and Management Act, as amended by this Act [104-297], that are
effective and perfected by otherwise applicable law on the date of the final regulations implementing
section 305(h) shall remain effective and perfected if, within 120 days after such date, the secured party
submits evidence satisfactory to the Secretary of Commerce and in compliance with such regulations of
the perfection of such security.
110
16 U.S.C. 1855 note, 1856
MSA §§ 305 note, 306
P.L. 104-297, sec. 111(b); 106-555; 109-479, sec. 207; MSA § 305 note
16 U.S.C. 1855 note
WESTERN PACIFIC DEMONSTRATION PROJECTS.—
(1) The Secretary of Commerce is authorized to make direct grants to eligible western Pacific
communities, as recommended by the Western Pacific Fishery Management Council, for the purpose of
establishing fishery demonstration projects to foster and promote traditional indigenous fishing practices.
There are authorized to be appropriated to carry out this section $500,000 for each fiscal year.
(2) Demonstration projects funded pursuant to this subsection shall foster and promote the
involvement of western Pacific communities in western Pacific fisheries and may—
(A) identify and apply traditional indigenous fishing practices;
(B) develop or enhance western Pacific community-based fishing opportunities; and
(C) involve research, community education, or the acquisition of materials and equipment necessary to
carry out any such demonstration project.
(3)(A) The Western Pacific Fishery Management Council, in consultation with the Secretary of
Commerce, shall establish an advisory panel under section 302(g) of the Magnuson Fishery Conservation
and Management Act (16 U.S.C. 1852(g)) to evaluate, determine the relative merits of, and annually rank
applications for such grants. The panel shall consist of not more than 8 individuals who are
knowledgeable or experienced in traditional indigenous fishery practices of western Pacific communities
and who are not members or employees of the Western Pacific Fishery Management Council.
(B) If the Secretary of Commerce or the Secretary of the Interior awards a grant for a demonstration
project not in accordance with the rank given to such project by the advisory panel, the Secretary shall
provide a detailed written explanation of the reasons therefor.
(4) The Western Pacific Fishery Management Council shall, with the assistance of such advisory
panel, submit an annual report to the Congress assessing the status and progress of demonstration projects
carried out under this subsection.
(5) Appropriate Federal agencies may provide technical assistance to western Pacific
community-based entities to assist in carrying out demonstration projects under this subsection.
(6) In this subsection the term ‘Western Pacific community’ means a community eligible to participate
under section 305(i)(2)(B)(i) through (iv) of the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1855(i)(2)(B)(i) through (iv)).
SEC. 306. STATE JURISDICTION
16 U.S.C. 1856
97-453, 98-623
(a) IN GENERAL.—
(1) Except as provided in subsection (b), nothing in this Act shall be construed as
extending or diminishing the jurisdiction or authority of any State within its boundaries.
(2) For the purposes of this Act, except as provided in subsection (b), the jurisdiction and
authority of a State shall extend
(A) to any pocket of waters that is adjacent to the State and totally enclosed by lines
delimiting the territorial sea of the United States pursuant to the Geneva Convention on
the Territorial Sea and Contiguous Zone or any successor convention to which the United
States is a party;
(B) with respect to the body of water commonly known as Nantucket Sound, to the
pocket of water west of the seventieth meridian west of Greenwich; and
111
16 U.S.C. 1856
MSA § 306
(C) to the waters of southeastern Alaska (for the purpose of regulating fishing for
other than any species of crab) that are—
(i) north of the line representing the international boundary at Dixon Entrance and
the westward extension of that line; east of 138 degrees west longitude; and not more
than three nautical miles seaward from the coast, from the lines extending from
headland to headland across all bays, inlets, straits, passes, sounds, and entrances, and
from any island or group of islands, including the islands of the Alexander
Archipelago (except Forrester Island); or
(ii) between the islands referred to in clause (i) (except Forrester Island) and the
mainland.
104-297
(3) A State may regulate a fishing vessel outside the boundaries of the State in the
following circumstances:
(A) The fishing vessel is registered under the law of that State, and (i) there is no
fishery management plan or other applicable Federal fishing regulations for the fishery
in which the vessel is operating; or (ii) the State's laws and regulations are consistent with
the fishery management plan and applicable Federal fishing regulations for the fishery in
which the vessel is operating.
(B) The fishery management plan for the fishery in which the fishing vessel is
operating delegates management of the fishery to a State and the State's laws and
regulations are consistent with such fishery management plan. If at any time the
Secretary determines that a State law or regulation applicable to a fishing vessel under
this circumstance is not consistent with the fishery management plan, the Secretary shall
promptly notify the State and the appropriate Council of such determination and provide
an opportunity for the State to correct any inconsistencies identified in the notification.
If, after notice and opportunity for corrective action, the State does not correct the
inconsistencies identified by the Secretary, the authority granted to the State under this
subparagraph shall not apply until the Secretary and the appropriate Council find that the
State has corrected the inconsistencies. For a fishery for which there was a fishery
management plan in place on August 1, 1996 that did not delegate management of the
fishery to a State as of that date, the authority provided by this subparagraph applies only
if the Council approves the delegation of management of the fishery to the State by a
three-quarters majority vote of the voting members of the Council.
(C) The fishing vessel is not registered under the law of the State of Alaska and is
operating in a fishery in the exclusive economic zone off Alaska for which there was no
fishery management plan in place on August 1, 1996, and the Secretary and the North
Pacific Council find that there is a legitimate interest of the State of Alaska in the
conservation and management of such fishery. The authority provided under this
subparagraph shall terminate when a fishery management plan under this Act is approved
and implemented for such fishery.
112
16 U.S.C. 1856
MSA § 306
99-659, 104-297
(b) EXCEPTION.—
(1) If the Secretary finds, after notice and an opportunity for a hearing in accordance with
section 554 of title 5, United States Code, that—
(A) the fishing in a fishery, which is covered by a fishery management plan
implemented under this Act, is engaged in predominately within the exclusive economic
zone and beyond such zone; and
(B) any State has taken any action, or omitted to take any action, the results of which
will substantially and adversely affect the carrying out of such fishery management plan;
the Secretary shall promptly notify such State and the appropriate Council of such finding
and of his intention to regulate the applicable fishery within the boundaries of such State
(other than its internal waters), pursuant to such fishery management plan and the
regulations promulgated to implement such plan.
(2) If the Secretary, pursuant to this subsection, assumes responsibility for the regulation
of any fishery, the State involved may at any time thereafter apply to the Secretary for
reinstatement of its authority over such fishery. If the Secretary finds that the reasons for
which he assumed such regulation no longer prevail, he shall promptly terminate such
regulation.
(3) If the State involved requests that a hearing be held pursuant to paragraph (1), the
Secretary shall conduct such hearing prior to taking any action under paragraph (1).
97-191, 101-627, 104-297
(c) EXCEPTION REGARDING FOREIGN FISH PROCESSING IN INTERNAL
WATERS.—
(1) A foreign fishing vessel may engage in fish processing within the internal waters of a
State if, and only if—
(A) the vessel is qualified for purposes of this paragraph pursuant to paragraph (4)(C)
or has received a permit under section 204(d);
(B) the owner or operator of the vessel applies to the Governor of the State for, and
(subject to paragraph (2)) is granted, permission for the vessel to engage in such
processing and the application specifies the species to be processed; and
(C) the owner or operator of the vessel submits reports on the tonnage of fish received
from vessels of the United States and the locations from which such fish were harvested,
in accordance with such procedures as the Secretary by regulation shall prescribe.
113
16 U.S.C. 1856, 1856 note
MSA §§ 306, 306 note
(2) The Governor of a State may not grant permission for a foreign fishing vessel to
engage in fish processing under paragraph (1)—
(A) for a fishery which occurs in the waters of more than one State or in the exclusive
economic zone, except after—
(i) consulting with the appropriate Council and Marine Fisheries Commission, and
(ii) considering any comments received from the Governor of any other State
where the fishery occurs; and
(B) if the Governor determines that fish processors within the State have adequate
capacity, and will utilize such capacity, to process all of the United States harvested fish
from the fishery concerned that are landed in the State.
(3) Nothing in this subsection may be construed as relieving a foreign fishing vessel from
the duty to comply with all applicable Federal and State laws while operating within the
internal waters of a State incident to permission obtained under paragraph (1)(B).
(4) For purposes of this subsection—
(A) The term "fish processing" includes, in addition to processing, the performance of
any other activity relating to fishing, including, but not limited to, preparation, supply,
storage, refrigeration, or transportation.
(B) The phrase "internal waters of a State" means all waters within the boundaries of a
State except those seaward of the baseline from which the territorial sea is measured.
(C) A foreign fishing vessel shall be treated as qualified for purposes of paragraph (1)
if the foreign nation under which it is flagged will be a party to (i) a governing
international fishery agreement or (ii) a treaty described in section 201(b) of this Act (16
U.S.C. 1821(b)) during the time the vessel will engage in the fish processing for which
permission is sought under paragraph (1)(B).
P.L. 109-479, sec. 302(e), MSA § 306 note
16 U.S.C. 1856 note
AUTHORITY OF STATES OF WASHINGTON, OREGON, AND CALIFORNIA TO MANAGE
DUNGENESS CRAB FISHERY.
(a) IN GENERAL—Subject to the provisions of this section and notwithstanding section 306(a) of the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1856(a)), each of the States of
Washington, Oregon, and California may adopt and enforce State laws and regulations governing fishing
and processing in the exclusive economic zone adjacent to that State in any Dungeness crab (Cancer
magister) fishery for which there is no fishery management plan in effect under that Act.
(b) REQUIREMENTS FOR STATE MANAGEMENT—Any law or regulation adopted by a State
under this section for a Dungeness crab fishery—
(1) except as provided in paragraph (2), shall apply equally to vessels engaged in the fishery in the
exclusive economic zone and vessels engaged in the fishery in the waters of the State, and without
regard to the State that issued the permit under which a vessel is operating;
(2) shall not apply to any fishing by a vessel in exercise of tribal treaty rights except as provided in
United States v. Washington, D.C. No. CV-70-09213, United States District Court for the Western
District of Washington; and
(3) shall include any provisions necessary to implement tribal treaty rights pursuant to the decision
in United States v. Washington, D.C. No. CV-70-09213.
114
16 U.S.C. 1856 note, 1857
MSA §§ 306 note, 307
(c) LIMITATION ON ENFORCEMENT OF STATE LIMITED ACCESS SYSTEMS—Any law of
the State of Washington, Oregon, or California that establishes or implements a limited access system for
a Dungeness crab fishery may not be enforced against a vessel that is otherwise legally fishing in the
exclusive economic zone adjacent to that State and that is not registered under the laws of that State,
except a law regulating landings.
(d) STATE PERMIT OR TREATY RIGHT REQUIRED—No vessel may harvest or process
Dungeness crab in the exclusive economic zone adjacent to the State of Washington, Oregon, or
California, except as authorized by a permit issued by any of those States or pursuant to any tribal treaty
rights to Dungeness crab pursuant to the decision in United States v. Washington, D.C. No. CV-70
09213.
(e) STATE AUTHORITY OTHERWISE PRESERVED—Except as expressly provided in this
section, nothing in this section reduces the authority of any State under the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1801 et seq.) to regulate fishing, fish processing, or
landing of fish.
(f) TERMINATION OF AUTHORITY—The authority of the States of Washington, Oregon, and
California under this section with respect to a Dungeness crab fishery shall expire on the effective date of
a fishery management plan for the fishery under the Magnuson-Stevens Fishery Conservation and
Management Act.
(g) REPEAL—Section 112(d) of Public Law 104-297 (16 U.S.C. 1856 note) is repealed.
(h) DEFINITIONS—The definitions set forth in section 3 of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1802) shall apply to this section.
(i) SUNSET—This section shall have no force or effect on and after September 30, 2016.
(j) Not later than December 31, 2001, and every 2 years thereafter, the Pacific State Marine Fisheries
Commission shall submit to the Committee on Commerce, Science, and Transportation of the Senate and
the Committee on Resources of the House of Representatives a report on the status and management of
the Dungeness Crab fishery located off the coasts of the States of Washington, Oregon, and California,
including—
(1) stock status and trends throughout its range;
(2) a description of applicable research and scientific review processes used to determine stock
status and trends; and
(3) measures implemented or planned that are designed to prevent or end overfishing in the fishery.
SEC. 307. PROHIBITED ACTS
16 U.S.C. 1857
It is unlawful—
99-659, 101-224, 101-627, 102-251, 104-297, 106-557, 109-479
(1) for any person—
(A) to violate any provision of this Act or any regulation or permit issued pursuant to
this Act;
(B) to use any fishing vessel to engage in fishing after the revocation, or during the
period of suspension, of an applicable permit issued pursuant to this Act;
(C) to violate any provision of, or regulation under, an applicable governing international
fishery agreement entered into pursuant to section 201(c);
115
16 U.S.C. 1857
MSA § 307
(D) to refuse to permit any officer authorized to enforce the provisions of this Act (as
provided for in section 311) to board a fishing vessel subject to such person's control for the
purposes of conducting any search or inspection in connection with the enforcement of this
Act or any regulation, permit, or agreement referred to in subparagraph (A) or (C);
(E) to forcibly assault, resist, oppose, impede, intimidate, or interfere with any such
authorized officer in the conduct of any search or inspection described in subparagraph (D);
(F) to resist a lawful arrest for any act prohibited by this section;
(G) to ship, transport, offer for sale, sell, purchase, import, export, or have custody,
control, or possession of, any fish taken or retained in violation of this Act or any regulation,
permit, or agreement referred to in subparagraph (A) or (C);
(H) 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;
(I) to knowingly and willfully submit to a Council, the Secretary, or the Governor of a
State false information (including, but not limited to, false information regarding the
capacity and extent to which a United States fish processor, on an annual basis, will process
a portion of the optimum yield of a fishery that will be harvested by fishing vessels of the
United States) regarding any matter that the Council, Secretary, or Governor is considering
in the course of carrying out this Act;
(J) to ship, transport, offer for sale, sell, or purchase, in interstate or foreign commerce,
any whole live lobster of the species Homarus americanus, that—
(i) is smaller than the minimum possession size in effect at the time under the
American Lobster Fishery Management Plan, as implemented by regulations published in
part 649 of title 50, Code of Federal Regulations, or any successor to that plan
implemented under this title, or in the absence of any such plan, is smaller than the
minimum possession size in effect at the time under a coastal fishery management plan
for American lobster adopted by the Atlantic States Marine Fisheries Commission under
the Atlantic Coastal Fisheries Cooperative Management Act (16 U.S.C. 5101 et seq.);
(ii) is bearing eggs attached to its abdominal appendages; or
(iii) bears evidence of the forcible removal of extruded eggs from its abdominal
appendages;
(K) to to [sic] steal or attempt to steal or to negligently and without authorization remove,
damage, or tamper with—
(i) fishing gear owned by another person, which is located in the exclusive economic
zone [or special areas]*, or
(ii) fish contained in such fishing gear;
116
16 U.S.C. 1857
MSA § 307
(L) to forcibly assault, resist, oppose, impede, intimidate, sexually harass, bribe, or
interfere with any observer on a vessel under this Act, or any data collector employed by the
National Marine Fisheries Service or under contract to any person to carry out
responsibilities under this Act;
(M) to engage in large-scale driftnet fishing that is subject to the jurisdiction of the
United States, including use of a fishing vessel of the United States to engage in such fishing
beyond the exclusive economic zone of any nation;
(N) to strip pollock of its roe and discard the flesh of the pollock;
(O) to knowingly and willfully fail to disclose, or to falsely disclose, any financial
interest as required under section 302(j), or to knowingly vote on a Council decision in
violation of section 302(j)(7)(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;
(Q) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign
commerce any fish taken, possessed, transported, or sold in violation of any foreign law or
regulation; or
(R) to use any fishing vessel to engage in fishing in Federal or State waters, or on the high
seas or in the waters of another country, after the Secretary has made a payment to the
owner of that fishing vessel under section 312(b)(2).
For the 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.
97-191, 97-453, 102-251, 104-297
(2) for any vessel other than a vessel of the United States, and for the owner or operator of
any vessel other than a vessel of the United States, to engage—
(A) in fishing within the boundaries of any State, except—
(i) recreational fishing permitted under section 201(i);
(ii) fish processing permitted under section 306(c); or
(iii) transshipment at sea of fish or fish products within the boundaries of any State in
accordance with a permit approved under section 204(d);
117
16 U.S.C. 1857
MSA § 307
(B) in fishing, except recreational fishing permitted under section 201(i), within the
exclusive economic zone, or for any anadromous species or Continental Shelf fishery
resources beyond such zone [or areas]*, unless such fishing is authorized by, and conducted
in accordance with, a valid and applicable permit issued pursuant to section 204(b), (c) or
(d); or
(C) except as permitted under section 306(c), in fish processing (as defined in paragraph
(4)(A) of such section) within the internal waters of a State (as defined in paragraph (4)(B)
of such section);
95-354, 101-627, 102-251, 104-297, 104-297
(3) for any vessel of the United States, and for the owner or operator of any vessel of the
United States, to transfer at sea directly or indirectly, or attempt to so transfer at sea, any United
States harvested fish to any foreign fishing vessel, while such foreign vessel is within the
exclusive economic zone [or special areas]* or within the boundaries of any State except to the
extent that the foreign fishing vessel has been permitted under section 204(d) or section 306(c)
to receive such fish;
100-629, 102-251, 104-297
(4) for any fishing vessel other than a vessel of the United States to operate, and for the
owner or operator of a fishing vessel other than a vessel of the United States to operate such
vessel, in the exclusive economic zone [or special areas]* or within the boundaries of any State,
if—
(A) all fishing gear on the vessel is not stored below deck or in an area where it is not
normally used, and not readily available, for fishing; or
(B) all fishing gear on the vessel which is not so stored is not secured and covered so as
to render it unusable for fishing;
unless such vessel is authorized to engage in fishing in the area in which the vessel is operating;
and
101-627
(5) for any vessel of the United States, and for the owner or operator of any vessel of the
United States, to engage in fishing in the waters of a foreign nation in a manner that violates an
international fishery agreement between that nation and the United States that has been subject
to Congressional oversight in the manner described in section 203, or any regulations issued to
implement such an agreement; except that the binding provisions of such agreement and
implementing regulations shall have been published in the Federal Register prior to such
violation.
118
16 U.S.C. 1858
MSA § 308
SEC. 308. CIVIL PENALTIES AND PERMIT SANCTIONS
16 U.S.C. 1858
101-627, 104-297
(a) ASSESSMENT OF PENALTY.—Any person who is found by the Secretary, after notice
and an opportunity for a hearing in accordance with section 554 of title 5, United States Code,
to have committed an act prohibited by section 307 shall be liable to the United States for a civil
penalty. The amount of the civil penalty shall not exceed $100,000 for each violation. Each
day of a continuing violation shall constitute a separate offense. The amount of such civil
penalty shall be assessed by the Secretary, or his designee, by written notice. In determining the
amount of such penalty, the Secretary shall take into account the nature, circumstances, extent,
and gravity of the prohibited acts committed and, with respect to the violator, the degree of
culpability, any history of prior offenses, and such other matters as justice may require. In
assessing such penalty the Secretary may also consider any information provided by the violator
relating to the ability of the violator to pay, Provided, That the information is served on the
Secretary at least 30 days prior to an administrative hearing.
99-659, 104-297
(b) REVIEW OF CIVIL PENALTY.—Any person against whom a civil penalty is assessed
under subsection (a) or against whom a permit sanction is imposed under subsection (g) (other
than a permit suspension for nonpayment of penalty or fine) may obtain review thereof in the
United States district court for the appropriate district by filing a complaint against the Secretary
in such court within 30 days from the date of such order. The Secretary shall promptly file in
such court a certified copy of the record upon which such violation was found or such penalty
imposed, as provided in section 2112 of title 28, United States Code. The findings and order of
the Secretary shall be set aside by such court if they are not found to be supported by substantial
evidence, as provided in section 706(2) of title 5, United States Code.
(c) ACTION UPON FAILURE TO PAY ASSESSMENT.—If any person fails to pay an
assessment of a civil penalty after it has become a final and unappealable order, or after the
appropriate court has entered final judgment in favor of the Secretary, the Secretary shall refer
the matter to the Attorney General of the United States, who shall recover the amount assessed
in any appropriate district court of the United States. In such action, the validity and
appropriateness of the final order imposing the civil penalty shall not be subject to review.
99-659
(d) IN REM JURISDICTION.—A fishing vessel (including its fishing gear, furniture,
appurtenances, stores, and cargo) used in the commission of an act prohibited by section 307
shall be liable in rem for any civil penalty assessed for such violation under section 308 and
may be proceeded against in any district court of the United States having jurisdiction thereof.
Such penalty shall constitute a maritime lien on such vessel which may be recovered in an
action in rem in the district court of the United States having jurisdiction over the vessel.
119
16 U.S.C. 1858
MSA § 308
99-659
(e) COMPROMISE OR OTHER ACTION BY SECRETARY.—The Secretary may
compromise, modify, or remit, with or without conditions, any civil penalty which is subject to
imposition or which has been imposed under this section.
97-453, 99-659
(f) SUBPOENAS.—For the purposes of conducting any hearing under this section, the
Secretary may issue subpoenas for the attendance and testimony of witnesses and the
production of relevant papers, books, and documents, and may administer oaths. Witnesses
summoned shall be paid the same fees and mileage that are paid to witnesses in the courts of the
United States. In case of contempt or refusal to obey a subpoena served upon any person
pursuant to this subsection, the district court of the United States for any district in which such
person is found, resides, or transacts business, upon application by the United States and after
notice to such person, shall have jurisdiction to issue an order requiring such person to appear
and give testimony before the Secretary or to appear and produce documents before the
Secretary, or both, and any failure to obey such order of the court may be punished by such
court as a contempt thereof.
101-627, 104-297
(g) PERMIT SANCTIONS.—
(1) In any case in which (A) a vessel has been used in the commission of an act
prohibited under section 307, (B) the owner or operator of a vessel or any other person who
has been issued or has applied for a permit under this Act has acted in violation of section
307, (C) any amount in settlement of a civil forfeiture imposed on a vessel or other property,
or any civil penalty or criminal fine imposed on a vessel or owner or operator of a vessel or
any other person who has been issued or has applied for a permit under any marine resource
law enforced by the Secretary has not been paid and is overdue, or (D) any payment
required for observer services provided to or contracted by an owner or operator who has
been issued a permit or applied for a permit under any marine resource law administered by
the Secretary has not been paid and is overdue, the Secretary may—
(i) revoke any permit issued with respect to such vessel or person, with or without
prejudice to the issuance of subsequent permits;
(ii) suspend such permit for a period of time considered by the Secretary to be
appropriate;
(iii) deny such permit; or
(iv) impose additional conditions and restrictions on any permit issued to or
applied for by such vessel or person under this Act and, with respect to foreign fishing
vessels, on the approved application of the foreign nation involved and on any permit
issued under that application.
(2) In imposing a sanction under this subsection, the Secretary shall take into account—
(A) the nature, circumstances, extent, and gravity of the prohibited acts for which the
sanction is imposed; and
(B) with respect to the violator, the degree of culpability, any history of prior offenses,
and such other matters as justice may require.
120
16 U.S.C. 1858-1859
MSA §§ 308-309
(3) Transfer of ownership of a vessel, by sale or otherwise, shall not extinguish any
permit sanction that is in effect or is pending at the time of transfer of ownership. Before
executing the transfer of ownership of a vessel, by sale or otherwise, the owner shall disclose
in writing to the prospective transferee the existence of any permit sanction that will be in
effect or pending with respect to the vessel at the time of the transfer.
(4) In the case of any permit that is suspended under this subsection for nonpayment of a
civil penalty or criminal fine, the Secretary shall reinstate the permit upon payment of the
penalty or fine and interest thereon at the prevailing rate.
(5) No sanctions shall be imposed under this subsection unless there has been prior
opportunity for a hearing on the facts underlying the violation for which the sanction is
imposed, either in conjunction with a civil penalty proceeding under this section or
otherwise.
SEC. 309. CRIMINAL OFFENSES
16 U.S.C. 1859
99-659, 100-66, 101-627
(a) OFFENSES.—A person is guilty of an offense if he commits any act prohibited by—
(1) section 307(1)(D), (E), (F), (H), (I), or (L); or
(2) section 307(2).
97-453, 101-627
(b) PUNISHMENT.—Any offense described in subsection (a)(1) is punishable by a fine of
not more than $100,000, or imprisonment for not more than 6 months, or both; except that if in
the commission of any such offense the person uses a dangerous weapon, engages in conduct
that causes bodily injury to any observer described in section 307(1)(L) or any officer
authorized to enforce the provisions of this Act (as provided for in section 311), or places any
such observer or officer in fear of imminent bodily injury, the offense is punishable by a fine of
not more than $200,000, or imprisonment for not more than 10 years, or both. Any offense
described in subsection (a)(2) is punishable by a fine of not more than $200,000.
(c) JURISDICTION.—There is Federal jurisdiction over any offense described in this
section.
121
16 U.S.C. 1860
MSA § 310
SEC. 310. CIVIL FORFEITURES
16 U.S.C. 1860
97-453
(a) IN GENERAL.—Any fishing vessel (including its fishing gear, furniture, appurtenances,
stores, and cargo) used, and any fish (or the fair market value thereof) taken or retained, in any
manner, in connection with or as a result of the commission of any act prohibited by section 307
(other than any act for which the issuance of a citation under section 311(c) is sufficient
sanction) shall be subject to forfeiture to the United States. All or part of such vessel may, and
all such fish (or the fair market value thereof) shall, be forfeited to the United States pursuant to
a civil proceeding under this section.
(b) JURISDICTION OF DISTRICT COURTS.—Any district court of the United States
which has jurisdiction under section 311(d) shall have jurisdiction, upon application by the
Attorney General on behalf of the United States, to order any forfeiture authorized under
subsection (a) and any action provided for under subsection (d).
99-659
(c) JUDGMENT.—If a judgment is entered for the United States in a civil forfeiture
proceeding under this section, the Attorney General may seize any property or other interest
declared forfeited to the United States, which has not previously been seized pursuant to this
Act or for which security has not previously been obtained under subsection (d). The
provisions of the customs laws relating to—
(1) the seizure, forfeiture, and condemnation of property for violation of the customs law;
(2) the disposition of such property or the proceeds from the sale thereof; and
(3) the remission or mitigation of any such forfeiture; shall apply to seizures and
forfeitures incurred, or alleged to have been incurred, under the provisions of this Act, unless
such provisions are inconsistent with the purposes, policy, and provisions of this Act. The
duties and powers imposed upon the Commissioner of Customs or other persons under such
provisions shall, with respect to this Act, be performed by officers or other persons
designated for such purpose by the Secretary.
99-659
(d) PROCEDURE.—
(1) Any officer authorized to serve any process in rem which is issued by a court having
jurisdiction under section 311(d) shall—
122
16 U.S.C. 1860-1861
MSA §§ 310-311
(A) stay the execution of such process; or
(B) discharge any fish seized pursuant to such process; upon the receipt of a
satisfactory bond or other security from any person claiming such property. Such bond
or other security shall be conditioned upon such person (i) delivering such property to the
appropriate court upon order thereof, without any impairment of its value, or (ii) paying
the monetary value of such property pursuant to an order of such court. Judgment shall
be recoverable on such bond or other security against both the principal and any sureties
in the event that any condition thereof is breached, as determined by such court. Nothing
in this paragraph may be construed to require the Secretary, except in the Secretary's
discretion or pursuant to the order of a court under section 311(d), to release on bond any
seized fish or other property or the proceeds from the sale thereof.
(2) Any fish seized pursuant to this Act may be sold, subject to the approval and direction
of the appropriate court, for not less than the fair market value thereof. The proceeds of any
such sale shall be deposited with such court pending the disposition of the matter involved.
101-627, 104-297
(e) REBUTTABLE PRESUMPTION.—
(1) For purposes of this section, it shall be a rebuttable presumption that all fish found on
board a fishing vessel which is seized in connection with an act prohibited by section 307
were taken and retained in violation of this Act.
(2) For purposes of this Act, it shall be a rebuttable presumption that any fish of a species
which spawns in fresh or estuarine waters and migrates to ocean waters that is found on
board a vessel is of United States origin if the vessel is within the migratory range of the
species during that part of the year to which the migratory range applies.
(3) For purposes of this Act, it shall be a rebuttable presumption that any vessel that is
shoreward of the outer boundary of the exclusive economic zone of the United States or
beyond the exclusive economic zone of any nation, and that has gear on board that is capable
of use for large-scale driftnet fishing, is engaged in such fishing.
SEC. 311. ENFORCEMENT
16 U.S.C. 1861
96-470, 97-453
(a) RESPONSIBILITY.—The provisions of this Act shall be enforced by the Secretary and
the Secretary of the department in which the Coast Guard is operating. Such Secretaries may,
by agreement, on a reimbursable basis or otherwise, utilize the personnel, services, equipment
(including aircraft and vessels), and facilities of any other Federal agency, including all
elements of the Department of Defense, and of any State agency, in the performance of such
duties.
97-453, 102-251, 109-479
(b) POWERS OF AUTHORIZED OFFICERS.—
(1) Any officer who is authorized (by the Secretary, the Secretary of the department in
which the Coast Guard is operating, or the head of any Federal or State agency which has
entered into an agreement with such Secretaries under subsection (a)) to enforce the
provisions of this Act may—
123
16 U.S.C. 1861
MSA § 311
(A) with or without a warrant or other process—
(i) arrest any person, if he has reasonable cause to believe that such person has
committed an act prohibited by section 307;
(ii) board, and search or inspect, any fishing vessel which is subject to the
provisions of this Act;
(iii) seize any fishing vessel (together with its fishing gear, furniture,
appurtenances, stores, and cargo) used or employed in, or with respect to which it
reasonably appears that such vessel was used or employed in, the violation of any
provision of this Act;
(iv) seize any fish (wherever found) taken or retained in violation of any provision
of this Act;
(v) seize any other evidence related to any violation of any provision of this Act;
and
(vi) access, directly or indirectly, for enforcement purposes any data or
information required to be provided under this title or regulations under this title,
including data from vessel monitoring systems, satellite-based maritime distress and
safety systems, or any similar system, subject to the confidentiality provisions of
section 402;
(B) execute any warrant or other process issued by any court of competent
jurisdiction; and
(C) exercise any other lawful authority.
(2) Subject to the direction of the Secretary, a person charged with law enforcement
responsibilities by the Secretary who is performing a duty related to enforcement of a law
regarding fisheries or other marine resources may make an arrest without a warrant for an
offense against the United States committed in his presence, or for a felony cognizable under
the laws of the United States, if he has reasonable grounds to believe that the person to be
arrested has committed or is committing a felony. The arrest authority described in the
preceding sentence may be conferred upon an officer or employee of a State agency, subject
to such conditions and restrictions as are set forth by agreement between the State agency,
the Secretary, and, with respect to enforcement operations within the exclusive economic
zone [and special areas]*, the Secretary of the department in which the Coast Guard is
operating.
(c) ISSUANCE OF CITATIONS.—If any officer authorized to enforce the provisions of this
Act (as provided for in this section) finds that a fishing vessel is operating or has been operated
in violation of any provision of this Act, such officer may, in accordance with regulations issued
jointly by the Secretary and the Secretary of the department in which the Coast Guard is
operating, issue a citation to the owner or operator of such vessel in lieu of proceeding under
subsection (b). If a permit has been issued pursuant to this Act for such vessel, such officer
shall note the issuance of any citation under this subsection, including the date thereof and the
reason therefor, on the permit. The Secretary shall maintain a record of all citations issued
pursuant to this subsection.
124
16 U.S.C. 1861
MSA § 311
104-297
(d) JURISDICTION OF COURTS.—The district courts of the United States shall have
exclusive jurisdiction over any case or controversy arising under the provisions of this Act. In
the case of Guam or any possession of the United States in the Pacific Ocean, the appropriate
court is the United States District Court for the District of Guam, except that in the case of
American Samoa, the appropriate court is the United States District Court for the District of
Hawaii, and except that in the case of the Northern Mariana Islands, the appropriate court is the
United States District Court for the District of the Northern Mariana Islands. Any such court
may, at any time—
(1) enter restraining orders or prohibitions;
(2) issue warrants, process in rem, or other process;
(3) prescribe and accept satisfactory bonds or other security; and
(4) take such other actions as are in the interest of justice.
99-659, 101-627, 104-297
(e) PAYMENT OF STORAGE, CARE, AND OTHER COSTS.—
(1) Notwithstanding any other provision of law, the Secretary or the Secretary of the
Treasury may pay from sums received as fines, penalties, and forfeitures of property for
violations of any provisions of this Act or of any other marine resource law enforced by the
Secretary, including the Lacey Act Amendments of 1981 (16 U.S.C. 3371 et seq.)—
(A) the reasonable and necessary costs incurred in providing temporary storage, care,
and maintenance of seized fish or other property pending disposition of any civil or
criminal proceeding alleging a violation of any provision of this Act or any other marine
resource law enforced by the Secretary with respect to that fish or other property;
(B) a reward of not less than 20 percent of the penalty collected or $20,000,
whichever is the lesser amount, to any person who furnishes information which leads to
an arrest, conviction, civil penalty assessment, or forfeiture of property for any violation
of any provision of this Act or any other fishery resource law enforced by the Secretary;
(C) any expenses directly related to investigations and civil or criminal enforcement
proceedings, including any necessary expenses for equipment, training, travel, witnesses,
and contracting services directly related to such investigations or proceedings;
(D) any valid liens or mortgages against any property that has been forfeited;
(E) claims of parties in interest to property disposed of under section 612(b) of the
Tariff Act of 1930 (19 U.S.C. 1612(b)), as made applicable by section 310(c) of this Act
or by any other marine resource law enforced by the Secretary, to seizures made by the
Secretary, in amounts determined by the Secretary to be applicable to such claims at the
time of seizure; and
(F) reimbursement to any Federal or State agency, including the Coast Guard, for
services performed, or personnel, equipment, or facilities utilized, under any agreement
with the Secretary entered into pursuant to subsection (a), or any similar agreement
authorized by law.
(2) Any person found in an administrative or judicial proceeding to have violated this Act
or any other marine resource law enforced by the Secretary shall be liable for the cost
incurred in the sale, storage, care, and maintenance of any fish or other property lawfully
seized in connection with the violation.
125
16 U.S.C. 1861
MSA § 311
102-567
(f) ENFORCEMENT OF NORTHEAST MULTISPECIES FISHERY MANAGEMENT
PLAN.—
(1) ENFORCEMENT AGREEMENTS.—Beginning not later than October 1, 1993, the
Secretary shall, if requested by the Governor of a State represented on the New England
Fishery Management Council, enter into an agreement under subsection (a), with each of the
States represented on such Council, that authorizes the marine law enforcement agency of
such State to perform duties of the Secretary relating to enforcement of the Northeast
Multispecies Fishery Management Plan.
(2) REIMBURSEMENT.—An agreement with a State under this subsection shall
provide, subject to the availability of appropriations, for reimbursement of the State for
expenses incurred in detection and prosecution of violations of any fishery management plan
approved by the Secretary.
(3) COAST GUARD ENFORCEMENT WORKING GROUP.—
(A) ESTABLISHMENT.—The Commander of the First Coast Guard District shall
establish an informal fisheries enforcement working group to improve the overall
compliance with and effectiveness of the regulations issued under the Northeast
Multispecies Fishery Management Plan.
(B) MEMBERSHIP.—The working group shall consist of members selected by the
Commander, and shall include—
(i) individuals who are representatives of various fishing ports located in the States
represented on the New England Fishery Management Council;
(ii) captains of fishing vessels that operate in waters under the jurisdiction of that
Council; and
(iii) other individuals the Commander considers appropriate.
(C) NON-FEDERAL STATUS OF WORKING GROUP MEMBERS.—An
individual shall not receive any compensation for, and shall not be considered to be a
Federal employee based on, membership in the working group.
(D) MEETINGS.—The working group shall meet, at the call of the Commander, at
least four times each year. The meetings shall be held at various major fishing ports in
States represented on the New England Fishery Management Council, as specified by the
Commander.
(4) USE OF FINES AND PENALTIES.—Amounts available to the Secretary under this
Act which are attributable to fines and penalties imposed for violations of the Northeast
Multispecies Fishery Management Plan shall be used by the Secretary pursuant to this
section to enforce that Plan.
126
16 U.S.C. 1861
MSA § 311
104-297
(g) ENFORCEMENT IN THE PACIFIC INSULAR AREAS.—The Secretary, in
consultation with the Governors of the Pacific Insular Areas and the Western Pacific Council,
shall to the extent practicable support cooperative enforcement agreements between Federal and
Pacific Insular Area authorities.
109-479
(h) JOINT ENFORCEMENT AGREEMENTS.—
(1) IN GENERAL.—The Governor of an eligible State may apply to the Secretary for
execution of a joint enforcement agreement with the Secretary that will authorize the
deputization and funding of State law enforcement officers with marine law enforcement
responsibilities to perform duties of the Secretary relating to law enforcement provisions
under this title or any other marine resource law enforced by the Secretary. Upon receiving
an application meeting the requirements of this subsection, the Secretary may enter into a
joint enforcement agreement with the requesting State.
(2) ELIGIBLE STATE.—A State is eligible to participate in the cooperative enforcement
agreements under this section if it is in, or bordering on, the Atlantic Ocean (including the
Caribbean Sea), the Pacific Ocean, the Arctic Ocean, the Gulf of Mexico, Long Island
Sound, or 1 or more of the Great Lakes.
(3) REQUIREMENTS.—Joint enforcement agreements executed under paragraph (1)—
(A) shall be consistent with the purposes and intent of this section to the extent
applicable to the regulated activities;
(B) may include specifications for joint management responsibilities as provided by
the first section of Public Law 91–412 (15 U.S.C. 1525); and
(C) shall provide for confidentiality of data and information submitted to the State
under section 402.
(4) ALLOCATION OF FUNDS.—The Secretary shall include in each joint enforcement
agreement an allocation of funds to assist in management of the agreement. The allocation
shall be fairly distributed among all eligible States participating in cooperative enforcement
agreements under this subsection, based upon consideration of Federal marine enforcement
needs, the specific marine conservation enforcement needs of each participating eligible
State, and the capacity of the State to undertake the marine enforcement mission and assist
with enforcement needs. The agreement may provide for amounts to be withheld by the
Secretary for the cost of any technical or other assistance provided to the State by the
Secretary under the agreement.
127
16 U.S.C. 1861
MSA § 311
109-479
(i) IMPROVED DATA SHARING.—
(1) IN GENERAL.—Notwithstanding any other provision of this Act, as soon as
practicable but no later than 21 months after the date of enactment of the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act of 2006, the Secretary shall
implement data-sharing measures to make any data required to be provided by this Act from
satellite-based maritime distress and safety systems, vessel monitoring systems, or similar
systems—
(A) directly accessible by State enforcement officers authorized under subsection (a)
of this section; and
(B) available to a State management agency involved in, or affected by, management
of a fishery if the State has entered into an agreement with the Secretary under section
402(b)(1)(B) of this Act.
(2) AGREEMENT REQUIRED.—The Secretary shall promptly enter into an agreement
with a State under section 402(b)(1)(B) of this Act if—
(A) the Attorney General or highest ranking legal officer of the State provides a
written opinion or certification that State law allows the State to maintain the
confidentiality of information required by Federal law to be kept confidential; or
(B) the Secretary is provided other reasonable assurance that the State can and will
protect the identity or business of any person to which such information relates.
99-659, 104-297
(j) DEFINITIONS.23—For purposes of this section—
(1) The term "provisions of this Act" includes (A) any regulation or permit issued
pursuant to this Act, and (B) any provision of, or regulation issued pursuant to, any
international fishery agreement under which foreign fishing is authorized by section 201(b)
or (c), or section 204(d), with respect to fishing subject to the exclusive fishery management
authority of the United States.
(2) The term "violation of any provision of this Act" includes (A) the commission of any
act prohibited by section 307, and (B) the violation of any regulation, permit, or agreement
referred to in paragraph (1).
23
Section 115(e) of Public Law 104-297 “amends” ' 311(i) of the Magnuson-Stevens Act by: (1) inserting
"201(b) or (c), or section 204(d)," and (2) striking "201(b), (c),". Since ' 311 does not include a subsection (i),
the editors assume Congress intended to revise subsection (h). Since the words “201(b), (c),” do not appear in
' 311(h), the editors assume Congress intended to strike the words "201(b) or (c),".
128
16 U.S.C. 1861a
MSA § 312
104-297
SEC. 312. TRANSITION TO SUSTAINABLE FISHERIES
16 U.S.C. 1861a
(a) FISHERIES DISASTER RELIEF.—
109-479
(1) At the discretion of the Secretary or at the request of the Governor of an affected State
or a fishing community, the Secretary shall determine whether there is a commercial fishery
failure due to a fishery resource disaster as a result of—
(A) natural causes;
(B) man-made causes beyond the control of fishery managers to mitigate through
conservation and management measures, including regulatory restrictions (including
those imposed as a result of judicial action) imposed to protect human health or the
marine environment; or
(C) undetermined causes.
(2) Upon the determination under paragraph (1) that there is a commercial fishery failure,
the Secretary is authorized to make sums available to be used by the affected State, fishing
community, or by the Secretary in cooperation with the affected State or fishing community
for assessing the economic and social effects of the commercial fishery failure, or any
activity that the Secretary determines is appropriate to restore the fishery or prevent a similar
failure in the future and to assist a fishing community affected by such failure. Before
making funds available for an activity authorized under this section, the Secretary shall make
a determination that such activity will not expand the size or scope of the commercial fishery
failure in that fishery or into other fisheries or other geographic regions.
(3) The Federal share of the cost of any activity carried out under the authority of this
subsection shall not exceed 75 percent of the cost of that activity.
109-479
(4) There are authorized to be appropriated to the Secretary such sums as are necessary
for each of the fiscal years 2007 through 2013.
(b) FISHING CAPACITY REDUCTION PROGRAM.—
109-479
(1) The Secretary, at the request of the appropriate Council for fisheries under the
authority of such Council, the Governor of a State for fisheries under State authority, or a
majority of permit holders in the fishery, may conduct a voluntary fishing capacity reduction
program (referred to in this section as the 'program') in a fishery if the Secretary determines
that the program—
129
16 U.S.C. 1861a
MSA § 312
(A) is necessary to prevent or end overfishing, rebuild stocks of fish, or achieve
measurable and significant improvements in the conservation and management of the
fishery;
(B) is consistent with the Federal or State fishery management plan or program in
effect for such fishery, as appropriate, and that the fishery management plan—
(i) will prevent the replacement of fishing capacity removed by the program
through a moratorium on new entrants, practicable restrictions on vessel upgrades,
and other effort control measures, taking into account the full potential fishing
capacity of the fleet; and
(ii) establishes a specified or target total allowable catch or other measures that
trigger closure of the fishery or adjustments to reduce catch; and
(C) is cost-effective and, in the instance of a program involving an industry fee
system, prospectively capable of repaying any debt obligation incurred under section
1111 of title XI of the Merchant Marine Act, 1936.
109-479
(2) The objective of the program shall be to obtain the maximum sustained reduction in
fishing capacity at the least cost and in a minimum period of time. To achieve that objective,
the Secretary is authorized to pay—
(A) the owner of a fishing vessel, if the permit authorizing the participation of the
vessel in the fishery is surrendered for permanent revocation and the vessel owner and
permit holder relinquish any claim associated with the vessel or permit that could qualify
such owner or holder for any present or future limited access system permit in the fishery
for which the program is established or in any other fishery and such vessel is (i)
scrapped, or (ii) through the Secretary of the department in which the Coast Guard is
operating, subjected to title restrictions (including loss of the vessel’s fisheries
endorsement) that permanently prohibit and effectively prevent its use in fishing in
federal or state waters, or fishing on the high seas or in the waters of a foreign nation; or
(B) the holder of a permit authorizing participation in the fishery, if such permit is
surrendered for permanent revocation, and such holder relinquishes any claim associated
with the permit and vessel used to harvest fishery resources under the permit that could
qualify such holder for any present or future limited access system permit in the fishery
for which the program was established.
(3) Participation in the program shall be voluntary, but the Secretary shall ensure
compliance by all who do participate.
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(4) The harvester proponents of each program and the Secretary shall consult, as
appropriate and practicable, with Councils, Federal agencies, State and regional authorities,
affected fishing communities, participants in the fishery, conservation organizations, and
other interested parties throughout the development and implementation of any program
under this section.
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(5) PAYMENT CONDITION.—The Secretary may not make a payment under paragraph
(2) with respect to a vessel that will not be scrapped unless the Secretary certifies that the
vessel will not be used for fishing in the waters of a foreign nation or fishing on the high
seas.
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(6) REPORT.—
(A) IN GENERAL.—Subject to the availability of funds, the Secretary shall, within
12 months after the date of the enactment of the Magnuson-Stevens Fishery Conservation
and Management Reauthorization Act of 2006 submit to the Congress a report—
(i) identifying and describing the 20 fisheries in United States waters with the
most severe examples of excess harvesting capacity in the fisheries, based on value of
each fishery and the amount of excess harvesting capacity as determined by the
Secretary;
(ii) recommending measures for reducing such excess harvesting capacity,
including the retirement of any latent fishing permits that could contribute to further
excess harvesting capacity in those fisheries; and
(iii) potential sources of funding for such measures.
(B) BASIS FOR RECOMMENDATIONS.—The Secretary shall base the
recommendations made with respect to a fishery on—
(i) the most cost effective means of achieving voluntary reduction in capacity for
the fishery using the potential for industry financing; and
(ii) including measures to prevent the capacity that is being removed from the
fishery from moving to other fisheries in the United States, in the waters of a foreign
nation, or on the high seas.
(c) PROGRAM FUNDING.—
(1) The program may be funded by any combination of amounts—
(A) available under clause (iv) of section 2(b)(1)(A) of the Act of August 11, 1939 (15
U.S.C. 713c-3(b)(1)(A); the Saltonstall-Kennedy Act);
(B) appropriated for the purposes of this section;
(C) provided by an industry fee system established under subsection (d) and in
accordance with section 1111 of title XI of the Merchant Marine Act, 1936; or
(D) provided from any State or other public sources or private or non-profit
organizations.
(2) All funds for the program, including any fees established under subsection (d), shall
be paid into the fishing capacity reduction fund established under section 1111 of title XI of
the Merchant Marine Act, 1936.
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(d) INDUSTRY FEE SYSTEM.—
(1) (A) If an industry fee system is necessary to fund the program, the Secretary
may conduct a referendum on such system. Prior to the referendum, the Secretary
shall—
(i) identify, to the extent practicable, and notify all permit or vessel owners who
would be affected by the program; and
(ii) make available to such owners information about the industry fee system
describing the schedule, procedures, and eligibility requirements for the referendum,
the proposed program, and the amount and duration and any other terms and
conditions of the proposed fee system.
(B) The industry fee system shall be considered approved if the referendum votes
which are cast in favor of the proposed system constitute at least a majority of the permit
holders in the fishery, or 50 percent of the permitted allocation of the fishery, who
participated in the fishery.
(2) Notwithstanding section 304(d) and consistent with an approved industry fee system,
the Secretary is authorized to establish such a system to fund the program and repay debt
obligations incurred pursuant to section 1111 of title XI of the Merchant Marine Act, 1936.
The fees for a program established under this section shall—
(A) be determined by the Secretary and adjusted from time to time as the Secretary
considers necessary to ensure the availability of sufficient funds to repay such debt
obligations;
(B) not exceed 5 percent of the ex-vessel value of all fish harvested from the fishery
for which the program is established;
(C) be deducted by the first ex-vessel fish purchaser from the proceeds otherwise
payable to the seller and accounted for and forwarded by such fish purchasers to the
Secretary in such manner as the Secretary may establish, unless the Secretary determines
that such fees should be collected from the seller; and
(D) be in effect only until such time as the debt obligation has been fully paid.
109-479
(e) IMPLEMENTATION PLAN.—
(1) FRAMEWORK REGULATIONS.—The Secretary shall propose and adopt
framework regulations applicable to the implementation of all programs under this section.
(2) PROGRAM REGULATIONS.—The Secretary shall implement each program under
this section by promulgating regulations that, together with the framework regulations,
establish each program and control its implementation.
(3) HARVESTER PROPONENTS’ IMPLEMENTATION PLAN.—The Secretary may
not propose implementation regulations for a program to be paid for by an industry fee
system until the harvester proponents of the program provide to the Secretary a proposed
implementation plan that, among other matters—
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(A) proposes the types and numbers of vessels or permits that are eligible to
participate in the program and the manner in which the program shall proceed, taking into
account—
(i) the requirements of this section;
(ii) the requirements of the framework regulations;
(iii) the characteristics of the fishery and affected fishing communities;
(iv) the requirements of the applicable fishery management plan and any
amendment that such plan may require to support the proposed program;
(v) the general needs and desires of harvesters in the fishery;
(vi) the need to minimize program costs; and
(vii) other matters, including the manner in which such proponents propose to fund
the program to ensure its cost effectiveness, as well as any relevant factors
demonstrating the potential for, or necessary to obtain, the support and general
cooperation of a substantial number of affected harvesters in the fishery (or portion of
the fishery) for which the program is intended; and
(B) proposes procedures for program participation (such as submission of owner bids
under an auction system or fair market-value assessment), including any terms and
conditions for participation, that the harvester proponents deem to be reasonably
necessary to meet the program’s proposed objectives.
(4) PARTICIPATION CONTRACTS.—The Secretary shall contract with each person
participating in a program, and each such contract shall, in addition to including such other
matters as the Secretary deems necessary and appropriate to effectively implement each
program (including penalties for contract nonperformance) be consistent with the framework
and implementing regulations and all other applicable law.
(5) REDUCTION AUCTIONS.—Each program not involving fair market assessment
shall involve a reduction auction that scores the reduction price of each bid offer by the data
relevant to each bidder under an appropriate fisheries productivity factor. If the Secretary
accepts bids, the Secretary shall accept responsive bids in the rank order of their bid scores,
starting with the bid whose reduction price is the lowest percentage of the productivity
factor, and successively accepting each additional responsive bid in rank order until either
there are no more responsive bids or acceptance of the next bid would cause the total value
of bids accepted to exceed the amount of funds available for the program.
(6) BID INVITATIONS.—Each program shall proceed by the Secretary issuing
invitations to bid setting out the terms and conditions for participation consistent with the
framework and implementing regulations. Each bid that the Secretary receives in response to
the invitation to bid shall constitute an irrevocable offer from the bidder.
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SEC. 313. NORTH PACIFIC FISHERIES CONSERVATION
16 U.S.C. 1862
104-297, 109-479
(a) IN GENERAL.—The North Pacific Council may prepare, in consultation with the
Secretary, a fisheries research plan for any fishery under the Council’s jurisdiction except a
salmon fishery which—
(1) requires that observers be stationed on fishing vessels engaged in the catching, taking,
or harvesting of fish and on United States fish processors fishing for or processing species
under the jurisdiction of the Council, including the Northern Pacific halibut fishery, for the
purpose of collecting data necessary for the conservation, management, and scientific
understanding of any fisheries under the Council's jurisdiction; and
(2) establishes a system, or system [sic]24, of fees, which may vary by fishery,
management area, or observer coverage level, to pay for the cost of implementing the plan.
102-582
(b) STANDARDS.—
(1) Any plan or plan amendment prepared under this section shall be reasonably
calculated to—
(A) gather reliable data, by stationing observers on all or a statistically reliable sample
of the fishing vessels and United States fish processors included in the plan, necessary for
the conservation, management, and scientific understanding of the fisheries covered by
the plan;
(B) be fair and equitable to all vessels and processors;
(C) be consistent with applicable provisions of law; and
(D) take into consideration the operating requirements of the fisheries and the safety
of observers and fishermen.
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(2) Any system of fees established under this section shall—
(A) provide that the total amount of fees collected under this section not exceed the
combined cost of (i) stationing observers, or electronic monitoring systems, on board
fishing vessels and United States fish processors, (ii) the actual cost of inputting collected
data, and (iii) assessments necessary for a risk-sharing pool implemented under
subsection (e) of this section, less any amount received for such purpose from another
source or from an existing surplus in the North Pacific Fishery Observer Fund established
in subsection (d) of this section;
(B) be fair and equitable to all participants in the fisheries under the jurisdiction of the
Council, including the Northern Pacific halibut fishery;
24
So in original.
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MSA § 313
(C) provide that fees collected not be used to pay any costs of administrative overhead
or other costs not directly incurred in carrying out the plan;
(D) not be used to offset amounts authorized under other provisions of law;
(E) be expressed as a fixed amount reflecting actual observer costs as described in
subparagraph (A) or a percentage, not to exceed 2 percent, of the unprocessed ex-vessel
value of the fish and shellfish harvested under the jurisdiction of the Council, including
the Northern Pacific halibut fishery;
(F) be assessed against some or all fishing vessels and United States fish processors,
including those not required to carry an observer or an electronic monitoring system
under the plan, participating in fisheries under the jurisdiction of the Council, including
the Northern Pacific halibut fishery;
(G) provide that fees collected will be deposited in the North Pacific Fishery Observer
Fund established under subsection (d) of this section;
(H) provide that fees collected will only be used for implementing the plan established
under this section;
(I) provide that fees collected will be credited against any fee for stationing observers
or electronic monitoring systems on board fishing vessels and United States fish
processors and the actual cost of inputting collected data to which a fishing vessel or fish
processor is subject under section 304(d) of this Act; and
(J) meet the requirements of section 9701(b) of title 31, United States Code.
(c) ACTION BY SECRETARY.—
(1) Within 60 days after receiving a plan or plan amendment from the North Pacific
Council under this section, the Secretary shall review such plan or plan amendment and
either (A) remand such plan or plan amendment to the Council with comments if it does not
meet the requirements of this section, or (B) publish in the Federal Register proposed
regulations for implementing such plan or plan amendment.
(2) During the 60-day public comment period, the Secretary shall conduct a public
hearing in each State represented on the Council for the purpose of receiving public
comments on the proposed regulations.
(3) Within 45 days of the close of the public comment period, the Secretary, in
consultation with the Council, shall analyze the public comment received and publish final
regulations for implementing such plan.
(4) If the Secretary remands a plan or plan amendment to the Council for failure to meet
the requirements of this section, the Council may resubmit such plan or plan amendment at
any time after taking action the Council believes will address the defects identified by the
Secretary. Any plan or plan amendment resubmitted to the Secretary will be treated as an
original plan submitted to the Secretary under paragraph (1) of this subsection.
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MSA § 313
(d) FISHERY OBSERVER FUND.—There is established in the Treasury a North Pacific
Fishery Observer Fund. The Fund shall be available, without appropriation or fiscal year
limitation, only to the Secretary for the purpose of carrying out the provisions of this section,
subject to the restrictions in subsection (b)(2) of this section. The Fund shall consist of all
monies deposited into it in accordance with this section. Sums in the Fund that are not currently
needed for the purposes of this section shall be kept on deposit or invested in obligations of, or
guaranteed by, the United States.
(e) SPECIAL PROVISIONS REGARDING OBSERVERS.—
(1) The Secretary shall review—
(A) the feasibility of establishing a risk sharing pool through a reasonable fee, subject
to the limitations of subsection (b)(2)(E) of his section, to provide coverage for vessels
and owners against liability from civil suits by observers, and
(B) the availability of comprehensive commercial insurance for vessel and owner
liability against civil suits by observers.
(2) If the Secretary determines that a risk sharing pool is feasible, the Secretary shall
establish such a pool, subject to the provisions of subsection (b)(2) of this section, unless the
Secretary determines that—
(A) comprehensive commercial insurance is available for all fishing vessels and
United States fish processors required to have observers under the provisions of this
section, and
(B) such comprehensive commercial insurance will provide a greater measure of
coverage at a lower cost to each participant.
104-297
(f) BYCATCH REDUCTION.—In implementing section 303(a)(11) and this section, the
North Pacific Council shall submit conservation and management measures to lower, on an
annual basis for a period of not less than four years, the total amount of economic discards
occurring in the fisheries under its jurisdiction.
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MSA § 313
104-297
(g) BYCATCH REDUCTION INCENTIVES.—
(1) Notwithstanding section 304(d), the North Pacific Council may submit, and the
Secretary may approve, consistent with the provisions of this Act, a system of fines in a
fishery to provide incentives to reduce bycatch and bycatch rates; except that such fines shall
not exceed $25,000 per vessel per season. Any fines collected shall be deposited in the
North Pacific Fishery Observer Fund, and may be made available by the Secretary to offset
costs related to the reduction of bycatch in the fishery from which such fines were derived,
including conservation and management measures and research, and to the State of Alaska to
offset costs incurred by the State in the fishery from which such penalties were derived or in
fisheries in which the State is directly involved in management or enforcement and which
are directly affected by the fishery from which such penalties were derived.
(2)(A) Notwithstanding section 303(d), and in addition to the authority provided in
section 303(b)(10), the North Pacific Council may submit, and the Secretary may
approve, conservation and management measures which provide allocations of regulatory
discards to individual fishing vessels as an incentive to reduce per vessel bycatch and
bycatch rates in a fishery, Provided, That—
(i) such allocations may not be transferred for monetary consideration and are
made only on an annual basis; and
(ii) any such conservation and management measures will meet the requirements of
subsection (h) and will result in an actual reduction in regulatory discards in the
fishery.
(B) The North Pacific Council may submit restrictions in addition to the restriction
imposed by clause (i) of subparagraph (A) on the transferability of any such allocations,
and the Secretary may approve such recommendation.
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(h) CATCH MEASUREMENT.—
(1) By June 1, 1997 the North Pacific Council shall submit, and the Secretary may
approve, consistent with the other provisions of this Act, conservation and management
measures to ensure total catch measurement in each fishery under the jurisdiction of such
Council. Such measures shall ensure the accurate enumeration, at a minimum, of target
species, economic discards, and regulatory discards.
(2) To the extent the measures submitted under paragraph (1) do not require United States
fish processors and fish processing vessels (as defined in chapter 21 of title 46, United States
Code) to weigh fish, the North Pacific Council and the Secretary shall submit a plan to the
Congress by January 1, 1998, to allow for weighing, including recommendations to assist
such processors and processing vessels in acquiring necessary equipment, unless the Council
determines that such weighing is not necessary to meet the requirements of this subsection.
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104-297
(i) FULL RETENTION AND UTILIZATION.—
(1) The North Pacific Council shall submit to the Secretary by October 1, 1998 a report
on the advisability of requiring the full retention by fishing vessels and full utilization by
United States fish processors of economic discards in fisheries under its jurisdiction if such
economic discards, or the mortality of such economic discards, cannot be avoided. The
report shall address the projected impacts of such requirements on participants in the fishery
and describe any full retention and full utilization requirements that have been implemented.
(2) The report shall address the advisability of measures to minimize processing waste,
including standards setting minimum percentages which must be processed for human
consumption. For the purpose of the report, `processing waste' means that portion of any fish
which is processed and which could be used for human consumption or other commercial
use, but which is not so used.
108-199
(j) BERING SEA AND ALEUTIAN ISLANDS CRAB RATIONALIZATION.
(1) By not later than January 1, 2005, the Secretary shall approve and hereafter
implement by regulation the Voluntary Three-Pie Cooperative Program for crab fisheries of
the Bering Sea and Aleutian Islands approved by the North Pacific Fishery Management
Council between June 2002 and April 2003, and all trailing amendments including those
reported to Congress on May 6, 2003. This section shall not preclude the Secretary from
approving by January 1, 2005, and implementing any subsequent program amendments
approved by the Council.
(2) Notwithstanding any other provision of this Act, in carrying out paragraph (1) the
Secretary shall approve all parts of the Program referred to in such paragraph. Further, no
part of such Program may be implemented if, as approved by the North Pacific Fishery
Management Council, individual fishing quotas, processing quotas, community development
quota allocation, voluntary cooperatives, binding arbitration, regional landing and processing
requirements, community protections, economic data collection, or the loan program for crab
fishing vessel captains and crew members, is invalidated subject to a judicial determination
not subject to judicial appeal. If the Secretary determines that a processor has leveraged its
Individual Processor Quota shares to acquire a harvesters open-delivery "B shares", the
processor's Individual Processor Quota shares shall be forfeited.
(3) Subsequent to implementation pursuant to paragraph (1), the Council may submit and
the Secretary may implement changes to or repeal of conservation and management
measures, including measures authorized in this section, for crab fisheries of the Bering Sea
and Aleutian Islands in accordance with applicable law, including this Act as amended by
this subsection, to achieve on a continuing basis the purposes identified by the Council.
(4) The loan program referred to in paragraph (2) shall be carried out pursuant to the
authority of sections 1111 and 1112 of title XI of the Merchant Marine Act, 1936 (46 U.S.C.
App. 1279f, 1279g).
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MSA § 313
(5) For purposes of implementing this section $ 1,000,000 shall be made available each
year until fully implemented from funds otherwise made available to the National Marine
Fisheries Service for Alaska fisheries activities.
(6) Nothing in this Act shall constitute a waiver, either express or implied, of the
antitrust laws of the United States. The Secretary, in consultation with the Department of
Justice and the Federal Trade Commission, shall develop and implement a mandatory
information collection and review process to provide any and all information necessary for
the Department of Justice and the Federal Trade Commission to determine whether any
illegal acts of anti-competition, anti-trust, or price collusion have occurred among persons
receiving individual processing quotas under the Program. The Secretary may revoke any
individual processing quota held by any person found to have violated a provision of the
antitrust laws of the United States.
(7) An individual processing quota issued under the Program shall be considered a
permit for the purposes of sections 307, 308, and 309, and may be revoked or limited at any
time in accordance with this Act. Issuance of an individual processing quota under the
program shall not confer any right of compensation to the holder of such individual
processing quota if it is revoked or limited and shall not create, or be construed to create, any
right, title, or interest in or to any fish before the fish is purchased from an individual fishing
quota holder.
(8) The restriction on the collection of economic data in section 303 shall not apply
with respect to any fish processor who is eligible for, or who has received, individual
processing quota under the Program. The restriction on the disclosure of information in
section 402(b)(1) shall not apply when the information is used to determine eligibility for or
compliance with an individual processing quota program.
(9) The provisions of sections 308, 310, and 311 shall apply to the processing facilities
and fish products of any person holding individual processing quota, and the provisions of
subparagraphs (D), (E), and (L) of section 307(l) shall apply to any facility owned or
controlled by a person holding individual processing quota.
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MSA § 314
102-567
SEC. 314. NORTHWEST ATLANTIC OCEAN FISHERIES
REINVESTMENT PROGRAM.
16 U.S.C. 1863
104-297
(a) PROGRAM.—
(1) Not later than October 1, 1993, the Secretary shall establish a Northwest Atlantic
Ocean Fisheries Reinvestment Program for the purposes of—
(A) promoting development of commercial fisheries and markets for underutilized
species of the northwest Atlantic Ocean;
(B) developing alternative fishing opportunities for participants in the New England
groundfish fishery;
(C) providing technical support and assistance to United States fishermen and fish
processors to improve the value-added processing of underutilized species and to make
participation in fisheries for underutilized species of the northwest Atlantic Ocean
economically viable;
(D) creating new economic opportunities through the improved processing and
expanded use of fish waste; and
(E) helping to restore overfished New England groundfish stocks through aquaculture
or hatchery programs.
(2) CONSULTATION.—In establishing and implementing the Northwest [sic] Fisheries
Reinvestment Program, the Secretary shall consult with representatives of the commercial
fishing industry, the seafood processing industry, and the academic community (including
the National Sea Grant Program).
(3) ACTIVITIES UNDER PROGRAM.—Subject to the availability of appropriations,
the Secretary shall award contracts, grants and other financial assistance to United States
citizens to carry out the purposes of subsection (1), under the terms and conditions provided
in section 2(c) of the Act of August 11, 1939 (15 U.S.C. 713(c)-3(c); commonly referred to
as the "Saltonstall-Kennedy Act"), except that, in making awards under this section for
projects involving participation in fisheries for underutilized species, the Secretary shall give
the highest priority to a person who owns or operates a fishing vessel permitted under this
Act to participate in the New England groundfish fishery who agrees to surrender that permit
to the Secretary during the duration of the contract, grant or other assistance.
(4) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be
appropriated $5,000,000 for each of fiscal years 1993 through 1999 to carry out the purposes
of this section. For fiscal year 1993 no more than $1,000,000, and for fiscal year 1994 no
more than $2,000,000, of such funds may be provided from monies made available under
section 2(b) of the Act of August 11, 1939 (15 U.S.C. 713c-3(b)).
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MSA §§ 314-315
(b) ASSISTANCE OF OTHER AGENCIES.—The Secretary shall actively seek the
assistance of other Federal agencies in the development of fisheries for underutilized species of
the northwest Atlantic Ocean, including, to the extent permitted by other applicable laws,
assistance from the Secretary of Agriculture in including such underutilized species as
agricultural commodities in the programs of the Foreign Agricultural Service for which amounts
are authorized under the Food, Agriculture, Conservation, and Trade Act of 1990 (Public Law
101-624; 104 Stat. 3359).
(c) MANAGEMENT PLANS FOR UNDERUTILIZED SPECIES.—The New England
Fishery Management Council, in consultation with other appropriate Councils, shall develop
fishery management plans as soon as possible for any underutilized species of the northwest
Atlantic Ocean that is not covered under such a plan, in order to prevent overfishing of that
species.
(d) UNDERUTILIZED SPECIES DEFINED.—For purposes of this section, the term
"underutilized species of the northwest Atlantic Ocean" means any fish species of the northwest
Atlantic Ocean that is identified, by the Director of the Northeast Fisheries Center of the
National Marine Fisheries Service, as an underutilized species.
109-479
SEC. 315. REGIONAL COASTAL DISASTER ASSISTANCE,
TRANSITION, AND RECOVERY PROGRAM.
16 U.S.C. 1864
(a) IN GENERAL.—When there is a catastrophic regional fishery disaster the Secretary
may, upon the request of, and in consultation with, the Governors of affected States, establish a
regional economic transition program to provide immediate disaster relief assistance to the
fishermen, charter fishing operators, United States fish processors, and owners of related fishery
infrastructure affected by the disaster.
(b) PROGRAM COMPONENTS.—
(1) IN GENERAL.—Subject to the availability of appropriations, the program shall
provide funds or other economic assistance to affected entities, or to governmental entities
for disbursement to affected entities, for—
(A) meeting immediate regional shoreside fishery infrastructure needs, including
processing facilities, cold storage facilities, ice houses, docks, including temporary docks
and storage facilities, and other related shoreside fishery support facilities and
infrastructure while ensuring that those projects will not result in an increase or
replacement of fishing capacity;
(B) financial assistance and job training assistance for fishermen who wish to remain
in a fishery in the region that may be temporarily closed as a result of environmental or
other effects associated with the disaster;
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(C) funding, pursuant to the requirements of section 312(b), to fishermen who are
willing to scrap a fishing vessel and permanently surrender permits for fisheries named on
that vessel; and
(D) any other activities authorized under section 312 of this Act or section 308(d) of
the Interjurisdictional Fisheries Act of 1986 (16 U.S.C. 4107(d)).
(2) JOB TRAINING.—Any fisherman who decides to scrap a fishing vessel under the
program shall be eligible for job training assistance.
(3) STATE PARTICIPATION OBLIGATION.—The participation by a State in the
program shall be conditioned upon a commitment by the appropriate State entity to ensure
that the relevant State fishery meets the requirements of section 312(b) of this Act to ensure
excess capacity does not re-enter the fishery.
(4) NO MATCHING REQUIRED.—The Secretary may waive the matching requirements
of section 312 of this Act, section 308 of the Interjurisdictional Fisheries Act of 1986 (16
U.S.C. 4107), and any other provision of law under which the Federal share of the cost of
any activity is limited to less than 100 percent if the Secretary determines that—
(A) no reasonable means are available through which applicants can meet the
matching requirement; and
(B) the probable benefit of 100 percent Federal financing outweighs the public
interest in imposition of the matching requirement.
(5) NET REVENUE LIMIT INAPPLICABLE.—Section 308(d)(3) of the
Interjurisdictional Fisheries Act (16 U.S.C. 4107(d)(3)) shall not apply to assistance under
this section.
(c) REGIONAL IMPACT EVALUATION.—Within 2 months after a catastrophic regional
fishery disaster the Secretary shall provide the Governor of each State participating in the
program a comprehensive economic and socio-economic evaluation of the affected region’s
fisheries to assist the Governor in assessing the current and future economic viability of affected
fisheries, including the economic impact of foreign fish imports and the direct, indirect, or
environmental impact of the disaster on the fishery and coastal communities.
(d) CATASTROPHIC REGIONAL FISHERY DISASTER DEFINED.—In this section the
term ‘catastrophic regional fishery disaster’ means a natural disaster, including a hurricane or
tsunami, or a regulatory closure (including regulatory closures resulting from judicial action) to
protect human health or the marine environment, that—
(1) results in economic losses to coastal or fishing communities;
(2) affects more than 1 State or a major fishery managed by a Council or interstate fishery
commission; and
(3) is determined by the Secretary to be a commercial fishery failure under section 312(a)
of this Act or a fishery resource disaster or section 308(d) of the Interjurisdictional Fisheries
Act of 1986 (16 U.S.C. 4107(d)).
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P.L. 109-479, sec. 115
16 U.S.C. 1864 note
FISHERIES HURRICANE ASSISTANCE PROGRAM.
(a) IN GENERAL.—The Secretary of Commerce shall establish an assistance program for the Gulf of
Mexico commercial and recreational fishing industry.
(b) ALLOCATION OF FUNDS.—Under the program, the Secretary shall allocate funds appropriated
to carry out the program among the States of Alabama, Louisiana, Florida, Mississippi, and Texas in
proportion to the percentage of the fishery (including crawfish) catch landed by each State before August
29, 2005, except that the amount allocated to Florida shall be based exclusively on the proportion of such
catch landed by the Florida Gulf Coast fishery.
(c) USE OF FUNDS.—Of the amounts made available to each State under the program—
(1) 2 percent shall be retained by the State to be used for the distribution of additional payments to
fishermen with a demonstrated record of compliance with turtle excluder and bycatch reduction device
regulations; and
(2) the remainder of the amounts shall be used for—
(A) personal assistance, with priority given to food, energy needs, housing assistance,
transportation fuel, and other urgent needs;
(B) assistance for small businesses, including fishermen, fish processors, and related
businesses serving the fishing industry;
(C) domestic product marketing and seafood promotion;
(D) State seafood testing programs;
(E) the development of limited entry programs for the fishery;
(F) funding or other incentives to ensure widespread and proper use of turtle excluder devices
and bycatch reduction devices in the fishery; and
(G) voluntary capacity reduction programs for shrimp fisheries under limited access programs.
(d) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the
Secretary of Commerce $17,500,000 for each of fiscal years 2007 through 2012 to carry out this section.
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MSA § 316
109-479
SEC. 316. BYCATCH REDUCTION ENGINEERING
PROGRAM.
16 U.S.C. 1865
(a) BYCATCH REDUCTION ENGINEERING PROGRAM.—Not later than 1 year after the
date of enactment of the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006, the Secretary, in cooperation with the Councils and other affected
interests, and based upon the best scientific information available, shall establish a bycatch
reduction program, including grants, to develop technological devices and other conservation
engineering changes designed to minimize bycatch, seabird interactions, bycatch mortality, and
post-release mortality in Federally managed fisheries. The program shall—
(1) be regionally based;
(2) be coordinated with projects conducted under the cooperative research and
management program established under this Act;
(3) provide information and outreach to fishery participants that will encourage adoption
and use of technologies developed under the program; and
(4) provide for routine consultation with the Councils in order to maximize opportunities
to incorporate results of the program in Council actions and provide incentives for adoption
of methods developed under the program in fishery management plans developed by the
Councils.
(b) INCENTIVES.—Any fishery management plan prepared by a Council or by the
Secretary may establish a system of incentives to reduce total bycatch and seabird interactions,
amounts, bycatch rates, and post-release mortality in fisheries under the Council’s or
Secretary’s jurisdiction, including—
(1) measures to incorporate bycatch into quotas, including the establishment of collective
or individual bycatch quotas;
(2) measures to promote the use of gear with verifiable and monitored low bycatch and
seabird interactions, rates; and
(3) measures that, based on the best scientific information available, will reduce bycatch
and seabird interactions, bycatch mortality, post-release mortality, or regulatory discards in
the fishery.
(c) COORDINATION ON SEABIRD INTERACTIONS.—The Secretary, in coordination
with the Secretary of Interior, is authorized to undertake projects in cooperation with industry to
improve information and technology to reduce seabird bycatch, including—
(1) outreach to industry on new technologies and methods;
(2) projects to mitigate for seabird mortality; and
(3) actions at appropriate international fishery organizations to reduce seabird interactions
in fisheries.
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MSA §§ 316-318
(d) REPORT.—The Secretary shall transmit an annual report to the Senate Committee on
Commerce, Science, and Transportation and the House of Representatives Committee on
Resources that—
(1) describes funding provided to implement this section;
(2) describes developments in gear technology achieved under this section; and
(3) describes improvements and reduction in bycatch and seabird interactions associated
with implementing this section, as well as proposals to address remaining bycatch or seabird
interaction problems.
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SEC. 317. SHARK FEEDING.
16 U.S.C. 1866
Except to the extent determined by the Secretary, or under State law, as presenting no public
health hazard or safety risk, or when conducted as part of a research program funded in whole
or in part by appropriated funds, it is unlawful to introduce, or attempt to introduce, food or any
other substance into the water to attract sharks for any purpose other than to harvest sharks
within the Exclusive Economic Zone seaward of the State of Hawaii and of the
Commonwealths, territories, and possessions of the United States in the Pacific Ocean Area.
109-479
SEC. 318. COOPERATIVE RESEARCH AND MANAGEMENT
PROGRAM.
16 U.S.C. 1867
(a) IN GENERAL.—The Secretary of Commerce, in consultation with the Councils, shall
establish a cooperative research and management program to address needs identified under this
Act and under any other marine resource laws enforced by the Secretary. The program shall be
implemented on a regional basis and shall be developed and conducted through partnerships
among Federal, State, and Tribal managers and scientists (including interstate fishery
commissions), fishing industry participants (including use of commercial charter or recreational
vessels for gathering data), and educational institutions.
(b) ELIGIBLE PROJECTS.—The Secretary shall make funds available under the program
for the support of projects to address critical needs identified by the Councils in consultation
with the Secretary. The program shall promote and encourage efforts to utilize sources of data
maintained by other Federal agencies, State agencies, or academia for use in such projects.
(c) FUNDING.—In making funds available the Secretary shall award funding on a
competitive basis and based on regional fishery management needs, select programs that form
part of a coherent program of research focused on solving priority issues identified by the
Councils, and shall give priority to the following projects:
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16 U.S.C. 1867-1868
MSA §§ 318-319
(1) Projects to collect data to improve, supplement, or enhance stock assessments,
including the use of fishing vessels or acoustic or other marine technology.
(2) Projects to assess the amount and type of bycatch or post-release mortality occurring
in a fishery.
(3) Conservation engineering projects designed to reduce bycatch, including avoidance of
post-release mortality, reduction of bycatch in high seas fisheries, and transfer of such
fishing technologies to other nations.
(4) Projects for the identification of habitat areas of particular concern and for habitat
conservation.
(5) Projects designed to collect and compile economic and social data.
(d) EXPERIMENTAL PERMITTING PROCESS.—Not later than 180 days after the date of
enactment of the Magnuson-Stevens Fishery Conservation and Management Reauthorization
Act of 2006, the Secretary, in consultation with the Councils, shall promulgate regulations that
create an expedited, uniform, and regionally-based process to promote issuance, where
practicable, of experimental fishing permits.
(e) GUIDELINES.—The Secretary, in consultation with the Councils, shall establish
guidelines to ensure that participation in a research project funded under this section does not
result in loss of a participant’s catch history or unexpended days-at-sea as part of a limited entry
system.
(f) EXEMPTED PROJECTS.—The procedures of this section shall not apply to research
funded by quota set-asides in a fishery.
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SEC. 319. HERRING STUDY.
16 U.S.C. 1868
(a) IN GENERAL.—The Secretary may conduct a cooperative research program to study the
issues of abundance, distribution and the role of herring as forage fish for other commercially
important fish stocks in the Northwest Atlantic, and the potential for local scale depletion from
herring harvesting and how it relates to other fisheries in the Northwest Atlantic. In planning,
designing, and implementing this program, the Secretary shall engage multiple fisheries sectors
and stakeholder groups concerned with herring management.
(b) REPORT.—The Secretary shall present the final results of this study to Congress within
3 months following the completion of the study, and an interim report at the end of fiscal year
2008.
(c) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated
$2,000,000 for fiscal year 2007 through fiscal year 2009 to conduct this study.
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16 U.S.C. 1869
MSA § 320
109-479
SEC. 320. RESTORATION STUDY.
16 U.S.C. 1869
(a) IN GENERAL.—The Secretary may conduct a study to update scientific information and
protocols needed to improve restoration techniques for a variety of coast habitat types and
synthesize the results in a format easily understandable by restoration practitioners and local
communities.
(b) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated
$500,000 for fiscal year 2007 to conduct this study.
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16 U.S.C. 1881
MSA § 401
TITLE IV—FISHERY MONITORING AND RESEARCH
104-297
SEC. 401. REGISTRATION AND INFORMATION
MANAGEMENT
16 U.S.C. 1881
(a) STANDARDIZED FISHING VESSEL REGISTRATION AND INFORMATION
MANAGEMENT SYSTEM.—The Secretary shall, in cooperation with the Secretary of the
department in which the Coast Guard is operating, the States, the Councils, and Marine
Fisheries Commissions, develop recommendations for implementation of a standardized fishing
vessel registration and information management system on a regional basis. The
recommendations shall be developed after consultation with interested governmental and
nongovernmental parties and shall—
(1) be designed to standardize the requirements of vessel registration and information
collection systems required by this Act, the Marine Mammal Protection Act (16 U.S.C. 1361
et seq.), and any other marine resource law implemented by the Secretary, and, with the
permission of a State, any marine resource law implemented by such State;
(2) integrate information collection programs under existing fishery management plans
into a non-duplicative information collection and management system;
(3) avoid duplication of existing State, tribal, or Federal systems and shall utilize, to the
maximum extent practicable, information collected from existing systems;
(4) provide for implementation of the system through cooperative agreements with
appropriate State, regional, or tribal entities and Marine Fisheries Commissions;
(5) provide for funding (subject to appropriations) to assist appropriate State, regional, or
tribal entities and Marine Fisheries Commissions in implementation;
(6) establish standardized units of measurement, nomenclature, and formats for the
collection and submission of information;
(7) minimize the paperwork required for vessels registered under the system;
(8) include all species of fish within the geographic areas of authority of the Councils and
all fishing vessels including charter fishing vessels, but excluding recreational fishing
vessels;
(9) require United States fish processors, and fish dealers and other first ex-vessel
purchasers of fish that are subject to the proposed system, to submit information (other than
economic information) which may be necessary to meet the goals of the proposed system;
and
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MSA § 401
(10) include procedures necessary to ensure—
(A) the confidentiality of information collected under this section in accordance with
section 402(b); and
(B) the timely release or availability to the public of information collected under this
section consistent with section 402(b).
(b) FISHING VESSEL REGISTRATION.—The proposed registration system should, at a
minimum, obtain the following information for each fishing vessel—
(1) the name and official number or other identification, together with the name and
address of the owner or operator or both;
(2) gross tonnage, vessel capacity, type and quantity of fishing gear, mode of operation
(catcher, catcher processor, or other), and such other pertinent information with respect to
vessel characteristics as the Secretary may require; and
(3) identification (by species, gear type, geographic area of operations, and season) of the
fisheries in which the fishing vessel participates.
(c) FISHERY INFORMATION.—The proposed information management system should, at
a minimum, provide basic fisheries performance information for each fishery, including—
(1) the number of vessels participating in the fishery including charter fishing vessels;
(2) the time period in which the fishery occurs;
(3) the approximate geographic location or official reporting area where the fishery
occurs;
(4) a description of fishing gear used in the fishery, including the amount and type of
such gear and the appropriate unit of fishing effort; and
(5) other information required under subsection 303(a)(5) or requested by the Council
under section 402.
(d) USE OF REGISTRATION.—Any registration recommended under this section shall not
be considered a permit for the purposes of this Act, and the Secretary may not propose to
revoke, suspend, deny, or impose any other conditions or restrictions on any such registration or
the use of such registration under this Act.
(e) PUBLIC COMMENT.—Within one year after the date of enactment of the Sustainable
Fisheries Act, the Secretary shall publish in the Federal Register for a 60-day public comment
period a proposal that would provide for implementation of a standardized fishing vessel
registration and information collection system that meets the requirements of subsections (a)
through (c). The proposal shall include—
(1) a description of the arrangements of the Secretary for consultation and cooperation
with the department in which the Coast Guard is operating, the States, the Councils, Marine
Fisheries Commissions, the fishing industry and other interested parties; and
(2) any proposed regulations or legislation necessary to implement the proposal.
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16 U.S.C. 1881
MSA § 401
(f) CONGRESSIONAL TRANSMITTAL.—Within 60 days after the end of the comment
period and after consideration of comments received under subsection (e), the Secretary shall
transmit to the Committee on Commerce, Science, and Transportation of the Senate and the
Committee on Resources of the House of Representatives a recommended proposal for
implementation of a national fishing vessel registration system that includes—
(1) any modifications made after comment and consultation;
(2) a proposed implementation schedule, including a schedule for the proposed
cooperative agreements required under subsection (a)(4); and
(3) recommendations for any such additional legislation as the Secretary considers
necessary or desirable to implement the proposed system.
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(g) RECREATIONAL FISHERIES.—
(1) FEDERAL PROGRAM.—The Secretary shall establish and implement a regionally
based registry program for recreational fishermen in each of the 8 fishery management
regions. The program, which shall not require a fee before January 1, 2011, shall provide
for—
(A) the registration (including identification and contact information) of individuals
who engage in recreational fishing—
(i) in the Exclusive Economic Zone;
(ii) for anadromous species; or
(iii) for Continental Shelf fishery resources beyond the Exclusive Economic Zone;
and
(B) if appropriate, the registration (including the ownership, operator, and
identification of the vessel) of vessels used in such fishing.
(2) STATE PROGRAMS.—The Secretary shall exempt from registration under the
program recreational fishermen and charter fishing vessels licensed, permitted, or registered
under the laws of a State if the Secretary determines that information from the State program
is suitable for the Secretary’s use or is used to assist in completing marine recreational
fisheries statistical surveys, or evaluating the effects of proposed conservation and
management measures for marine recreational fisheries.
(3) DATA COLLECTION.—
(A) IMPROVEMENT OF THE MARINE RECREATIONAL FISHERY
STATISTICS SURVEY.—Within 24 months after the date of enactment of the
Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006,
the Secretary, in consultation with representatives of the recreational fishing industry and
experts in statistics, technology, and other appropriate fields, shall establish a program to
improve the quality and accuracy of information generated by the Marine Recreational
Fishery Statistics Survey, with a goal of achieving acceptable accuracy and utility for
each individual fishery.
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16 U.S.C. 1881
MSA § 401
(B) NRC REPORT RECOMMENDATIONS.—The program shall take into
consideration and, to the extent feasible, implement the recommendations of the National
Research Council in its report Review of Recreational Fisheries Survey Methods (2006),
including—
(i) redesigning the Survey to improve the effectiveness and appropriateness of
sampling and estimation procedures, its applicability to various kinds of management
decisions, and its usefulness for social and economic analyses; and
(ii) providing for ongoing technical evaluation and modification as needed to meet
emerging management needs.
(C) METHODOLOGY.—Unless the Secretary determines that alternate methods will
achieve this goal more efficiently and effectively, the program shall, to the extent
possible, include—
(i) an adequate number of intercepts to accurately estimate recreational catch and
effort;
(ii) use of surveys that target anglers registered or licensed at the State or Federal
level to collect participation and effort data;
(iii) collection and analysis of vessel trip report data from charter fishing vessels;
(iv) development of a weather corrective factor that can be applied to recreational
catch and effort estimates; and
(v) an independent committee composed of recreational fishermen, academics,
persons with expertise in stock assessments and survey design, and appropriate
personnel from the National Marine Fisheries Service to review the collection
estimates, geographic, and other variables related to dockside intercepts and to
identify deficiencies in recreational data collection, and possible correction measures.
(D) DEADLINE.—The Secretary shall complete the program under this paragraph
and implement the improved Marine Recreational Fishery Statistics Survey not later than
January 1, 2009.
(4) REPORT.—Within 24 months after establishment of the program, the Secretary shall
submit a report to Congress that describes the progress made toward achieving the goals and
objectives of the program.
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16 U.S.C. 1881a
MSA § 402
104-297
SEC. 402. INFORMATION COLLECTION
16 U.S.C. 1881a
109-479
(a) COLLECTION PROGRAMS.—
(1) COUNCIL REQUESTS.—If a Council determines that additional information would
be beneficial for developing, implementing, or revising a fishery management plan or for
determining whether a fishery is in need of management, the Council may request that the
Secretary implement an information collection program for the fishery which would provide
the types of information specified by the Council. The Secretary shall undertake such an
information collection program if he determines that the need is justified, and shall
promulgate regulations to implement the program within 60 days after such determination is
made. If the Secretary determines that the need for an information collection program is not
justified, the Secretary shall inform the Council of the reasons for such determination in
writing. The determinations of the Secretary under this paragraph regarding a Council
request shall be made within a reasonable period of time after receipt of that request.
(2) SECRETARIAL INITIATION.—If the Secretary determines that additional
information is necessary for developing, implementing, revising, or monitoring a fishery
management plan, or for determining whether a fishery is in need of management, the
Secretary may, by regulation, implement an information collection or observer program
requiring submission of such additional information for the fishery.
109-479
(b) CONFIDENTIALITY OF INFORMATION.—
(1) Any information submitted to the Secretary, a State fishery management agency, or a
marine fisheries commission by any person in compliance with the requirements of this Act
shall be confidential and shall not be disclosed except—
(A) to Federal employees and Council employees who are responsible for fishery
management plan development, monitoring, or enforcement;
(B) to State or Marine Fisheries Commission employees as necessary to further the
Department’s mission, subject to a confidentiality agreement that prohibits public
disclosure of the identity of business of any person;
(C) to State employees who are responsible for fishery management plan
enforcement, if the States employing those employees have entered into a fishery
enforcement agreement with the Secretary and the agreement is in effect;
(D) when required by court order;
(E) when such information is used by State, Council, or Marine Fisheries
Commission employees to verify catch under a limited access program, but only to the
extent that such use is consistent with subparagraph (B);
(F) when the Secretary has obtained written authorization from the person submitting
such information to release such information to persons for reasons not otherwise
provided for in this subsection, and such release does not violate other requirements of
this Act;
(G) when such information is required to be submitted to the Secretary for any
determination under a limited access program; or
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MSA § 402
(H) in support of homeland and national security activities, including the Coast
Guard’s homeland security missions as defined in section 888(a)(2) of the Homeland
Security Act of 2002 (6 U.S.C. 468(a)(2)).
(2) Any observer information shall be confidential and shall not be disclosed, except in
accordance with the requirements of subparagraphs (A) through (H) of paragraph (1), or—
(A) as authorized by a fishery management plan or regulations under the authority of
the North Pacific Council to allow disclosure to the public of weekly summary bycatch
information identified by vessel or for haul-specific bycatch information without vessel
identification;
(B) when such information is necessary in proceedings to adjudicate observer
certifications; or
(C) as authorized by any regulations issued under paragraph (3) allowing the
collection of observer information, pursuant to a confidentiality agreement between the
observers, observer employers, and the Secretary prohibiting disclosure of the
information by the observers or observer employers, in order—
(i) to allow the sharing of observer information among observers and between
observers and observer employers as necessary to train and prepare observers for
deployments on specific vessels; or
(ii) to validate the accuracy of the observer information collected.
(3) The Secretary shall, by regulation, prescribe such procedures as may be necessary to
preserve the confidentiality of information submitted in compliance with any requirement or
regulation under this Act, except that the Secretary may release or make public any such
information in any aggregate or summary form which does not directly or indirectly disclose
the identity or business of any person who submits such information. Nothing in this
subsection shall be interpreted or construed to prevent the use for conservation and
management purposes by the Secretary, or with the approval of the Secretary, the Council, of
any information submitted in compliance with any requirement or regulation under this Act
or the use, release, or publication of bycatch information pursuant to paragraph (2)(A).
(c) RESTRICTION ON USE OF CERTAIN INFORMATION.—
(1) The Secretary shall promulgate regulations to restrict the use, in civil enforcement or
criminal proceedings under this Act, the Marine Mammal Protection Act of 1972 (16 U.S.C.
1361 et seq.), and the Endangered Species Act (16 U.S.C. 1531 et seq.), of information
collected by voluntary fishery data collectors, including sea samplers, while aboard any
vessel for conservation and management purposes if the presence of such a fishery data
collector aboard is not required by any of such Acts or regulations thereunder.
(2) The Secretary may not require the submission of a Federal or State income tax return
or statement as a prerequisite for issuance of a permit until such time as the Secretary has
promulgated regulations to ensure the confidentiality of information contained in such return
or statement, to limit the information submitted to that necessary to achieve a demonstrated
conservation and management purpose, and to provide appropriate penalties for violation of
such regulations.
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16 U.S.C. 1881a-1881b
MSA §§ 402-403
(d) CONTRACTING AUTHORITY.—Notwithstanding any other provision of law, the
Secretary may provide a grant, contract, or other financial assistance on a sole-source basis to a
State, Council, or Marine Fisheries Commission for the purpose of carrying out information
collection or other programs if—
(1) the recipient of such a grant, contract, or other financial assistance is specified by
statute to be, or has customarily been, such State, Council, or Marine Fisheries Commission;
or
(2) the Secretary has entered into a cooperative agreement with such State, Council, or
Marine Fisheries Commission.
(e) RESOURCE ASSESSMENTS.—
(1) The Secretary may use the private sector to provide vessels, equipment, and services
necessary to survey the fishery resources of the United States when the arrangement will
yield statistically reliable results.
(2) The Secretary, in consultation with the appropriate Council and the fishing industry-(A) may structure competitive solicitations under paragraph (1) so as to compensate a
contractor for a fishery resources survey by allowing the contractor to retain for sale fish
harvested during the survey voyage;
(B) in the case of a survey during which the quantity or quality of fish harvested is not
expected to be adequately compensatory, may structure those solicitations so as to
provide that compensation by permitting the contractor to harvest on a subsequent
voyage and retain for sale a portion of the allowable catch of the surveyed fishery; and
(C) may permit fish harvested during such survey to count toward a vessel's catch
history under a fishery management plan if such survey was conducted in a manner that
precluded a vessel's participation in a fishery that counted under the plan for purposes of
determining catch history.
(3) The Secretary shall undertake efforts to expand annual fishery resource assessments
in all regions of the Nation.
104-297
SEC. 403. OBSERVERS
16 U.S.C. 1881b
(a) GUIDELINES FOR CARRYING OBSERVERS.—Within one year after the date of
enactment of the Sustainable Fisheries Act, the Secretary shall promulgate regulations, after
notice and opportunity for public comment, for fishing vessels that carry observers. The
regulations shall include guidelines for determining—
(1) when a vessel is not required to carry an observer on board because the facilities of
such vessel for the quartering of an observer, or for carrying out observer functions, are so
inadequate or unsafe that the health or safety of the observer or the safe operation of the
vessel would be jeopardized; and
(2) actions which vessel owners or operators may reasonably be required to take to render
such facilities adequate and safe.
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16 U.S.C. 1881b-1881c
MSA §§ 403-404
(b) TRAINING.—The Secretary, in cooperation with the appropriate States and the National
Sea Grant College Program, shall—
(1) establish programs to ensure that each observer receives adequate training in
collecting and analyzing the information necessary for the conservation and management
purposes of the fishery to which such observer is assigned;
(2) require that an observer demonstrate competence in fisheries science and statistical
analysis at a level sufficient to enable such person to fulfill the responsibilities of the
position;
(3) ensure that an observer has received adequate training in basic vessel safety; and
(4) make use of university and any appropriate private nonprofit organization training
facilities and resources, where possible, in carrying out this subsection.
(c) OBSERVER STATUS.—An observer on a vessel and under contract to carry out
responsibilities under this Act or the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361
et seq.) shall be deemed to be a Federal employee for the purpose of compensation under the
Federal Employee Compensation Act (5 U.S.C. 8101 et seq.).
104-297
SEC. 404 FISHERIES RESEARCH
16 U.S.C. 1881c
(a) IN GENERAL.—The Secretary shall initiate and maintain, in cooperation with the
Councils, a comprehensive program of fishery research to carry out and further the purposes,
policy, and provisions of this Act. Such program shall be designed to acquire knowledge and
information, including statistics, on fishery conservation and management and on the economics
and social characteristics of the fisheries.
(b) STRATEGIC PLAN.—Within one year after the date of enactment of the Sustainable
Fisheries Act, and at least every 3 years thereafter, the Secretary shall develop and publish in
the Federal Register a strategic plan for fisheries research for the 5 years immediately following
such publication. The plan shall—
(1) identify and describe a comprehensive program with a limited number of priority
objectives for research in each of the areas specified in subsection (c);
(2) indicate goals and timetables for the program described in paragraph (1);
(3) provide a role for commercial fishermen in such research, including involvement in
field testing;
(4) provide for collection and dissemination, in a timely manner, of complete and
accurate information concerning fishing activities, catch, effort, stock assessments, and other
research conducted under this section; and
(5) be developed in cooperation with the Councils and affected States, and provide for
coordination with the Councils, affected States, and other research entities.
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MSA §§ 404-405
(c) AREAS OF RESEARCH.—Areas of research are as follows:
(1) Research to support fishery conservation and management, including but not limited
to, biological research concerning the abundance and life history parameters of stocks of
fish, the interdependence of fisheries or stocks of fish, the identification of essential fish
habitat, the impact of pollution on fish populations, the impact of wetland and estuarine
degradation, and other factors affecting the abundance and availability of fish.
(2) Conservation engineering research, including the study of fish behavior and the
development and testing of new gear technology and fishing techniques to minimize bycatch
and any adverse effects on essential fish habitat and promote efficient harvest of target
species.
(3) Research on the fisheries, including the social, cultural, and economic relationships
among fishing vessel owners, crew, United States fish processors, associated shoreside labor,
seafood markets and fishing communities.
109-479
(4) Information management research, including the development of a fishery
information base and an information management system that will permit the full use of
information in the support of effective fishery conservation and management.
(d) PUBLIC NOTICE.—In developing the plan required under subsection (a), the Secretary
shall consult with relevant Federal, State, and international agencies, scientific and technical
experts, and other interested persons, public and private, and shall publish a proposed plan in
the Federal Register for the purpose of receiving public comment on the plan. The Secretary
shall ensure that affected commercial fishermen are actively involved in the development of the
portion of the plan pertaining to conservation engineering research. Upon final publication in
the Federal Register, the plan shall be submitted by the Secretary to the Committee on
Commerce, Science, and Transportation of the Senate and the Committee on Resources of the
House of Representatives.
104-297
SEC. 405. INCIDENTAL HARVEST RESEARCH
16 U.S.C. 1881d
(a) COLLECTION OF INFORMATION.—Within nine months after the date of enactment
of the Sustainable Fisheries Act, the Secretary shall, after consultation with the Gulf Council
and South Atlantic Council, conclude the collection of information in the program to assess the
impact on fishery resources of incidental harvest by the shrimp trawl fishery within the
authority of such Councils. Within the same time period, the Secretary shall make available to
the public aggregated summaries of information collected prior to June 30, 1994 under such
program.
(b) IDENTIFICATION OF STOCK.—The program concluded pursuant to subsection (a)
shall provide for the identification of stocks of fish which are subject to significant incidental
harvest in the course of normal shrimp trawl fishing activity.
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MSA § 405
(c) COLLECTION AND ASSESSMENT OF SPECIFIC STOCK INFORMATION.—For
stocks of fish identified pursuant to subsection (b), with priority given to stocks which (based
upon the best available scientific information) are considered to be overfished, the Secretary
shall conduct—
(1) a program to collect and evaluate information on the nature and extent (including the
spatial and temporal distribution) of incidental mortality of such stocks as a direct result of
shrimp trawl fishing activities;
(2) an assessment of the status and condition of such stocks, including collection of
information which would allow the estimation of life history parameters with sufficient
accuracy and precision to support sound scientific evaluation of the effects of various
management alternatives on the status of such stocks; and
(3) a program of information collection and evaluation for such stocks on the magnitude
and distribution of fishing mortality and fishing effort by sources of fishing mortality other
than shrimp trawl fishing activity.
(d) BYCATCH REDUCTION PROGRAM.—Not later than 12 months after the enactment
of the Sustainable Fisheries Act, the Secretary shall, in cooperation with affected interests, and
based upon the best scientific information available, complete a program to—
(1) develop technological devices and other changes in fishing operations necessary and
appropriate to minimize the incidental mortality of bycatch in the course of shrimp trawl
activity to the extent practicable, taking into account the level of bycatch mortality in the
fishery on November 28, 1990;
(2) evaluate the ecological impacts and the benefits and costs of such devices and
changes in fishing operations; and
(3) assess whether it is practicable to utilize bycatch which is not avoidable.
(e) REPORT TO CONGRESS.—The Secretary shall, within one year of completing the
programs required by this section, submit a detailed report on the results of such programs to
the Committee on Commerce, Science, and Transportation of the Senate and the Committee on
Resources of the House of Representatives.
(f) IMPLEMENTATION CRITERIA.—To the extent practicable, any conservation and
management measure implemented under this Act to reduce the incidental mortality of bycatch
in the course of shrimp trawl fishing shall be consistent with—
(1) measures applicable to fishing throughout the range in United States waters of the
bycatch species concerned; and
(2) the need to avoid any serious adverse environmental impacts on such bycatch species
or the ecology of the affected area.
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16 U.S.C. 1882
MSA § 406
104-297
SEC. 406 FISHERIES SYSTEMS RESEARCH
16 U.S.C. 1882
(a) ESTABLISHMENT OF PANEL.—Not later than 180 days after the date of enactment of
the Sustainable Fisheries Act, the Secretary shall establish an advisory panel under this Act to
develop recommendations to expand the application of ecosystem principles in fishery
conservation and management activities.
(b) PANEL MEMBERSHIP.—The advisory panel shall consist of not more than 20
individuals and include—
(1) individuals with expertise in the structures, functions, and physical and biological
characteristics of ecosystems; and
(2) representatives from the Councils, States, fishing industry, conservation
organizations, or others with expertise in the management of marine resources.
(c) RECOMMENDATIONS.—Prior to selecting advisory panel members, the Secretary
shall, with respect to panel members described in subsection (b)(1), solicit recommendations
from the National Academy of Sciences.
(d) REPORT.—Within 2 years after the date of enactment of this Act, the Secretary shall
submit to the Congress a completed report of the panel established under this section, which
shall include—
(1) an analysis of the extent to which ecosystem principles are being applied in fishery
conservation and management activities, including research activities;
(2) proposed actions by the Secretary and by the Congress that should be undertaken to
expand the application of ecosystem principles in fishery conservation and management;
and
(3) such other information as may be appropriate.
(e) PROCEDURAL MATTER.—The advisory panel established under this section shall be
deemed an advisory panel under section 302(g).
109-479
(f) REGIONAL ECOSYSTEM RESEARCH.—
(1) STUDY.—Within 180 days after the date of enactment of the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act of 2006, the Secretary, in
consultation with the Councils, shall undertake and complete a study on the state of the
science for advancing the concepts and integration of ecosystem considerations in regional
fishery management. The study should build upon the recommendations of the advisory
panel and include—
(A) recommendations for scientific data, information and technology requirements for
understanding ecosystem processes, and methods for integrating such information from a
variety of federal, state, and regional sources;
(B) recommendations for processes for incorporating broad stake holder participation;
(C) recommendations for processes to account for effects of environmental variation
on fish stocks and fisheries; and
158
16 U.S.C. 1882-1883
MSA §§ 406-407
(D) a description of existing and developing council efforts to implement ecosystem
approaches, including lessons learned by the councils.
(2) AGENCY TECHNICAL ADVICE AND ASSISTANCE, REGIONAL PILOT
PROGRAMS.—The Secretary is authorized to provide necessary technical advice and
assistance, including grants, to the Councils for the development and design of regional pilot
programs that build upon the recommendations of the advisory panel and, when completed,
the study.
104-297, 106-554
SEC. 407 GULF OF MEXICO RED SNAPPER RESEARCH
16 U.S.C. 1883
(a) INDEPENDENT PEER REVIEW.—
109-479
(1) Within 30 days of the date of enactment of the Sustainable Fisheries Act, the
Secretary shall initiate an independent peer review to evaluate—
(A) the accuracy and adequacy of fishery statistics used by the Secretary for the red
snapper fishery in the Gulf of Mexico to account for all commercial, recreational, and
charter fishing harvests and fishing effort on the stock;
(B) the appropriateness of the scientific methods, information, and models used by the
Secretary to assess the status and trends of the Gulf of Mexico red snapper stock and as
the basis for the fishery management plan for the Gulf of Mexico red snapper fishery;
(C) the appropriateness and adequacy of the management measures in the fishery
management plan for red snapper in the Gulf of Mexico for conserving and managing the
red snapper fishery under this Act; and
(D) the costs and benefits of all reasonable alternatives to a limited access privilege
program for the red snapper fishery in the Gulf of Mexico.
(2) The Secretary shall ensure that commercial, recreational, and charter fishermen in the
red snapper fishery in the Gulf of Mexico are provided an opportunity to—
(A) participate in the peer review under this subsection; and
(B) provide information to the Secretary concerning the review of fishery statistics
under this subsection without being subject to penalty under this Act or other applicable
law for any past violation of a requirement to report such information to the Secretary.
(3) The Secretary shall submit a detailed written report on the findings of the peer review
conducted under this subsection to the Gulf Council no later than one year after the date of
enactment of the Sustainable Fisheries Act.
159
16 U.S.C. 1883
MSA § 407
(b) PROHIBITION.—In addition to the restrictions under section 303(d)(1)(A), the Gulf
Council may not, prior to October 1, 2002, undertake or continue the preparation of any fishery
management plan, plan amendment or regulation under this Act for the Gulf of Mexico
commercial red snapper fishery that creates an individual fishing quota program or that
authorizes the consolidation of licenses, permits, or endorsements that result in different trip
limits for vessels in the same class.
(c) REFERENDUM.—
109-479
(1) On or after October 1, 2002, the Gulf Council may prepare and submit a fishery
management plan, plan amendment, or regulation for the Gulf of Mexico commercial red
snapper fishery that creates a limited access privilege program or that authorizes the
consolidation of licenses, permits, or endorsements that result in different trip limits for
vessels in the same class, only if the preparation of such plan, amendment, or regulation is
approved in a referendum conducted under paragraph (2) and only if the submission to the
Secretary of such plan, amendment, or regulation is approved in a subsequent referendum
conducted under paragraph (2).
(2) The Secretary, at the request of the Gulf Council, shall conduct referendums under
this subsection. Only a person who held an annual vessel permit with a red snapper
endorsement for such permit on September 1, 1996 (or any person to whom such permit with
such endorsement was transferred after such date) and vessel captains who harvested red
snapper in a commercial fishery using such endorsement in each red snapper fishing season
occurring between January 1, 1993, and such date may vote in a referendum under this
subsection. The referendum shall be decided by a majority of the votes cast. The Secretary
shall develop a formula to weigh votes based on the proportional harvest under each such
permit and endorsement and by each such captain in the fishery between January 1, 1993,
and September 1, 1996. Prior to each referendum, the Secretary, in consultation with the
Council, shall—
(A) identify and notify all such persons holding permits with red snapper
endorsements and all such vessel captains; and
(B) make available to all such persons and vessel captains information about the
schedule, procedures, and eligibility requirements for the referendum and the proposed
individual fishing quota program.
(d) CATCH LIMITS.—Any fishery management plan, plan amendment, or regulation
submitted by the Gulf Council for the red snapper fishery after the date of enactment of the
Sustainable Fisheries Act shall contain conservation and management measures that-(1) establish separate quotas for recreational fishing (which, for the purposes of this
subsection shall include charter fishing) and commercial fishing that, when reached, result in
a prohibition on the retention of fish caught during recreational fishing and commercial
fishing, respectively, for the remainder of the fishing year; and
(2) ensure that such quotas reflect allocations among such sectors and do not reflect any
harvests in excess of such allocations.
160
16 U.S.C. 1884
MSA § 408
109-479
SEC. 408. DEEP SEA CORAL RESEARCH AND
TECHNOLOGY PROGRAM.
16 U.S.C. 1884
(a) IN GENERAL.—The Secretary, in consultation with appropriate regional fishery
management councils and in coordination with other federal agencies and educational
institutions, shall, subject to the availability of appropriations, establish a program—
(1) to identify existing research on, and known locations of, deep sea corals and submit
such information to the appropriate Councils;
(2) to locate and map locations of deep sea corals and submit such information to the
Councils;
(3) to monitor activity in locations where deep sea corals are known or likely to occur,
based on best scientific information available, including through underwater or remote
sensing technologies and submit such information to the appropriate Councils;
(4) to conduct research, including cooperative research with fishing industry participants,
on deep sea corals and related species, and on survey methods;
(5) to develop technologies or methods designed to assist fishing industry participants in
reducing interactions between fishing gear and deep sea corals; and
(6) to prioritize program activities in areas where deep sea corals are known to occur, and
in areas where scientific modeling or other methods predict deep sea corals are likely to be
present.
(b) REPORTING.—Beginning 1 year after the date of enactment of the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act of 2006, the Secretary, in
consultation with the Councils, shall submit biennial reports to Congress and the public on steps
taken by the Secretary to identify, monitor, and protect deep sea coral areas, including
summaries of the results of mapping, research, and data collection performed under the
program.
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P.L. 109-479, sec. 106(c)
16 U.S.C. 1891
INVESTMENT IN UNITED STATES SEAFOOD PROCESSING FACILITIES.—The Secretary of
Commerce shall work with the Small Business Administration and other Federal agencies to develop
financial and other mechanisms to encourage United States investment in seafood processing facilities in
the United States for fisheries that lack capacity needed to process fish harvested by United States vessels
in compliance with the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et
seq.).
P.L. 109-479, sec. 117
16 U.S.C. 1891a
COMMUNITY-BASED RESTORATION PROGRAM FOR FISHERY AND COASTAL
HABITATS.
(a) IN GENERAL.—The Secretary of Commerce shall establish a community-based fishery and
coastal habitat restoration program to implement and support the restoration of fishery and coastal
habitats.
(b) AUTHORIZED ACTIVITIES.—In carrying out the program, the Secretary may—
(1) provide funding and technical expertise to fishery and coastal communities to assist them in
restoring fishery and coastal habitat;
(2) advance the science and monitoring of coastal habitat restoration;
(3) transfer restoration technologies to the private sector, the public, and other governmental
agencies;
(4) develop public-private partnerships to accomplish sound coastal restoration projects;
(5) promote significant community support and volunteer participation in fishery and coastal
habitat restoration;
(6) promote stewardship of fishery and coastal habitats; and
(7) leverage resources through national, regional, and local public-private partnerships.
P.L. 109-479, sec. 208
16 U.S.C. 1891b
FISHERIES CONSERVATION AND MANAGEMENT FUND.
(a) IN GENERAL.—The Secretary shall establish and maintain a fund, to be known as the ‘‘Fisheries
Conservation and Management Fund’’, which shall consist of amounts retained and deposited into the
Fund under subsection (c).
(b) PURPOSES.—Subject to the allocation of funds described in subsection (d), amounts in the Fund
shall be available to the Secretary of Commerce, without appropriation or fiscal year limitation, to
disburse as described in subsection (e) for—
(1) efforts to improve fishery harvest data collection including—
(A) expanding the use of electronic catch reporting programs and technology; and
(B) improvement of monitoring and observer coverage through the expanded use of electronic
monitoring devices and satellite tracking systems such as VMS on small vessels;
(2) cooperative fishery research and analysis, in collaboration with fishery participants, academic
institutions, community residents, and other interested parties;
(3) development of methods or new technologies to improve the quality, health safety, and value of
fish landed;
(4) conducting analysis of fish and seafood for health benefits and risks, including levels of
contaminants and, where feasible, the source of such contaminants;
(5) marketing of sustainable United States fishery products, including consumer education
regarding the health or other benefits of wild fishery products harvested by vessels of the United
States;
(6) improving data collection under the Marine Recreational Fishery Statistics Survey in
accordance with section 401(g)(3) of the Magnuson-Stevens Fishery Conservation and Management
Act (16 U.S.C. 1881(g)(3)); and
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(7) providing financial assistance to fishermen to offset the costs of modifying fishing practices and
gear to meet the requirements of this Act, the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1801 et seq.), and other Federal laws in pari materia.
(c) DEPOSITS TO THE FUND.—
(1) QUOTA SET-ASIDES.—Any amount generated through quota set-asides established by a
Council under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et
seq.) and designated by the Council for inclusion in the Fishery Conservation and Management Fund,
may be deposited in the Fund.
(2) OTHER FUNDS.—In addition to amounts received pursuant to paragraph (1) of this
subsection, the Fishery Conservation and Management Fund may also receive funds from—
(A) appropriations for the purposes of this section; and
(B) States or other public sources or private or nonprofit organizations for purposes of this
section.
(d) REGIONAL ALLOCATION.—The Secretary shall, every 2 years, apportion monies from the
Fund among the eight Council regions according to recommendations of the Councils, based on regional
priorities identified through the Council process, except that no region shall receive less than 5 percent of
the Fund in each allocation period.
(e) LIMITATION ON THE USE OF THE FUND.—No amount made available from the Fund may be
used to defray the costs of carrying out requirements of this Act or the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1801 et seq.) other than those uses identified in this
section.
P.L. 109-479, sec. 407
16 U.S.C. 1891c
UNITED STATES CATCH HISTORY.
In establishing catch allocations under international fisheries agreements, the Secretary, in consultation
with the Secretary of the Department in which the Coast Guard is operating, and the Secretary of State,
shall ensure that all catch history associated with a vessel of the United States remains with the United
States and is not transferred or credited to any other nation or vessel of such nation, including when a
vessel of the United States is sold or transferred to a citizen of another nation or to an entity controlled by
citizens of another nation.
P.L. 109-479, sec. 408
16 U.S.C. 1891d
SECRETARIAL REPRESENTATIVE FOR INTERNATIONAL FISHERIES.
(a) IN GENERAL.—The Secretary, in consultation with the Under Secretary of Commerce for Oceans
and Atmosphere, shall designate a Senate-confirmed, senior official within the National Oceanic and
Atmospheric Administration to perform the duties of the Secretary with respect to international
agreements involving fisheries and other living marine resources, including policy development and
representation as a U.S. Commissioner, under any such international agreements.
(b) ADVICE.—The designated official shall, in consultation with the Deputy Assistant Secretary for
International Affairs and the Administrator of the National Marine Fisheries Service, advise the Secretary,
Undersecretary of Commerce for Oceans and Atmosphere, and other senior officials of the Department of
Commerce and the National Oceanic and Atmospheric Administration on development of policy on
international fisheries conservation and management matters.
(c) CONSULTATION.—The designated official shall consult with the Senate Committee on
Commerce, Science, and Transportation and the House Committee on Resources on matters pertaining to
any regional or international negotiation concerning living marine resources, including shellfish.
(d) DELEGATION.—The designated official may delegate and authorize successive re-delegation of
such functions, powers, and duties to such officers and employees of the National Oceanic and
Atmospheric Administration as deemed necessary to discharge the responsibility of the Office.
(e) EFFECTIVE DATE.—This section shall take effect on January 1, 2009.
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P.L. 109-479, sec. 111(b) [uncodified]
REPORT.—Within 15 months after the date of enactment of this Act, the National Marine Fisheries
Service and the United States Coast Guard shall transmit a joint report to the Senate Committee on
Commerce, Science, and Transportation and the House of Representatives Committee on Resources
containing—
(1) a cost-to-benefit analysis of the feasibility, value, and cost of using vessel monitoring systems,
satellite-based maritime distress and safety systems, or similar systems for fishery management,
conservation, enforcement, and safety purposes with the Federal government bearing the capital costs of
any such system;
(2) an examination of the cumulative impact of existing requirements for commercial vessels;
(3) an examination of whether satellite-based maritime distress and safety systems, or similar
requirements would overlap existing requirements or render them redundant;
(4) an examination of how data integration from such systems could be addressed;
(5) an examination of how to maximize the data-sharing opportunities between relevant State and
Federal agencies and provide specific information on how to develop these opportunities, including the
provision of direct access to satellite-based maritime distress and safety system or similar system data to
State enforcement officers, while considering the need to maintain or provide an appropriate level of
individual vessel confidentiality where practicable; and
(6) an assessment of how the satellite-based maritime distress and safety system or similar systems
could be developed, purchased, and distributed to regulated vessels.
P.L. 109-479, sec. 113(b)
16 U.S.C. 460ss note
SALMON PLAN AND STUDY.—
(1) RECOVERY PLAN.—Not later than 6 months after the date of enactment of this Act, the
Secretary of Commerce shall complete a recovery plan for Klamath River Coho salmon and make it
available to the public.
(2) ANNUAL REPORT.—Not later than 2 years after the date of enactment of this Act, and annually
thereafter, the Secretary of Commerce shall submit a report to the Senate Committee on Commerce,
Science, and Transportation and the House of Representatives Committee on Resources on—
(A) the actions taken under the recovery plan and other law relating to recovery of Klamath River
Coho salmon, and how those actions are specifically contributing to its recovery;
(B) the progress made on the restoration of salmon spawning habitat, including water conditions as
they relate to salmon health and recovery, with emphasis on the Klamath River and its tributaries
below Iron Gate Dam;
(C) the status of other Klamath River anadromous fish populations, particularly Chinook salmon;
and
(D) the actions taken by the Secretary to address the calendar year 2003 National Research Council
recommendations regarding monitoring and research on Klamath River Basin salmon stocks.
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P.L. 109-479, sec. 113(c) [uncodified]
OREGON AND CALIFORNIA SALMON FISHERY.—Federally recognized Indian tribes and small
businesses, including fishermen, fish processors, and related businesses serving the fishing industry,
adversely affected by Federal closures and fishing restrictions in the Oregon and California 2006 fall
Chinook salmon fishery are eligible to receive direct assistance under section 312(a) of the MagnusonStevens Fishery Conservation and Management Act (16 U.S.C. 1861a(a)) and section 308(d) of the
Interjurisdictional Fisheries Act of 1986 (16 U.S.C. 4107(d)). The Secretary may use no more than 4
percent of any monetary assistance to pay for administrative costs.
P.L. 109-479, sec. 114 [uncodified]
FISHERY FINANCE PROGRAM HURRICANE ASSISTANCE.
(a) LOAN ASSISTANCE.—Subject to availability of appropriations, the Secretary of Commerce shall
provide assistance to eligible holders of fishery finance program loans and allocate such assistance among
eligible holders based upon their outstanding principal balances as of December 2, 2005, for any of the
following purposes:
(1) To defer principal payments on the debt for 1 year and re-amortize the debt over the remaining
term of the loan.
(2) To allow for an extension of the term of the loan for up to 1 year beyond the remaining term of
the loan, or September 30, 2013, whichever is later.
(3) To pay the interest costs for such loans over fiscal years 2007 through 2013, not to exceed
amounts authorized under subsection (d).
(4) To provide opportunities for loan forgiveness, as specified in subsection (c).25
(b) LOAN FORGIVENESS.—Upon application made by an eligible holder of a fishery finance
program loan, made at such time, in such manner, and containing such information as the Secretary may
require, the Secretary, on a calendar year basis beginning in 2005, may, with respect to uninsured
losses—
(1) offset against the outstanding balance on the loan an amount equal to the sum of the amounts
expended by the holder during the calendar year to repair or replace covered vessels or facilities, or to
invest in new fisheries infrastructure within or for use within the declared fisheries disaster area; or
(2) cancel the amount of debt equal to 100 hundred percent of actual expenditures on eligible
repairs, reinvestment, expansion, or new investment in fisheries infrastructure in the disaster region, or
repairs to, or replacement of, eligible fishing vessels.
(c) DEFINITIONS.—In this section:
(1) DECLARED FISHERIES DISASTER AREA.—The term ‘‘declared fisheries disaster area’’
means fisheries located in the major disaster area designated by the President under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.) as a result of
Hurricane Katrina or Hurricane Rita.
(2) ELIGIBLE HOLDER.—The term ‘‘eligible holder’’ means the holder of a fishery finance
program loan if—
25
The editors assume Congress intended to refer to subsection (b).
165
Appendix
(A) that loan is[sic]26 used to guarantee or finance any fishing vessel or fish processing facility
home-ported or located within the declared fisheries disaster area; and
(B) the holder makes expenditures to repair or replace such covered vessels or facilities, or
invests in new fisheries infrastructure within or for use within the declared fisheries disaster area,
to restore such facilities following the disaster.
(3) FISHERY FINANCE PROGRAM LOAN.—The term ‘‘fishery finance program loan’’ means a
loan made or guaranteed under the fishery finance program under chapter 537 of title 46, United States
Code.
(d) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the
Secretary of Commerce for the purposes of this section not more than $15,000,000 for each eligible
holder for the period beginning with fiscal year 2007 through fiscal year 2013.
P.L. 109-479, sec. 120 [uncodified]
CLARIFICATION OF FLEXIBILITY.
(a) IN GENERAL.—The Secretary of Commerce has the discretion under the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1851 et seq.) to extend the time for rebuilding the
summer flounder fishery to not later than January 1, 2013, only if—
(1) the Secretary has determined that—
(A) overfishing is not occurring in the fishery and that a mechanism is in place to ensure
overfishing does not occur in the fishery; and
(B) stock biomass levels are increasing;
(2) the biomass rebuilding target previously applicable to such stock will be met or exceeded
within the new time for rebuilding;
(3) the extension period is based on the status and biology of the stock and the rate of rebuilding;
(4) monitoring will ensure rebuilding continues;
(5) the extension meets the requirements of section 301(a)(1) of that Act (16 U.S.C. 1851(a)(1));
and
(6) the best scientific information available shows that the extension will allow continued
rebuilding.
(b) AUTHORITY.—Nothing in this section shall be construed to amend the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1851 et seq.) or to limit or otherwise alter the
authority of the Secretary under that Act concerning other species.
P.L. 109-479, sec. 122 [uncodified]
CONVERSION TO CATCHER/PROCESSOR SHARES.
(a) IN GENERAL.—
(1) AMENDMENT OF PLAN.—Not later than 90 days after the date of enactment of this Act, the
Secretary of Commerce shall amend the fishery management plan for the Bering Sea/Aleutian Islands
King and Tanner Crabs for the Northern Region (as that term is used in the plan) to authorize—
(A) an eligible entity holding processor quota shares to elect on an annual basis to work
together with other entities holding processor quota shares and affiliated with such eligible entity
through common ownership to combine any catcher vessel quota shares for the Northern Region
with their processor quota shares and to exchange them for newly created catcher/processor owner
quota shares for the Northern Region; and
26
The editors assume Congress intended this to read “was”.
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Appendix
(B) an eligible entity holding catcher vessel quota shares to elect on an annual basis to work
together with other entities holding catcher vessel quota shares and affiliated with such eligible
entity through common ownership to combine any processor quota shares for the Northern Region
with their catcher vessel quota shares and to exchange them for newly created catcher/processor
owner quota shares for the Northern Region.
(2) ELIGIBILITY AND LIMITATIONS.—
(A) The authority provided in paragraph (1)(A) shall—
(i)(I) apply only to an entity which was initially awarded both catcher/processor owner
quota shares, and processor quota shares under the plan (in combination with the processor
quota shares of its commonly owned affiliates) of less than 7 percent of the Bering
Sea/Aleutian Island processor quota shares; or
(II) apply only to an entity which was initially awarded both catcher/processor owner
quota shares under the plan and processor quota shares under section 417(a) of the Coast
Guard and Maritime Transportation Act of 2006 (Public Law 109–241; 120 Stat. 546);
(ii) be limited to processor quota shares initially awarded to such entities and their
commonly owned affiliates under the plan or section 417(a) of that Act; and
(iii) shall not exceed 1 million pounds per entity during any calendar year.
(B) The authority provided in paragraph (1)(B) shall—
(i) apply only to an entity which was initially awarded both catcher/processor owner quota
shares, and processor quota shares under the plan (in combination with the processor quota
shares of its commonly owned affiliates) of more than 7 percent of the Bering Sea/Aleutian
Island processor quota shares;
(ii) be limited to catcher vessel quota shares initially awarded to such entity and its
commonly owned affiliates; and
(iii) shall not exceed 1 million pounds per entity during any calendar year.
(3) EXCHANGE RATE.—The entities referred to in paragraph (1) shall receive under the
amendment 1 unit of newly created catcher/processor owner quota shares in exchange for 1 unit
of catcher vessel owner quota shares and 0.9 units of processor quota shares.
(4) AREA OF VALIDITY.—Each unit of newly created catcher/processor owner quota shares
under this subsection shall only be valid for the Northern Region.
(b) FEES.—
(1) LOCAL FEES.—The holder of the newly created catcher/processor owner quota shares under
subsection (a) shall pay a fee of 5 percent of the ex-vessel value of the crab harvested pursuant to
those shares to any local governmental entities in the Northern Region if the processor quota shares
used to produce those newly created catcher/processor owner quota shares were originally derived
from the processing activities that occurred in a community under the jurisdiction of those local
governmental entities.
(2) STATE FEE.—The State of Alaska may collect from the holder of the newly created
catcher/processor owner quota shares under subsection (a) a fee of 1 percent of the ex-vessel value of
the crab harvested pursuant to those shares.
(c) OFF-LOADING REQUIREMENT.—Crab harvested pursuant to catcher/processor owner quota
shares created under this subsection shall be off-loaded in those communities receiving the local
governmental entities fee revenue set forth in subsection (b)(1).
(d) PERIODIC COUNCIL REVIEW.—As part of its periodic review of the plan, the North Pacific
Fishery Management Council may review the effect, if any, of this subsection upon communities in the
Northern Region. If the Council determines that this section adversely affects the communities, the
Council may recommend to the Secretary of Commerce, and the Secretary may approve, such changes to
the plan as are necessary to mitigate those adverse effects.
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(e) USE CAPS.—
(1) IN GENERAL.—Notwithstanding sections 680.42(b)(ii)(2) and 680.7(a)(ii)(7) of title 50, Code
of Federal Regulations, custom processing arrangements shall not count against any use cap for the
processing of opilio crab in the Northern Region so long as such crab is processed in the Northern
Region by a shore-based crab processsor.
(2) SHORE-BASED CRAB PROCESSOR DEFINED.—In this paragraph, the term ‘‘shore-based
crab processor’’ means any person or vessel that receives, purchases, or arranges to purchase
unprocessed crab, that is located on shore or moored within the harbor.
P.L. 109-479, sec. 212 [uncodified]
IMPACT OF TURTLE EXCLUDER DEVICES ON SHRIMPING.
(a) IN GENERAL.—The Undersecretary of Commerce for Oceans and Atmosphere shall execute an
agreement with the National Academy of Sciences to conduct, jointly, a multi-year, comprehensive inwater study designed—
(1) to measure accurately the efforts and effects of shrimp fishery efforts to utilize turtle excluder
devices;
(2) to analyze the impact of those efforts on sea turtle mortality, including interaction between
turtles and shrimp trawlers in the inshore, nearshore, and offshore waters of the Gulf of Mexico and
similar geographical locations in the waters of the Southeastern United States; and
(3) to evaluate innovative technologies to increase shrimp retention in turtle excluder devices while
ensuring the protection of endangered and threatened sea turtles.
(b) OBSERVERS.—In conducting the study, the Undersecretary shall ensure that observers are placed
onboard commercial shrimp fishing vessels where appropriate or necessary.
(c) INTERIM REPORTS.—During the course of the study and until a final report is submitted to the
Senate Committee on Commerce, Science, and Transportation and the House of Representatives
Committee on Resources, the National Academy of Sciences shall transmit interim reports to the
Committees biannually containing a summary of preliminary findings and conclusions from the study.
P.L. 109-479, sec. 213 [uncodified]
HURRICANE EFFECTS ON COMMERCIAL AND RECREATION FISHERY HABITATS.
(a) FISHERIES REPORT.—Within 180 days after the date of enactment of this Act, the Secretary of
Commerce shall transmit a report to the Senate Committee on Commerce, Science, and Transportation
and the House of Representatives Committee on Resources on the impact of Hurricane Katrina, Hurricane
Rita, and Hurricane Wilma on—
(1) commercial and recreational fisheries in the States of Alabama, Louisiana, Florida, Mississippi,
and Texas;
(2) shrimp fishing vessels in those States; and
(3) the oyster industry in those States.
(b) HABITAT REPORT.—Within 180 days after the date of enactment of this Act, the Secretary of
Commerce shall transmit a report to the Senate Committee on Commerce, Science, and Transportation
and the House of Representatives Committee on Resources on the impact of Hurricane Katrina, Hurricane
Rita, and Hurricane Wilma on habitat, including the habitat of shrimp and oysters in those States.
(c) HABITAT RESTORATION.—The Secretary shall carry out activities to restore fishery habitats,
including the shrimp and oyster habitats in Louisiana and Mississippi.
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P.L. 109-479, sec. 215 [uncodified]
NEW ENGLAND GROUNDFISH FISHERY.
(a) REVIEW.—The Secretary of Commerce shall conduct a unique, thorough examination of the
potential impact on all affected and interested parties of Framework 42 to the Northeast Multispecies
Fishery Management Plan.
(b) REPORT.—The Secretary shall report the Secretary’s findings under subsection (a) within 30 days
after the date of enactment of this Act. The Secretary shall include in the report a detailed discussion of
each of the following:
(1) The economic and social implications for affected parties within the fishery, including potential
losses to infrastructure, expected from the imposition of Framework 42.
(2) The estimated average annual income generated by fishermen in New England, separated by
State and vessel size, and the estimated annual income expected after the imposition of Framework 42.
(3) Whether the differential days-at-sea counting imposed by Framework 42 would result in a
reduction in the number of small vessels actively participating in the New England Fishery.
(4) The percentage and approximate number of vessels in the New England fishery, separated by
State and vessel type, that are incapable of fishing outside the areas designated in Framework 42 for
differential days-at-sea counting.
(5) The percentage of the annual groundfish catch in the New England fishery that is harvested by
small vessels.
(6) The current monetary value of groundfish permits in the New England fishery and the actual
impact that the potential imposition of Framework 42 is having on such value.
(7) Whether permitting days-at-sea to be leased is altering the market value for groundfish permits
or days-at-sea in New England.
(8) Whether there is a substantially high probability that the biomass targets used as a basis for
Amendment 13 remain achievable.
(9) An identification of the year in which the biomass targets used as a basis for Amendment 13
were last evident or achieved, and the evidence used to determine such date.
(10) Any separate or non-fishing factors, including environmental factors, that may be leading to a
slower rebuilding of groundfish than previously anticipated.
(11) The potential harm to the non-fishing environment and ecosystem from the reduction in
fishing resulting from Framework 42 and the potential redevelopment of the coastal land for other
purposes, including potential for increases in non-point source of pollution and other impacts.
P.L. 109-479, sec. 216 [uncodified]
REPORT ON COUNCIL MANAGEMENT COORDINATION.
The Mid-Atlantic Fishery Council, in consultation with the New England Fishery Council, shall submit a
report to the Senate Committee on Commerce, Science, and Transportation within 9 months after the date
of enactment of this Act—
(1) describing the role of council liaisons between the Mid-Atlantic and New England Councils,
including an explanation of council policies regarding the liaison’s role in Council decision-making since
1996;
(2) describing how management actions are taken regarding the operational aspects of current joint
fishery management plans, and how such joint plans may undergo changes through amendment or
framework processes;
(3) evaluating the role of the New England Fishery Council and the Mid-Atlantic Fishery Council
liaisons in the development and approval of management plans for fisheries in which the liaisons or
members of the non-controlling Council have a demonstrated interest and significant current and
historical landings of species managed by either Council;
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Appendix
(4) evaluating the effectiveness of the various approaches developed by the Councils to improve
representation for affected members of the non-controlling Council in Council decision-making, such as
use of liaisons, joint management plans, and other policies, taking into account both the procedural and
conservation requirements of the Magnuson-Stevens Fishery Conservation and Management Act; and
(5) analyzing characteristics of North Carolina and Florida that supported their inclusion as voting
members of more than one Council and the extent to which those characteristics support Rhode Island’s
inclusion on a second Council (the Mid-Atlantic Council).
P.L. 109-479, sec. 217 [uncodified]
STUDY OF SHORTAGE IN THE NUMBER OF INDIVIDUALS WITH POST-
BACCALAUREATE DEGREES IN SUBJECTS RELATED TO FISHERY SCIENCE.
(a) IN GENERAL.—The Secretary of Commerce and the Secretary of Education shall collaborate to
conduct a study of—
(1) whether there is a shortage in the number of individuals with post-baccalaureate degrees in
subjects related to fishery science, including fishery oceanography, fishery ecology, and fishery
anthropology, who have the ability to conduct high quality scientific research in fishery stock
assessment, fishery population dynamics, and related fields, for government, nonprofit, and private
sector entities;
(2) what Federal programs are available to help facilitate the education of students hoping to
pursue these degrees; and
(3) what institutions of higher education, the private sector, and the Congress could do to try to
increase the number of individuals with such post-baccalaureate degrees.
(b) REPORT.—Not later than 8 months after the date of enactment of this Act, the Secretaries of
Commerce and Education shall transmit a report to each committee of Congress with jurisdiction over the
programs referred to in subsection (a), detailing the findings and recommendations of the study under this
section.
P.L. 109-479, sec. 302(f) [uncodified]
PACIFIC FISHERY MANAGEMENT COUNCIL.—
(1) IN GENERAL.—The Pacific Fishery Management Council shall develop a proposal for the
appropriate rationalization program for the Pacific trawl groundfish and whiting fisheries, including the
shore-based sector of the Pacific whiting fishery under its jurisdiction. The proposal may include only the
Pacific whiting fishery, including the shore-based sector, if the Pacific Council determines that a
rationalization plan for the fishery as a whole cannot be achieved before the report is required to be
submitted under paragraph (3).
(2) REQUIRED ANALYSIS.—In developing the proposal to rationalize the fishery, the Pacific
Council shall fully analyze alternative program designs, including the allocation of limited access
privileges to harvest fish to fishermen and processors working together in regional fishery associations or
some other cooperative manner to harvest and process the fish, as well as the effects of these program
designs and allocations on competition and conservation. The analysis shall include an assessment of the
impact of the proposal on conservation and the economics of communities, fishermen, and processors
participating in the trawl groundfish fisheries, including the shore-based sector of the Pacific whiting
fishery.
(3) REPORT.—The Pacific Council shall submit the proposal and related analysis to the Senate
Committee on Commerce, Science, and Transportation and the House of Representatives Committee on
Resources no later than 24 months after the date of enactment of this Act.
P.L. 109-479, sec. 701 [uncodified]
STUDY OF THE ACIDIFICATION OF THE OCEANS AND EFFECT ON FISHERIES.
The Secretary of Commerce shall request the National Research Council to conduct a study of the
acidification of the oceans and how this process affects the United States.
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