16 U.S.C.
United States Code, 2011 Edition
Title 16 - CONSERVATION
CHAPTER 38 - FISHERY CONSERVATION AND MANAGEMENT
From the U.S. Government Printing Office, www.gpo.gov

CHAPTER 38—FISHERY CONSERVATION AND MANAGEMENT

SUBCHAPTER I—GENERALLY

Sec.
1801.
Findings, purposes and policy.
1802.
Definitions.
1803.
Authorization of appropriations.

        

SUBCHAPTER II—UNITED STATES RIGHTS AND AUTHORITY REGARDING FISH AND FISHERY RESOURCES

1811.
United States sovereign rights to fish and fishery management authority.
1812.
Highly migratory species.
1813.
Omitted.

        

SUBCHAPTER III—FOREIGN FISHING AND INTERNATIONAL FISHERY AGREEMENTS

1821.
Foreign fishing.
1822.
International fishery agreements.
1823.
Congressional oversight of international fishery agreements.
1824.
Permits for foreign fishing.
1825.
Import prohibitions.
1826.
Large-scale driftnet fishing.
1826a.
Denial of port privileges and sanctions for high seas large-scale driftnet fishing.
1826b.
Duration of denial of port privileges and sanctions.
1826c.
Definitions.
1826d.
Prohibition.
1826e.
Negotiations.
1826f.
Certification.
1826g.
Enforcement.
1826h.
Biennial report on international compliance.
1826i.
Action to strengthen international fishery management organizations.
1826j.
Illegal, unreported, or unregulated fishing.
1826k.
Equivalent conservation measures.
1827.
Observer program regarding certain foreign fishing.
1828.
Foreign fishing incursions.
1829.
International monitoring and compliance.

        

SUBCHAPTER IV—NATIONAL FISHERY MANAGEMENT PROGRAM

1851.
National standards for fishery conservation and management.
1852.
Regional Fishery Management Councils.
1853.
Contents of fishery management plans.
1853a.
Limited access privilege programs.
1854.
Action by Secretary.
1855.
Other requirements and authority.
1856.
State jurisdiction.
1857.
Prohibited acts.
1858.
Civil penalties and permit sanctions.
1859.
Criminal offenses.
1860.
Civil forfeitures.
1861.
Enforcement.
1861a.
Transition to sustainable fisheries.
1861b.
Fisheries enforcement plans and reporting.
1862.
North Pacific fisheries conservation.
1863.
Northwest Atlantic Ocean Fisheries Reinvestment Program.
1864.
Regional coastal disaster assistance, transition, and recovery program.
1865.
Bycatch reduction engineering program.
1866.
Shark feeding.
1867.
Cooperative research and management program.
1868.
Herring study.
1869.
Restoration study.

        

SUBCHAPTER V—FISHERY MONITORING AND RESEARCH

1881.
Registration and information management.
1881a.
Information collection.
1881b.
Observers.
1881c.
Fisheries research.
1881d.
Incidental harvest research.
1882.
Fisheries systems research.
1883.
Gulf of Mexico red snapper research.
1884.
Deep sea coral research and technology program.

        

SUBCHAPTER VI—MISCELLANEOUS

1891.
Investment in United States seafood processing facilities.
1891a.
Community-based restoration program for fishery and coastal habitats.
1891b.
Fisheries Conservation and Management Fund.
1891c.
United States catch history.
1891d.
Secretarial representative for international fisheries.

        

SUBCHAPTER I—GENERALLY

§1801. Findings, purposes and policy

(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.

(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.

(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.

(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.

(8) The collection of reliable data is essential to the effective conservation, management, and scientific understanding of the fishery resources of the United States.

(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.

(10) Pacific Insular Areas contain unique historical, cultural, legal, political, and geographical circumstances which make fisheries resources important in sustaining their economic growth.

(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 chapter.

(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 chapter—

(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;

(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;

(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;

(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;

(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;

(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

(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 chapter—

(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 chapter;

(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 chapter;

(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 chapter;

(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;

(6) to foster and maintain the diversity of fisheries in the United States; and

(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.

(Pub. L. 94–265, §2, Apr. 13, 1976, 90 Stat. 331; Pub. L. 95–354, §2, Aug. 28, 1978, 92 Stat. 519; Pub. L. 96–561, title II, §233, Dec. 22, 1980, 94 Stat. 3299; Pub. L. 99–659, title I, §101(c)(1), Nov. 14, 1986, 100 Stat. 3707; Pub. L. 101–627, title I, §101, Nov. 28, 1990, 104 Stat. 4437; Pub. L. 102–251, title III, §301(a), Mar. 9, 1992, 106 Stat. 62; Pub. L. 104–297, title I, §101, Oct. 11, 1996, 110 Stat. 3560; Pub. L. 109–479, §3(a), title IV, §402, Jan. 12, 2007, 120 Stat. 3577, 3626.)

Amendment of Subsection (b)(1)

Pub. L. 102–251, title III, §§301(a), 308, Mar. 9, 1992, 106 Stat. 62, 66, provided that, effective on the date on which the Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for the United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until the date on which the Agreement enters into force for the United States, subsection (b)(1) is amended by inserting “, and fishery resources in the special areas” before the semicolon at the end.

References in Text

This chapter, referred to in subsecs. (a)(11), (b), and (c), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note below and Tables.

Presidential Proclamation 5030, referred to in subsec. (b)(1), is set out under section 1453 of this title.

Amendments

2007—Subsec. (a)(11). Pub. L. 109–479, §3(a), added par. (11).

Subsec. (a)(12). Pub. L. 109–479, §402, added par. (12).

1996—Subsec. (a)(2). Pub. L. 104–297, §101(1), added par. (2) and struck out former par. (2) which read as follows: “As a consequence of increased fishing pressure and because of the inadequacy of fishery conservation and management practices and controls (A) certain stocks of such fish have been overfished to the point where their survival is threatened, and (B) other such stocks have been so substantially reduced in number that they could become similarly threatened.”

Subsec. (a)(6). Pub. L. 104–297, §101(2), inserted “to facilitate long-term protection of essential fish habitats,” after “to insure conservation,”.

Subsec. (a)(9), (10). Pub. L. 104–297, §101(3), added pars. (9) and (10).

Subsec. (b)(3). Pub. L. 104–297, §101(4), substituted “principles, including the promotion of catch and release programs in recreational fishing” for “principles”.

Subsec. (b)(5). Pub. L. 104–297, §101(5), struck out “and” after semicolon at end.

Subsec. (b)(6). Pub. L. 104–297, §101(6), substituted “development in a non-wasteful manner; and” for “development.”

Subsec. (b)(7). Pub. L. 104–297, §101(7), added par. (7).

Subsec. (c)(3). Pub. L. 104–297, §101(8), substituted “considers efficiency” for “promotes efficiency” and inserted “minimize bycatch and” after “practical measures that”.

Subsec. (c)(7). Pub. L. 104–297, §101(9)–(11), added par. (7).

1990—Subsec. (a)(8). Pub. L. 101–627, §101(a), added par. (8).

Subsec. (b)(1)(A). Pub. L. 101–627, §101(b)(1), struck out “except highly migratory species” after “fish”.

Subsec. (b)(5). Pub. L. 101–627, §101(b)(2), substituted “exercise sound judgment in the stewardship of fishery resources through the preparation, monitoring, and revision of” for “prepare, monitor, and revise”.

Subsec. (c)(3). Pub. L. 101–627, §101(c)(1), inserted “considers the effects of fishing on immature fish and encourages development of practical measures that avoid unnecessary waste of fish;” after “and enforcement;”.

Subsec. (c)(5). Pub. L. 101–627, §101(c)(3), substituted “, and to secure agreements to regulate fishing by vessels or persons beyond the exclusive economic zones of any nation; and” for period at end.

Subsec. (c)(6). Pub. L. 101–627, §101(c)(4), added par. (6).

1986—Subsec. (b)(1). Pub. L. 99–659, §101(c)(1)(A), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “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 establishing (A) a fishery conservation zone within which the United States will assume exclusive fishery management authority over all fish, except highly migratory species, and (B) exclusive fishery management authority beyond such zone over such anadromous species and Continental Shelf fishery resources;”.

Subsec. (c)(5). Pub. L. 99–659, §101(c)(1)(B), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “to support and encourage continued active United States efforts to obtain an internationally acceptable treaty, at the Third United Nations Conference on the Law of the Sea, which provides for effective conservation and management of fishery resources.”

1980—Subsec. (b)(6). Pub. L. 96–561 inserted “, and to that end, to ensure that optimum yield determinations promote such development” after “fish off Alaska”.

1978—Subsec. (a)(7). Pub. L. 95–354, §2(a), substituted “the United States fishing industry” for “United States fishermen”.

Subsec. (b)(6). Pub. L. 95–354, §2(b), inserted requirement for development by the United States fishing industry.

References to Magnuson-Stevens Fishery Conservation and Management Act Considered To Include Section 401(a) of Pub. L. 108–219

References to the Magnuson-Stevens Fishery Conservation and Management Act or any provision of that Act considered to be references to that Act as it would be in effect if section 401(a) of Pub. L. 108–219 were a provision of that Act, see section 401(c)(1) of Pub. L. 108–219, set out in an Implementation of Pacific Albacore Tuna Treaty note under section 1821 of this title.

References to Magnuson Fishery Conservation and Management Act Redesignated as References to Magnuson-Stevens Fishery Conservation and Management Act

Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “Effective 15 days after the enactment of the Sustainable Fisheries Act [Pub. L. 104–297, enacted Oct. 11, 1996], all references to the Magnuson Fishery Conservation and Management Act [see Short Title note below] shall be redesignated as references to the Magnuson-Stevens Fishery Conservation and Management Act.”

References to Fishery Conservation and Management Act of 1976 Redesignated as References to Magnuson Fishery Conservation and Management Act

Section 238(b) of title II of Pub. L. 96–561 provided that: “Effective 15 days after the date of enactment of this title [Dec. 22, 1980], all references to the Fishery Conservation and Management Act of 1976 [see Short title note below] shall be redesignated as references to the Magnuson Fishery Conservation and Management Act.”

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–251 effective on date on which Agreement between United States and Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until date on which Agreement enters into force for United States, see section 308 of Pub. L. 102–251, set out as a note under section 773 of this title.

Short Title of 2011 Amendment

Pub. L. 111–348, title I, §101, Jan. 4, 2011, 124 Stat. 3668, provided that: “This title [amending sections 1826i to 1826k, 1857, and 4107 of this title and enacting provisions set out as notes under sections 1826k and 1857 of this title] may be cited as the ‘Shark Conservation Act of 2010’.”

Short Title of 2007 Amendment

Pub. L. 109–479, §1(a), Jan. 12, 2007, 120 Stat. 3575, provided that: “This Act [enacting chapters 88 and 89 of this title, chapter 45 of Title 33, Navigation and Navigable Waters, subchapters VI of chapter 31 and of chapter 38 of this title, sections 1826h to 1826k, 1829, 1853a, 1864 to 1869, and 1884 of this title, amending this section, sections 757d, 773f, 773g, 971a, 971h, 971i, 1377, 1802, 1803, 1812, 1821, 1824, 1826a, 1826b, 1851 to 1853, 1854, 1855, 1857, 1861, 1861a, 1862, 1881, 1881a, 1881c, 1882, 1883, 3645, 4107, 5156, 5610, and 5727 of this title, and section 53706 of Title 46, Shipping, enacting provisions set out as notes under sections 460ss, 1361, 1853 to 1855, 1861a, 1864, 6901, and 7001 of this title and section 3201 of Title 33, and amending provisions set out as notes under sections 1822, 1851, 1855, and 1856 of this title] may be cited as the ‘Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006’.”

Short Title of 1996 Amendment

Section 1(a) of Pub. L. 104–297 provided that: “This Act [enacting sections 1803, 1861a, 1881 to 1881d, 1883, 5107a, and 5107b of this title and sections 1279f and 1279g of Title 46, Appendix, Shipping, amending this section, sections 757d, 1362, 1802, 1812, 1821 to 1824, 1826, 1851 to 1858, 1860, 1861, 1862, 1863, 1882, 1883, 4107, 5102, 5103, and 5108 of this title, section 713c–3 of Title 15, Commerce and Trade, and section 1274 of Title 46, Appendix, enacting provisions set out as notes under sections 1802, 1853 to 1856, 1861a, and 1881c of this title and section 1245 of Title 46, Appendix, amending provisions set out as a note under section 971c of this title, and repealing provisions set out as a note under section 1851 of this title] may be cited as the ‘Sustainable Fisheries Act’.”

Short Title of 1995 Amendment

Pub. L. 104–43, title VI, §601, Nov. 3, 1995, 109 Stat. 391, provided that: “This title [enacting sections 1826d to 1826g of this title and provisions set out as a note under section 1826d of this title] may be cited as the ‘High Seas Driftnet Fishing Moratorium Protection Act’.”

Short Title of 1992 Amendment

Pub. L. 102–582, §1, Nov. 2, 1992, 106 Stat. 4900, provided that: “This Act [enacting sections 1826a to 1826c of this title and section 1707a of Title 46, Appendix, Shipping, amending sections 1362, 1371, 1852, and 1862 of this title, section 1978 of Title 22, Foreign Relations and Intercourse, and section 2110 of Title 46, repealing section 1111c of Title 46, Appendix, and enacting provisions set out as notes under sections 1823, 1826a, and 1861 of this title and section 2110 of Title 46] may be cited as the ‘High Seas Driftnet Fisheries Enforcement Act’.”

Short Title of 1990 Amendment

Section 1(a) of Pub. L. 101–627 provided that: “The Act [enacting sections 971b–1, 1385, and 1862 of this title, amending this section, sections 757d, 758e–5, 971a, 971b, 971d, 971h, 1371, 1802, 1811, 1812, 1821, 1822, 1824 to 1826, 1852 to 1861, 1882, 4005, 4006, 4008, 4103, and 4107 of this title, section 713c–3 of Title 15, Commerce and Trade, and section 1977 of Title 22, Foreign Relations and Intercourse, and enacting provisions set out as notes under sections 971a, 1373, 1802, 1812, 1822, 1825, 1854, 4004, and 4005 of this title] may be cited as the ‘Fishery Conservation Amendments of 1990’.”

Short Title of 1987 Amendment

Pub. L. 100–220, §1, Dec. 29, 1987, 101 Stat. 1458, provided that: “This Act [enacting section 1912 of Title 33, Navigation and Navigable Waters, amending sections 1121 to 1131, 1901 to 1903, 1905, and 1907 to 1909 of Title 33, and enacting provisions set out as notes under this section, sections 1822 and 1823 of this title, sections 883a, 1121, 1125, 1901, 1902, and 2267 of Title 33, and section 6981 of Title 42, The Public Health and Welfare] may be cited as the ‘United States-Japan Fishery Agreement Approval Act of 1987’.”

Short Title of 1980 Amendment

Section 201 of title II of Pub. L. 96–561 provided that: “This title [enacting section 1511b of Title 15, Commerce and Trade, amending sections 917, 1801, 1821, 1824, 1852, and 1855 of this title, section 713c–3 of Title 15, sections 1972 and 1980 of Title 22, Foreign Relations and Intercourse, section 1321 of Title 33, Navigation and Navigable Waters, section 1843 of Title 43, Public Lands, and sections 1271, 1273, 1274, and 1275 of Title 46, Appendix, Shipping, and enacting provisions set out as notes under this section, sections 742c, 1821, and 1824 of this title, and section 1980 of Title 22] may be cited as the ‘American Fisheries Promotion Act’.”

Short Title of 1977 Amendment

Pub. L. 95–6, §1, Feb. 21, 1977, 91 Stat. 14, provided: “That this joint resolution [enacting section 1826 of this title, repealing sections 981 to 991 of this title, and enacting provisions set out as notes under sections 981 and 1823 of this title] may be cited as the ‘Fishery Conservation Zone Transition Act’.”

Short Title

Section 1 of Pub. L. 94–265, as amended by Pub. L. 96–561, title II, §238(a), Dec. 22, 1980, 94 Stat. 3300; Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(a)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided: “That this Act [enacting this chapter, amending section 971 of this title and sections 1972 and 1973 of Title 22, Foreign Relations and Intercourse, enacting provisions set out as notes under this section and sections 971, 1362, 1857 of this title, and sections 1972 and 1973 of Title 22, and repealing chapters 21 and 21A of this title] may be cited as the ‘Magnuson-Stevens Fishery Conservation and Management Act’.”

[Section 101(a) [title II, §211(a)] of div. A of Pub. L. 104–208 provided that the amendment made by that section to section 1 of Pub. L. 94–265, set out above, is effective 15 days after Oct. 11, 1996.]

[Section 238(a) of Pub. L. 96–561 provided that the amendment made by that section to section 1 of Pub. L. 94–265, set out above, is effective 15 days after Dec. 22, 1980.]

Ex. Ord. No. 12962. Recreational Fisheries

Ex. Ord. No. 12962, June 7, 1995, 60 F.R. 30769, as amended by Ex. Ord. No. 13474, Sept. 26, 2008, 73 F.R. 57229, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in furtherance of the purposes of the Fish and Wildlife Act of 1956 (16 U.S.C. 742a–d, and e–j), the Fish and Wildlife Coordination Act (16 U.S.C. 661–666c), the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the National Marine Sanctuaries Act of 1972 (16 U.S.C. 1431 et seq.), the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd–ee), the National Park Service Organic Act (16 U.S.C. 1 et seq.), the National Historic Preservation Act (16 U.S.C. 470 et seq.), [the] Wilderness Act (16 U.S.C. 1131 et seq.), the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), the Coastal Zone Management Act [of 1972] (16 U.S.C. 1451 et seq.), the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.), and other pertinent statutes, and in order to conserve, restore, and enhance aquatic systems to provide for increased recreational fishing opportunities nationwide, it is ordered as follows:

Section 1. Federal Agency Duties. Federal agencies shall, to the extent permitted by law and where practicable, and in cooperation with States and Tribes, improve the quantity, function, sustainable productivity, and distribution of U.S. aquatic resources for increased recreational fishing opportunities by: (a) developing and encouraging partnerships between governments and the private sector to advance aquatic resource conservation and enhance recreational fishing opportunities;

(b) identifying recreational fishing opportunities that are limited by water quality and habitat degradation and promoting restoration to support viable, healthy, and, where feasible, self-sustaining recreational fisheries;

(c) fostering sound aquatic conservation and restoration endeavors to benefit recreational fisheries;

(d) ensuring that recreational fishing shall be managed as a sustainable activity in national wildlife refuges, national parks, national monuments, national marine sanctuaries, marine protected areas, or any other relevant conservation or management areas or activities under any Federal authority, consistent with applicable law;

(e) providing access to and promoting awareness of opportunities for public participation and enjoyment of U.S. recreational fishery resources;

(f) supporting outreach programs designed to stimulate angler participation in the conservation and restoration of aquatic systems;

(g) implementing laws under their purview in a manner that will conserve, restore, and enhance aquatic systems that support recreational fisheries;

(h) establishing cost-share programs, under existing authorities, that match or exceed Federal funds with nonfederal contributions;

(i) evaluating the effects of Federally funded, permitted, or authorized actions on aquatic systems and recreational fisheries and document those effects relative to the purpose of this order; and

(j) assisting private landowners to conserve and enhance aquatic resources on their lands.

Sec. 2. National Recreational Fisheries Coordination Council. A National Recreational Fisheries Coordination Council (“Coordination Council”) is hereby established. The Coordination Council shall consist of seven members, one member designated by each of the following Secretaries—Interior, Commerce, Agriculture, Energy, Transportation, and Defense—and one by the Administrator of the Environmental Protection Agency. The Coordination Council shall: (a) ensure that the social and economic values of healthy aquatic systems that support recreational fisheries are considered by Federal agencies in the course of their actions;

(b) reduce duplicative and cost-inefficient programs among Federal agencies involved in conserving or managing recreational fisheries;

(c) share the latest resource information and management technologies to assist in the conservation and management of recreational fisheries;

(d) assess the implementation of the Conservation Plan required under section 3 of this order; and

(e) develop a biennial report of accomplishments of the Conservation Plan.

The representatives designated by the Secretaries of Commerce and the Interior shall cochair the Coordination Council.

Sec. 3. Recreational Fishery Resources Conservation Plan. (a) Within 12 months of the date of this order, the Coordination Council, in cooperation with Federal agencies, States, and Tribes, and after consulting with the Federally chartered Sport Fishing and Boating Partnership Council, shall develop a comprehensive Recreational Fishery Resources Conservation Plan (“Conservation Plan”).

(b) The Conservation Plan will set forth a 5-year agenda for Federal agencies identified by the Coordination Council. In so doing, the Conservation Plan will establish, to the extent permitted by law and where practicable; (1) measurable objectives to conserve and restore aquatic systems that support viable and healthy recreational fishery resources, (2) actions to be taken by the identified Federal agencies, (3) a method of ensuring the accountability of such Federal agencies, and (4) a comprehensive mechanism to evaluate achievements. The Conservation Plan will, to the extent practicable, be integrated with existing plans and programs, reduce duplication, and will include recommended actions for cooperation with States, Tribes, conservation groups, and the recreational fisheries community.

Sec. 4. Joint Policy for Administering the Endangered Species Act of 1973. All Federal agencies will aggressively work to identify and minimize conflicts between recreational fisheries and their respective responsibilities under the Endangered Species Act of 1973 (“ESA”) (16 U.S.C. 1531 et seq.). Within 6 months of the date of this order, the Fish and Wildlife Service and the National Marine Fisheries Service will promote compatibility and reduce conflicts between the administration of the ESA and recreational fisheries by developing a joint agency policy that will; (1) ensure consistency in the administration of the ESA between and within the two agencies, (2) promote collaboration with other Federal, State, and Tribal fisheries managers, and (3) improve and increase efforts to inform nonfederal entities of the requirements of the ESA.

Sec. 5. Sport Fishing and Boating Partnership Council. To assist in the implementation of this order, the Secretary of the Interior shall expand the role of the Sport Fishing and Boating Partnership Council to: (a) monitor specific Federal activities affecting aquatic systems and the recreational fisheries they support;

(b) review and evaluate the relation of Federal policies and activities to the status and conditions of recreational fishery resources; and

(c) prepare an annual report of its activities, findings, and recommendations for submission to the Coordination Council.

Sec. 6. Judicial Review. This order is intended only to improve the internal management of the executive branch and it is not intended to create any right, benefit or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any other person.

§1802. Definitions

As used in this chapter, 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.

(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.

(3) The term “charter fishing” means fishing from a vessel carrying a passenger for hire (as defined in section 2101(21a) of title 46) who is engaged in recreational fishing.

(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.

(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.

(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;

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 notice 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 chapter.

(8) The term “Council” means any Regional Fishery Management Council established under section 1852 of this title.

(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.

(10) The term “essential fish habitat” means those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity.

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

(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.


(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.

(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.

(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.

(21) The term “highly migratory species” means tuna species, marlin (Tetrapturus spp. and Makaira spp.), oceanic sharks, sailfishes (Istiophorus spp.), and swordfish (Xiphias gladius).

(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.


(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 1855(i) of this title.

(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.

(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.

(26) The term “limited access privilege”—

(A) means a Federal permit, issued as part of a limited access system under section 1853a of this title 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 1855(i) of this title.


(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.

(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 1851 of this title.

(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 chapter.

(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.

(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 on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant social, economic, 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.


(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.

(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.

(37) The term “recreational fishing” means fishing for sport or pleasure.

(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.

(40) 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.

(41) 1 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.

(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.

(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.

(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.

(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 chapter.

(48) The term “vessel of the United States” means—

(A) any vessel documented under chapter 121 of title 46;

(B) any vessel numbered in accordance with chapter 123 of title 46 and measuring less than 5 net tons;

(C) any vessel numbered in accordance with chapter 123 of title 46 and used exclusively for pleasure; or

(D) any vessel not equipped with propulsion machinery of any kind and used exclusively for pleasure.


(49) The term “vessel subject to the jurisdiction of the United States” has the same meaning such term has in section 70502(c) of title 46.

(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.

(Pub. L. 94–265, §3, Apr. 13, 1976, 90 Stat. 333; Pub. L. 95–354, §3, Aug. 28, 1978, 92 Stat. 519; Pub. L. 97–453, §15(a), Jan. 12, 1983, 96 Stat. 2492; Pub. L. 99–659, title I, §§101(a), 112, Nov. 14, 1986, 100 Stat. 3706, 3715; Pub. L. 100–239, §2, Jan. 11, 1988, 101 Stat. 1778; Pub. L. 101–627, title I, §102(a), title X, §1001(c), Nov. 28, 1990, 104 Stat. 4438, 4468; Pub. L. 102–251, title III, §301(b), Mar. 9, 1992, 106 Stat. 62; Pub. L. 104–297, title I, §102, Oct. 11, 1996, 110 Stat. 3561; Pub. L. 109–479, §3(b), (c), Jan. 12, 2007, 120 Stat. 3577, 3578.)

References in Text

This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Proclamation Numbered 5030, referred to in par. (11), is set out under section 1453 of this title.

Codification

In par. (49), “section 70502(c) of title 46” substituted for “section 3(c) of the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1903(c))” on authority of Pub. L. 109–304, §18(c), Oct. 6, 2006, 120 Stat. 1709, which Act enacted section 70502 of Title 46, Shipping.

Pub. L. 102–251, §301(b), which directed amendment of this section by adding a new par. (24) defining “special areas” and redesignating former pars. (24) to (32) as (25) to (33), respectively, was to be effective on the date on which the Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for United States, but will not be executed, to reflect the probable intent of Congress, because the amendments would be inconsistent with the amendments by Pub. L. 104–297 which added par. (36) (now par. (41)) which is substantially identical to the par. (24) added by Pub. L. 102–251, made successive redesignations of pars. (2) to (44), and added and amended various other pars. See 1996 Amendment notes below and section 308 of Pub. L. 102–251, set out as an Effective Date of 1992 Amendment note under section 773 of this title.

Amendments

2007—Pub. L. 109–479 added pars. (13A) defining “regional fishery association”, (20A) defining “import”, (23A) defining “limited access privilege”, (23B) defining “limited access system”, and (27A) defining “observer information” and redesignated pars. (1) to (45) as (1) to (50), respectively.

1996—Pars. (2) to (6). Pub. L. 104–297, §102(1), added pars. (2) to (4) and redesignated former pars. (2) and (3) as (5) and (6), respectively. Former pars. (4) to (6) redesignated (7) to (9), respectively.

Par. (7). Pub. L. 104–297, §102(2)(B), substituted “Deep-sea Red Crab—Chaceon quinquedens” for “Deep-sea Red Crab—Geryon quinquedens” in list under heading “Crustacea”.

Pub. L. 104–297, §102(2)(A), which directed substitution of “Cnidaria” for “Coelenterata” in heading of list of corals, was executed by making the substitution for “Colenterata” in that heading to reflect the probable intent of Congress.

Pub. L. 104–297, §102(1), redesignated par. (4) as (7). Former par. (7) redesignated (10).

Par. (8). Pub. L. 104–297, §102(1), redesignated par. (5) as (8). Former par. (8) redesignated (11).

Par. (9). Pub. L. 104–297, §102(3), added par. (9). Former par. (9) redesignated (11).

Pub. L. 104–297, §102(1), redesignated par. (6) as (9). Former par. (9) redesignated (12).

Par. (10). Pub. L. 104–297, §102(3), added par. (10). Former par. (10) redesignated (12).

Pub. L. 104–297, §102(1), redesignated par. (7) as (10). Former par. (10) redesignated (13).

Pars. (11) to (15). Pub. L. 104–297, §102(3), redesignated pars. (9) to (13) as (11) to (15), respectively. Former pars. (14) and (15) redesignated (16) and (17), respectively.

Pub. L. 104–297, §102(1), redesignated pars. (8) to (12) as (11) to (15), respectively. Former pars. (13) to (15) redesignated (16) to (18), respectively.

Par. (16). Pub. L. 104–297, §102(4), added par. (16). Former par. (16) redesignated (17).

Pub. L. 104–297, §102(3), redesignated par. (14) as (16). Former par. (16) redesignated (18).

Pub. L. 104–297, §102(1), redesignated par. (13) as (16). Former par. (16) redesignated (19).

Pars. (17) to (20). Pub. L. 104–297, §102(4), redesignated pars. (16) to (19) as (17) to (20), respectively. Former par. (20) redesignated (21).

Pub. L. 104–297, §102(3), redesignated pars. (15) to (18) as (17) to (20), respectively. Former pars. (19) and (20) redesignated (21) and (22), respectively.

Pub. L. 104–297, §102(1), redesignated pars. (14) to (17) as (17) to (20), respectively. Former pars. (18) to (20) redesignated (21) to (23), respectively.

Par. (21). Pub. L. 104–297, §102(5), added par. (21). Former par. (21) redesignated (22).

Pub. L. 104–297, §102(4), redesignated par. (20) as (21). Former par. (21) redesignated (22).

Pub. L. 104–297, §102(3), redesignated par. (19) as (21). Former par. (21) redesignated (23).

Pub. L. 104–297, §102(1), redesignated par. (18) as (21). Former par. (21) redesignated (24).

Par. (22). Pub. L. 104–297, §102(5), redesignated par. (21) as (22). Former par. (22) redesignated (23).

Pub. L. 104–297, §102(4), redesignated par. (21) as (22). Former par. (22) redesignated (23).

Pub. L. 104–297, §102(3), redesignated par. (20) as (22). Former par. (22) redesignated (24).

Pub. L. 104–297, §102(1), redesignated par. (19) as (22). Former par. (22) redesignated (25).

Par. (23). Pub. L. 104–297, §102(6), substituted “of two and one-half kilometers” for “of one and one-half miles”.

Pub. L. 104–297, §102(5), redesignated par. (22) as (23). Former par. (23) redesignated (24).

Pub. L. 104–297, §102(4), redesignated par. (22) as (23). Former par. (23) redesignated (24).

Pub. L. 104–297, §102(3), redesignated par. (21) as (23). Former par. (23) redesignated (25).

Pub. L. 104–297, §102(1), redesignated par. (20) as (23). Former par. (23) redesignated (26).

Pars. (24) to (27). Pub. L. 104–297, §102(5), redesignated pars. (23) to (26) as (24) to (27), respectively. Former par. (27) redesignated (28).

Pub. L. 104–297, §102(4), redesignated pars. (23) to (26) as (24) to (27), respectively. Former par. (27) redesignated (28).

Pub. L. 104–297, §102(3), redesignated pars. (22) to (25) as (24) to (27), respectively. Former pars. (26) and (27) redesignated (28) and (29), respectively.

Pub. L. 104–297, §102(1), redesignated pars. (21) to (24) as (24) to (27), respectively. Former pars. (25) to (27) redesignated (28) to (30), respectively.

Par. (28). Pub. L. 104–297, §102(7), added par. (28) and struck out former par. (28) which read as follows: “The term ‘optimum’, with respect to the yield from a fishery, means the amount of fish—

“(A) which will provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities; and

“(B) which is prescribed as such on the basis of the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factor.”

Pub. L. 104–297, §102(5), redesignated par. (27) as (28). Former par. (28) redesignated (29).

Pub. L. 104–297, §102(4), redesignated par. (27) as (28). Former par. (28) redesignated (29).

Pub. L. 104–297, §102(3), redesignated par. (26) as (28). Former par. (28) redesignated (30).

Pub. L. 104–297, §102(1), redesignated par. (25) as (28). Former par. (28) redesignated (31).

Pars. (29), (30). Pub. L. 104–297, §102(8), added pars. (29) and (30). Former pars. (29) and (30) redesignated (31) and (32), respectively.

Pub. L. 104–297, §102(5), redesignated pars. (28) and (29) as (29) and (30), respectively. Former par. (30) redesignated (31).

Pub. L. 104–297, §102(4), redesignated pars. (28) and (29) as (29) and (30), respectively. Former par. (30) redesignated (31).

Pub. L. 104–297, §102(3), redesignated pars. (27) and (28) as (29) and (30), respectively. Former pars. (29) and (30) redesignated (31) and (32), respectively.

Pub. L. 104–297, §102(1), redesignated pars. (26) and (27) as (29) and (30), respectively. Former pars. (29) and (30) redesignated (32) and (33), respectively.

Par. (31). Pub. L. 104–297, §102(8), redesignated par. (29) as (31). Former par. (31) redesignated (33).

Pub. L. 104–297, §102(5), redesignated par. (30) as (31). Former par. (31) redesignated (32).

Pub. L. 104–297, §102(4), redesignated par. (30) as (31). Former par. (31) redesignated (32).

Pub. L. 104–297, §102(3), redesignated par. (29) as (31). Former par. (31) redesignated (33).

Pub. L. 104–297, §102(1), redesignated par. (28) as (31). Former par. (31) redesignated (34).

Pars. (32), (33). Pub. L. 104–297, §102(9), added pars. (32) and (33). Former pars. (32) and (33) redesignated (34) and (35), respectively.

Pub. L. 104–297, §102(8), redesignated pars. (30) and (31) as (32) and (33), respectively. Former pars. (32) and (33) redesignated (34) and (35), respectively.

Pub. L. 104–297, §102(5), redesignated pars. (31) and (32) as (32) and (33), respectively. Former par. (33) redesignated (34).

Pub. L. 104–297, §102(4), redesignated pars. (31) and (32) as (32) and (33), respectively. Former par. (33) redesignated (34).

Pub. L. 104–297, §102(3), redesignated pars. (30) and (31) as (32) and (33), respectively. Former pars. (32) and (33) redesignated (34) and (35), respectively.

Pub. L. 104–297, §102(1), redesignated pars. (29) and (30) as (32) and (33), respectively. Former par. (32) redesignated (35).

Pars. (34), (35). Pub. L. 104–297, §102(9), redesignated pars. (32) and (33) as (34) and (35), respectively. Former pars. (34) and (35) redesignated (36) and (37), respectively.

Pub. L. 104–297, §102(8), redesignated pars. (32) and (33) as (34) and (35), respectively. Former pars. (34) and (35) redesignated (36) and (37), respectively.

Pub. L. 104–297, §102(5), redesignated pars. (33) and (34) as (34) and (35), respectively. Former par. (35) redesignated (36).

Pub. L. 104–297, §102(4), redesignated pars. (33) and (34) as (34) and (35), respectively. Former par. (35) redesignated (36).

Pub. L. 104–297, §102(3), redesignated pars. (32) and (33) as (34) and (35), respectively. Former pars. (34) and (35) redesignated (36) and (37), respectively.

Pub. L. 104–297, §102(1), redesignated pars. (31) and (32) as (34) and (35), respectively.

Par. (36). Pub. L. 104–297, §102(10), added par. (36). Former par. (36) redesignated (37).

Pub. L. 104–297, §102(9), redesignated par. (34) as (36). Former par. (36) redesignated (38).

Pub. L. 104–297, §102(8), redesignated par. (34) as (36). Former par. (36) redesignated (38).

Pub. L. 104–297, §102(5), redesignated par. (35) as (36). Former par. (36) redesignated (37).

Pub. L. 104–297, §102(4), redesignated par. (35) as (36). Former par. (36) redesignated (37).

Pub. L. 104–297, §102(3), redesignated par. (34) as (36).

Par. (37). Pub. L. 104–297, §102(10), redesignated par. (36) as (37). Former par. (37) redesignated (38).

Pub. L. 104–297, §102(9), redesignated par. (35) as (37). Former par. (37) redesignated (39).

Pub. L. 104–297, §102(8), redesignated par. (35) as (37). Former par. (37) redesignated (39).

Pub. L. 104–297, §102(5), redesignated par. (36) as (37). Former par. (37) redesignated (38).

Pub. L. 104–297, §102(4), redesignated par. (36) as (37). Former par. (37) redesignated (38).

Pub. L. 104–297, §102(3), redesignated par. (35) as (37).

Par. (38). Pub. L. 104–297, §102(10), redesignated par. (37) as (38). Former par. (38) redesignated (39).

Pub. L. 104–297, §102(9), redesignated par. (36) as (38). Former par. (38) redesignated (40).

Pub. L. 104–297, §102(8), redesignated par. (36) as (38). Former par. (38) redesignated (40).

Pub. L. 104–297, §102(5), redesignated par. (37) as (38). Former par. (38) redesignated (39).

Pub. L. 104–297, §102(4), redesignated par. (37) as (38).

Par. (39). Pub. L. 104–297, §102(10), redesignated par. (38) as (39). Former par. (39) redesignated (40).

Pub. L. 104–297, §102(9), redesignated par. (37) as (39). Former par. (39) redesignated (41).

Pub. L. 104–297, §102(8), redesignated par. (37) as (39). Former par. (39) redesignated (41).

Pub. L. 104–297, §102(5), redesignated par. (38) as (39).

Pars. (40), (41). Pub. L. 104–297, §102(10), redesignated pars. (39) and (40) as (40) and (41), respectively. Former par. (41) redesignated (42).

Pub. L. 104–297, §102(9), redesignated pars. (38) and (39) as (40) and (41), respectively. Former pars. (40) and (41) redesignated (42) and (43), respectively.

Pub. L. 104–297, §102(8), redesignated pars. (38) and (39) as (40) and (41), respectively.

Par. (42). Pub. L. 104–297, §102(11), which directed the substitution of “regulated under this chapter” for “for which a fishery management plan prepared under subchapter IV of this chapter or a preliminary fishery management plan prepared under section 1821(g) of this title has been implemented”, was executed by making substitution for language which referred to “section 1821(h)”, notwithstanding directory language directing substitution for language which referred to “section 1821(g)” to reflect the probable intent of Congress.

Pub. L. 104–297, §102(10), redesignated par. (41) as (42). Former par. (42) redesignated (43).

Pub. L. 104–297, §102(9), redesignated par. (40) as (42).

Par. (43). Pub. L. 104–297, §102(10), redesignated par. (42) as (43). Former par. (43) redesignated (44).

Pub. L. 104–297, §102(9), redesignated par. (41) as (43).

Par. (44). Pub. L. 104–297, §102(12), added par. (44). Former par. (44) redesignated (45).

Pub. L. 104–297, §102(10), redesignated par. (43) as (44).

Par. (45). Pub. L. 104–297, §102(12), redesignated par. (44) as (45).

1990—Par. (7). Pub. L. 101–627, §102(a)(2), substituted “and birds” for “, birds, and highly migratory species”.

Par. (14). Pub. L. 101–627, §102(a)(3), amended par. (14) generally. Prior to amendment, par. (14) read as follows: “The term ‘highly migratory species’ means species of tuna which, in the course of their life cycle, spawn and migrate over great distances in waters of the ocean.”

Par. (16). Pub. L. 101–627, §102(a)(4), added par. (16). Former par. (16) redesignated (17).

Par. (17). Pub. L. 101–627, §102(a)(1), redesignated par. (16) as (17). Former par. (17) redesignated (19).

Par. (18). Pub. L. 101–627, §102(a)(5), added par. (18). Former par. (18) redesignated (21).

Par. (19). Pub. L. 101–627, §102(a)(1), redesignated par. (17) as (19). Former par. (19) redesignated (22).

Par. (20). Pub. L. 101–627, §102(a)(6), added par. (20). Former par. (20) redesignated (23).

Pars. (21) to (26). Pub. L. 101–627, §102(a)(1), redesignated pars. (18) to (23) as (21) to (26), respectively. Former pars. (24) to (26) redesignated (28) to (30), respectively.

Par. (27). Pub. L. 101–627, §102(a)(7), added par. (27). Former par. (27) redesignated (31).

Pars. (28) to (31). Pub. L. 101–627, §102(a)(1), redesignated pars. (24) to (27) as (28) to (31), respectively.

Par. (32). Pub. L. 101–627, §102(a)(8), added par. (32).

1988—Par. (27). Pub. L. 100–239 amended par. (27) generally. Prior to amendment, par. (27) read as follows: “The term ‘vessel of the United States’ means—

“(A) any vessel documented under the laws of the United States;

“(B) any vessel numbered in accordance with the Federal Boat Safety Act of 1971 and measuring less than 5 net tons; or

“(C) any vessel numbered under the Federal Boat Safety Act of 1971 and used exclusively for pleasure.”

1986—Par. (4). Pub. L. 99–659, §112, in provisions under heading “Mollusks” substituted “Arctica islandica” for “Artica islandica” and under heading “Sponges” substituted “Spongia cheiris” for “Hippiospongia canaliculata”.

Pars. (6) to (8). Pub. L. 99–659, §101(a), added par. (6), redesignated former pars. (6) and (7) as (7) and (8), respectively, and struck out former par. (8) which defined “fishery conservation zone” as the fishery conservation zone established by section 1811 of this title.

1983—Par. (27). Pub. L. 97–453 designated existing provisions as subpar. (A), struck out “or registered under the laws of any State” after “United States”, and added subpars. (B) and (C).

1978—Pars. (25) to (27). Pub. L. 95–354 added pars. (25) and (26) and redesignated former par. (25) as (27).

Change of Name

“Pacific States Marine Fisheries Commission” substituted for “Pacific Marine Fisheries Commission” in par. (28) pursuant to section 1001(c) of Pub. L. 101–627, set out below.

Effective Date of 1992 Amendment

Section 405(a) of Pub. L. 104–297 provided that: “Notwithstanding section 308 of the Act entitled ‘An Act to provide for the designation of the Flower Garden Banks National Marine Sanctuary’, approved March 9, 1992 (Public Law 102–251; 106 Stat. 66) [set out as a note under section 773 of this title] hereinafter referred to as the ‘FGB Act’, section 301(b) of that Act [amending this section, see Codification note above] (adding a definition of the term ‘special areas’) shall take effect on the date of enactment of this Act [Oct. 11, 1996].”

Redesignation of Pacific Marine Fisheries Commission as Pacific States Marine Fisheries Commission

Section 1001 of Pub. L. 101–627 provided that:

“(a) In General.—The Congress consents to and approves of the amendments described in subsection (b) to the interstate compact which constituted the Pacific Marine Fisheries Commission, approved by the Act of July 24, 1947 (61 Stat. 419; hereinafter in this section referred to as the ‘compact’).

“(b) Amendment Described.—The amendments referred to in subsection (a) are the amendments approved and ratified before the effective date of this section [Nov. 28, 1990] by the contracting States to the compact, which—

“(1) amend Article III of the compact to redesignate the Pacific Marine Fisheries Commission as the ‘Pacific States Marine Fisheries Commission’; and

“(2) make such other amendments to the compact as are necessary solely to conform the text of the compact to the amendment described in paragraph (1).

“(c) References.—Any reference in a law, map, regulation, document, paper, or other record of the United States to the Pacific Marine Fisheries Commission constituted by the compact is deemed to be a reference to the ‘Pacific States Marine Fisheries Commission’.”

Territorial Sea of United States

For extension of territorial sea of United States, see Proc. No. 5928, set out as a note under section 1331 of Title 43, Public Lands.

1 See Codification note below.

§1803. Authorization of appropriations

There are authorized to be appropriated to the Secretary to carry out the provisions of this chapter—

(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.

(Pub. L. 94–265, §4, as added Pub. L. 104–297, title I, §103, Oct. 11, 1996, 110 Stat. 3563; amended Pub. L. 109–479, §7, Jan. 12, 2007, 120 Stat. 3579.)

References in Text

This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

2007—Pub. L. 109–479 reenacted section catchline without change and amended text generally, substituting provisions authorizing appropriations for fiscal years 2007 to 2013 for provisions authorizing appropriations for fiscal years 1996 to 1999.

SUBCHAPTER II—UNITED STATES RIGHTS AND AUTHORITY REGARDING FISH AND FISHERY RESOURCES

§1811. United States sovereign rights to fish and fishery management authority

(a) In the exclusive economic zone

Except as provided in section 1812 of this title, the United States claims, and will exercise in the manner provided for in this chapter, sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources, within the exclusive economic zone.

(b) Beyond the exclusive economic zone

The United States claims, and will exercise in the manner provided for in this chapter, 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.

(Pub. L. 94–265, title I, §101, Apr. 13, 1976, 90 Stat. 336; Pub. L. 99–659, title I, §101(b), Nov. 14, 1986, 100 Stat. 3706; Pub. L. 101–627, title I, §102(b), Nov. 28, 1990, 104 Stat. 4438; Pub. L. 102–251, title III, §301(c), Mar. 9, 1992, 106 Stat. 62.)

Amendment of Section

Pub. L. 102–251, title III, §§301(c), 308, Mar. 9, 1992, 106 Stat. 62, 66, provided that, effective on the date on which the Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for the United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until the date on which the Agreement enters into force for the United States, subsection (a) is amended by inserting “and special areas” before the period at the end and subsection (b) is amended by inserting after paragraph (2) the following new paragraph:


(3) All fishery resources in the special areas.

References in Text

This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

1990—Subsec. (b)(1). Pub. L. 101–627 substituted “any waters of a foreign nation” for “any foreign nation's territorial sea or exclusive economic zone (or the equivalent), to the extent that that sea or zone is recognized by the United States”.

1986—Pub. L. 99–659 amended section generally. Prior to amendment, section read as follows: “There is established a zone contiguous to the territorial sea of the United States to be known as the fishery conservation zone. The inner boundary of the fishery conservation zone is a line coterminous with the seaward boundary of each of the coastal States, and the outer boundary of such zone is a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured.”

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–251 effective on date on which Agreement between United States and Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until date on which Agreement enters into force for United States, see section 308 of Pub. L. 102–251, set out as a note under section 773 of this title.

§1812. Highly migratory species

(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.

(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.

(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 chapter in this regard shall be communicated to and promoted by the United States in the international or regional fisheries organization.

(Pub. L. 94–265, title I, §102, Apr. 13, 1976, 90 Stat. 336; Pub. L. 99–659, title I, §101(b), Nov. 14, 1986, 100 Stat. 3707; Pub. L. 101–627, title I, §103(a), Nov. 28, 1990, 104 Stat. 4439; Pub. L. 104–297, title I, §104, Oct. 11, 1996, 110 Stat. 3563; Pub. L. 109–479, §4, Jan. 12, 2007, 120 Stat. 3578.)

References in Text

This chapter, referred to in subsec. (c), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

2007—Pub. L. 109–479 designated existing provisions as subsec. (a), inserted heading, and added subsecs. (b) and (c).

1996—Pub. L. 104–297 substituted “shall promote the achievement of optimum yield” for “promoting the objective of optimum utilization”.

1990—Pub. L. 101–627 amended section generally. Prior to amendment, section read as follows: “The sovereign rights and exclusive fishery management authority asserted by the United States under section 1811 of this title over fish do not include, and may not be construed to extend to, highly migratory species of fish.”

1986—Pub. L. 99–659 amended section generally. Prior to amendment, section read as follows: “The United States shall exercise exclusive fishery management authority, in the manner provided for in this chapter, over the following:

“(1) All fish within the fishery conservation zone.

“(2) All anadromous species throughout the migratory range of each such species beyond the fishery conservation zone; except that such management authority shall not extend to such species during the time they are found within any foreign nation's territorial sea or fishery conservation zone (or the equivalent), to the extent that such sea or zone is recognized by the United States.

“(3) All Continental Shelf fishery resources beyond the fishery conservation zone.”

Effective Date of 1990 Amendment

Section 103(c) of Pub. L. 101–627 provided that: “The amendments made by this section [amending this section] shall take effect on January 1, 1992.”

§1813. Omitted

Codification

Section, Pub. L. 94–265, title I, §103, Apr. 13, 1976, 90 Stat. 336, which related to exclusion of highly migratory species of fish from exclusive fishery management authority, was omitted in the general revision of this subchapter by section 101(b) of Pub. L. 99–659. See section 1812 of this title.

SUBCHAPTER III—FOREIGN FISHING AND INTERNATIONAL FISHERY AGREEMENTS

§1821. Foreign fishing

(a) In general

After February 28, 1977, no foreign fishing is authorized within the exclusive economic zone, or for anadromous species or Continental Shelf fishery resources beyond the exclusive economic zone, unless such foreign fishing—

(1) is authorized under subsections (b) or (c) of this section or section 1824(e) of this title, or under a permit issued under section 1824(d) of this title;

(2) is not prohibited under subsection (f) of this section; and

(3) is conducted under, and in accordance with, a valid and applicable permit issued pursuant to section 1824 of this title.

(b) Existing international fishery agreements

Foreign fishing described in subsection (a) of this section may be conducted pursuant to an international fishery agreement (subject to the provisions of section 1822(b) or (c) of this title), if such agreement—

(1) was in effect on April 13, 1976; 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) of this section 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 1823 of this title. Any such international fishery agreement shall hereafter in this chapter 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 chapter. 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 chapter, including any regulations promulgated to implement any applicable fishery management plan or any preliminary fishery management plan.

(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 chapter (as provided for in section 1861 of this title) 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 1861(b) of this title 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 1857 of this title, and

(iii) to examine and make notations on the permit issued pursuant to section 1824 of this title for such vessel;


(B) the permit issued for any such vessel pursuant to section 1824 of this title 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) of this section 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 1824(b)(10) of this title 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.

(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) of this section.

(4) The foreign nation will—

(A) apply, pursuant to section 1824 of this title, 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 1824(a) of this title and the applicable conditions and restrictions established under section 1824(b)(7) of this title; and

(D) take, or refrain from taking, as appropriate, actions of the kind referred to in subsection (e)(1) of this section in order to receive favorable allocations under such subsection.

(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 chapter. 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

(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.

(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 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.


(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 1978(a) of title 22.

(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.


(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 1978(d) of title 22 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 1978(d) of title 22 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 chapter.

(iv) The Secretary may refund or credit, by reason of reduction of any allocation under this paragraph, any fee paid under section 1824 of this title.


(D) If the certification of a foreign country is not terminated under section 1978(d) of title 22 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.

(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.

(g) Preliminary fishery management plans

The Secretary, when notified by the Secretary of State that any foreign nation has submitted an application under section 1824(b) of this title 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 subchapter IV of this chapter, 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 1853(a)(5) of this title; 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 chapter, and other applicable law, and

(C) are described in section 1853(b)(2), (3), (4), (5), and (7) of this title.


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 subchapter IV of this chapter, with respect to such fishery. The Secretary may, in accordance with section 553 of title 5, 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 1855 of this title.

(h) Full observer coverage program

(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.

(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.

(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 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 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.


(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 chapter; 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 1824(b)(10) of this title and section 1980(e) of title 22 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 1824 of this title, 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 1824(b)(10) of this title. All surcharges collected by the Secretary under this paragraph shall be deposited in the Foreign Fishing Observer Fund established by paragraph (5).

(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.

(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 chapter.

(i) Recreational fishing

Notwithstanding any other provision of this subchapter, foreign fishing vessels which are not operated for profit may engage in recreational fishing within the exclusive economic zone 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 or waters, respectively, is consistent with all applicable Federal and State laws and any applicable fishery management plan implemented under section 1854 of this title. 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.

(Pub. L. 94–265, title II, §201, Apr. 13, 1976, 90 Stat. 337; Pub. L. 95–354, §4(1)–(4), Aug. 28, 1978, 92 Stat. 519, 520; Pub. L. 96–61, §3(a), Aug. 15, 1979, 93 Stat. 407; Pub. L. 96–118, §5, Nov. 16, 1979, 93 Stat. 860; Pub. L 96–561, title II, §§230, 231(a), 236, Dec. 22, 1980, 94 Stat. 3296, 3297, 3299; Pub. L. 97–453, §2(a), Jan. 12, 1983, 96 Stat. 2481; Pub. L. 98–623, title IV, §404(1), (2), Nov. 8, 1984, 98 Stat. 3408; Pub. L. 99–386, title II, §206(a), Aug. 22, 1986, 100 Stat. 823; Pub. L. 99–659, title I, §§101(c)(2), 103(a), Nov. 14, 1986, 100 Stat. 3707, 3708; Pub. L. 101–627, title I, §104, Nov. 28, 1990, 104 Stat. 4439; Pub. L. 102–251, title III, §301(d), Mar. 9, 1992, 106 Stat. 63; Pub. L. 103–236, title I, §139(24), Apr. 30, 1994, 108 Stat. 399; Pub. L. 104–297, title I, §105(a), Oct. 11, 1996, 110 Stat. 3563; Pub. L. 109–479, §5, title IV, §404(a), Jan. 12, 2007, 120 Stat. 3578, 3632.)

Amendment of Section

Pub. L. 102–251, title III, §§301(d), 308, Mar. 9, 1992, 106 Stat. 63, 66, provided that, effective on the date on which the Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for the United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until the date on which the Agreement enters into force for the United States, this section is amended:


(1) in subsection (a), (A) by inserting “within the special areas,” immediately before “or for anadromous species” and (B) by striking “beyond the exclusive economic zone” and inserting in lieu thereof “beyond such zone or areas”;

(2) in subsection (e)(1)(E)(IV)[iv], by inserting “or special areas” immediately after “exclusive economic zone”;

(3) in subsection (i), (A) by inserting “or special areas” immediately before the period at the end of paragraph (1)(A), (B) by inserting “or special areas” immediately after “exclusive economic zone” in paragraph (2)(A), and (C) by inserting “or special areas” immediately after “exclusive economic zone” in paragraph (2)(B); and

(4) in subsection (j), (A) by inserting “, special areas,” immediately after “exclusive economic zone”, and (B) by inserting “, areas,” immediately after “such zone”.

References in Text

This chapter, referred to in subsecs. (c), (d), (e)(2)(C)(iii), (g), and (h)(3), (6)(D), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

2007—Subsec. (d). Pub. L. 109–479, §5, substituted “is” for “shall be” and “cannot, or will not,” for “will not” and inserted at end “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.”

Subsec. (h)(2)(B). Pub. L. 109–479, §404(a), substituted “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;” for “that is at least equal in effectiveness to the program established by the Secretary;”.

1996—Subsec. (a)(1), (2). Pub. L. 104–297, §105(a)(1), added pars. (1) and (2) and struck out former pars. (1) and (2) which read as follows:

“(1) is authorized under subsection (b) or (c) of this section;

“(2) is not prohibited by subsection (g) of this section; and”.

Subsec. (c)(2)(D). Pub. L. 104–297, §105(a)(2), substituted “subsection (h)” for “subsection (i)”.

Subsec. (f). Pub. L. 104–297, §105(a)(3), (4), repealed subsec. (f) and redesignated subsec. (g) as (f). See 1994 Amendment note below.

Subsec. (g). Pub. L. 104–297, §105(a)(4), redesignated subsec. (h) as (g). Former subsec. (g) redesignated (f).

Subsec. (h). Pub. L. 104–297, §105(a)(4), redesignated subsec. (i) as (h). Former subsec. (h) redesignated (g).

Subsec. (h)(2)(B) to (D). Pub. L. 104–297, §105(a)(5), added subpar. (B) and redesignated former subpars. (B) and (C) as (C) and (D), respectively.

Subsec. (i). Pub. L. 104–297, §105(a)(4), (6), redesignated subsec. (j) as (i) and substituted “section 1854” for “section 1855”. Former subsec. (i) redesignated (h).

Subsec. (j). Pub. L. 104–297, §105(a)(4), redesignated subsec. (j) as (i).

1994—Subsec. (f). Pub. L. 103–236 directed the repeal of section 201(f) of the Fishery Conservation and Management Act, 1976, which was executed by repealing subsec. (f) of this section which was section 201(f) of the Magnuson Fishery Conservation and Management Act. Prior to repeal, subsec. (f) read as follows: “The Secretary and the Secretary of State shall prepare and submit a report to the Congress and the President, not later than July 1 of each year, setting forth—

“(1) a list of species of all allocations made to foreign nations pursuant to subsection (e) of this section and all permits issued pursuant to section 1824(b)(6)(B) of this title; and

“(2) all tariff and nontariff trade barriers imposed by such nations on the importation of such species from the United States.”

1990—Subsec. (d). Pub. L. 101–627 amended subsec. (d) generally, limiting the total allowable level of foreign fishing, with respect to any fishery subject to the exclusive management authority of the United States, to only that part of the potential fishery yield which is not harvested by United States fishermen and deleting the alternative method of determining the total allowable level of foreign fishing based on the annual fishing level for each harvesting season after the 1980 harvesting season.

1986—Subsecs. (a), (e)(1)(E)(iv). Pub. L. 99–659, §101(c)(2), substituted “exclusive economic zone” for “fishery conservation zone” in two places.

Subsec. (f). Pub. L. 99–386 substituted “The Secretary and the Secretary of State shall” for “The Secretary of the Treasury, in cooperation with the Secretary and the Secretary of State, shall”.

Subsec. (i)(1). Pub. L. 99–659, §§101(c)(2), 103(a)(1), (2), designated existing provisions as subpar. (A), substituted “exclusive economic zone” for “fishery conservation zone”, and added subpar. (B).

Subsec. (i)(2)(A). Pub. L. 99–659, §101(c)(2), substituted “exclusive economic zone” for “fishery conservation zone”.

Subsec. (i)(2)(B). Pub. L. 99–659, §103(a)(3), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “with respect to any foreign fishing vessel while it is engaged in fishing within the fishery conservation zone—

“(i) the time during which the vessel engages in such fishing will be of such short duration that the placing of a United States observer aboard the vessel would be impractical, or

“(ii) the facilities of the vessel for the quartering of a United States observer, or for the carrying out of observer functions, are so inadequate or unsafe that the health or safety of an observer would be jeopardized; or”

Subsec. (j). Pub. L. 99–659, §101(c)(2), substituted “exclusive economic zone” for “fishery conservation zone”.

1984—Subsec. (d)(4). Pub. L. 98–623, §404(1), substituted “may allocate” for “shall allocate” in provisions preceding subpar. (A).

Subsec. (e)(1)(A). Pub. L. 98–623, §404(2)(A), substituted “may make allocations to foreign nations from” for “shall determine the allocation among foreign nations of”.

Subsec. (e)(1)(E)(i). Pub. L. 98–623, §404(2)(B), substituted “both United States fish and fishery products” for “United States fish or fishery products” and inserted “, particularly fish and fishery products for which the foreign nation has requested an allocation”.

Subsec. (e)(1)(E)(ii). Pub. L. 98–623, §404(2)(C), amended provisions generally, thereby substituting “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” for “in the advancement of existing and new opportunities for fisheries trade, particularly through the purchase of fish or fishery products from United States processors or from United States fishermen”.

1983—Subsec. (c)(2)(D). Pub. L. 97–453, §2(a)(1), amended par. (D) generally, substituting “United States observers required under subsection (i) of this section 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” for “duly authorized United States observers be permitted on board any such vessel and that the United States be reimbursed for the cost of such observers”.

Subsec. (c)(4)(D). Pub. L. 97–453, §2(a)(2), added subpar. (D).

Subsec. (d)(4). Pub. L. 97–453, §2(a)(3), substituted “may be allocated” for “shall be allocated” after “then such portion or part”.

Subsec. (e)(1). Pub. L. 97–453, §2(a)(4), designated first sentence of existing provisions as subpar. (A), added subpars. (B), (C), and (D), and redesignated former subpars. (A) through (H) as cls. (i) through (viii) of subpar. (E), respectively.

Subsec. (i)(3). Pub. L. 97–453, §2(a)(5)(A)(i), substituted provision that 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 chapter and shall cooperate in carrying out such other scientific programs relating to the conservation and management of living resources as the Secretary deems appropriate, for provision that United States observers, while aboard foreign fishing vessels, were to carry out such scientific and other functions as the Secretary deemed necessary or appropriate to carry out the purposes of this chapter.

Subsec. (i)(6). Pub. L. 97–453, §2(a)(5)(A)(ii), added par. (6).

Subsec. (j). Pub. L. 97–453, §2(a)(6), added subsec. (j).

1980—Subsec. (d). Pub. L. 96–561, §230, designated existing provision as par. (2), substituted provision prescribing the total allowable level of foreign fishing with respect to any United States fishery for each harvesting season after the 1980 harvesting season as the level representing that portion of the optimum yield of such fishery that will not be harvested by vessels of the United States as determined in accordance with provisions of this chapter, other than those relating to the determination of annual fishing levels, or the annual fishing levels determined pursuant to par. (3) of this section for the harvesting season for provision prescribing the total allowable level of foreign fishing with respect to any fishery subject to the exclusive fishery management authority of the United States as that portion of the optimum yield of such fishery which will not be harvested by vessels of the United States, as determined in accordance with provisions of this chapter, and added pars. (1), (3), and (4).

Subsec. (e). Pub. L. 96–561, §231(a), substituted “All such determinations shall be made by the Secretary of State and the Secretary on the basis of” for “In making any such determination, the Secretary of State and the Secretary shall consider”, added subpars. (A), (B), (D), and (E), redesignated former subpars. (A), (B), and (D) as (F), (G), and (H), respectively, and in subpar. (C) substituted determination where such nations and the fishing fleets of such nations have cooperated with the United States in enforcement of United States fishing regulations for determination where such nations have cooperated with the United States in enforcement and with respect to conservation and management of fishery resources.

Subsec. (i). Pub. L. 96–561, §236, added subsec. (i).

1979—Subsec. (e). Pub. L. 96–61 designated existing provisions as par. (1), redesignated pars. (1) through (4) as subpars. (A) to (D), and added par. (2).

Subsec. (e)(2)(D)(i). Pub. L. 96–118 substituted “unharvested” for “harvested”.

1978—Subsec. (a)(2). Pub. L. 95–354, §4(1), substituted “(g)” for “(f)”.

Subsec. (c)(3). Pub. L. 95–354, §4(2), substituted “harvest an amount of fish which exceeds” for “exceed”.

Subsecs. (f) to (h). Pub. L. 95–354, §4(3), (4), added subsec. (f), redesignated former subsecs. (f) and (g) as (g) and (h), and in subsec. (h)(1), as so redesignated, set out existing provisions as cls. (A) and (C) and added cl. (B).

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–251 effective on date on which Agreement between United States and Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until date on which Agreement enters into force for United States, see section 308 of Pub. L. 102–251, set out as a note under section 773 of this title.

Effective Date of 1983 Amendment

Section 2(b) of Pub. L. 97–453 provided that: “The amendments made by subsection (a)(1) and (5)(A)(ii) [amending this section] shall take effect January 1, 1984.”

Effective Date of 1980 Amendment

Sections 231(b), 238(b) of Pub. L. 96–561, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “The amendments made by subsection (a) [amending this section] shall apply with respect to the 1981 harvesting season and harvesting seasons thereafter (as defined in section 201(d)(1) of the Magnuson-Stevens Fishery Conservation and Management Act, as amended by section 301) [subsec. (d)(1) of this section].”

Sections 237, 238(b) of Pub. L. 96–561, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “The amendment made by section 236 [amending this section] shall take effect October 1, 1981, and shall apply with respect to permits issued under section 204 of the Magnuson-Stevens Fishery Conservation and Management Act [section 1824 of this title] after December 31, 1981.”

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Implementation of Pacific Albacore Tuna Treaty

Pub. L. 108–219, title IV, §401, Apr. 13, 2004, 118 Stat. 616, provided that:

“(a) In General.—Notwithstanding anything to the contrary in section 201, 204, or 307(2) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1821, 1824, and 1857(2)), foreign fishing may be conducted pursuant to the Treaty between the Government of the United States of America and the Government of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges, signed at Washington May 26, 1981, including its Annexes and any amendments thereto.

“(b) Regulations.—The Secretary of Commerce, with the concurrence of the Secretary of State, may—

“(1) promulgate regulations necessary to discharge the obligations of the United States under the Treaty and its Annexes; and

“(2) provide for the application of any such regulation to any person or vessel subject to the jurisdiction of the United States, wherever that person or vessel may be located.

“(c) Enforcement.—

“(1) In general.—The Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) shall be enforced as if subsection (a) were a provision of that Act. Any reference in the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) to ‘this Act’ or to any provision of that Act, shall be considered to be a reference to that Act as it would be in effect if subsection (a) were a provision of that Act.

“(2) Regulations.—The regulations promulgated under subsection (b), shall be enforced as if—

“(A) subsection (a) were a provision of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.); and

“(B) the regulations were promulgated under that Act.”

Foreign Fishing for Atlantic Herring and Mackerel

Pub. L. 104–43, title VIII, §802, Nov. 3, 1995, 109 Stat. 396, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “Notwithstanding any other provision of law—

“(1) no allocation may be made to any foreign nation or vessel under section 201 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) [16 U.S.C. 1821] in any fishery for which there is not a fishery management plan implemented in accordance with that Act [16 U.S.C. 1801 et seq.]; and

“(2) the Secretary of Commerce may not approve the portion of any permit application submitted under section 204(b) of the Act [16 U.S.C. 1824(b)] which proposes fishing by a foreign vessel for Atlantic mackerel or Atlantic herring unless—

“(A) the appropriate regional fishery management council recommends under section 204(b)(5) of that Act that the Secretary approve such fishing, and

“(B) the Secretary of Commerce includes in the permit any conditions or restrictions recommended by the appropriate regional fishery management council with respect to such fishing.”

Use of Vessel Identification Equipment

Pub. L. 100–629, §6, Nov. 7, 1988, 102 Stat. 3287, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that:

“(a) The Secretary of State, the Secretary of Commerce, and the Secretary of the department in which the Coast Guard is operating, as appropriate, shall exercise their authority under section 201(c)(2)(C) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1821) to require the use of transponders or other such appropriate position-fixing and identification equipment on any vessel other than a vessel of the United States engaged in fishing in the United States Exclusive Economic Zone.

“(b) The Secretary of Commerce, after consultation with the Secretary of Defense, the Secretary of State, and the Secretary of the department in which the Coast Guard is operating shall report to the Committee on Merchant Marine and Fisheries of the House of Representatives and the Committee on Commerce, Science and Transportation of the Senate within 180 days after the date of enactment of this Act [Nov. 7, 1988] on the results of their compliance with subsection (a).”

§1822. International fishery agreements

(a) Negotiations

The Secretary of State—

(1) shall renegotiate treaties as provided for in subsection (b) of this section;

(2) shall negotiate governing international fishery agreements described in section 1821(c) of this title;

(3) may negotiate boundary agreements as provided for in subsection (d) of this section;

(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) of this section, as may be necessary and appropriate to further the purposes, policy, and provisions of this chapter.

(b) Treaty renegotiation

The Secretary of State, in cooperation with the Secretary, shall initiate, promptly after April 13, 1976, 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 for anadromous species or Continental Shelf fishery resources beyond such zone or area, and which is in any manner inconsistent with the purposes, policy, or provisions of this chapter, 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 April 13, 1976.

(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 for anadromous species or Continental Shelf fishery resources beyond such zone or area—

(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 1821(c) of this title or section 1824(e) of this title.

(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.

(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 November 28, 1990, on the results of the evaluation required under paragraph (1), together with recommendations for addressing any inadequacies identified; and

(B) within six months after November 28, 1990, 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).

(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 1 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.

(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.

(g) Fishery agreement with Russia

(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 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.

(3) The Secretary of Commerce may promulgate such regulations, in accordance with section 553 of title 5, as may be necessary to carry out the provisions of any fishery agreement negotiated and concluded pursuant to paragraph (1).

(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 chapter 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 chapter; and

(B) subject to approval by Congress under section 1823 of this title.


(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.

(Pub. L. 94–265, title II, §202, Apr. 13, 1976, 90 Stat. 339; Pub. L. 99–659, title I, §101(c)(2), Nov. 14, 1986, 100 Stat. 3707; Pub. L. 101–627, title I, §§105(a), 120(a), Nov. 28, 1990, 104 Stat. 4439, 4459; Pub. L. 102–251, title III, §301(e), Mar. 9, 1992, 106 Stat. 63; Pub. L. 104–297, title I, §105(b), Oct. 11, 1996, 110 Stat. 3564.)

Amendment of Section

Pub. L. 102–251, title III, §§301(e)(1), (2), 308, Mar. 9, 1992, 106 Stat. 63, 66, provided that, effective on the date on which the Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for the United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until the date on which the Agreement enters into force for the United States, this section is amended:


(1) in subsection (b), (A) by inserting “or special areas” immediately after “February 28, 1977)” and (B) by striking “such zone or area” and inserting in lieu thereof “such zone or areas”; and

(2) in subsection (c), (A) by inserting “or special areas” immediately after “February 28, 1977)” and (B) by striking “such zone or area” and inserting in lieu thereof “such zone or areas”.

References in Text

This chapter, referred to in subsecs. (a)(5), (b), and (h)(1), (2)(A), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

1996—Subsec. (c). Pub. L. 104–297, §105(b)(1), inserted before period at end “or section 1824(e) of this title”.

Subsec. (h). Pub. L. 104–297, §105(b)(2), added subsec. (h).

1992—Subsec. (g). Pub. L. 102–251, §301(e)(3), added subsec. (g).

1990—Subsec. (e). Pub. L. 101–627, §105(a), added subsec. (e). Former subsec. (e) redesignated (f).

Subsec. (f). Pub. L. 101–627, §120(a), substituted “an exclusive economic” for “a exclusive economic”.

Pub. L. 101–627, §105(a), redesignated former subsec. (e) as (f).

1986—Subsecs. (b) to (e). Pub. L. 99–659 substituted “exclusive economic zone” for “fishery conservation zone” wherever appearing.

Change of Name

Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

Effective Date of 1992 Amendment

Amendment by section 301(e)(3) of Pub. L. 102–251 effective Mar. 9, 1992, and amendment by section 301(e)(1), (2), of Pub. L. 102–251 effective on date on which Agreement between United States and Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until date on which Agreement enters into force for United States, see section 308 of Pub. L. 102–251, set out as a note under section 773 of this title.

Shark Finning Prohibition

Pub. L. 106–557, Dec. 21, 2000, 114 Stat. 2772, as amended by Pub. L. 109–479, title III, §302(c), Jan. 12, 2007, 120 Stat. 3623, provided that:

“SECTION 1. SHORT TITLE.

“This Act may be cited as the ‘Shark Finning Prohibition Act’.

“SEC. 2. PURPOSE.

“The purpose of this Act is to eliminate shark-finning by addressing the problem comprehensively at both the national and international levels.

“SEC. 3. PROHIBITION ON REMOVING SHARK FIN AND DISCARDING SHARK CARCASS AT SEA

“[Amended section 1857 of this title.]

“SEC. 4. REGULATIONS.

“No later than 180 days after the date of the enactment of this Act [Dec. 21, 2000], the Secretary of Commerce shall promulgate regulations implementing the provisions of section 3076(1)(P) [307(1)(P)] of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1857(1)(P)), as added by section 3 of this Act.

“SEC. 5. INTERNATIONAL NEGOTIATIONS.

“The Secretary of Commerce, acting through the Secretary of State, shall—

“(1) initiate discussions as soon as possible for the purpose of developing bilateral or multilateral agreements with other nations for the prohibition on shark-finning;

“(2) initiate discussions as soon as possible with all foreign governments which are engaged in, or which have persons or companies engaged in shark-finning, for the purposes of—

“(A) collecting information on the nature and extent of shark-finning by such persons and the landing or transshipment of shark fins through foreign ports; and

“(B) entering into bilateral and multilateral treaties with such countries to protect such species;

“(3) seek agreements calling for an international ban on shark-finning and other fishing practices adversely affecting these species through the United Nations, the Food and Agriculture Organization's Committee on Fisheries, and appropriate regional fishery management bodies;

“(4) initiate the amendment of any existing international treaty for the protection and conservation of species of sharks to which the United States is a party in order to make such treaty consistent with the purposes and policies of this section;

“(5) urge other governments involved in fishing for or importation of shark or shark products to fulfill their obligations to collect biological data, such as stock abundance and by-catch levels, as well as trade data, on shark species as called for in the 1995 Resolution on Cooperation with FAO with Regard to study on the Status of Sharks and By-Catch of Shark Species; and

“(6) urge other governments to prepare and submit their respective National Plan of Action for the Conservation and Management of Sharks to the 2001 session of the FAO Committee on Fisheries, as set forth in the International Plan of Action for the Conservation and Management of Sharks.

“SEC. 6. REPORT TO CONGRESS.

“The Secretary of Commerce, in consultation with the Secretary of State, shall provide to Congress, by not later than 1 year after the date of the enactment of this Act [Dec. 21, 2000], and every year thereafter, a report which—

“(1) includes a list that identifies nations whose vessels conduct shark-finning and details the extent of the international trade in shark fins, including estimates of value and information on harvesting of shark fins, and landings or transshipment of shark fins through foreign ports;

“(2) describes the efforts taken to carry out this Act, and evaluates the progress of those efforts;

“(3) sets forth a plan of action to adopt international measures for the conservation of sharks; and

“(4) includes recommendations for measures to ensure that United States actions are consistent with national, international, and regional obligations relating to shark populations, including those listed under the Convention on International Trade in Endangered Species of Wild Flora and Fauna.

“SEC. 7. RESEARCH.

“The Secretary of Commerce, subject to the availability of appropriations authorized by section 10, shall establish a research program for Pacific and Atlantic sharks to engage in the following data collection and research:

“(1) The collection of data to support stock assessments of shark populations subject to incidental or directed harvesting by commercial vessels, giving priority to species according to vulnerability of the species to fishing gear and fishing mortality, and its population status.

“(2) Research to identify fishing gear and practices that prevent or minimize incidental catch of sharks in commercial and recreational fishing.

“(3) Research on fishing methods that will ensure maximum likelihood of survival of captured sharks after release.

“(4) Research on methods for releasing sharks from fishing gear that minimize risk of injury to fishing vessel operators and crews.

“(5) Research on methods to maximize the utilization of, and funding to develop the market for, sharks not taken in violation of a fishing management plan approved under section 303 or section 307(1)(P) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1853, 1857(1)(P)).

“(6) Research on the nature and extent of the harvest of sharks and shark fins by foreign fleets and the international trade in shark fins and other shark products.

“SEC. 8. WESTERN PACIFIC LONGLINE FISHERIES COOPERATIVE RESEARCH PROGRAM.

“The National Marine Fisheries Service, in consultation with the Western Pacific Fisheries Management Council, shall initiate a cooperative research program with the commercial longlining industry to carry out activities consistent with this Act, including research described in section 7 of this Act. The service [Service] may initiate such shark cooperative research programs upon the request of any other fishery management council.

“SEC. 9. SHARK-FINNING DEFINED.

“In this Act, the term ‘shark-finning’ means the taking of a shark, removing the fin or fins (whether or not including the tail) of a shark, and returning the remainder of the shark to the sea.

“SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

“There are authorized to be appropriated to the Secretary of Commerce for fiscal years 2007 through 2011 such sums as are necessary to carry out this Act.”

Certificate of Legal Origin for Anadromous Fish Products

Section 801 of Pub. L. 101–627 provided that:

“(a) Negotiations.—Within 60 days after the date of enactment of this Act [Nov. 28, 1990], the Secretary of State shall commence negotiations with nations which import or export anadromous fish or anadromous fish products for the purpose of securing general agreement among such nations to implement effective measures to prohibit international trade in anadromous fish or anadromous fish products unless such fish or fish products are accompanied by a valid certificate of legal origin attesting that the fish or fish product was lawfully harvested—

“(1) within the jurisdiction of a nation having naturally occurring or artificially established anadromous fish populations of the same species as the imported or exported product; or

“(2) on the high seas according to an international agreement among nations with jurisdiction over more than 1 percent of the stocks of anadromous fish being so harvested.

“(b) Issuance of Certificates.—For the purposes of subsection (a), a valid certificate of legal origin may be issued only by a nation which—

“(1) is the nation having jurisdiction over the vessel or other means by which the fish or fish product was harvested; and

“(2) maintains regular harvests of anadromous fish in a manner consistent with the criteria for lawful harvests set out in subsection (a).

“(c) Bilateral or Multilateral Agreements.—Efforts undertaken by the Secretary of State pursuant to subsection (a) may, at the discretion of the Secretary, be directed toward achieving either bilateral or multilateral agreements, including trade agreements, whichever the Secretary determines to be most likely to result in the earliest possible date or dates of agreement by those nations which individually have in excess of $1,000,000, or the equivalent, in import or export trade in anadromous fish and anadromous fish products.

“(d) Regulations.—The Secretary of Commerce shall, within 180 days after the date of enactment of this Act [Nov. 28, 1990], promulgate regulations providing for—

“(1) the issuance of certificates of legal origin pursuant to agreements under subsection (a) for anadromous fish and anadromous fish products legally harvested by vessels of the United States;

“(2) the delegation of the authority to issue certificates of legal origin to States, territories, or possessions of the United States which the Secretary of Commerce determines to have implemented a program which is sufficient to accomplish the purposes of subsection (a); and

“(3) an orderly transition to such regulations, sufficient to ensure that United States commerce in anadromous fish and anadromous fish products is not unduly disrupted.

“(e) Report Required.—The Secretary of Commerce, after consultation with the Secretary of the Treasury, shall, within 180 days after the date of enactment of this Act [Nov. 28, 1990], submit to the Congress a report—

“(1) making recommendations as to the need for the adoption of United States import and export restrictions on anadromous fish and anadromous fish products consistent with subsection (a); and

“(2) identifying, evaluating, and making recommendations regarding any specific statutory or regulatory changes that may be necessary for the adoption of such restrictions.

“(f) Certification.—If, at any time following the promulgation of the regulations required by subsection (d), the Secretary of Commerce finds that any nation is engaging in trade in unlawfully taken anadromous fish or anadromous fish products, the Secretary shall certify that fact to the President, which certification shall be deemed to be a certification for the purposes of section 8(a)(1) of the Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)(1)).”

Driftnet Impact Monitoring, Assessment, and Control

Pub. L. 100–220, title IV, Dec. 29, 1987, 101 Stat. 1477, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that:

“SEC. 4001. SHORT TITLE.

“This title may be cited as the ‘Driftnet Impact Monitoring, Assessment, and Control Act of 1987’.

“SEC. 4002. FINDINGS.

“The Congress finds that—

“(1) the use of long plastic driftnets is a fishing technique that may result in the entanglement and death of enormous numbers of target and nontarget marine resources in the waters of the North Pacific Ocean, including the Bering Sea;

“(2) there is a pressing need for detailed and reliable information on the number of marine resources that become entangled and die in actively fished driftnets and in driftnets that are lost, abandoned, or discarded; and

“(3) increased efforts are necessary to monitor, assess, and reduce the adverse impacts of driftnets.

“SEC. 4003. DEFINITIONS.

“As used in this title—

“(1) Driftnet.—The term ‘driftnet’ means a gillnet composed of a panel of plastic webbing one and one-half miles or more in length.

“(2) Driftnet fishing.—The term ‘driftnet fishing’ means a fish-harvesting method in which a driftnet is placed in water and allowed to drift with the currents and winds for the purpose of entangling fish in the webbing.

“(3) Exclusive economic zone of the united states.—The term ‘exclusive economic zone of the United States’ means the zone defined in section 3(6) [now 3(11)] of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802(b) [1802(11)]).

“(4) Marine resources.—The term ‘marine resources’ includes fish, shellfish, marine mammals, seabirds, and other forms of marine life or waterfowl.

“(5) Marine resources of the united states.—The term ‘marine resources of the United States’ means—

“(A) marine resources found in, or which breed within, areas subject to the jurisdiction of the United States, including the exclusive economic zone of the United States; and

“(B) species of fish, wherever found, that spawn in the fresh or estuarine waters of the United States.

“(6) Secretary.—The term ‘Secretary’ means the Secretary of Commerce.

“SEC. 4004. MONITORING AGREEMENTS.

“(a) Negotiations.—The Secretary, through the Secretary of State and in consultation with the Secretary of the Interior, shall immediately initiate, negotiations with each foreign government that conducts, or authorizes its nationals to conduct, driftnet fishing that results in the taking of marine resources of the United States in waters of the North Pacific Ocean outside of the exclusive economic zone and territorial sea of any nation, for the purpose of entering into agreements for statistically reliable cooperative monitoring and assessment of the numbers of marine resources of the United States killed and retrieved, discarded, or lost by the foreign government's driftnet fishing vessels. Such agreements shall provide for—

“(1) the use of a sufficient number of vessels from which scientists of the United States and the foreign governments may observe and gather statistically reliable information; and

“(2) appropriate methods for sharing equally the costs associated with such activities.

“(b) Report.—The Secretary, in consultation with the Secretary of State, shall provide to the Congress not later than 1 year after the date of enactment of this Act [Dec. 29, 1987] a full report on the results of negotiations under this section.

“SEC. 4005. IMPACT REPORT.

“(a) In General.—The Secretary shall provide to the Congress within 1 year after the date of the enactment of this Act [Dec. 29, 1987], and at such other times thereafter as the Secretary considers appropriate, a report identifying the nature, extent, and effects of driftnet fishing in waters of the North Pacific Ocean on marine resources of the United States. The report shall include the best available information on—

“(1) the number and flag state of vessels involved;

“(2) the areas fished;

“(3) the length, width, and mesh size of driftnets used;

“(4) the number of marine resources of the United States killed by such fishing;

“(5) the effect of seabird mortality, as determined by the Secretary of the Interior, on seabird populations; and

“(6) any other information the Secretary considers appropriate.

“(b) Information From Foreign Governments.—The Secretary, through the Secretary of State, shall—

“(1) request relevant foreign governments to provide the information described in subsection (a), and

“(2) include in a report under this section the information so provided and an evaluation of the adequacy and reliability of such information.

“SEC. 4006. ENFORCEMENT AGREEMENTS.

“(a) Negotiations.—The Secretary shall immediately initiate, through the Secretary of State and in consultation with the Secretary of the Department in which the Coast Guard is operating negotiations with each foreign government that conducts, or authorizes its nationals to conduct, driftnet fishing that results in the taking of marine resources of the United States in waters of the North Pacific Ocean outside of the exclusive economic zone and territorial sea of any nation, for the purpose of entering into agreements for effective enforcement of laws, regulations, and agreements applicable to the location, season, and other aspects of the operations of the foreign government's driftnet fishing vessels. Such agreements shall include measures for—

“(1) the effective monitoring and detection of violations;

“(2) the collection and presentation of such evidence of violations as may be necessary for the successful prosecution of such violations by the responsible authorities;

“(3) reporting to the United States of penalties imposed by the foreign governments for violations; and

“(4) appropriate methods for sharing equally the costs associated with such activities.

“(b) Certification for Purposes of Fishermen's Protective Act of 1967.—If the Secretary, in consultation with the Secretary of State, determines that a foreign government has failed, within 18 months after the date of the enactment of this Act [Dec. 29, 1987], to enter into and implement an agreement under subsection (a) or section 4004(a) that is adequate, the Secretary shall certify such fact to the President, which 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)).

“SEC. 4007. EVALUATIONS AND RECOMMENDATIONS.

“(a) Marking, Registry, and Identification System.—The Secretary shall evaluate, in consultation with officials of other Federal agencies and such other persons as may be appropriate, the feasibility of and develop recommendations for the establishment of a driftnet marking, registry, and identification system to provide a reliable method for the determination of the origin by vessel, of lost, discarded, or abandoned driftnets and fragments of driftnets. In conducting such evaluation, the Secretary shall consider the adequacy of existing driftnet identification systems of foreign nations and the extent to which these systems achieve the objectives of this title.

“(b) Alternative Driftnet Materials.—The Secretary, in consultation with such other persons as may be appropriate, shall evaluate the feasibility of, and develop appropriate recommendations for, the use of alternative materials in driftnets for the purpose of increasing the rate of decomposition of driftnets that are discarded or lost at sea.

“(c) Driftnet Bounty System.—The Secretary, in consultation with such other persons as may be appropriate, shall evaluate the feasibility of and develop appropriate recommendations for the implementation of a driftnet bounty system to pay persons who retrieve from the exclusive economic zone and deposit with the Secretary lost, abandoned, and discarded driftnet and other plastic fishing material.

“(d) Driftnet Fishing Vessel Tracking System.—The Secretary, in consultation with such other persons as may be appropriate, shall evaluate the feasibility of, and develop appropriate recommendations for, the establishment of a cooperative driftnet fishing vessel tracking system to facilitate efforts to monitor the location of driftnet fishing vessels.

“(e) Report.—The Secretary shall transmit to the Congress not later than 18 months after the date of the enactment of this Act [Dec. 29, 1987] a report setting forth—

“(1) the evaluations and recommendations developed under subsections (a), (b), (c), and (d);

“(2) the most effective and appropriate means of implementing such recommendations;

“(3) any need for further research and development efforts and the estimated cost and time required for completion of such efforts; and

“(4) any need for legislation to provide authority to carry out such recommendations.

“SEC. 4008. CONSTRUCTION WITH OTHER LAWS.

“This title [this note] 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 [16 U.S.C. 1453 note], and reflected in existing law on the date of the enactment of this Act [Dec. 29, 1987].

“SEC. 4009. AUTHORIZATION OF APPROPRIATIONS.

“There are authorized to be appropriated to the Department of Commerce and the Department of State, such sums as may be necessary to carry out the purposes of this title.”

[For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.]

1 So in original.

§1823. Congressional oversight of international fishery agreements

(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 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) of this section 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, Science, and Transportation and on Foreign Relations.

(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.

(2) “Fishery agreement resolution” defined

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) of this section; and

(B) which is reported from the Committee on Merchant Marine and Fisheries of the House of Representatives or the Committee on Commerce, Science, and Transportation 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) of this section 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.

(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.

(Pub. L. 94–265, title II, §203, Apr. 13, 1976, 90 Stat. 340; Pub. L. 103–437, §6(x), Nov. 2, 1994, 108 Stat. 4587; Pub. L. 104–297, title I, §105(c), Oct. 11, 1996, 110 Stat. 3564.)

Amendments

1996—Pub. L. 104–297, §105(c)(1), substituted “international” for “governing international” in section catchline.

Subsec. (a). Pub. L. 104–297, §105(c)(2), (3), inserted “, bycatch reduction agreement, or Pacific Insular Area fishery agreement” after “international fishery agreement” in two places and substituted “120 days (excluding any days in a period for which the Congress is adjourned sine die)” for “60 calendar days of continuous session of the Congress”.

Subsec. (c). Pub. L. 104–297, §105(c)(4), (5), redesignated subsec. (d) as (c) and struck out heading and text of former subsec. (c). Text read as follows: “For purposes of subsection (a) of this section—

“(1) continuity of session is broken only by an adjournment of Congress sine die; and

“(2) the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of the 60-day period.”

Subsec. (c)(2)(A). Pub. L. 104–297, §105(c)(6), substituted “agreement, bycatch reduction agreement, or Pacific Insular Area fishery agreement” for “agreement”.

Subsec. (d). Pub. L. 104–297, §105(c)(5), redesignated subsec. (d) as (c).

1994—Subsec. (b). Pub. L. 103–437, §6(x)(1), substituted “Commerce, Science, and Transportation and on” for “Commerce and”.

Subsec. (d)(2)(B). Pub. L. 103–437, §6(x)(2), substituted “Commerce, Science, and Transportation” for “Commerce”.

Short Title of 1995 Amendment

Pub. L. 104–43, title V, §501, Nov. 3, 1995, 109 Stat. 391, provided that: “This title [amending provisions set out below] may be cited as the ‘Sea of Okhotsk Fisheries Enforcement Act of 1995’.”

Abolition of House Committee on Merchant Marine and Fisheries

Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee on Merchant Marine and Fisheries of House of Representatives treated as referring to Committee on Resources of House of Representatives in case of provisions relating to fisheries, wildlife, international fishing agreements, marine affairs (including coastal zone management) except for measures relating to oil and other pollution of navigable waters, or oceanography by section 1(b)(3) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

Governing International Fishery Agreement With Poland

Pub. L. 105–384, title I, §101, Nov. 13, 1998, 112 Stat. 3451, provided that: “Notwithstanding section 203 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1823), the governing international fishery agreement between the Government of the United States of America and the Government of the Republic of Poland, as contained in the message to Congress from the President of the United States dated February 5, 1998, is approved as a governing international fishery agreement for the purposes of such Act [16 U.S.C. 1801 et seq.] and shall enter into force and effect with respect to the United States on the date of the enactment of this Act [Nov. 13, 1998].”

Governing International Fishery Agreement With Republic of Estonia

Pub. L. 102–587, title I, §1001, Nov. 4, 1992, 106 Stat. 5039, provided that the governing international fishery agreement between the Government of the United States of America and the Government of the Republic of Estonia, was approved by Congress as a governing international fishery agreement for purposes of this chapter and was to enter into force and effect with respect to the United States on Nov. 4, 1992.

Fisheries Enforcement in Central Bering Sea and Central Sea of Okhotsk

Pub. L. 102–582, title III, Nov. 2, 1992, 106 Stat. 4906, as amended by Pub. L. 104–43, title V, §502, Nov. 3, 1995, 109 Stat. 391; Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, which provided that this title was to be cited as the “Central Bering Sea Fisheries Enforcement Act of 1992”, prohibited vessels and nationals of United States from conducting fishing operations in Central Bering Sea and Central Sea of Okhotsk, except where such fishing operations were conducted in accordance with international fishery agreement to which United States and Russian Federation were parties, further provided for civil penalties and permit sanctions for violations of these provisions as well as authority to deny port privileges for fishing in Central Bering Sea, further authorized Secretary of Commerce to issue regulations restricting fishing in United States exclusive economic zone, and further provided for definition of terms and that this title would cease to have force and effect after the date that is seven years after Nov. 2, 1992, except that any proceeding with respect to violations occurring prior to such date was to be conducted as if these provisions were still in effect.

North Pacific and Bering Sea Fisheries Advisory Body

Pub. L. 100–629, §5, Nov. 7, 1988, 102 Stat. 3287, provided that:

“(a) In General.—The Secretary of State shall establish an advisory body on the fisheries of the North Pacific and the Bering Sea, which shall advise the United States representative to the International Consultative Committee created in accordance with Article XIV of the governing international fishery agreement entered into between the United States and the Union of Soviet Socialist Republics, as contained in the message to Congress from the President of the United States dated June 22, 1988.

“(b) Membership.—

“(1) In General.—The advisory body established pursuant to this section shall consist of 12 members, as follows:

“(A) The Director of the Department of Fisheries of the State of Washington.

“(B) The Commission of the Department of Fish and Game of the State of Alaska.

“(C) Five members appointed by the Secretary of State from among persons nominated by the Governor of Alaska on the basis of their knowledge and experience in commercial harvesting, processing, or marketing of fishery resources.

“(D) Five members appointed by the Secretary of State from among persons nominated by the Governor of Washington on the basis of their knowledge and experience in commercial harvesting, processing, or marketing of fishery resources.

“(2) Nominations.—The Governor of Alaska and the Governor of Washington shall each nominate 10 persons for purposes of paragraph (1).

“(c) Pay.—Members of the advisory body established pursuant to this section shall receive no pay by reason of their service as members of the advisory body.

“(d) Exemption From Federal Advisory Committee Act.—The Federal Advisory Committee Act (5 U.S.C. App. 1 et seq.) shall not apply to an advisory body established pursuant to this section.”

Governing International Fishery Agreement With Russian Federation

Pub. L. 103–206, title VII, §701, Dec. 20, 1993, 107 Stat. 2446, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “The Agreement between the Government of the United States of America and the Government of the Russian Federation on Mutual Fisheries Relations which was entered into on May 31, 1988, and which expired by its terms on October 28, 1993, may be brought into force again for the United States through an exchange of notes between the United States of America and the Russian Federation and may remain in force and effect on the part of the United States until May 1, 1994, and may be amended or extended by a subsequent agreement to which section 203 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1823) applies.”

Pub. L. 100–629, §1, Nov. 7, 1988, 102 Stat. 3286, provided that the governing international fishery agreement entered into between the Government of the United States and the Government of the Union of Soviet Socialist Republics was approved by Congress and was to enter into force and effect with respect to the United States on Nov. 7, 1988.

Governing International Fishery Agreement With German Democratic Republic

Pub. L. 100–350, §1, June 27, 1988, 102 Stat. 660, provided that extension of governing international fishery agreement between the Government of the United States of America and the Government of the German Democratic Republic was approved by Congress as a governing international fishery agreement for purposes of this chapter, and was to enter into force and effect with respect to the United States on June 27, 1988.

Governing International Fishery Agreements With Iceland and the European Economic Community

Pub. L. 98–623, title I, Nov. 8, 1984, 98 Stat. 3394, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “Notwithstanding section 203 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1823) [this section]—

“(1) the governing international fishery agreement between the Government of the United States and the European Economic Community Concerning Fisheries Off the Coasts of the United States, as contained in the Message to Congress from the President of the United States dated August 27, 1984, is hereby approved by Congress as a governing international fishery agreement for purposes of that Act [this chapter], and may enter into force with respect to the United States in accordance with the terms of Article XIX of the agreement after the date of the enactment of this title [Nov. 8, 1984], upon signature of the agreement by both parties; and

“(2) the governing international fishery agreement between the Government of the United States and the Government of the Republic of Iceland Concerning Fisheries Off the Coasts of the United States, as contained in the message to Congress from the President of the United States dated September 29, 1984, is hereby approved by Congress as a governing international fishery agreement for purposes of that Act [this chapter], and may enter into force with respect to the United States in accordance with the terms of Article XVI of the agreement after the date of the enactment of this title [Nov. 8, 1984].”

Governing International Fishery Agreement With Faroe Islands and Denmark

Pub. L. 98–498, title IV, §440, Oct. 19, 1984, 98 Stat. 2310, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “Notwithstanding section 203 of the Magnuson-Stevens Fishery Conservation and Management Act of 1976 [this section], the Governing International Fishery Agreement between the Government of the United States of America of the One Part and the Home Government of the Faroe Islands and the Government of Denmark of the Other Part Concerning Faroese Fishing in Fisheries Off the Coasts of the United States, as contained in the message to Congress from the President of the United States dated July 13, 1984—

“(1) is approved by Congress as a governing international fishery agreement for purposes of that Act [this chapter]; and

“(2) may enter into force with respect to the United States in accordance with the terms of Article XVI of the Agreement following the enactment of this title [Oct. 19, 1984].”

Governing International Fishery Agreement With Japan

Pub. L. 101–224, §7, Dec. 12, 1989, 103 Stat. 1907, provided that the governing international fishery agreement entered into between the Government of the United States and the Government of Japan was approved by Congress and was to enter into force and effect with respect to the United States on Dec. 12, 1989.

Pub. L. 100–220, title I, §1001, Dec. 29, 1987, 101 Stat. 1459, provided that the governing international fishery agreement between the Government of the United States of America and the Government of Japan Concerning Fisheries Off the Coasts of the United States was approved by Congress as a governing international fishery agreement for the purposes of this chapter, and was to enter into force and effect with respect to the United States on Dec. 29, 1987.

Pub. L. 97–389, title IV, §401, Dec. 29, 1982, 96 Stat. 1954, provided that the governing international fishery agreement entered into between the Government of the United States and the Government of Japan pursuant to this chapter, signed at Washington on Sept. 10, 1982, was approved, and was effective on Jan. 1, 1983.

Governing International Fishery Agreement With Spain

Pub. L. 97–389, title IV, §402, Dec. 29, 1982, 96 Stat. 1954, provided for approval of the governing international fishery agreement entered into between the Government of the United States and the Government of Spain pursuant to this chapter.

Governing International Fishery Agreement With Portugal

Pub. L. 96–561, title I, §145, title II, §238(b), Dec. 22, 1980, 94 Stat. 3287, 3300, provided that the governing international fishery agreement between the Government of the United States of America and the Government of Portugal Concerning Fisheries Off the Coasts of the United States was approved by Congress as a governing international fishery agreement for the purposes of this chapter, and was to enter into force and effect with respect to the United States on Dec. 22, 1980.

Extension of International Fishery Agreements

Pub. L. 100–66, §1, July 10, 1987, 101 Stat. 384, provided that the governing international fishery agreement entered into between the Government of the United States and the Government of the Republic of Korea on July 26, 1982, was to remain in force and effect with respect to the United States until the closing date of the sixty-day period referred to in subsec. (a) of this section that applied with respect to any new governing international fishery agreement between the United States and the Republic of Korea that was transmitted to the Congress under subsec. (a) of this section after May 1, 1987, or Nov. 1, 1987, whichever was earlier.

Pub. L. 98–364, title I, §106, July 17, 1984, 98 Stat. 442, provided that upon certification by Secretary of State to President of the Senate and Speaker of the House of Representatives that a new governing international fishery agreement in conformity with this chapter had been negotiated by the United States and the European Economic Community, the existing governing international fishery agreement referred to in section 2(a)(7) of Pub. L. 95–6, formerly set out below, could be extended or reinstated and could be in force and effect with respect to the United States, for the period of time ending on the earlier of (1) the effective date of the new governing international fishery agreement, or (2) Sept. 30, 1984.

Pub. L. 97–212, §10(b), June 30, 1982, 96 Stat. 148, provided that the governing international fishery agreements referred to in section 2(a)(9) and (10) of Pub. L. 95–6, formerly set out below, were to be extended, and were to be in force and effect with respect to the United States, for the period of time ending on the deadline for completion of congressional review, pursuant to subsec. (a) of this section, of any new governing international fishery agreement signed, on or before July 31, 1982, by the United States and the respective foreign government that was a party to the agreement in question, or July 31, 1982, if the United States and the respective foreign government that was a party to the agreement in question failed to sign a new governing international fishery agreement on or before that date.

Congressional Approval of Certain Governing International Fishery Agreements

Pub. L. 95–6, §2, Feb. 21, 1977, 91 Stat. 15, as amended by Pub. L. 95–8, §1, Mar. 3, 1977, 91 Stat. 18; Pub. L. 95–219, §1, Dec. 28, 1977, 91 Stat. 1613; Pub. L. 96–561, title II, §238(b), Dec. 22, 1980, 94 Stat. 3300; Pub. L. 97–212, §10(a), June 30, 1982, 96 Stat. 148; Pub. L. 98–44, title I, §105, July 12, 1983, 97 Stat. 217; Pub. L. 98–364, title I, §105, July 17, 1984, 98 Stat. 442, provided for the approval by Congress, as a governing international fishery agreement for purposes of this chapter, of the governing international fishery agreement between—

(1) the Government of the United States and the Government of the People's Republic of Bulgaria Concerning Fisheries Off the Coasts of the United States;

(2) the Government of the United States and the Government of the Socialist Republic of Romania Concerning Fisheries Off the Coasts of the United States;

(3) the Government of the United States and the Government of the Republic of China Concerning Fisheries Off the Coasts of the United States;

(4) the Government of the United States and the Government of the German Democratic Republic Concerning Fisheries Off the Coasts of the United States;

(5) the Government of the United States and the Government of the Union of Soviet Socialist Republics Concerning Fisheries Off the Coasts of the United States;

(6) the Government of the United States and the Government of the Polish People's Republic Concerning Fisheries Off the Coasts of the United States;

(7) the Government of the United States and the European Economic Community Concerning Fisheries Off the Coasts of the United States;

(8) the Government of the United States and the Government of Japan Concerning Fisheries Off the Coasts of the United States (for 1977);

(9) the Government of the United States and the Government of the Republic of Korea Concerning Fisheries Off the Coasts of the United States;

(10) the Government of the United States and the Government of Spain Concerning Fisheries Off the Coasts of the United States;

(11) the Government of the United States and the Government of Mexico Concerning Fisheries Off the Coasts of the United States;

(12) the Government of the United States and the Government of the Union of Soviet Socialist Republics referred to in par. (5), as extended until July 1, 1983, pursuant to Diplomatic Notes;

(13) the American Institute in Taiwan and the Coordination Council for North American Affairs;

(14) the Government of the United States and the Government of the Polish People's Republic referred to in par. (6), as extended until July 1, 1983, pursuant to Diplomatic Notes;

(15) the Government of the United States and the Government of the Union of Soviet Socialist Republics referred to in par. (5), as extended until Dec. 31, 1985, pursuant to Diplomatic Notes;

(16) the Government of the United States and the Government of the Polish People's Republic referred to in par. (6), as extended until Dec. 31, 1985, pursuant to Diplomatic Notes; and

(17) the Government of the United States and the Government of the German Democratic Republic referred to in par. (4);

and provided further that the agreements referred to in pars. (1) to (6) were to enter into force and effect with respect to the United States on Feb. 21, 1977, that the agreements referred to in pars. (7) to (11) were to enter into force and effect with respect to the United States on Feb. 27, 1977, that the agreements referred to in pars. (12) to (14) were to enter into force and effect with respect to the United States on July 1, 1982, that the agreements referred to in pars. (15) and (16) were to enter into force and effect with respect to the United States on July 1, 1984, and that the agreement referred to in par. (17) was to enter into force and effect with respect to the United States on July 1, 1983.

Reciprocal Fisheries Agreement Between United States and Canada

Pub. L. 95–6, §5, as added Pub. L. 95–73, July 27, 1977, 91 Stat. 283; amended Pub. L. 95–314, July 1, 1978, 92 Stat. 376; Pub. L. 96–561, title II, §238(b), Dec. 22, 1980, 94 Stat. 3300, provided for congressional approval of the Reciprocal Fisheries Agreement for 1978 between the Government of the United States and the Government of Canada, and that the Agreement was to be in force and effect with respect to the United States from Jan. 1, 1978, until such later date in 1978 as was to be determined pursuant to the terms of the Agreement.

§1824. Permits for foreign fishing

(a) In general

After February 28, 1977, no foreign fishing vessel shall engage in fishing within the exclusive economic zone, or for anadromous species or Continental Shelf fishery resources beyond such zone, 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

(1) Eligibility; duration

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) of this section. No permit issued under this section may be valid for longer than a year; and section 558(c) of title 5 does not apply to the renewal of any such permit.

(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.

(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.

(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.

(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.

(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 chapter, 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.

(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) of this section 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 1821(c)(1), (2), and (3) of this title.

(D) If the permit is issued other than pursuant to an application approved under paragraph (6)(B) or subsection (d) of this section, 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.

(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.

(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.

(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 1821(b) of this title and which wishes to engage in fishing described in subsection (a) of this section. 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 chapter (as provided for in section 1861 of this title). 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.

(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 chapter;

(B) the applicant will comply with the requirements described in section 1821(c)(2) of this title 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.

(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) of this section, 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.

(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 chapter, 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 subchapter 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 chapter;

(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 1823 of this title; 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 1821(c) of this title, section 1821(d) of this title, and section 1821(h) of this title.

(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) of this section, 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.

(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—

(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 Act 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.

(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).

(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 chapter.

(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 chapter, 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 chapter, shall be deposited into the Western Pacific Sustainable Fisheries Fund established under paragraph (7) of this subsection.

(Pub. L. 94–265, title II, §204, Apr. 13, 1976, 90 Stat. 342; Pub. L. 95–354, §4(5)–(8), Aug. 28, 1978, 92 Stat. 520, 521; Pub. L. 96–470, title I, §111(b), title II, §208, Oct. 19, 1980, 94 Stat. 2239, 2245; Pub. L. 96–561, title II, §232, Dec. 22, 1980, 94 Stat. 3298; Pub. L. 97–453, §3, Jan. 12, 1983, 96 Stat. 2483; Pub. L. 99–272, title VI, §6021, Apr. 7, 1986, 100 Stat. 123; Pub. L. 99–659, title I, §§101(c)(2), 102, 103(b), Nov. 14, 1986, 100 Stat. 3707, 3709; Pub. L. 101–627, title I, §§106, 120(b), Nov. 28, 1990, 104 Stat. 4440, 4459; Pub. L. 102–251, title III, §301(f), Mar. 9, 1992, 106 Stat. 64; Pub. L. 104–297, title I, §105(d), Oct. 11, 1996, 110 Stat. 3564; Pub. L. 109–479, §6, title IV, §404(b), Jan. 12, 2007, 120 Stat. 3579, 3632.)

Amendment of Subsection (a)

Pub. L. 102–251, title III, §§301(f), 308, Mar. 9, 1992, 106 Stat. 64, 66, provided that, effective on the date on which the Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for the United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until the date on which the Agreement enters into force for the United States, subsection (a) is amended by inserting “within the special areas,” before “or for anadromous species” and “or areas” after “such zone”.

References in Text

This chapter, referred to in subsecs. (b)(6)(A), (c), (d)(3)(A), and (e)(2)(A), (C), (7), (8), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Section 112(b) of the Sustainable Fisheries Act, referred to in subsec. (e)(4)(A)(v), is section 112(b) of Pub. L. 104–297, which amended section 1856 of this title. The reference probably should have been to section 111(b) of Pub. L. 104–297 which relates to western Pacific demonstration projects and is set out as a note under section 1855 of this title.

Amendments

2007—Subsec. (e)(4)(A)(i). Pub. L. 109–479, §404(b), amended cl. (i) generally. Prior to amendment, cl. (i) read as follows: “establishment of Pacific Insular Area observer programs, approved by the Secretary in consultation with the Western Pacific Council, that provide observer coverage for foreign fishing under Pacific Insular Area fishery agreements that is at least equal in effectiveness to the program established by the Secretary under section 1821(h) of this title;”.

Subsec. (e)(7). Pub. L. 109–479, §6(1), inserted “and any funds or contributions received in support of conservation and management objectives under a marine conservation plan” after “agreement” in introductory provisions.

Subsec. (e)(8). Pub. L. 109–479, §6(2), inserted at end “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 chapter, shall be deposited into the Western Pacific Sustainable Fisheries Fund established under paragraph (7) of this subsection.”

1996—Subsec. (b)(7). Pub. L. 104–297, §105(d)(1), inserted “or subsection (d) of this section” after “under paragraph (6)” in introductory provisions.

Subsec. (b)(7)(A). Pub. L. 104–297, §105(d)(2), substituted “any applicable Federal or State fishing regulations” for “the regulations promulgated to implement any such plan”.

Subsec. (b)(7)(D). Pub. L. 104–297, §105(d)(3), inserted “or subsection (d) of this section” after “under paragraph (6)(B)”.

Subsecs. (d), (e). Pub. L. 104–297, §105(d)(4), added subsecs. (d) and (e).

1990—Subsec. (b)(4)(C). Pub. L. 101–627, §120(b), substituted “Council” for “council”.

Subsec. (b)(10). Pub. L. 101–627, §106(a), amended par. (10) generally. Prior to amendment, par. (10) consisted of subpars. (A) to (F) relating to schedule of fees to be paid for permits for foreign fishing vessels, ratios for determining minimum fees, review and notice to Congress of performance by nations receiving allocations, factors included and excluded in cost of carrying out this chapter, use of amounts collected in fees, and deposit into general fund of United States Treasury of a determined amount.

Subsec. (b)(12). Pub. L. 101–627, §106(b), struck out par. (12) which related to sanctions for violation of section 1857 of this title or for failure to pay civil penalty under section 1858 of this title or criminal fine under section 1859 of this title. See section 1858(g) of this title.

1986—Subsec. (a). Pub. L. 99–659, §101(c)(2), substituted “exclusive economic zone” for “fishery conservation zone”.

Subsec. (b)(1). Pub. L. 99–659, §102(1), inserted provision that no permit issued under this section may be valid for longer than a year, with section 558(c) of title 5 inapplicable to the renewal of any such permit.

Subsec. (b)(3)(G). Pub. L. 99–659, §103(b), added subpar. (G).

Subsec. (b)(4)(C). Pub. L. 99–659, §102(2), struck out “, upon its request” before period at end.

Subsec. (b)(6)(A). Pub. L. 99–659, §102(3), inserted “, or he may disapprove all or any portion of the application”.

Subsec. (b)(10). Pub. L. 99–272 amended par. (10) generally. Prior to amendment, par. (10) read as follows: “Fees shall be paid to the Secretary by the owner or operator of any foreign fishing vessel for which a permit is issued pursuant to this subsection. The Secretary, in consultation with the Secretary of State, shall establish a schedule of such fees which shall apply nondiscriminatorily to each foreign nation. The fees imposed under this paragraph shall be at least in an amount sufficient to return to the United States an amount which bears to the total cost of carrying out the provisions of this chapter (including, but not limited to, fishery conservation and management, fisheries research, administration, and enforcement, but excluding costs for observers covered by surcharges under section 1821(i)(4) of this title) during each fiscal year the same ratio as the aggregate quantity of fish harvested by foreign fishing vessels within the fishery conservation zone during the preceding year bears to the aggregate quantity of fish harvested by both foreign and domestic fishing vessels within such zone and the territorial waters of the United States during such preceding year. The amount collected by the Secretary under this paragraph shall be transferred to the fisheries loan fund established under section 742c of this title for so long as such fund exists and used of the purpose of making loans therefrom, but only to the extent and in amounts provided for in advance in appropriation Acts.”

Subsec. (b)(10)(B), (C). Pub. L. 99–659, §101(c)(2), substituted “exclusive economic zone” for “fishery conservation zone”.

Subsec. (b)(12). Pub. L. 99–659, §102(4), amended par. (12) generally. Prior to amendment, par. (12) read as follows: “If any foreign fishing vessel for which a permit has been issued pursuant to this subsection has been used in the commission of any act prohibited by section 1857 of this title the Secretary may, or if any civil penalty imposed under section 1858 of this title or any criminal fine imposed under section 1859 of this title has not been paid and is overdue the Secretary shall—

“(A) revoke such permit, with or without prejudice to the right of the foreign nation involved to obtain a permit for such vessel in any subsequent year;

“(B) suspend such permit for the period of time deemed appropriate; or

“(C) impose additional conditions and restrictions on the approved application of the foreign nation involved and on any permit issued under such application.

Any permit which is suspended under this paragraph for nonpayment of a civil penalty shall be reinstated by the Secretary upon the payment of such civil penalty together with interest thereon at the prevailing rate.”

1983—Subsec. (b)(3)(B). Pub. L. 97–453, §3(1), inserted “hold” before “capacity”.

Subsec. (b)(4). Pub. L. 97–453, §3(2), struck out “and shall be set forth under the name of each Council to which it will be transmitted for comment” after “in paragraph (3)”.

Subsec. (b)(4)(B). Pub. L. 97–453, §3(3), struck out “to each appropriate Council and” after “application”.

Subsec. (b)(4)(C). Pub. L. 97–453, §3(3), substituted “a copy or a summary of the application to the appropriate council, upon its request” for “a monthly summary of foreign fishing applications including a report on approved applications as described in paragraphs (6) and (7) to the Committee on Merchant Marine and Fisheries of the House of Representatives and to the Committees on Commerce and Foreign Relations of the Senate”.

Subsec. (b)(5). Pub. L. 97–453, §3(4), substituted “After receiving a copy or summary of an application under paragraph (4)(C), the Council may” for “After receipt of an application transmitted under paragraph (4)(B), each appropriate Council shall”.

1980—Subsec. (b)(4)(C). Pub. L. 96–470, §208, substituted “a monthly summary of foreign fishing applications including a report on approval applications as described in paragraph (6) and (7)” for “a copy of such material”.

Subsec. (b)(8)(D). Pub. L. 96–470, §111(b), struck out subpar. (D) which required the Secretary to promptly transmit a copy of each application to the Committee on Merchant Marine and Fisheries of the House of Representatives and the Committees on Commerce and Foreign Relations of the Senate.

Subsec. (b)(10). Pub. L. 96–561, §232(b), substituted provision directing that fees imposed under this paragraph be at least in an amount sufficient to return to the United States an amount which bears to the total cost of carrying out the provisions of this chapter, including, but not limited to, fishery conservation and management, fisheries research, administration, and enforcement, but excluding costs for observers covered by surcharges under section 1821(i)(4) of this title, during each fiscal year, the same ratio as the aggregate quantity of fish harvested by foreign fishing vessels within the fishery conservation zone during the preceding year bears to the aggregate quantity of fish harvested by both foreign and domestic fishing vessels within such zone and the territorial waters of the United States during such preceding year and that the fees collected for permits issued after 1981 be transferred to the fisheries loan fund for provision directing that fees be formulated so as to ensure that receipts resulting from payments for fees issued for 1981 are not less than an amount equal to 7 percent of the ex vessel value of the total harvest by foreign fishing vessels in the fishery conservation zone during 1979 and that the fees collected for permits issued for 1981 be transferred to the fisheries loan fund.

Pub. L. 96–561, §232(a), substituted provision directing that fees be formulated so as to ensure that receipts resulting from payments for fees issued for 1981 are not less than an amount equal to 7 percent of the ex vessel value of the total harvest by foreign fishing vessels in the fishery conservation zone during 1979 and that the fees collected for permits issued for 1981 be transferred to the fisheries loan fund for provision permitting the Secretary, in determining the level of fees, to take into account the cost of carrying out the provisions of this chapter with respect to foreign fishing, including, but not limited to, the cost of fishery conservation and management, fisheries research, administration, and enforcement.

1978—Subsec. (b)(3)(D) to (F). Pub. L. 95–354, §4(5), in subpar. (D) substituted provisions relating to estimation of amount of tonnage which will be caught, taken, or harvested, for provisions relating to the amount of fish or tonnage of catch contemplated for each vessel, added subpar. (E), and redesignated former subpar. (E) as (F).

Subsec. (b)(4). Pub. L. 95–354, §4(6), substituted provisions relating to publication of the notice of receipt of the application in the Federal Register, for provisions relating to publication of the application in the Federal Register.

Subsec. (b)(6). Pub. L. 95–354, §4(7), redesignated existing provisions as subpar. (A) inserted reference to subpar. (B), and added subpar. (B).

Subsec. (b)(7)(D) to (F). Pub. L. 95–354, §4(8), added subpars. (D) and (E) and redesignated former subpar. (D) as (F).

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–251 effective on date on which Agreement between United States and Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until date on which Agreement enters into force for United States, see section 308 of Pub. L. 102–251, set out as a note under section 773 of this title.

Effective Date of 1980 Amendment

Section 232(a) of Pub. L. 96–561 provided that the amendment made by that section is effective with respect to permits issued under subsec. (b) of this section for 1981.

Section 232(b) of Pub. L. 96–561 provided that the amendment made by that section is effective with respect to permits issued under subsec. (b) of this section after 1981.

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

§1825. Import prohibitions

(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 1821(c) and (d) and 1824(b)(7) and (10) of this title, because such nation has (A) refused to commence negotiations, or (B) failed to negotiate in good faith;

(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) of this section, 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.

(Pub. L. 94–265, title II, §205, Apr. 13, 1976, 90 Stat. 345; Pub. L. 101–627, title I, §105(b)(1), Nov. 28, 1990, 104 Stat. 4440.)

Amendments

1990—Subsec. (a)(1). Pub. L. 101–627, §105(b)(1)(A), inserted “including fisheries for tuna species,” after “authority,” and struck out “traditional” after “in accordance with”.

Subsec. (a)(2). Pub. L. 101–627, §105(b)(1)(B), substituted “tuna” for “highly migratory”.

Effective Date of 1990 Amendment

Section 105(b)(2) of Pub. L. 101–627 provided that: “The amendments made by this subsection [amending this section] shall take effect on January 1, 1992.”

§1826. Large-scale driftnet fishing

(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 large-scale 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

(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;

(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.

(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) of this section;

(2) evaluating the progress of those efforts, the impacts on living marine resources, including available observer data, and specifying plans for further action;

(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.

(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) of this section, the Secretary shall certify that fact to the President. Such certification shall be deemed to be a certification for the purposes of section 1978(a) of title 22.

(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 chapter or other existing law.

(h) “Living marine resources” defined

As used in this section, the term “living marine resources” includes fish, marine mammals, sea turtles, and seabirds and other waterfowl.

(Pub. L. 94–265, title II, §206, as added Pub. L. 95–6, §3(1), Feb. 21, 1977, 91 Stat. 15; amended Pub. L. 99–659, title I, §101(c)(2), Nov. 14, 1986, 100 Stat. 3707; Pub. L. 101–627, title I, §107(a), Nov. 28, 1990, 104 Stat. 4441; Pub. L. 104–297, title I, §105(f), Oct. 11, 1996, 110 Stat. 3569.)

References in Text

The Driftnet Impact Monitoring, Assessment, and Control Act of 1987, referred to in subsec. (a), is title IV of Pub. L. 100–220, which is set out as a note under section 1822 of this title.

Presidential Proclamation Numbered 5030, referred to in subsec. (g), is set out under section 1453 of this title.

This chapter, referred to in subsec. (g), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

1996—Subsec. (e). Pub. L. 104–297, §105(f)(1), redesignated pars. (5) and (6) as (3) and (4), respectively, and struck out former pars. (3) and (4) which read as follows:

“(3) identifying and evaluating the effectiveness of unilateral measures and multilateral measures, including sanctions, that are available to encourage nations to agree to and comply with this section, and recommendations for legislation to authorize any additional measures that are needed if those are considered ineffective;

“(4) identifying, evaluating, and making any recommendations considered necessary to improve the effectiveness of the law, policy, and procedures governing enforcement of the exclusive management authority of the United States over anadromous species against fishing vessels engaged in fishing beyond the exclusive economic zone of any nation;”.

Subsec. (f). Pub. L. 104–297, §105(f)(2), substituted “subsection (e)(4) of this section” for “subsection (e)(6) of this section”.

1990—Pub. L. 101–627 amended section generally, substituting provisions relating to large-scale driftnet fishing for provisions relating to transitional provisions.

1986—Subsec. (b). Pub. L. 99–659 substituted “exclusive economic zone” for “fishery conservation zone”.

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Abolition of House Committee on Merchant Marine and Fisheries

Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee on Merchant Marine and Fisheries of House of Representatives treated as referring to Committee on Resources of House of Representatives in case of provisions relating to fisheries, wildlife, international fishing agreements, marine affairs (including coastal zone management) except for measures relating to oil and other pollution of navigable waters, or oceanography by section 1(b)(3) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

§1826a. Denial of port privileges and sanctions 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 60105 of 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 large-scale driftnet fishing beyond the exclusive economic zone of any nation after December 31, 1992.

(b) Sanctions

(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).

(2) Consultations

Not later than 30 days after a nation is identified under paragraph (1)(B), the President shall enter into consultations with the government of that nation for the purpose of obtaining an agreement that will effect the immediate termination of large-scale 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 ninety 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 forty-five days after the date on which the Secretary has received the direction from the President.

(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.

(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.

(Pub. L. 102–582, title I, §101, Nov. 2, 1992, 106 Stat. 4901; Pub. L. 109–479, title IV, §403(b)(1), Jan. 12, 2007, 120 Stat. 3632.)

References in Text

This Act, referred to in subsec. (a)(3)(B), is Pub. L. 102–582, Nov. 2, 1992, 106 Stat. 4900, known as the High Seas Driftnet Fisheries Enforcement Act, which enacted sections 1826a to 1826c of this title and section 1707a of the former Appendix to Title 46, Shipping, amended sections 1362, 1371, 1852, and 1862 of this title, section 1978 of Title 22, Foreign Relations and Intercourse, and section 2110 of Title 46, repealed section 1111c of the former Appendix to Title 46, and enacted provisions set out as notes under this section and sections 1801, 1823, and 1861 of this title and section 2110 of Title 46. For complete classification of this Act to the Code, see Short Title of 1992 Amendments note set out under section 1801 of this title and Tables.

Codification

In subsec. (a)(2)(A), “section 60105 of title 46” substituted for “section 4197 of the Revised Statutes of the United States (46 App. U.S.C. 91)” on authority of Pub. L. 109–304, §18(c), Oct. 6, 2006, 120 Stat. 1709, which Act enacted section 60105 of Title 46, Shipping.

Section was enacted as part of the High Seas Driftnet Fisheries Enforcement Act, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

Amendments

2007—Subsec. (b)(1)(A)(i), (B), (2), (4)(A)(i). Pub. L. 109–479 inserted “or illegal, unreported, or unregulated fishing” after “driftnet fishing”.

High Seas Driftnet Fisheries Enforcement; Congressional Statement of Findings and Policy

Pub. L. 102–582, §2, Nov. 2, 1992, 106 Stat. 4900, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that:

“(a) Findings.—Congress makes the following findings:

“(1) Large-scale driftnet fishing on the high seas is highly destructive to the living marine resources and ocean ecosystems of the world's oceans, including anadromous fish and other living marine resources of the United States.

“(2) The cumulative effects of large-scale driftnet fishing pose a significant threat to the marine ecosystem, and slow-reproducing species like marine mammals, sharks, and seabirds may require many years to recover.

“(3) Members of the international community have reviewed the best available scientific data on the impacts of large-scale pelagic driftnet fishing, and have failed to conclude that this practice has no significant adverse impacts which threaten the conservation and sustainable management of living marine resources.

“(4) The United Nations, via General Assembly Resolutions numbered 44–225, 45–197, and most recently 46–215 (adopted on December 20, 1991), has called for a worldwide moratorium on all high seas driftnet fishing by December 31, 1992, in all the world's oceans, including enclosed seas and semi-enclosed seas.

“(5) The United Nations has commended the unilateral, regional, and international efforts undertaken by members of the international community and international organizations to implement and support the objectives of the General Assembly resolutions.

“(6) Operative paragraph (4) of United Nations General Assembly Resolution numbered 46–215 specifically ‘encourages all members of the international community to take measures individually and collectively to prevent large-scale pelagic driftnet fishing operations on the high seas of the world's oceans and seas’.

“(7) The United States, in section 307(1)(M) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1857(1)(M)), has specifically prohibited the practice of large-scale driftnet fishing by United States nationals and vessels both within the exclusive economic zone of the United States and beyond the exclusive economic zone of any nation.

“(8) The Senate, through Senate Resolution 396 of the One Hundredth Congress (approved on March 18, 1988), has called for a moratorium on fishing in the Central Bering Sea and the United States has taken concrete steps to implement such moratorium through international negotiations.

“(9) Despite the continued evidence of a decline in the fishery resources of the Bering Sea and the multiyear cooperative negotiations undertaken by the United States, the Russian Federation, Japan, and other concerned fishing nations, some nations refuse to agree to measures to reduce or eliminate unregulated fishing practices in the waters of the Bering Sea beyond the exclusive economic zones of the United States and the Russian Federation.

“(10) In order to ensure that the global moratorium on large-scale driftnet fishing called for in United Nations General Assembly Resolution numbered 46–215 takes effect by December 31, 1992, and that unregulated fishing practices in the waters of the Central Bering Sea are reduced or eliminated, the United States should take the actions described in this Act [see Short Title of 1992 Amendments note set out under section 1801 of this title] and encourage other nations to take similar action.

“(b) Policy.—It is the stated policy of the United States to—

“(1) implement United Nations General Assembly Resolution numbered 46–215, approved unanimously on December 20, 1991, which calls for an immediate cessation to further expansion of large-scale driftnet fishing, a 50 percent reduction in existing large-scale driftnet fishing effort by June 30, 1992, and a global moratorium on the use of large-scale driftnets beyond the exclusive economic zone of any nation by December 31, 1992;

“(2) bring about a moratorium on fishing in the Central Bering Sea, or an international conservation and management agreement to which the United States and the Russian Federation are parties that regulates fishing in the Central Bering Sea; 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.”

§1826b. Duration of denial of port privileges and sanctions

Any denial of port privileges or sanction under section 1826a of this title 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.

(Pub. L. 102–582, title I, §102, Nov. 2, 1992, 106 Stat. 4903; Pub. L. 109–479, title IV, §403(b)(2), Jan. 12, 2007, 120 Stat. 3632.)

Codification

Section was enacted as part of the High Seas Driftnet Fisheries Enforcement Act, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

Amendments

2007—Pub. L. 109–479 inserted “or illegal, unreported, or unregulated fishing” after “driftnet fishing”.

§1826c. Definitions

In sections 1826a to 1826c of this title, 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 large-scale driftnet fishing, including preparation, supply, storage, refrigeration, transportation, or processing.

(Pub. L. 102–582, title I, §104, Nov. 2, 1992, 106 Stat. 4903.)

References in Text

Sections 1826a to 1826c of this title, referred to in text, was in the original “this title”, meaning title I of Pub. L. 102–582, Nov. 2, 1992, 106 Stat. 4901, which enacted sections 1826a to 1826c of this title and amended section 1371 of this title. For complete classification of title I to the Code, see Tables.

Codification

Section was enacted as part of the High Seas Driftnet Fisheries Enforcement Act, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

§1826d. Prohibition

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.

(Pub. L. 104–43, title VI, §603, Nov. 3, 1995, 109 Stat. 392.)

Codification

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

Congressional Findings

Section 602 of Pub. L. 104–43 provided that: “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) [16 U.S.C. 1822 note], the Driftnet Act Amendments of 1990 (Public Law 101–627) [16 U.S.C. 1826], and the High Seas Driftnet Fisheries Enforcement Act (title I, Public Law 102–582) [see Short Title of 1992 Amendment note set out under section 1801 of this title];

“(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.”

§1826e. Negotiations

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.

(Pub. L. 104–43, title VI, §604, Nov. 3, 1995, 109 Stat. 392.)

Codification

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

§1826f. Certification

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 1826d of this title will not be violated if such agreement is signed or provisionally applied.

(Pub. L. 104–43, title VI, §605, Nov. 3, 1995, 109 Stat. 392.)

Codification

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

§1826g. Enforcement

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.

(Pub. L. 104–43, title VI, §606, Nov. 3, 1995, 109 Stat. 392.)

Codification

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

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

§1826h. Biennial report on international compliance

The Secretary, in consultation with the Secretary of State, shall provide to Congress, by not later than 2 years after January 12, 2007, 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 1826j(a) or 1826k(a) of this title, including the specific offending activities and any subsequent actions taken pursuant to section 1826j or 1826k of this title;

(3) a description of efforts taken by nations on those lists to comply take appropriate corrective action consistent with sections 1826j and 1826k of this title, 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 1826i of this title, 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.

(Pub. L. 104–43, title VI, §607, as added Pub. L. 109–479, title IV, §403(a), Jan. 12, 2007, 120 Stat. 3626.)

Codification

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

§1826i. Action to strengthen international fishery management organizations

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;

(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; and

(F) to adopt shark conservation measures, including measures to prohibit removal of any of the fins of a shark (including the tail) and discarding the carcass of the shark at sea;


(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 market-related measures to combat illegal, unreported, or unregulated fishing, including—

(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;


(3) seeking to enter into international agreements that require measures for the conservation of sharks, including measures to prohibit removal of any of the fins of a shark (including the tail) and discarding the carcass of the shark at sea, that are comparable to those of the United States, taking into account different conditions; and

(4) 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.

(Pub. L. 104–43, title VI, §608, as added Pub. L. 109–479, title IV, §403(a), Jan. 12, 2007, 120 Stat. 3627; amended Pub. L. 111–348, title I, §102(a), Jan. 4, 2011, 124 Stat. 3668.)

Codification

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

Amendments

2011—Par. (1)(F). Pub. L. 111–348, §102(a)(1), added subpar. (F).

Par. (2)(C). Pub. L. 111–348, §102(a)(2), struck out “and” at end.

Par. (3). Pub. L. 111–348, §102(a)(4), added par. (3). Former par. (3) redesignated (4).

Par. (4). Pub. L. 111–348, §102(a)(3), redesignated par. (3) as (4).

§1826j. Illegal, unreported, or unregulated fishing

(a) Identification

The Secretary shall identify, and list in the report under section 1826h of this title, 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.

(b) Notification

An identification under subsection (a) or section 1826k(a) of this title is deemed to be an identification under section 1826a(b)(1)(A) of this title, and the Secretary shall notify the President and that nation of such identification.

(c) Consultation

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

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

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

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

(d) IUU certification procedure

(1) Certification

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

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

(3) Effect of certification

(A) In general

The provisions of section 1826a(a) and section 1826a(b)(3) and (4) of this title—

(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 sections 1826d to 1826k of this title the term “illegal, unreported, or unregulated fishing” has the meaning established under paragraph (2).

(2) Secretary to define term within legislative guidelines

Within 3 months after January 12, 2007, the Secretary shall publish a definition of the term “illegal, unreported, or unregulated fishing” for purposes of sections 1826d to 1826k of this title.

(3) Guidelines

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

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

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

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

(f) Authorization of appropriations

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

(Pub. L. 104–43, title VI, §609, as added Pub. L. 109–479, title IV, §403(a), Jan. 12, 2007, 120 Stat. 3628; amended Pub. L. 111–348, title I, §102(b), Jan. 4, 2011, 124 Stat. 3669.)

References in Text

Section 1826a(a) and section 1826a(b)(3) and (4) of this title, referred to in subsec. (d)(3)(A), was in the original “section 101(a) and section 101(b)(3) and (4) of this Act (16 U.S.C. 1826a(a), (b)(3), and (b)(4))” and was translated as meaning section 101(a) and section 101(b)(3) and (4) of the High Seas Driftnet Fisheries Enforcement Act, to reflect the probable intent of Congress.

Sections 1826d to 1826k of this title, referred to in subsec. (e)(1), (2), was in the original “this Act” and was translated as reading “this title” meaning title VI of Pub. L. 104–43, Nov. 3, 1995, 109 Stat. 391, known as the High Seas Driftnet Fishing Moratorium Protection Act. For complete classification of title VI to the Code, see Short Title of 1995 Amendment note set out under section 1801 of this title and Tables.

Codification

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

Amendments

2011—Subsec. (e)(3)(A). Pub. L. 111–348 substituted “bycatch reduction requirements, and shark conservation measures;” for “and bycatch reduction requirements;”.

§1826k. Equivalent conservation measures

(a) Identification

The Secretary shall identify, and list in the report under section 1826h of this title—

(1) a nation if—

(A) fishing vessels of that nation are engaged, or have been engaged during the preceding calendar year in fishing activities or practices; 1

(i) in waters beyond any national jurisdiction that result in bycatch of a protected living marine resource; or

(ii) beyond the exclusive economic zone of the United States that result in bycatch of a protected living marine resource shared by the United States;


(B) 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

(C) 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; and

(2) a nation if—

(A) fishing vessels of that nation are engaged, or have been engaged during the preceding calendar year, in fishing activities or practices in waters beyond any national jurisdiction that target or incidentally catch sharks; and

(B) the nation has not adopted a regulatory program to provide for the conservation of sharks, including measures to prohibit removal of any of the fins of a shark (including the tail) and discarding the carcass of the shark at sea, 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 sections 1826d to 1826k of this title;

(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

(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 for determining whether the government of a harvesting nation identified under subsection (a) and listed in the report under section 1826h of this title—

(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.

(5) Effect of certification

The provisions of section 1826a(a) and section 1826a(b)(3) and (4) of this title (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 [16 U.S.C. 1361 et seq.], the Endangered Species Act [16 U.S.C. 1531 et seq.], 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 [16 U.S.C. 1801 et seq.], the Atlantic Tunas Convention Act [16 U.S.C. 971 et seq.], 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.

(Pub. L. 104–43, title VI, §610, as added Pub. L. 109–479, title IV, §403(a), Jan. 12, 2007, 120 Stat. 3630; amended Pub. L. 111–348, title I, §102(c)(1), Jan. 4, 2011, 124 Stat. 3669.)

References in Text

Sections 1826d to 1826k of this title, referred to in subsec. (b)(1), was in the original “this section and this Act” and was translated as reading “this section and this title” meaning title VI of Pub. L. 104–43, Nov. 3, 1995, 109 Stat. 391, known as the High Seas Driftnet Fishing Moratorium Protection Act. For complete classification of title VI to the Code, see Short Title of 1995 Amendment note set out under section 1801 of this title and Tables.

Section 1826a(a) and section 1826a(b)(3) and (4) of this title, referred to in subsec. (c)(5), was in the original “section 101(a) and section 101(b)(3) and (4) of this Act (16 U.S.C. 1826a(a), (b)(3), and (b)(4))” and was translated as meaning section 101(a) and section 101(b)(3) and (4) of the High Seas Driftnet Fisheries Enforcement Act, to reflect the probable intent of Congress.

The Marine Mammal Protection Act, referred to in subsec. (e)(1), probably means the Marine Mammal Protection Act of 1972, Pub. L. 92–522, Oct. 21, 1972, 86 Stat. 1027, as amended, which is classified generally to chapter 31 (§1361 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1361 of this title and Tables.

The Endangered Species Act, referred to in subsec. (e)(1), probably means the Endangered Species Act of 1973, Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, as amended, which is classified principally to chapter 35 (§1531 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of this title and Tables.

The Shark Finning Prohibition Act, referred to in subsec. (e)(1), is Pub. L. 106–557, Dec. 21, 2000, 114 Stat. 2772, which is set out as a note under section 1822 of this title. For complete classification of this Act to the Code, see Tables.

The Magnuson-Stevens Fishery Conservation and Management Act, referred to in subsec. (e)(2), is Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

The Atlantic Tunas Convention Act, referred to in subsec. (e)(2), probably means the Atlantic Tunas Convention Act of 1975, Pub. L. 94–70, Aug. 5, 1975, 89 Stat. 385, as amended, which is classified generally to chapter 16A (§971 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 971 of this title and Tables.

Codification

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

Amendments

2011—Subsec. (a). Pub. L. 111–348, §102(c)(1)(A), struck out “, a nation if” after “section 1826h of this title” in introductory provisions.

Pub. L. 111–348, §102(c)(1)(B)–(G), redesignated pars. (1) to (3) as subpars. (A) to (C), respectively, realigned margins, inserted “(1) a nation if—” before subpar. (A), as so redesignated, redesignated former subpars. (A) and (B) of par. (1) as cls. (i) and (ii) of subpar. (A), respectively, realigned margins, and added par. (2).

Initial Identifications

Pub. L. 111–348, title I, §102(c)(2), Jan. 4, 2011, 124 Stat. 3669, provided that: “The Secretary of Commerce shall begin making identifications under paragraph (2) of section 610(a) of the High Seas Driftnet Fishing Moratorium Protection Act (16 U.S.C. 1826k(a)), as added by paragraph (1)(G), not later than 1 year after the date of the enactment of this Act [Jan. 4, 2011].”

1 So in original. The semicolon probably should be a dash.

§1827. Observer program regarding certain foreign fishing

(a) Definitions

As used in this section—

(1) The term “Act of 1976” means the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.).

(2) The term “billfish” means any species of marlin, spearfish, sailfish or swordfish.

(3) The term “Secretary” means the Secretary of Commerce.

(b) Observer program

The Secretary shall establish a program under which a United States observer will be stationed aboard each foreign fishing vessel while that vessel—

(1) is in waters that are within—

(A) the fishery conservation zone established under section 101 of the Act of 1976 [16 U.S.C. 1811],1 and

(B) the Convention area as defined in Article I of the International Convention for the Conservation of Atlantic Tunas; and


(2) is taking or attempting to take any species of fish if such taking or attempting to take may result in the incidental taking of billfish.


The Secretary may acquire observers for such program through contract with qualified private persons.

(c) Functions of observers

United States observers, while aboard foreign fishing vessels as required under subsection (b) of this section, shall carry out such scientific and other functions as the Secretary deems necessary or appropriate to carry out this section.

(d) Fees

There is imposed for each year after 1980 on the owner or operator of each foreign fishing vessel that, in the judgment of the Secretary, will engage in fishing in waters described in subsection (b)(1) of this section during that year which may result in the incidental taking of billfish a fee in an amount sufficient to cover all of the costs of providing an observer aboard that vessel under the program established under subsection (a) of this section. The fees imposed under this subsection for any year shall be paid to the Secretary before that year begins. All fees collected by the Secretary under this subsection shall be deposited in the Fund established by subsection (e) of this section.

(e) Fund

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 section. The Fund shall consist of the fees deposited into it as required under subsection (d) of this section. All payments made by the Secretary to carry out this section 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 section shall be kept on deposit or invested in obligations of, or guaranteed by, the United States.

(f) Prohibited acts

(1) It is unlawful for any person who is the owner or operator of a foreign fishing vessel to which this section applies—

(A) to violate any regulation issued under subsection (g) of this section;

(B) to refuse to pay the fee imposed under subsection (d) of this section after being requested to do so by the Secretary; or

(C) to refuse to permit an individual who is authorized to act as an observer under this section with respect to that vessel to board the vessel for purposes of carrying out observer functions.


(2) Section 308 of the Act of 1976 [16 U.S.C. 1858] (relating to civil penalties) applies to any act that is unlawful under paragraph (1), and for purposes of such application the commission of any such act shall be treated as an act the commission of which is unlawful under section 307 of the Act of 1976 [16 U.S.C. 1857].

(g) Regulations

The Secretary shall issue such regulations as are necessary or appropriate to carry out this section.

(Pub. L. 96–339, §2, Sept. 4, 1980, 94 Stat. 1069; Pub. L. 96–561, title II, §238(b), Dec. 22, 1980, 94 Stat. 3300; Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41.)

References in Text

The Magnuson-Stevens Fishery Conservation and Management Act, referred to in subsec. (a)(1), is Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Section 101 of the Act of 1976 [16 U.S.C. 1811], referred to in subsec. (b)(1)(A), which established the fishery conservation zone, was amended generally by Pub. L. 99–659, title I, §101(b), Nov. 14, 1986, 100 Stat. 3706, and now relates to United States sovereign rights to fish and fishery management authority within the exclusive economic zone.

Codification

Section was not enacted as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

Amendments

1996—Subsec. (a)(1). Pub. L. 104–208 substituted “Magnuson-Stevens Fishery” for “Magnuson Fishery”.

1980—Subsec. (a)(1). Pub. L. 96–561 substituted “Magnuson Fishery Conservation and Management Act” for “Fishery Conservation and Management Act of 1976”.

Effective Date of 1996 Amendment

Section 101(a) [title II, §211(b)] of div. A of Pub. L. 104–208 provided that the amendment made by that section is effective 15 days after Oct. 11, 1996.

Effective Date of 1980 Amendment

Section 238(b) of Pub. L. 96–561 provided that the amendment made by that section is effective 15 days after Dec. 22, 1980.

1 See References in Text note below.

§1828. Foreign fishing incursions

(a) In general

Not later than 180 days after July 11, 2006, the Secretary of the department in which the Coast Guard is operating shall provide to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on steps that the Coast Guard will take to significantly improve the Coast Guard's detection and interdiction of illegal incursions into the United States exclusive economic zone by foreign fishing vessels.

(b) Specific issues to be addressed

The report shall—

(1) focus on areas in the exclusive economic zone where the Coast Guard has failed to detect or interdict such incursions in the 4-fiscal-year period beginning with fiscal year 2000, including such areas in the Western/Central Pacific and the Bering Sea; and

(2) include an evaluation of the potential use of unmanned aircraft and offshore platforms for detecting or interdicting such incursions.

(c) Biennial updates

The Secretary shall provide biannual reports updating the Coast Guard's progress in detecting or interdicting such incursions to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives.

(Pub. L. 109–241, title VIII, §804, July 11, 2006, 120 Stat. 563.)

Codification

Section was enacted as part of the Coast Guard and Maritime Transportation Act of 2006, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

Combination of Fisheries Enforcement Plans and Foreign Fishing Incursion Reports

Pub. L. 111–207, §4(b), July 27, 2010, 124 Stat. 2251, provided that: “The Secretary of the department in which the Coast Guard is operating shall combine the reports required under section 224 of the Coast Guard and Maritime Transportation Act of 2004 (16 U.S.C. 1861b) and section 804 of the Coast Guard and Maritime Transportation Act of 2006 (16 U.S.C. 1828) into a single annual report for fiscal years beginning after fiscal year 2010.”

§1829. International monitoring and compliance

(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 subchapter.

(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.

(Pub. L. 94–265, title II, §207, as added Pub. L. 109–479, title IV, §401, Jan. 12, 2007, 120 Stat. 3625.)

SUBCHAPTER IV—NATIONAL FISHERY MANAGEMENT PROGRAM

§1851. National standards for fishery conservation and management

(a) In general

Any fishery management plan prepared, and any regulation promulgated to implement any such plan, pursuant to this subchapter shall be consistent with the following national standards for fishery conservation and management:

(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.

(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.

(8) Conservation and management measures shall, consistent with the conservation requirements of this chapter (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.

(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.

(10) Conservation and management measures shall, to the extent practicable, promote the safety of human life at sea.

(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.

(Pub. L. 94–265, title III, §301, Apr. 13, 1976, 90 Stat. 346; Pub. L. 97–453, §4, Jan. 12, 1983, 96 Stat. 2484; Pub. L. 98–623, title IV, §404(3), Nov. 8, 1984, 98 Stat. 3408; Pub. L. 104–297, title I, §106, Oct. 11, 1996, 110 Stat. 3570; Pub. L. 109–479, title I, §101(a), Jan. 12, 2007, 120 Stat. 3579.)

References in Text

This chapter, referred to in subsec. (a)(8), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

2007—Subsec. (a)(8). Pub. L. 109–479 inserted “by utilizing economic and social data that meet the requirements of paragraph (2),” after “fishing communities”.

1996—Subsec. (a)(5). Pub. L. 104–297, §106(a), substituted “consider efficiency” for “promote efficiency”.

Subsec. (a)(8) to (10). Pub. L. 104–297, §106(b), added pars. (8) to (10).

1984—Subsec. (a)(1). Pub. L. 98–623 inserted “for the United States fishing industry”.

1983—Subsec. (b). Pub. L. 97–453 substituted “advisory guidelines (which shall not have the force and effect of law)” for “guidelines”.

Short Title of 1997 Amendment

Pub. L. 105–146, §1, Dec. 16, 1997, 111 Stat. 2672, provided that: “This Act [repealing section 757g of this title, amending provisions set out as notes under this section and listed in a table of National Wildlife Conservation Areas set out under section 668dd of this title, and repealing provisions set out as notes under this section] may be cited as the ‘Atlantic Striped Bass Conservation Act Amendments of 1997’.”

Longline Catcher Processor Subsector Single Fishery Cooperative

Pub. L. 111–335, Dec. 22, 2010, 124 Stat. 3583, provided that:

“SECTION 1. SHORT TITLE.

“This Act may be cited as the ‘Longline Catcher Processor Subsector Single Fishery Cooperative Act’.

“SEC. 2. AUTHORITY TO APPROVE AND IMPLEMENT A SINGLE FISHERY COOPERATIVE FOR THE LONGLINE CATCHER PROCESSOR SUBSECTOR IN THE BSAI.

“(a) In General.—Upon the request of eligible members of the longline catcher processor subsector holding at least 80 percent of the licenses issued for that subsector, the Secretary is authorized to approve a single fishery cooperative for the longline catcher processor subsector in the BSAI.

“(b) Limitation.—A single fishery cooperative approved under this section shall include a limitation prohibiting any eligible member from harvesting a total of more than 20 percent of the Pacific cod available to be harvested in the longline catcher processor subsector, the violation of which is subject to the penalties, sanctions, and forfeitures under section 308 of the Magnuson-Stevens Act (16 U.S.C. 1858), except that such limitation shall not apply to harvest amounts from quota assigned explicitly to a CDQ group as part of a CDQ allocation to an entity established by section 305(i) of the Magnuson-Stevens Act (16 U.S.C. 1855(i)).

“(c) Contract Submission and Review.—The longline catcher processor subsector shall submit to the Secretary—

“(1) not later than November 1 of each year, a contract to implement a single fishery cooperative approved under this section for the following calendar year; and

“(2) not later than 60 days prior to the commencement of fishing under the single fishery cooperative, any interim modifications to the contract submitted under paragraph (1).

“(d) Department of Justice Review.—Not later than November 1 before the first year of fishing under a single fishery cooperative approved under this section, the longline catcher processor sector shall submit to the Secretary a copy of a letter from a party to the contract under subsection (c)(1) requesting a business review letter from the Attorney General and any response to such request.

“(e) Implementation.—The Secretary shall implement a single fishery cooperative approved under this section not later than 2 years after receiving a request under subsection (a).

“(f) Status Quo Fishery.—If the longline catcher processor subsector does not submit a contract to the Secretary under subsection (c) then the longline catcher processor subsector in the BSAI shall operate as a limited access fishery for the following year subject to the license limitation program in effect for the longline catcher processor subsector on the date of enactment of this Act [Dec. 22, 2010] or any subsequent modifications to the license limitation program recommended by the Council and approved by the Secretary.

“SEC. 3. HARVEST AND PROHIBITED SPECIES ALLOCATIONS TO A SINGLE FISHERY COOPERATIVE FOR THE LONGLINE CATCHER PROCESSOR SUBSECTOR IN THE BSAI.

“A single fishery cooperative approved under section 2 may, on an annual basis, collectively—

“(1) harvest the total amount of BSAI Pacific cod total allowable catch, less any amount allocated to the longline catcher processor subsector non-cooperative limited access fishery;

“(2) utilize the total amount of BSAI Pacific cod prohibited species catch allocation, less any amount allocated to a longline catcher processor subsector non-cooperative limited access fishery; and

“(3) harvest any reallocation of Pacific cod to the longline catcher processor subsector during a fishing year by the Secretary.

“SEC. 4. LONGLINE CATCHER PROCESSOR SUBSECTOR NON-COOPERATIVE LIMITED ACCESS FISHERY.

“(a) In General.—An eligible member that elects not to participate in a single fishery cooperative approved under section 2 shall operate in a non-cooperative limited access fishery subject to the license limitation program in effect for the longline catcher processor subsector on the date of enactment of this Act [Dec. 22, 2010] or any subsequent modifications to the license limitation program recommended by the Council and approved by the Secretary.

“(b) Harvest and Prohibited Species Allocations.—Eligible members operating in a non-cooperative limited access fishery under this section may collectively—

“(1) harvest the percentage of BSAI Pacific cod total allowable catch equal to the combined average percentage of the BSAI Pacific cod harvest allocated to the longline catcher processor sector and retained by the vessel or vessels designated on the eligible members license limitation program license or licenses for 2006, 2007, and 2008, according to the catch accounting system data used to establish total catch; and

“(2) utilize the percentage of BSAI Pacific cod prohibited species catch allocation equal to the percentage calculated under paragraph (1).

“SEC. 5. AUTHORITY OF THE NORTH PACIFIC FISHERY MANAGEMENT COUNCIL.

“(a) In General.—Nothing in this Act shall supersede the authority of the Council to recommend for approval by the Secretary such conservation and management measures, in accordance with the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.) as it considers necessary to ensure that this Act does not diminish the effectiveness of fishery management in the BSAI or the Gulf of Alaska Pacific cod fishery.

“(b) Limitations.—

“(1) Notwithstanding the authority provided to the Council under this section, the Council is prohibited from altering or otherwise modifying—

“(A) the methodology established under section 3 for allocating the BSAI Pacific cod total allowable catch and BSAI Pacific cod prohibited species catch allocation to a single fishery cooperative approved under this Act; or

“(B) the methodology established under section 4 of this Act for allocating the BSAI Pacific cod total allowable catch and BSAI Pacific cod prohibited species catch allocation to the non-cooperative limited access fishery.

“(2) No sooner than 7 years after approval of a single fisheries cooperative under section 2 of this Act, the Council may modify the harvest limitation established under section 2(b) if such modification does not negatively impact any eligible member of the longline catcher processor subsector.

“(c) Protections for the Gulf of Alaska Pacific Cod Fishery.—The Council may recommend for approval by the Secretary such harvest limitations of Pacific cod by the longline catcher processor subsector in the Western Gulf of Alaska and the Central Gulf of Alaska as may be necessary to protect coastal communities and other Gulf of Alaska participants from potential competitive advantages provided to the longline catcher processor subsector by this Act.

“SEC. 6. RELATIONSHIP TO THE MAGNUSON-STEVENS ACT.

“(a) In General.—Consistent with section 301(a) of the Magnuson-Stevens Act (16 U.S.C. 1851(a)), a single fishery cooperative approved under section 2 of this Act is intended to enhance conservation and sustainable fishery management, reduce and minimize bycatch, promote social and economic benefits, and improve the vessel safety of the longline catcher processor subsector in the BSAI.

“(b) Transition Rule.—A single fishery cooperative approved under section 2 of this Act is deemed to meet the requirements of section 303A(i) of the Magnuson-Stevens Act (16 U.S.C. 1853a(i)) as if it had been approved by the Secretary within 6 months after the date of enactment of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 [Pub. L. 109–479, approved Jan. 12, 2007], unless the Secretary makes a determination, within 30 days after the date of enactment of this Act [Dec. 22, 2010], that application of section 303A(i) of the Magnuson-Stevens Act to the cooperative approved under section 2 of this Act would be inconsistent with the purposes for which section 303A was added to the Magnuson-Stevens Act.

“(c) Cost Recovery.—Consistent with section 304(d)(2) of the Magnuson-Stevens Act (16 U.S.C. 1854(d)(2)), the Secretary is authorized to recover reasonable costs to administer a single fishery cooperative approved under section 2 of this Act.

“SEC. 7. COMMUNITY DEVELOPMENT QUOTA PROGRAM.

“Nothing in this Act shall affect the western Alaska community development program established by section 305(i) of the Magnuson-Stevens Act (16 U.S.C. 1855(i)), including the allocation of fishery resources in the directed Pacific cod fishery.

“SEC. 8. DEFINITIONS.

“In this Act:

“(1) BSAI.—The term ‘BSAI’ has the meaning given that term in section 219(a)(2) of the Department of Commerce and Related Agencies Appropriations Act, 2005 (Public Law 108–447; 118 Stat. 2886).

“(2) BSAI pacific cod total allowable catch.—The term ‘BSAI Pacific cod total allowable catch’ means the Pacific cod total allowable catch for the directed longline catcher processor subsector in the BSAI as established on an annual basis by the Council and approved by the Secretary.

“(3) BSAI pacific cod prohibited species catch allocation.—The term ‘BSAI Pacific cod prohibited species catch allocation’ means the prohibited species catch allocation for the directed longline catcher processor subsector in the BSAI as established on an annual basis by the Council and approved by the Secretary.

“(4) Council.—The term ‘Council’ means the North Pacific Fishery Management Council established under section 302(a)(1)(G) of the Magnuson-Stevens Act (16 U.S.C. 1852(a)(1)(G)).

“(5) Eligible member.—The term ‘eligible member’ means a holder of a license limitation program license, or licenses, eligible to participate in the longline catcher processor subsector.

“(6) Gulf of alaska.—The term ‘Gulf of Alaska’ means that portion of the Exclusive Economic Zone contained in Statistical Areas 610, 620, and 630.

“(7) Longline catcher processor subsector.—The term ‘longline catcher processor subsector’ has the meaning given that term in section 219(a)(6) of the Department of Commerce and Related Agencies Appropriations Act, 2005 (Public Law 108–447; 118 Stat. 2886 [2887]).

“(8) Magnuson-stevens act.—The term ‘Magnuson-Stevens Act’ means the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.).

“(9) Secretary.—The term ‘Secretary’ means the Secretary of Commerce.”

Gulf of Alaska Rockfish Demonstration Program

Pub. L. 108–199, div. B, title VIII, §802, Jan. 23, 2004, 118 Stat. 110, as amended by Pub. L. 109–479, title II, §218, Jan. 12, 2007, 120 Stat. 3621, provided that: “The Secretary of Commerce, in consultation with the North Pacific Fishery Management Council, shall establish a pilot program that recognizes the historic participation of fishing vessels (1996 to 2002, best 5 of 7 years) and historic participation of fish processors (1996 to 2000, best 4 of 5 years) for pacific ocean perch, northern rockfish, and pelagic shelf rockfish harvested in Central Gulf of Alaska. Such a pilot program shall: (1) provide for a set-aside of up to 5 percent for the total allowable catch of such fisheries for catcher vessels not eligible to participate in the pilot program, which shall be delivered to shore-based fish processors not eligible to participate in the pilot program; and (2) establish catch limits for non-rockfish species and non-target rockfish species currently harvested with pacific ocean perch, northern rockfish, and pelagic shelf rockfish, which shall be based on historical harvesting of such bycatch species. The pilot program will sunset when a Gulf of Alaska Groundfish comprehensive rationalization plan is authorized by the Council and implemented by the Secretary, or 5 years from date of implementation, whichever is earlier.”

Implementation of Steller Sea Lion Protective Measures

Pub. L. 106–554, §1(a)(4) [div. A, §209], Dec. 21, 2000, 114 Stat. 2763, 2763A–176, provided that:

“(a) Findings.—The Congress finds that—

“(1) the western population of Steller sea lions has substantially declined over the last 25 years.

“(2) scientists should closely research and analyze all possible factors relating to such decline, including the possible interactions between commercial fishing and Steller sea lions and the localized depletion hypothesis;

“(3) the authority to manage commercial fisheries in Federal waters lies with the regional councils and the Secretary of Commerce (hereafter in this section ‘Secretary’) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1801 et seq.] (hereafter in this section ‘Magnuson-Stevens Act’); and

“(4) the Secretary of Commerce shall comply with the Magnuson-Stevens Act when using fishery management plans and regulations to implement the decisions made pursuant to findings under the Endangered Species Act [of 1973, 16 U.S.C. 1531 et seq.], and shall utilize the processes and procedures of the regional fishery management councils as required by the Magnuson-Stevens Act.

“(b) Independent Scientific Review.—The North Pacific Fishery Management Council (hereafter in this section ‘North Pacific Council[’]) shall utilize the expertise of the National Academy of Sciences to conduct an independent scientific review of the November 30, 2000 Biological Opinion for the Bering Sea/Aleutian Islands and Gulf of Alaska groundfish fisheries (hereafter in this section ‘Biological Opinion’), its underlying hypothesis, and the Reasonable and Prudent Alternatives (hereafter in this section ‘Alternatives’) contained therein. The Secretary shall cooperate with the independent scientific review, and the National Academy of Sciences is requested to give its highest priority to this review.

“(c) Preparation of Fishery Management Plans and Regulations To Implement Protective Measures in the November 30, 2000 Biological Opinion.—

“(1) The Secretary of Commerce shall submit to the North Pacific Council proposed conservation and management measures to implement the Alternatives contained in the November 30, 2000 Biological Opinion for the Bering Sea/Aleutian Islands and Gulf of Alaska groundfish fisheries. The North Pacific Council shall prepare and transmit to the Secretary a fishery management plan amendment or amendments to implement such Alternatives that are consistent with the Magnuson-Stevens Act (including requirements in such Act relating to best available science, bycatch reduction, impacting on fishing communities, the safety of life at sea, and public comment and hearings.)

“(2) The Bering Sea/Aleutian Islands and Gulf of Alaska groundfish fisheries shall be managed in a manner consistent with the Alternatives contained in the Biological Opinion, except as otherwise provided in this section. The Alternatives shall become fully effective no later than January 1, 2002, as revised if necessary and appropriate based on the independent scientific review referred to in subsection (b) and other new information, and shall be phased in in 2001 as described in paragraph (3).

“(3) The 2001 Bering Sea/Aleutian Islands and Gulf of Alaska groundfish fisheries shall be managed in accordance with the fishery management plan and Federal regulations in effect for such fisheries prior to July 15, 2000, including—

“(A) conservative total allowable catch levels;

“(B) no entry zones within three miles of rookeries;

“(C) restricted harvest levels near rookeries and haul-outs;

“(D) federally-trained observers;

“(E) spatial and temporal harvest restrictions;

“(F) federally-mandated bycatch reduction programs; and

“(G) additional conservation benefits provided through cooperative fishing arrangements,

and said regulations are hereby restored to full force and effect.

“(4) The Secretary shall amend these regulations by January 20, 2001, after consultation with the North Pacific Council and in a manner consistent with all law, including the Magnuson-Stevens Act, and consistent with the Alternatives to the maximum extent practicable, subject to the other provisions of this subsection.

“(5) The harvest reduction requirement (‘Global Control Rule’) shall take effect immediately in any 2001 groundfish fishery in which it applies, but shall not cause a reduction in the total allowable catch of any fishery of more than 10 percent.

“(6) In enforcing regulations for the 2001 fisheries, the Secretary, upon recommendation of the North Pacific Council, may open critical habitat where needed, adjust seasonal catch levels, and take other measures as needed to ensure that harvest levels are sufficient to provide income from these fisheries for small boats and Alaskan on-shore processors that is no less than in 1999.

“(7) The regulations that are promulgated pursuant to paragraph (4) shall not be modified in any way other than upon recommendation of the North Pacific Council, before March 15, 2001.

“(d) Sea Lion Protection Measures.—$20,000,000 is hereby appropriated to the Secretary of Commerce to remain available until expended to develop and implement a coordinated, comprehensive research and recovery program for the Steller sea lion, which shall be designed to study—

“(1) available prey species;

“(2) predator/prey relationships;

“(3) predation by other marine mammals;

“(4) interactions between fisheries and Steller sea lions, including the localized depletion theory;

“(5) regime shift, climate change, and other impacts associated with changing environmental conditions in the North Pacific and Bering Sea;

“(6) disease;

“(7) juvenile and pup survival rates;

“(8) population counts;

“(9) nutritional stress;

“(10) foreign commercial harvest of sea lions outside the exclusive economic zone;

“(11) the residual impacts of former government-authorized Steller sea lion eradication bounty programs; and

“(12) the residual impacts of intentional lethal takes of Steller sea lions.

Within available funds the Secretary shall implement on a pilot basis innovative non-lethal measures to protect Steller sea lions from marine mammal predators including killer whales.

“(e) Economic Disaster Relief.—$30,000,000 is hereby appropriated to the Secretary of Commerce to make available as a direct payment to the Southwest Alaska Municipal Conference to distribute to fishing communities, businesses, community development quota groups, individuals, and other entities to mitigate the economic losses caused by Steller sea lion protection measures heretofore incurred; provided that the President of such organization shall provide a written report to the Secretary and the House and Senate Appropriations Committee within 6 months of receipt of these funds.”

Limitation on Fishing Permits

Pub. L. 105–277, div. A, §101(b) [title VI, §617], Oct. 21, 1998, 112 Stat. 2681–50, 2681–115, as amended by Pub. L. 106–31, title III, §3025, May 21, 1999, 113 Stat. 100, provided that:

“(a) None of the funds made available in this Act or any other Act hereafter enacted may be used to issue or renew a fishing permit or authorization for any fishing vessel of the United States greater than 165 feet in registered length, of more than 750 gross registered tons, or that has an engine or engines capable of producing a total of more than 3,000 shaft horsepower as specified in the permit application required under part 648.4(a)(5) of title 50, Code of Federal Regulations, part 648.12 of title 50, Code of Federal Regulations, and the authorization required under part 648.80(d)(2) of title 50, Code of Federal Regulations, to engage in fishing for Atlantic mackerel or herring (or both) under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), unless the regional fishery management council of jurisdiction recommends after October 21, 1998, and the Secretary of Commerce approves, conservation and management measures in accordance with such Act to allow such vessel to engage in fishing for Atlantic mackerel or herring (or both).

“(b) Any fishing permit or authorization issued or renewed prior to the date of the enactment of this Act [Oct. 21, 1998] for a fishing vessel to which the prohibition in subsection (a) applies that would allow such vessel to engage in fishing for Atlantic mackerel or herring (or both) during fiscal year 1999 shall be null and void, and none of the funds made available in this Act [see Tables for classification] may be used to issue a fishing permit or authorization that would allow a vessel whose permit or authorization was made null and void pursuant to this subsection to engage in the catching, taking, or harvesting of fish in any other fishery within the exclusive economic zone of the United States.”

Bering Sea Pollock Fishery

Pub. L. 108–199, div. B, title VIII, §803, Jan. 23, 2004, 118 Stat. 110, provided that:

“(a) Aleutian Islands Pollock Allocation.—Effective January 1, 2004 and thereafter, the directed pollock fishery in the Aleutian Islands Subarea [AI] of the BSAI (as defined in 50 CFR 679.2) shall be allocated to the Aleut Corporation (incorporated pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)). Except with the permission of the Aleut Corporation or its authorized agent, the fishing or processing of any part of such allocation shall be prohibited by section 307 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1857), subject to the penalties and sanctions under section 308 of such Act (16 U.S.C. 1858), and subject to the forfeiture of any fish harvested or processed.

“(b) Eligible Vessels.—Only vessels that are 60 feet or less in length overall and have a valid fishery endorsement, or vessels that are eligible to harvest pollock under section 208 of title II of division C of Public Law 105–277 [set out below], shall be eligible to form partnerships with the Aleut Corporation (or its authorized agents) to harvest the allocation under subsection (a). During the years 2004 through 2008, up to 25 percent of such allocation may be harvested by vessels 60 feet or less in length overall. During the years 2009 through 2013, up to 50 percent of such allocation may be harvested by vessels 60 feet or less in length overall. After the year 2012, 50 percent of such allocation shall be harvested by vessels 60 feet or less in length overall, and 50 percent shall be harvested by vessels eligible under such section of Public Law 105–277.

“(c) Groundfish Optimum Yield Limitation.—The optimum yield for groundfish in the Bering Sea and Aleutian Islands Management Area shall not exceed 2 million metric tons. For the purposes of implementing subsections (a) and (b) without adversely affecting current fishery participants, the allocation under subsection (a) may be in addition to such optimum yield during the years 2004 through 2008 upon recommendation by the North Pacific Council and approval by the Secretary of Commerce (if consistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.)).

“(d) Management and Allocation.—For the purposes of this section, the North Pacific Fishery Management Council shall recommend and the Secretary shall approve an allocation under subsection (a) to the Aleut Corporation for the purposes of economic development in Adak, Alaska pursuant to the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.).”

Pub. L. 105–277, div. C, title II, subtitle II, Oct. 21, 1998, 112 Stat. 2681–621, as amended by Pub. L. 106–31, title III, §3027(a)(2)–(7), May 21, 1999, 113 Stat. 101; Pub. L. 107–20, title II, §2202(e)(1), July 24, 2001, 115 Stat. 170; Pub. L. 107–77, title II, §211, Nov. 28, 2001, 115 Stat. 779; Pub. L. 107–206, title I, §1103, Aug. 2, 2002, 116 Stat. 884; Pub. L. 111–281, title VI, §602(b)(1), (3), Oct. 15, 2010, 124 Stat. 2960, 2961, provided that:

“SEC. 205. DEFINITIONS.

“As used in this subtitle—

“(1) the term ‘Bering Sea and Aleutian Islands Management Area’ has the same meaning as the meaning given for such term in part 679.2 of title 50, Code of Federal Regulations, as in effect on October 1, 1998;

“(2) the term ‘catcher/processor’ means a vessel that is used for harvesting fish and processing that fish;

“(3) the term ‘catcher vessel’ means a vessel that is used for harvesting fish and that does not process pollock onboard;

“(4) the term ‘directed pollock fishery’ means the fishery for the directed fishing allowances allocated under paragraphs (1), (2), and (3) of section 206(b);

“(5) the term ‘harvest’ means to commercially engage in the catching, taking, or harvesting of fish or any activity that can reasonably be expected to result in the catching, taking, or harvesting of fish;

“(6) the term ‘inshore component’ means the following categories that process groundfish harvested in the Bering Sea and Aleutian Islands Management Area:

“(A) shoreside processors, including those eligible under section 208(f); and

“(B) vessels less than 125 feet in length overall that process less than 126 metric tons per week in round-weight equivalents of an aggregate amount of pollock and Pacific cod;

“(7) the term ‘Magnuson-Stevens Act’ means the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.);

“(8) the term ‘mothership’ means a vessel that receives and processes fish from other vessels in the exclusive economic zone of the United States and is not used for, or equipped to be used for, harvesting fish;

“(9) the term ‘North Pacific Council’ means the North Pacific Fishery Management Council established under section 302(a)(1)(G) of the Magnuson-Stevens Act (16 U.S.C. 1852(a)(1)(G));

“(10) the term ‘offshore component’ means all vessels not included in the definition of ‘inshore component’ that process groundfish harvested in the Bering Sea and Aleutian Islands Management Area;

“(11) the term ‘Secretary’ means the Secretary of Commerce; and

“(12) the term ‘shoreside processor’ means any person or vessel that receives unprocessed fish, except catcher/processors, motherships, buying stations, restaurants, or persons receiving fish for personal consumption or bait.

“SEC. 206. ALLOCATIONS.

“(a) Pollock Community Development Quota.—Effective January 1, 1999, 10 percent of the total allowable catch of pollock in the Bering Sea and Aleutian Islands Management Area shall be allocated as a directed fishing allowance to the western Alaska community development quota program established under section 305(i) of the Magnuson-Stevens Act (16 U.S.C. 1855(i)).

“(b) Inshore/Offshore.—Effective January 1, 1999, the remainder of the pollock total allowable catch in the Bering Sea and Aleutian Islands Management Area, after the subtraction of the allocation under subsection (a) and the subtraction of allowances for the incidental catch of pollock by vessels harvesting other groundfish species (including under the western Alaska community development quota program) shall be allocated as directed fishing allowances as follows—

“(1) 50 percent to catcher vessels harvesting pollock for processing by the inshore component;

“(2) 40 percent to catcher/processors and catcher vessels harvesting pollock for processing by catcher/processors in the offshore component; and

“(3) 10 percent to catcher vessels harvesting pollock for processing by motherships in the offshore component.

“SEC. 207. BUYOUT.

“(a) Federal Loan.—Under the authority of sections 1111 and 1112 [renumbered 1113, 1114] of title XI of the Merchant Marine Act, 1936 (46 U.S.C. App. 1279f and 1279g) [now 46 U.S.C. 53735 and 53702(b)] and notwithstanding the requirements of section 312 of the Magnuson-Stevens Act (16 U.S.C. 1861a), the Secretary shall, subject to the availability of appropriations for the cost of the direct loan, provide up to $75,000,000 through a direct loan obligation for the payments required under subsection (d).

“(b) Inshore Fee System.—Notwithstanding the requirements of section 304(d) or 312 of the Magnuson-Stevens Act (16 U.S.C. 1854(d) and 1861a), the Secretary shall establish a fee for the repayment of such loan obligation which—

“(1) shall be six-tenths (0.6) of one cent for each pound round-weight of all pollock harvested from the directed fishing allowance under section 206(b)(1); and

“(2) shall begin with such pollock harvested on or after January 1, 2000, and continue without interruption until such loan obligation is fully repaid; and

“(3) shall be collected in accordance with section 312(d)(2)(C) of the Magnuson-Stevens Act (16 U.S.C. 1861a(d)(2)(C)) and in accordance with such other conditions as the Secretary establishes.

“(c) Federal Appropriation.—Under the authority of section 312(c)(1)(B) of the Magnuson-Stevens Act (16 U.S.C. 1861a(c)(1)(B)), there are authorized to be appropriated $20,000,000 for the payments required under subsection (d).

“(d) Payments.—Subject to the availability of appropriations for the cost of the direct loan under subsection (a) and funds under subsection (c), the Secretary shall pay by not later than December 31, 1998—

“(1) up to $90,000,000 to the owner or owners of the catcher/processors listed in paragraphs (1) through (9) of section 209, in such manner as the owner or owners, with the concurrence of the Secretary, agree, except that—

“(A) the portion of such payment with respect to the catcher/processor listed in paragraph (1) of section 209 shall be made only after the owner submits a written certification acceptable to the Secretary that neither the owner nor a purchaser from the owner intends to use such catcher/processor outside of the exclusive economic zone of the United States to harvest any stock of fish (as such term is defined in section 3 of the Magnuson-Stevens Act (16 U.S.C. 1802)) that occurs within the exclusive economic zone of the United States; and

“(B) the portion of such payment with respect to the catcher/processors listed in paragraphs (2) through (9) of section 209 shall be made only after the owner or owners of such catcher/processors submit a written certification acceptable to the Secretary that such catcher/processors will be scrapped by December 31, 2000 and will not, before that date, be used to harvest or process any fish; and

“(2)(A) if a contract has been filed under section 210(a) by the catcher/processors listed in section 208(e), $5,000,000 to the owner or owners of the catcher/processors listed in paragraphs (10) through (14) of such section in such manner as the owner or owners, with the concurrence of the Secretary, agree; or

“(B) if such a contract has not been filed by such date, $5,000,000 to the owners of the catcher vessels eligible under section 208(b) and the catcher/processors eligible under paragraphs (1) through (20) of section 208(e), divided based on the amount of the harvest of pollock in the directed pollock fishery by each such vessel in 1997 in such manner as the Secretary deems appropriate,

except that any such payments shall be reduced by any obligation to the federal government that has not been satisfied by such owner or owners of any such vessels.

“(e) Penalty.—If the catcher/processor under paragraph (1) of section 209 is used outside of the exclusive economic zone of the United States to harvest any stock of fish that occurs within the exclusive economic zone of the United States while the owner who received the payment under subsection (d)(1)(A) has an ownership interest in such vessel, or if the catcher/processors listed in paragraphs (2) through (9) of section 209 are determined by the Secretary not to have been scrapped by December 31, 2000 or to have been used in a manner inconsistent with subsection (d)(1)(B), the Secretary may suspend any or all of the federal permits which allow any vessels owned in whole or in part by the owner or owners who received payments under subsection (d)(1) to harvest or process fish within the exclusive economic zone of the United States until such time as the obligations of such owner or owners under subsection (d)(1) have been fulfilled to the satisfaction of the Secretary.

“(f) Program Defined; Maturity.—For the purposes of section 1111 [renumbered 1113] of the Merchant Marine Act, 1936 (46 U.S.C. App. 1279f) [now 46 U.S.C. 53735], the fishing capacity reduction program in this subtitle shall be within the meaning of the term ‘program’ as defined and used in such section. Notwithstanding section 1111(b)(4) [renumbered 1113(b)(4)] of such Act (46 U.S.C. App. 1279f(b)(4)) [now 46 U.S.C. 53735(c)(4)], the debt obligation under subsection (a) of this section may have a maturity not to exceed 30 years.

“(g) Fishery Capacity Reduction Regulations.—The Secretary of Commerce shall by not later than October 15, 1998 publish proposed regulations to implement subsections (b), (c), (d), and (e) of section 312 of the Magnuson-Stevens Act (16 U.S.C. 1861a) and sections 1111 and 1112 [renumbered 1113, 1114] of title XI of the Merchant Marine Act, 1936 (46 U.S.C. App. 1279f and 1279g) [now 46 U.S.C. 53735 and 53702(b)].

“SEC. 208. ELIGIBLE VESSELS AND PROCESSORS.

“(a) Catcher Vessels Onshore.—Effective January 1, 2000, only catcher vessels which are—

“(1) determined by the Secretary—

“(A) to have delivered at least 250 metric tons of pollock; or

“(B) to be less than 60 feet in length overall and to have delivered at least 40 metric tons of pollock,

for processing by the inshore component in the directed pollock fishery in any one of the years 1996 or 1997, or between January 1, 1998 and September 1, 1998;

“(2) eligible to harvest pollock in the directed pollock fishery under the license limitation program recommended by the North Pacific Council and approved by the Secretary; and

“(3) not listed in subsection (b),

shall be eligible to harvest the directed fishing allowance under section 206(b)(1) pursuant to a federal fishing permit.

“(b) Catcher Vessels to Catcher/Processors.—Effective January 1, 1999, only the following catcher vessels shall be eligible to harvest the directed fishing allowance under section 206(b)(2) pursuant to a federal fishing permit:

“(1) AMERICAN CHALLENGER (United States official number 633219);

“(2) FORUM STAR (United States official number 925863);

“(3) MUIR MILACH (United States official number 611524);

“(4) NEAHKAHNIE (United States official number 599534);

“(5) OCEAN HARVESTER (United States official number 549892);

“(6) SEA STORM (United States official number 628959);

“(7) TRACY ANNE (United States official number 904859); and

“(8) any catcher vessel—

“(A) determined by the Secretary to have delivered at least 250 metric tons and at least 75 percent of the pollock it harvested in the directed pollock fishery in 1997 to catcher/processors for processing by the offshore component; and

“(B) eligible to harvest pollock in the directed pollock fishery under the license limitation program recommended by the North Pacific Council and approved by the Secretary.

“(c) Catcher Vessels to Motherships.—Effective January 1, 2000, only the following catcher vessels shall be eligible to harvest the directed fishing allowance under section 206(b)(3) pursuant to a federal fishing permit:

“(1) ALEUTIAN CHALLENGER (United States official number 603820);

“(2) ALYESKA (United States official number 560237);

“(3) AMBER DAWN (United States official number 529425);

“(4) AMERICAN BEAUTY (United States official number 613847);

“(5) CALIFORNIA HORIZON (United States official number 590758);

“(6) MAR-GUN (United States official number 525608);

“(7) MARGARET LYN (United States official number 615563);

“(8) MARK I (United States official number 509552);

“(9) MISTY DAWN (United States official number 926647);

“(10) NORDIC FURY (United States official number 542651);

“(11) OCEAN LEADER (United States official number 561518);

“(12) OCEANIC (United States official number 602279);

“(13) PACIFIC ALLIANCE (United States official number 612084);

“(14) PACIFIC CHALLENGER (United States official number 518937);

“(15) PACIFIC FURY (United States official number 561934);

“(16) PAPADO II (United States official number 536161);

“(17) TRAVELER (United States official number 929356);

“(18) VESTERAALEN (United States official number 611642);

“(19) WESTERN DAWN (United States official number 524423); and

“(20) any vessel—

“(A) determined by the Secretary to have delivered at least 250 metric tons of pollock for processing by motherships in the offshore component of the directed pollock fishery in any one of the years 1996 or 1997, or between January 1, 1998 and September 1, 1998;

“(B) eligible to harvest pollock in the directed pollock fishery under the license limitation program recommended by the North Pacific Council and approved by the Secretary; and

“(C) not listed in subsection (b).

“(d) Motherships.—Effective January 1, 2000, only the following motherships shall be eligible to process the directed fishing allowance under section 206(b)(3) pursuant to a federal fishing permit:

“(1) EXCELLENCE (United States official number 967502);

“(2) GOLDEN ALASKA (United States official number 651041); and

“(3) OCEAN PHOENIX (United States official number 296779).

“(e) Catcher/Processors.—Effective January 1, 1999, only the following catcher/processors shall be eligible to harvest the directed fishing allowance under section 206(b)(2) pursuant to a federal fishing permit:

“(1) AMERICAN DYNASTY (United States official number 951307);

“(2) KATIE ANN (United States official number 518441);

“(3) AMERICAN TRIUMPH (United States official number 646737);

“(4) NORTHERN EAGLE (United States official number 506694);

“(5) NORTHERN HAWK (United States official number 643771);

“(6) NORTHERN JAEGER (United States official number 521069);

“(7) OCEAN ROVER (United States official number 552100);

“(8) ALASKA OCEAN (United States official number 637856);

“(9) ENDURANCE (United States official number 592206);

“(10) AMERICAN ENTERPRISE (United States official number 594803);

“(11) ISLAND ENTERPRISE (United States official number 610290);

“(12) KODIAK ENTERPRISE (United States official number 579450);

“(13) SEATTLE ENTERPRISE (United States official number 904767);

“(14) US ENTERPRISE (United States official number 921112);

“(15) ARCTIC STORM (United States official number 903511);

“(16) ARCTIC FJORD (United States official number 940866);

“(17) NORTHERN GLACIER (United States official number 663457);

“(18) PACIFIC GLACIER (United States official number 933627);

“(19) HIGHLAND LIGHT (United States official number 577044);

“(20) STARBOUND (United States official number 944658); and

“(21) any catcher/processor not listed in this subsection and determined by the Secretary to have harvested more than 2,000 metric tons of the pollock in the 1997 directed pollock fishery and determined to be eligible to harvest pollock in the directed pollock fishery under the license limitation program recommended by the North Pacific Council and approved by the Secretary, except that catcher/processors eligible under this paragraph shall be prohibited from harvesting in the aggregate a total of more than one-half (0.5) of a percent of the pollock apportioned for the directed pollock fishery under section 206(b)(2).

Notwithstanding section 213(a), failure to satisfy the requirements of section 4(a) of the Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987 (Public Law 100–239; 46 U.S.C. 12108 note) [now 46 U.S.C. 12113 note] shall not make a catcher/processor listed under this subsection ineligible for a fishery endorsement.

“(f) Shoreside Processors.—(1) Effective January 1, 2000 and except as provided in paragraph (2), the catcher vessels eligible under subsection (a) may deliver pollock harvested from the directed fishing allowance under section 206(b)(1) only to—

“(A) shoreside processors (including vessels in a single geographic location in Alaska State waters) determined by the Secretary to have processed more than 2,000 metric tons round-weight of pollock in the inshore component of the directed pollock fishery during each of 1996 and 1997; and

“(B) shoreside processors determined by the Secretary to have processed pollock in the inshore component of the directed pollock fishery in 1996 or 1997, but to have processed less than 2,000 metric tons round-weight of such pollock in each year, except that effective January 1, 2000, each such shoreside processor may not process more than 2,000 metric tons round-weight from such directed fishing allowance in any year.

“(2) Upon recommendation by the North Pacific Council, the Secretary may approve measures to allow catcher vessels eligible under subsection (a) to deliver pollock harvested from the directed fishing allowance under section 206(b)(1) to shoreside processors not eligible under paragraph (1) if the total allowable catch for pollock in the Bering Sea and Aleutian Islands Management Area increases by more than 10 percent above the total allowable catch in such fishery in 1997, or in the event of the actual total loss or constructive total loss of a shoreside processor eligible under paragraph (1)(A).

“(g) Vessel Rebuilding and Replacement.—

“(1) In general.—

“(A) Rebuild or replace.—Notwithstanding any limitation to the contrary on replacing, rebuilding, or lengthening vessels or transferring permits or licenses to a replacement vessel contained in sections 679.2 and 679.4 of title 50, Code of Federal Regulations, as in effect on the date of enactment of the Coast Guard Authorization Act of 2010 [Oct. 15, 2010] and except as provided in paragraph (4), the owner of a vessel eligible under subsection (a), (b), (c), (d), or (e), in order to improve vessel safety and operational efficiencies (including fuel efficiency), may rebuild or replace that vessel (including fuel efficiency) with a vessel documented with a fishery endorsement under section 12113 of title 46, United States Code.

“(B) Same requirements.—The rebuilt or replacement vessel shall be eligible in the same manner and subject to the same restrictions and limitations under such subsection as the vessel being rebuilt or replaced.

“(C) Transfer of permits and licenses.—Each fishing permit and license held by the owner of a vessel or vessels to be rebuilt or replaced under subparagraph (A) shall be transferred to the rebuilt or replacement vessel or its owner, as necessary to permit such rebuilt or replacement vessel to operate in the same manner as the vessel prior to the rebuilding or the vessel it replaced, respectively.

“(2) Recommendations of north pacific fishery management council.—The North Pacific Fishery Management Council may recommend for approval by the Secretary such conservation and management measures, including size limits and measures to control fishing capacity, in accordance with the Magnuson-Stevens Act [16 U.S.C. 1801 et seq.] as it considers necessary to ensure that this subsection does not diminish the effectiveness of fishery management plans of the Bering Sea and Aleutian Islands Management Area or the Gulf of Alaska.

“(3) Special rule for replacement of certain vessels.—

“(A) In general.—Notwithstanding the requirements of subsections (b)(2), (c)(1), and (c)(2) of section 12113 of title 46, United States Code, a vessel that is eligible under subsection (a), (b), (c), or (e) and that qualifies to be documented with a fishery endorsement pursuant to section 213(g) may be replaced with a replacement vessel under paragraph (1) if the vessel that is replaced is validly documented with a fishery endorsement pursuant to section 213(g) before the replacement vessel is documented with a fishery endorsement under section 12113 of title 46, United States Code.

“(B) Applicability.—A replacement vessel under subparagraph (A) and its owner and mortgagee are subject to the same limitations under section 213(g) that are applicable to the vessel that has been replaced and its owner and mortgagee.

“(4) Special rules for certain catcher vessels.—

“(A) In general.—A replacement for a covered vessel described in subparagraph (B) is prohibited from harvesting fish in any fishery (except for the Pacific whiting fishery) managed under the authority of any Regional Fishery Management Council (other than the North Pacific Fishery Management Council) established under section 302(a) of the Magnuson-Stevens Act [16 U.S.C. 1852(a)].

“(B) Covered vessels.—A covered vessel referred to in subparagraph (A) is—

“(i) a vessel eligible under subsection (a), (b), or (c) that is replaced under paragraph (1); or

“(ii) a vessel eligible under subsection (a), (b), or (c) that is rebuilt to increase its registered length, gross tonnage, or shaft horsepower.

“(5) Limitation on fishery endorsements.—Any vessel that is replaced under this subsection shall thereafter not be eligible for a fishery endorsement under section 12113 of title 46, United States Code, unless that vessel is also a replacement vessel described in paragraph (1).

“(6) Gulf of alaska limitation.—Notwithstanding paragraph (1), the Secretary shall prohibit from participation in the groundfish fisheries of the Gulf of Alaska any vessel that is rebuilt or replaced under this subsection and that exceeds the maximum length overall specified on the license that authorizes fishing for groundfish pursuant to the license limitation program under part 679 of title 50, Code of Federal Regulations, as in effect on the date of enactment of the Coast Guard Authorization Act of 2010 [Oct. 15, 2010].

“(7) Authority of pacific council.—Nothing in this section shall be construed to diminish or otherwise affect the authority of the Pacific Council to recommend to the Secretary conservation and management measures to protect fisheries under its jurisdiction (including the Pacific whiting fishery) and participants in such fisheries from adverse impacts caused by this Act.

“(h) Eligibility During Implementation.—In the event the Secretary is unable to make a final determination about the eligibility of a vessel under subsection (b)(8) or subsection (e)(21) before January 1, 1999, or a vessel or shoreside processor under subsection (a), subsection (c)(21), or subsection (f) before January 1, 2000, such vessel or shoreside processor, upon the filing of an application for eligibility, shall be eligible to participate in the directed pollock fishery pending final determination by the Secretary with respect to such vessel or shoreside processor.

“(i) Eligibility Not a Right.—Eligibility under this section shall not be construed—

“(1) to confer any right of compensation, monetary or otherwise, to the owner of any catcher vessel, catcher/processor, mothership, or shoreside processor if such eligibility is revoked or limited in any way, including through the revocation or limitation of a fishery endorsement or any federal permit or license;

“(2) to create any right, title, or interest in or to any fish in any fishery; or

“(3) to waive any provision of law otherwise applicable to such catcher vessel, catcher/processor, mothership, or shoreside processor.

“SEC. 209. LIST OF INELIGIBLE VESSELS.

“Effective December 31, 1998, the following vessels shall be permanently ineligible for fishery endorsements, and any claims (including relating to catch history) associated with such vessels that could qualify any owners of such vessels for any present or future limited access system permit in any fishery within the exclusive economic zone of the United States (including a vessel moratorium permit or license limitation program permit in fisheries under the authority of the North Pacific Council) are hereby extinguished:

“(1) AMERICAN EMPRESS (United States official number 942347);

“(2) PACIFIC SCOUT (United States official number 934772);

“(3) PACIFIC EXPLORER (United States official number 942592);

“(4) PACIFIC NAVIGATOR (United States official number 592204);

“(5) VICTORIA ANN (United States official number 592207);

“(6) ELIZABETH ANN (United States official number 534721);

“(7) CHRISTINA ANN (United States official number 653045);

“(8) REBECCA ANN (United States official number 592205); and

“(9) BROWNS POINT (United States official number 587440).

“SEC. 210. FISHERY COOPERATIVE LIMITATIONS.

“(a) Public Notice.—(1) Any contract implementing a fishery cooperative under section 1 of the Act of June 25, 1934 (15 U.S.C. 521) in the directed pollock fishery and any material modifications to any such contract shall be filed not less than 30 days prior to the start of fishing under the contract with the North Pacific Council and with the Secretary, together with a copy of a letter from a party to the contract requesting a business review letter on the fishery cooperative from the Department of Justice and any response to such request. Notwithstanding section 402 of the Magnuson-Stevens Act (16 U.S.C. 1881a) or any other provision of law, but taking into account the interest of parties to any such contract in protecting the confidentiality of proprietary information, the North Pacific Council and Secretary shall—

“(A) make available to the public such information about the contract, contract modifications, or fishery cooperative the North Pacific Council and Secretary deem appropriate, which at a minimum shall include a list of the parties to the contract, a list of the vessels involved, and the amount of pollock and other fish to be harvested by each party to such contract; and

“(B) make available to the public in such manner as the North Pacific Council and Secretary deem appropriate information about the harvest by vessels under a fishery cooperative of all species (including bycatch) in the directed pollock fishery on a vessel-by-vessel basis.

“(b) Catcher Vessels Onshore.—

“(1) Catcher vessel cooperatives.—Effective January 1, 2000, upon the filing of a contract implementing a fishery cooperative under subsection (a) which—

“(A) is signed by the owners of 80 percent or more of the qualified catcher vessels that delivered pollock for processing by a shoreside processor in the directed pollock fishery in the year prior to the year in which the fishery cooperative will be in effect; and

“(B) specifies, except as provided in paragraph (6), that such catcher vessels will deliver pollock in the directed pollock fishery only to such shoreside processor during the year in which the fishery cooperative will be in effect and that such shoreside processor has agreed to process such pollock,

  the Secretary shall allow only such catcher vessels (and catcher vessels whose owners voluntarily participate pursuant to paragraph (2)) to harvest the aggregate percentage of the directed fishing allowance under section 206(b)(1) in the year in which the fishery cooperative will be in effect that is equivalent to the aggregate total amount of pollock harvested by such catcher vessels (and by such catcher vessels whose owners voluntarily participate pursuant to paragraph (2)) in the directed pollock fishery for processing by the inshore component during 1995, 1996, and 1997 relative to the aggregate total amount of pollock harvested in the directed pollock fishery for processing by the inshore component during such years and shall prevent such catcher vessels (and catcher vessels whose owners voluntarily participate pursuant to paragraph (2)) from harvesting in aggregate in excess of such percentage of such directed fishing allowance.

“(2) Voluntary participation.—Any contract implementing a fishery cooperative under paragraph (1) must allow the owners of other qualified catcher vessels to enter into such contract after it is filed and before the calender year in which fishing will begin under the same terms and conditions as the owners of the qualified catcher vessels who entered into such contract upon filing.

“(3) Qualified catcher vessel.—For the purposes of this subsection, a catcher vessel shall be considered a ‘qualified catcher vessel’ if, during the year prior to the year in which the fishery cooperative will be in effect, it delivered more pollock to the shoreside processor to which it will deliver pollock under the fishery cooperative in paragraph (1) than to any other shoreside processor.

“(4) Consideration of certain vessels.—Any contract implementing a fishery cooperative under paragraph (1) which has been entered into by the owner of a qualified catcher vessel eligible under section 208(a) that harvested pollock for processing by catcher/processors or motherships in the directed pollock fishery during 1995, 1996, and 1997 shall, to the extent practicable, provide fair and equitable terms and conditions for the owner of such qualified catcher vessel.

“(5) Open access.—A catcher vessel eligible under section 208(a) the catch history of which has not been attributed to a fishery cooperative under paragraph (1) may be used to deliver pollock harvested by such vessel from the directed fishing allowance under section 206(b)(1) (other than pollock reserved under paragraph (1) for a fishery cooperative) to any of the shoreside processors eligible under section 208(f). A catcher vessel eligible under section 208(a) the catch history of which has been attributed to a fishery cooperative under paragraph (1) during any calendar year may not harvest any pollock apportioned under section 206(b)(1) in such calendar year other than the pollock reserved under paragraph (1) for such fishery cooperative.

“(6) Transfer of cooperative harvest.—A contract implementing a fishery cooperative under paragraph (1) may, notwithstanding the other provisions of this subsection, provide for up to 10 percent of the pollock harvested under such cooperative to be processed by a shoreside processor eligible under section 208(f) other than the shoreside processor to which pollock will be delivered under paragraph (1).

“(7) Fishery cooperative exit provisions.—

“(A) Fishing allowance determination.—For purposes of determining the aggregate percentage of directed fishing allowances under paragraph (1), when a catcher vessel is removed from the directed pollock fishery, the fishery allowance for pollock for the vessel being removed—

“(i) shall be based on the catch history determination for the vessel made pursuant to section 679.62 of title 50, Code of Federal Regulations, as in effect on the date of enactment of the Coast Guard Authorization Act of 2010 [Oct. 15, 2010]; and

“(ii) shall be assigned, for all purposes under this title, in the manner specified by the owner of the vessel being removed to any other catcher vessel or among other catcher vessels participating in the fishery cooperative if such vessel or vessels remain in the fishery cooperative for at least one year after the date on which the vessel being removed leaves the directed pollock fishery.

“(B) Eligibility for fishery endorsement.—Except as provided in subparagraph (C), a vessel that is removed pursuant to this paragraph shall be permanently ineligible for a fishery endorsement, and any claim (including relating to catch history) associated with such vessel that could qualify any owner of such vessel for any permit to participate in any fishery within the exclusive economic zone of the United States shall be extinguished, unless such removed vessel is thereafter designated to replace a vessel to be removed pursuant to this paragraph.

“(C) Limitations on statutory construction.—Nothing in this paragraph shall be construed—

“(i) to make the vessels AJ (United States official number 905625), DONA MARTITA (United States official number 651751), NORDIC EXPLORER (United States official number 678234), and PROVIDIAN (United States official number 1062183) ineligible for a fishery endorsement or any permit necessary to participate in any fishery under the authority of the New England Fishery Management Council or the Mid-Atlantic Fishery Management Council established, respectively, under subparagraphs (A) and (B) of section 302(a)(1) of the Magnuson-Stevens Act [16 U.S.C. 1852(a)(1)]; or

“(ii) to allow the vessels referred to in clause (i) to participate in any fishery under the authority of the Councils referred to in clause (i) in any manner that is not consistent with the fishery management plan for the fishery developed by the Councils under section 303 of the Magnuson-Stevens Act [16 U.S.C. 1853].

“(c) Catcher Vessels to Catcher/Processors.—Effective January 1, 1999, not less than 8.5 percent of the directed fishing allowance under section 206(b)(2) shall be available for harvest only by the catcher vessels eligible under section 208(b). The owners of such catcher vessels may participate in a fishery cooperative with the owners of the catcher/processors eligible under paragraphs (1) through (20) of the section 208(e). The owners of such catcher vessels may participate in a fishery cooperative that will be in effect during 1999 only if the contract implementing such cooperative establishes penalties to prevent such vessels from exceeding in 1999 the traditional levels harvested by such vessels in all other fisheries in the exclusive economic zone of the United States.

“(d) Catcher Vessels to Motherships.—

“(1) Processing.—Effective January 1, 2000, the authority in section 1 of the Act of June 25, 1934 (48 Stat. 1213 and 1214; 15 U.S.C. 521 et seq.) shall extend to processing by motherships eligible under section 208(d) solely for the purposes of forming or participating in a fishery cooperative in the directed pollock fishery upon the filing of a contract to implement a fishery cooperative under subsection (a) which has been entered into by the owners of 80 percent or more of the catcher vessels eligible under section 208(c) for the duration of such contract, provided that such owners agree to the terms of the fishery cooperative involving processing by the motherships.

“(2) Voluntary participation.—Any contract implementing a fishery cooperative described in paragraph (1) must allow the owners of any other catcher vessels eligible under section 208(c) to enter such contract after it is filed and before the calendar year in which fishing will begin under the same terms and conditions as the owners of the catcher vessels who entered into such contract upon filing.

“(e) Excessive Shares.—

“(1) Harvesting.—No particular individual, corporation, or other entity may harvest, through a fishery cooperative or otherwise, a total of more than 17.5 percent of the pollock available to be harvested in the directed pollock fishery.

“(2) Processing.—Under the authority of section 301(a)(4) of the Magnuson-Stevens Act (16 U.S.C. 1851(a)(4)), the North Pacific Council is directed to recommend for approval by the Secretary conservation and management measures to prevent any particular individual or entity from processing an excessive share of the pollock available to be harvested in the directed pollock fishery. In the event the North Pacific Council recommends and the Secretary approves an excessive processing share that is lower than 17.5 percent, any individual or entity that previously processed a percentage greater than such share shall be allowed to continue to process such percentage, except that their percentage may not exceed 17.5 percent (excluding pollock processed by catcher/processors that was harvested in the directed pollock fishery by catcher vessels eligible under 208(b)) and shall be reduced if their percentage decreases, until their percentage is below such share. In recommending the excessive processing share, the North Pacific Council shall consider the need of catcher vessels in the directed pollock fishery to have competitive buyers for the pollock harvested by such vessels.

“(3) Review by maritime administration.—At the request of the North Pacific Council or the Secretary, any individual or entity believed by such Council or the Secretary to have exceeded the percentage in either paragraph (1) or (2) shall submit such information to the Administrator of the Maritime Administration as the Administrator deems appropriate to allow the Administrator to determine whether such individual or entity has exceeded either such percentage. The Administrator shall make a finding as soon as practicable upon such request and shall submit such finding to the North Pacific Council and the Secretary. For the purposes of this subsection, any entity in which 10 percent or more of the interest is owned or controlled by another individual or entity shall be considered to be the same entity as the other individual or entity.

“(f) Landing Tax Jurisdiction.—Any contract filed under subsection (a) shall include a contract clause under which the parties to the contract agree to make payments to the State of Alaska for any pollock harvested in the directed pollock fishery which is not landed in the State of Alaska, in amounts which would otherwise accrue had the pollock been landed in the State of Alaska subject to any landing taxes established under Alaska law. Failure to include such a contract clause or for such amounts to be paid shall result in a revocation of the authority to form fishery cooperatives under section 1 of the Act of June 25, 1934 (15 U.S.C. 521 et seq.).

“(g) Penalties.—The violation of any of the requirements of this subtitle or any regulation or permit issued pursuant to this subtitle shall be considered the commission of an act prohibited by section 307 of the Magnuson-Stevens Act (16 U.S.C. 1857), and sections 308, 309, 310, and 311 of such Act (16 U.S.C. 1858, 1859, 1860, and 1861) shall apply to any such violation in the same manner as to the commission of an act prohibited by section 307 of such Act (16 U.S.C. 1857). In addition to the civil penalties and permit sanctions applicable to prohibited acts under section 308 of such Act (16 U.S.C. 1858), 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 violated a requirement of this section shall be subject to the forfeiture to the Secretary of Commerce of any fish harvested or processed during the commission of such act.

“SEC. 211. PROTECTIONS FOR OTHER FISHERIES; CONSERVATION MEASURES.

“(a) General.—The North Pacific Council shall recommend for approval by the Secretary such conservation and management measures as it determines necessary to protect other fisheries under its jurisdiction and the participants in those fisheries, including processors, from adverse impacts caused by this Act [probably should be “this title”, see Tables for classification] or fishery cooperatives in the directed pollock fishery.

“(b) Catcher/Processor Restrictions.—

“(1) General.—The restrictions in this subsection shall take effect on January 1, 1999 and shall remain in effect thereafter except that they may be superceded (with the exception of paragraph (4)) by conservation and management measures recommended after the date of the enactment of this Act [Oct. 21, 1998] by the North Pacific Council and approved by the Secretary in accordance with the Magnuson-Stevens Act.

“(2) Bering sea fishing.—The catcher/processors eligible under paragraphs (1) through (20) of section 208(e) are hereby prohibited from, in the aggregate—

“(A) exceeding the percentage of the harvest available in the offshore component of any Bering Sea and Aleutian Islands groundfish fishery (other than the pollock fishery) that is equivalent to the total harvest by such catcher/processors and the catcher/processors listed in section 209 in the fishery in 1995, 1996, and 1997 relative to the total amount available to be harvested by the offshore component in the fishery in 1995, 1996, and 1997;

“(B) exceeding the percentage of the prohibited species available in the offshore component of any Bering Sea and Aleutian Islands groundfish fishery (other than the pollock fishery) that is equivalent to the total of the prohibited species harvested by such catcher/processors and the catcher/processors listed in section 209 in the fishery in 1995, 1996, and 1997 relative to the total amount of prohibited species available to be harvested by the offshore component in the fishery in 1995, 1996, and 1997; and

“(C) fishing for Atka mackerel in the eastern area of the Bering Sea and Aleutian Islands and from exceeding the following percentages of the directed harvest available in the Bering Sea and Aleutian Islands Atka mackerel fishery—

“(i) 11.5 percent in the central area; and

“(ii) 20 percent in the western area.

“(3) Bering sea processing.—The catcher/processors eligible under paragraphs (1) through (20) of section 208(e) are hereby prohibited from—

“(A) processing any of the directed fishing allowances under paragraphs (1) or (3) of section 206(b); and

“(B) processing any species of crab harvested in the Bering Sea and Aleutian Islands Management Area.

“(4) Gulf of alaska.—The catcher/processors eligible under paragraphs (1) through (20) of section 208(e) are hereby prohibited from—

“(A) harvesting any fish in the Gulf of Alaska;

“(B) processing any groundfish harvested from the portion of the exclusive economic zone off Alaska known as area 630 under the fishery management plan for Gulf of Alaska groundfish; or

“(C) processing any pollock in the Gulf of Alaska (other than as bycatch in non-pollock groundfish fisheries) or processing, in the aggregate, a total of more than 10 percent of the cod harvested from areas 610, 620, and 640 of the Gulf of Alaska under the fishery management plan for Gulf of Alaska groundfish.

“(5) Fisheries other than north pacific.—The catcher/processors eligible under paragraphs (1) through (20) of section 208(e) and motherships eligible under section 208(d) are hereby prohibited from harvesting fish in any fishery under the authority of any regional fishery management council established under section 302(a) of the Magnuson-Stevens Act (16 U.S.C. 1852(a)) other than the North Pacific Council, except for the Pacific whiting fishery, and from processing fish in any fishery under the authority of any such regional fishery management council other than the North Pacific Council, except in the Pacific whiting fishery, unless the catcher/processor or mothership is authorized to harvest or process fish under a fishery management plan recommended by the regional fishery management council of jurisdiction and approved by the Secretary.

“(6) Observers and scales.—The catcher/processors eligible under paragraphs (1) through (20) of section 208(e) shall—

“(A) have two observers onboard at all times while groundfish is being harvested, processed, or received from another vessel in any fishery under the authority of the North Pacific Council; and

“(B) weigh its catch on a scale onboard approved by the National Marine Fisheries Service while harvesting groundfish in fisheries under the authority of the North Pacific Council.

This paragraph shall take effect on January 1, 1999 for catcher/processors eligible under paragraphs (1) through (20) of section 208(e) that will harvest pollock allocated under section 206(a) in 1999, and shall take effect on January 1, 2000 for all other catcher/processors eligible under such paragraphs of section 208(e).

“(c) Catcher Vessel and Shoreside Processor Restrictions.—

“(1) Required council recommendations.—By not later than July 1, 1999, the North Pacific Council shall recommend for approval by the Secretary conservation and management measures to—

“(A) prevent the catcher vessels eligible under subsections (a), (b), and (c) of section 208 from exceeding in the aggregate the traditional harvest levels of such vessels in other fisheries under the authority of the North Pacific Council as a result of fishery cooperatives in the directed pollock fishery; and

“(B) protect processors not eligible to participate in the directed pollock fishery from adverse effects as a result of this Act or fishery cooperatives in the directed pollock fishery.

If the North Pacific Council does not recommend such conservation and management measures by such date, or if the Secretary determines that such conservation and management measures recommended by the North Pacific Council are not adequate to fulfill the purposes of this paragraph, the Secretary may by regulation restrict or change the authority in section 210(b) to the extent the Secretary deems appropriate, including by preventing fishery cooperatives from being formed pursuant to such section and by providing greater flexibility with respect to the shoreside processor or shoreside processors to which catcher vessels in a fishery cooperative under section 210(b) may deliver pollock.

“(2) Bering sea crab and groundfish.—

“(A) Effective January 1, 2000, the owners of the motherships eligible under section 208(d) and the shoreside processors eligible under section 208(f) that receive pollock from the directed pollock fishery under a fishery cooperative are hereby prohibited from processing, in the aggregate for each calendar year, more than the percentage of the total catch of each species of crab in directed fisheries under the jurisdiction of the North Pacific Council than facilities operated by such owners processed of each such species in the aggregate, on average, in 1995, 1996, 1997. For the purposes of this subparagraph, the term ‘facilities’ means any processing plant, catcher/processor, mothership, floating processor, or any other operation that processes fish. Any entity in which 10 percent or more of the interest is owned or controlled by another individual or entity shall be considered to be the same entity as the other individual or entity for the purposes of this subparagraph.

“(B) Under the authority of section 301(a)(4) of the Magnuson-Stevens Act (16 U.S.C. 1851(a)(4)), the North Pacific Council is directed to recommend for approval by the Secretary conservation and management measures to prevent any particular individual or entity from harvesting or processing an excessive share of crab or of groundfish in fisheries in the Bering Sea and Aleutian Islands Management Area.

“(C) The catcher vessels eligible under section 208(b) are hereby prohibited from participating in a directed fishery for any species of crab in the Bering Sea and Aleutian Islands Management Area unless the catcher vessel harvested crab in the directed fishery for that species of crab in such Area during 1997 and is eligible to harvest such crab in such directed fishery under the license limitation program recommended by the North Pacific Council and approved by the Secretary. The North Pacific Council is directed to recommend measures for approval by the Secretary to eliminate latent licenses under such program, and nothing in this subparagraph shall preclude the Council from recommending measures more restrictive than under this paragraph.

“(3) Fisheries other than north pacific.—

“(A) By not later than July 1, 2000, the Pacific Fishery Management Council established under section 302(a)(1)(F) of the Magnuson-Stevens Act (16 U.S.C. 1852(a)(1)(F)) shall recommend for approval by the Secretary conservation and management measures to protect fisheries under its jurisdiction and the participants in those fisheries from adverse impacts caused by this Act [probably should be “this title”, see Tables for classification] or by any fishery cooperatives in the directed pollock fishery.

“(B) If the Pacific Council does not recommend such conservation and management measures by such date, or if the Secretary determines that such conservation and management measures recommended by the Pacific Council are not adequate to fulfill the purposes of this paragraph, the Secretary may by regulation implement adequate measures including, but not limited to, restrictions on vessels which harvest pollock under a fishery cooperative which will prevent such vessels from harvesting Pacific groundfish, and restrictions on the number of processors eligible to process Pacific groundfish.

“(d) Bycatch Information.—Notwithstanding section 402 of the Magnuson-Stevens Act (16 U.S.C. 1881a), the North Pacific Council may recommend and the Secretary may approve, under such terms and conditions as the North Pacific Council and Secretary deem appropriate, the public disclosure of any information from the groundfish fisheries under the authority of such Council that would be beneficial in the implementation of section 301(a)(9) or section 303(a)(11) of the Magnuson-Stevens Act (16 U.S.C. 1851(a)(9) and 1853(a)(11)).

“(e) Community Development Loan Program.—Under the authority of title XI of the Merchant Marine Act, 1936 ([former] 46 U.S.C. App. 1271 et seq.) [see chapter 537 of Title 46, Shipping], and subject to the availability of appropriations, the Secretary is authorized to provide direct loan obligations to communities eligible to participate in the western Alaska community development quota program established under 304(i) [305(i)] of the Magnuson-Stevens Act (16 U.S.C. 1855(i)) for the purposes of purchasing all or part of an ownership interest in vessels and shoreside processors eligible under subsections (a), (b), (c), (d), (e), or (f) of section 208. Notwithstanding the eligibility criteria in section 208(a) and section 208(c), the LISA MARIE (United States official number 1038717) shall be eligible under such sections in the same manner as other vessels eligible under such sections.

“SEC. 212. RESTRICTION ON FEDERAL LOANS.

“[Amended section 302(b) of Pub. L. 104–297, formerly set out as a note under section 1274 of Title 46, Appendix, Shipping, and now partially set out as a note under section 53706 of Title 46, Shipping.]

“SEC. 213. DURATION.

“(a) General.—Except as otherwise provided in this title [see Tables for classification], the provisions of this title shall take effect upon the date of the enactment of this Act [Oct. 21, 1998]. There are authorized to be appropriated $6,700,000 per year to carry out the provisions of this Act [probably should be “this title”, see Tables for classification] through fiscal year 2004.

“(b) Existing Authority.—Except for the measures required by this subtitle [this note], nothing in this subtitle shall be construed to limit the authority of the North Pacific Council or the Secretary under the Magnuson-Stevens Act.

“(c) Changes to Fishery Cooperative Limitations and Pollock CDQ Allocation.—The North Pacific Council may recommend and the Secretary may approve conservation and management measures in accordance with the Magnuson-Stevens Act—

“(1) that supersede the provisions of this subtitle, except for sections 206 and 208, for conservation purposes or to mitigate adverse effects in fisheries or on owners of fewer than three vessels in the directed pollock fishery caused by this title or fishery cooperatives in the directed pollock fishery, provided such measures take into account all factors affecting the fisheries and are imposed fairly and equitably to the extent practicable among and within the sectors in the directed pollock fishery;

“(2) that supersede the allocation in section 206(a) for any of the years 2002, 2003, and 2004, upon the finding by such Council that the western Alaska community development quota program for pollock has been adversely affected by the amendments in this subtitle; or

“(3) that supersede the criteria required in paragraph (1) of section 210(b) to be used by the Secretary to set the percentage allowed to be harvested by catcher vessels pursuant to a fishery cooperative under such paragraph.

“(d) Report to Congress.—Not later than October 1, 2000, the North Pacific Council shall submit a report to the Secretary and to Congress on the implementation and effects of this Act [title], including the effects on fishery conservation and management, on bycatch levels, on fishing communities, on business and employment practices of participants in any fishery cooperatives, on the western Alaska community development quota program, on any fisheries outside of the authority of the North Pacific Council, and such other matters as the North Pacific Council deems appropriate.

“(e) Report on Fillet Production.—Not later than June 1, 2000, the General Accounting Office [now Government Accountability Office] shall submit a report to the North Pacific Council, the Secretary, and the Congress on whether this Act has negatively affected the market for fillets and fillet blocks, including through the reduction in the supply of such fillets and fillet blocks. If the report determines that such market has been negatively affected, the North Pacific Council shall recommend measures for the Secretary's approval to mitigate any negative effects.

“(f) Severability.—If any provision of this title, an amendment made by this title, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this title, the amendments made by this title, and the application of the provisions of such to any person or circumstance shall not be affected thereby.

“(g) International Agreements.—In the event that any provision of section 12102(c) [now 12113(b)(2) to (d)] or section 31322(a) of title 46, United States Code, as amended by this Act, is determined to be inconsistent with an existing international agreement relating to foreign investment to which the United States is a party with respect to the owner or mortgagee on [sic] of a vessel with a fishery endorsement, such provision shall not apply to that owner or mortgagee with respect to their ownership or mortgage interest in such vessel on that date to the extent of any such inconsistency. The provisions of section 12102(c) [now 12113(b)(2) to (d)] and section 31322(a) of title 46, United States Code, as amended by this Act, shall apply to all subsequent owners and mortgagees of such vessel, and shall apply, notwithstanding the preceding sentence, to the owner on [sic] of such vessel if any ownership interest in that owner is transferred to or otherwise acquired by a foreign individual or entity after or if the percentage of foreign ownership in the vessel is increased after the effective date of this subsection [July 24, 2001].”

[Pub. L. 107–20, title II, §2202(e)(2), July 24, 2001, 115 Stat. 170, provided that: “Section 213(g) of the American Fisheries Act (Public Law 105–277, division C, title II) [set out above] shall take effect on the date of enactment of this Act [July 24, 2001].”]

Restriction on Funding Certain New Fishery Management Plans, Amendments or Regulations

Pub. L. 104–208, div. A, title I, §101(a) [title II, §§208, 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–40, 3009–41, provided that: “None of the funds appropriated under this Act or any other Act henceforth may be used to develop new fishery management plans, amendments, or regulations which create new individual fishing quota programs (whether such quotas are transferable or not) or to implement any such plans, amendments or regulations approved by a Regional Fishery Management Council or the Secretary after January 4, 1995, until offsetting fees to pay for the cost of administering such plans, amendments, or regulations are expressly authorized under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). This restriction shall also apply to any program relating to the Gulf of Mexico commercial red snapper fishery that authorizes the consolidation of licenses, permits or endorsements that result in different trip limits for vessels in the same class. This restriction shall not apply in any way to the North Pacific halibut and sablefish, South Atlantic wreckfish, or the Mid-Atlantic surfclam and ocean (including mahogany) quohog individual fishing quota programs. The term ‘individual fishing quota’ does not include a community development quota.”

Similar provisions were contained in the following prior appropriation act:

Pub. L. 104–134, title I, §101[(a)] [title II, §210], Apr. 26, 1996, 110 Stat. 1321, 1321–31; renumbered title I, Pub. L. 104–140, §1(a), May 2, 1996, 110 Stat. 1327; repealed by Pub. L. 104–297, title I, §108(f)(6), Oct. 11, 1996, 110 Stat. 3579.

Albemarle Sound-Roanoke River Basin: Striped Bass Study

Pub. L. 100–589, §5, Nov. 3, 1988, 102 Stat. 2984, related to requirement of biological study of striped bass fishery resources and habitats of Albemarle Sound-Roanoke River basin area and development of short-term and long-term recommendations for restoring and conserving these resources and habitats, prior to repeal by Pub. L. 105–146, §3(b), Dec. 16, 1997, 111 Stat. 2677.

Exclusive Economic Zone: Atlantic Striped Bass Protection

Pub. L. 100–589, §6(a)–(f), Nov. 3, 1988, 102 Stat. 2986, as amended by Pub. L. 102–130, §4, Oct. 17, 1991, 105 Stat. 627; Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, directed Secretary of Commerce to regulate fishing for Atlantic striped bass in exclusive economic zone determined to be consistent with national standards set forth in this section, prior to repeal by Pub. L. 105–146, §3(c), Dec. 16, 1997, 111 Stat. 2677.

Atlantic Striped Bass Conservation

Pub. L. 98–613, §§1–9, Oct. 31, 1984, 98 Stat. 3187–3190, as amended, formerly set out as a note under this section, was transferred to chapter 71A (§5151 et seq.) of this title.

§1852. Regional Fishery Management Councils

(a) Establishment

(1) There shall be established, within 120 days after April 13, 1976, 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 18 voting members, including 12 appointed by the Secretary in accordance with subsection (b)(2) of this section (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) of this section (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) of this section (at least one of whom shall be appointed from each such State).

(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) of this section (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) of this section (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) of this section (at least one of whom shall be appointed from each such State), and including one appointed from an Indian tribe with Federally 1 recognized fishing rights from California, Oregon, Washington, or Idaho in accordance with subsection (b)(5) of this section.

(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) of this section (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) of this section (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.

(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.

(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 November 28, 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.


(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) 2 of this section.

(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.

(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.

(5)(A) The Secretary shall appoint to the Pacific Council one representative of an Indian tribe with Federally 3 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 4 (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, to have committed an act prohibited by section 1857(1)(O) of this title.

(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.

(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) of this section, and the nonvoting member appointed pursuant to subsection (c)(2) of this section 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.

(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.

(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.

(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 chapter.

(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 chapter, 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) of this section, must be consistent with the procedural guidelines set forth in subsection (i)(2) of this section. 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) of this section;

(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) of this section; and

(E) such other costs as the Secretary determines are necessary to the performance of the functions of the Councils.

(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 subsection (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 chapter.

(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.

(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) of this section 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.

(h) Functions

Each Council shall, in accordance with the provisions of this chapter—

(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);

(2) prepare comments on any application for foreign fishing transmitted to it under section 1824(b)(4)(C) of this title or section 1824(d) of this title, and any fishery management plan or amendment transmitted to it under section 1854(c)(4) of this title;

(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 chapter (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;

(5) review on a continuing basis, and revise as appropriate, the assessments and specifications made pursuant to section 1853(a)(3) and (4) of this title 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 5 subsection (a)(3) of this section) within its geographical area of authority;

(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);

(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 chapter or which are necessary and appropriate to the foregoing functions.

(i) Procedural matters

(1) The Federal Advisory Committee Act (5 U.S.C. App.) 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).

(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.

(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 1855(c) of this title, 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 1881a(b) of this title, 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.


(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.


Subparagraphs (D) and (F) of paragraph (2) shall not apply to any meeting or portion thereof that is so closed.

(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 subpararaph 6 does not require notification regarding any brief closure of a portion of a meeting in order to discuss employment or other internal administrative matters.

(4) Each Council shall establish appropriate procedures applicable to it and to its committee and advisory panels for ensuring the 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 1881a(b) of this title, 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) of this section 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.

(j) Disclosure of financial interest and recusal

(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) of this section; or

(ii) is a voting member of a Council appointed—

(I) under subsection (b)(2) of this section; or

(II) under subsection (b)(5) of this section 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).


(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.

(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.


(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).

(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.


(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.

(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 October 11, 1996, 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).

(8) Section 208 of title 18 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).

(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.

(k) Council training program

(1) Training course

Within 6 months after January 12, 2007, 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 chapter, 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 January 12, 2007, 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 January 12, 2007, shall be considered to have met the training requirement of this paragraph.

(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 chapter.

(Pub. L. 94–265, title III, §302, Apr. 13, 1976, 90 Stat. 347; Pub. L. 95–354, §5(1), Aug. 28, 1978, 92 Stat. 521; Pub. L. 96–561, title II, §234, Dec. 22, 1980, 94 Stat. 3299; Pub. L. 97–453, §5, Jan. 12, 1983, 96 Stat. 2484; Pub. L. 99–659, title I, §104(a)(1), (b)–(e)(1), Nov. 14, 1986, 100 Stat. 3709, 3710; Pub. L. 101–627, title I, §§108(a)–(j), 120(c), Nov. 28, 1990, 104 Stat. 4444–4446, 4459; Pub. L. 102–582, title IV, §403, Nov. 2, 1992, 106 Stat. 4909; Pub. L. 104–297, title I, §107, Oct. 11, 1996, 110 Stat. 3570; Pub. L. 106–113, div. B, §1000(a)(1) [title II, §210], Nov. 29, 1999, 113 Stat. 1535, 1501A–33; Pub. L. 109–479, title I, §§102, 103, Jan. 12, 2007, 120 Stat. 3579.)

References in Text

This chapter, referred to in subsecs. (f)(2), (6), (g)(2), (h), (k)(1)(E), and (l), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Section 515 of the Treasury and General Government Appropriations Act for Fiscal year 2001, referred to in subsec. (g)(1)(E), is section 1(a)(3) [title V, §515] of Pub. L. 106–554, which is set out as a note under section 3516 of Title 44, Public Printing and Documents.

The Federal Advisory Committee Act, referred to in subsec. (i)(1), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set out in the Appendix to Title 5, Government Organization and Employees.

The National Environmental Policy Act, referred to in subsec. (k)(1)(F), probably means the National Environmental Policy Act of 1969, Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

Amendments

2007—Subsec. (a)(1)(D). Pub. L. 109–479, §102, inserted “and of commonwealths, territories, and possessions of the United States in the Caribbean Sea” after “seaward of such States”.

Subsec. (b)(2)(D), (E). Pub. L. 109–479, §103(j), added subpar. (D) and redesignated former subpar. (D) as (E).

Subsec. (b)(5)(D). Pub. L. 109–479, §103(a), added subpar. (D).

Subsec. (g). Pub. L. 109–479, §103(b)(1), substituted “Committees and advisory panels” for “Committees and panels” in heading.

Subsec. (g)(1). Pub. L. 109–479, §103(b)(1), added par. (1) and struck out former par. (1) which read as follows: “Each Council shall establish and maintain, and appoint the members of, a scientific and statistical committee to assist it in the development, collection, and evaluation 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.”

Subsec. (g)(2). Pub. L. 109–479, §103(b)(2), (3), struck out “other” before “advisory panels” and realigned margins.

Subsec. (g)(3) to (5). Pub. L. 109–479, §103(b)(3), realigned margins.

Subsec. (h)(5). Pub. L. 109–479, §103(c)(1), which directed substitution of “authority;” for “authority, and”, was executed by making the substitution for “authority; and” to reflect the probable intent of Congress.

Subsec. (h)(6). Pub. L. 109–479, §103(c)(3), added par. (6). Former par. (6) redesignated (7).

Subsec. (h)(7). Pub. L. 109–479, §103(d)(1), (3), added par. (7). Former par. (7) redesignated (8).

Pub. L. 109–479, §103(c)(2), redesignated par. (6) as (7).

Subsec. (h)(8). Pub. L. 109–479, §103(d)(2), redesignated par. (7) as (8).

Subsec. (i)(1). Pub. L. 109–479, §103(h)(1), substituted “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).” for “to the Councils or to the scientific and statistical committees or advisory panels established under subsection (g) of this section.”

Subsec. (i)(2). Pub. L. 109–479, §103(h)(2), in introductory provisions, substituted “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):” for “of a Council, and of the scientific and statistical committee and advisory panels established under subsection (g) of this section:”.

Subsec. (i)(2)(C). Pub. L. 109–479, §103(e), substituted “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.” for “published in local newspapers in the major fishing ports of the region (and in other major fishing ports having a direct interest in the affected fishery) and such notice may be given by such other means as will result in wide publicity.”

Subsec. (i)(3)(A). Pub. L. 109–479, §103(h)(3), (4), in introductory provisions, inserted “the Council Coordination Committee established under subsection (l),” after “Council,” and “other committees,” after “committee,”.

Subsec. (i)(3)(B). Pub. L. 109–479, §103(f), which directed substitution of “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,” for “notify local newspapers in the major fishing ports within its region (and in other major, affected fishing ports,”, was executed by making the substitution for text which ended with “ports),” to reflect the probable intent of Congress.

Subsec. (j)(2). Pub. L. 109–479, §103(i)(1), (2), in concluding provisions, inserted “lobbying, advocacy,” after “processing,” and substituted “jurisdiction, or with respect to an individual or organization with a financial interest in such activity.” for “jurisdiction.”

Subsec. (j)(5)(B). Pub. L. 109–479, §103(i)(3), added subpar. (B) and struck out former subpar. (B) which read as follows: “be kept on file, and made available for public inspection at reasonable hours, at the Council offices; and”.

Subsec. (j)(9). Pub. L. 109–479, §103(i)(4), added par. (9).

Subsecs. (k), (l). Pub. L. 109–479, §103(g), added subsecs. (k) and (l).

1999—Subsec. (a)(1)(A). Pub. L. 106–113 substituted “18” for “17” and “12” for “11”.

1996—Subsec. (a). Pub. L. 104–297, §107(a)(1), (2), (6), inserted “(1)” before “There shall be established”, redesignated former pars. (1) to (8) as subpars. (A) to (H), respectively, adjusted margin of last sentence, and inserted “(2)” before “Each Council”.

Subsec. (a)(1)(A). Pub. L. 104–297, §107(a)(3), substituted “paragraph (3)” for “section 1854(f)(3) of this title”.

Subsec. (a)(1)(B). Pub. L. 104–297, §107(a)(3), (4), substituted “Virginia, and North Carolina” for “and Virginia”, inserted “North Carolina, and” after “except”, and substituted “paragraph (3)” for “section 1854(f)(3) of this title”, “21 voting” for “19 voting”, and “13 appointed” for “12 appointed”.

Subsec. (a)(1)(C) to (E). Pub. L. 104–297, §107(a)(3), substituted “paragraph (3)” for “section 1854(f)(3) of this title”.

Subsec. (a)(1)(F). Pub. L. 104–297, §107(a)(5), amended heading and text of subpar. (F) generally. Prior to amendment, text read as follows: “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 13 voting members, including 8 appointed by the Secretary in accordance with subsection (b)(2) of this section (at least one of whom shall be appointed from each such State).”

Subsec. (a)(3). Pub. L. 104–297, §107(a)(7), added par. (3).

Subsec. (b)(1)(C). Pub. L. 104–297, §107(b)(1), substituted “paragraphs (2) and (5)” for “subsection (b)(2) of this section”.

Subsec. (b)(3). Pub. L. 104–297, §107(b)(1), (2), substituted “paragraphs (2) and (5)” for “subsection (b)(2) of this section” and “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.” for “Any term completed prior to December 31, 1987, shall not be counted in determining the number of consecutive terms served by any Council member.”

Subsec. (b)(5), (6). Pub. L. 104–297, §107(b)(3), added pars. (5) and (6) and struck out former par. (5) which read as follows: “The Secretary may remove for cause any member of a Council required to be appointed by the Secretary in accordance with subsection (b)(2) of this section if the Council concerned first recommends removal by not less than two-thirds of the members who are voting members. A removal recommendation of a Council must be in writing and accompanied by a statement of the reasons upon which the recommendation is based.”

Subsec. (d). Pub. L. 104–297, §107(c), substituted “each Council who are required to be appointed by the Secretary and” for “each Council,” and “shall receive compensation at the daily rate for GS–15, step 7” for “shall, until January 1, 1992, receive compensation at the daily rate for GS–18 of the General Schedule, and after December 31, 1991, at the daily rate for GS–16”.

Subsec. (e)(5). Pub. L. 104–297, §107(d), added par. (5).

Subsec. (g)(4), (5). Pub. L. 104–297, §107(e), added par. (4) and redesignated former par. (4) as (5).

Subsec. (h)(1). Pub. L. 104–297, §107(f)(1), added par. (1) and struck out former par. (1) which read as follows: “prepare and submit to the Secretary a fishery management plan with respect to each fishery (except as provided in section 1854(f)(3) of this title) within its geographical area of authority that requires conservation and management and, from time to time, such amendments to each such plan as are necessary;”.

Subsec. (h)(2). Pub. L. 104–297, §107(f)(2), substituted “section 1824(b)(4)(C) of this title or section 1824(d) of this title” for “section 1824(b)(4)(C) of this title” and “section 1854(c)(4)” for “section 1854(c)(2)”.

Subsec. (h)(5). Pub. L. 104–297, §107(f)(3), substituted “subsection (a)(3) of this section” for “1854(f)(3) of this title”.

Subsec. (i). Pub. L. 104–297, §107(g), redesignated subsec. (j) as (i) and struck out heading and text of former subsec. (i). Text read as follows:

“(1) Each Council—

“(A) may comment on and make recommendations concerning any activity undertaken, or proposed to be undertaken, by any State or Federal agency that, in the view of the Council, may affect the habitat of a fishery resource under its jurisdiction; and

“(B) shall comment on and make recommendations concerning any such activity that, in the view of the Council, is likely to substantially affect the habitat of an anadromous fishery resource under its jurisdiction.

“(2) Within 45 days after receiving a comment or recommendation under paragraph (1) from a Council, a Federal agency shall provide a detailed response, in writing, to the Council regarding the matter. In the case of a comment or recommendation under paragraph (1)(B), the response shall include a description of measures being considered by the agency for mitigating or offsetting the impact of the activity on such habitat.”

Subsec. (i)(1). Pub. L. 104–297, §107(h)(1), substituted “established under subsection (g) of this section” for “of the Councils”.

Subsec. (i)(2). Pub. L. 104–297, §107(h)(2), substituted “established under subsection (g) of this section” for “of a Council” in introductory provisions.

Subsec. (i)(2)(C). Pub. L. 104–297, §107(h)(3), (4), struck out “Council's” after “fishing ports of the” and inserted at end “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 1855(c) of this title, in which case public notice shall be given immediately.”

Subsec. (i)(2)(D). Pub. L. 104–297, §107(h)(5), inserted at end “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.”

Subsec. (i)(2)(E). Pub. L. 104–297, §107(h)(6), added subpar. (E) and struck out former subpar. (E) which read as follows: “Minutes of each meeting shall be kept and shall contain a record of the persons present, an accurate description of matters discussed and conclusions reached, and copies of all statements filed.”

Subsec. (i)(2)(F). Pub. L. 104–297, §107(h)(7)–(9), struck out “by the Council” after “procedures established”, substituted “section 1881a(b)” for “section 1853(d)”, and inserted “or the Secretary, as appropriate” after “of the Council”.

Subsec. (i)(4). Pub. L. 104–297, §107(h)(10), substituted “section 1881a(b)” for “section 1853(d)”.

Subsec. (j). Pub. L. 104–297, §107(g), (i)(1), redesignated subsec. (k) as (j) and inserted “and recusal” at the end of subsection heading. Former subsec. (j) redesignated (i).

Subsec. (j)(1). Pub. L. 104–297, §107(i)(2), added par. (1) and struck out former par. (1) which read as follows: “For purposes of this subsection, the term ‘affected individual’ means an individual who—

“(A) is nominated by the Governor of a State for appointment as a voting member of a Council in accordance with subsection (b)(2) of this section;

“(B) is a voting member of a Council appointed under subsection (b)(2) of this section; or

“(C) is the executive director of a Council.”

Subsec. (j)(3)(A). Pub. L. 104–297, §107(i)(3), substituted “(1)(A)(i)” for “(1)(A)”.

Subsec. (j)(3)(B), (4). Pub. L. 104–297, §107(i)(4), (5), substituted “(1)(A)(ii)” for “(1)(B) or (C)”.

Subsec. (j)(5)(C). Pub. L. 104–297, §107(i)(6), added subpar. (C).

Subsec. (j)(6). Pub. L. 104–297, §107(i)(7), substituted “(1)(A)(ii)” for “(1)(B) or (C)”.

Subsec. (j)(7). Pub. L. 104–297, §107(i)(8), added par. (7). Former par. (7) redesignated (8).

Subsec. (j)(8). Pub. L. 104–297, §107(i)(9), substituted “(1)(A)(ii)” for “(1)(B) or (C)”.

Pub. L. 104–297, §107(i)(8), redesignated par. (7) as (8).

Subsec. (k). Pub. L. 104–297, §107(g), redesignated subsec. (k) as (j).

1992—Subsec. (b)(3). Pub. L. 102–582 substituted “December 31, 1987” for “January 1, 1986”.

1990—Subsec. (a). Pub. L. 101–627, §108(a), inserted “(except as provided in section 1854(f)(3) of this title)” before period at end of first sentence in pars. (1) to (5).

Subsec. (b)(2). Pub. L. 101–627, §108(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows:

“(A) The members of each Council required to be appointed by the Secretary must be individuals who are knowledgeable and experienced with regard to the conservation and management, or the recreational or commercial harvest, of the fishery resources of the geographical area concerned. The Secretary, in making appointments under this section, shall, to the extent practicable, ensure a fair apportionment, on a rotating or other basis, of the active participants (or their representatives) involved in the fisheries under Council jurisdiction.

“(B) 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, 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. 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 the required knowledge and experience required by subparagraph (A). If the Secretary determines that any individual is not qualified, he 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) of this section.

“(C) Whenever the Secretary makes an appointment to a Council, he 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.”

Subsec. (b)(3). Pub. L. 101–627, §108(c), inserted at end “No member appointed after January 1, 1986, may serve more than three consecutive terms. Any term completed prior to January 1, 1986, shall not be counted in determining the number of consecutive terms served by any Council member.”

Subsec. (d). Pub. L. 101–627, §108(d), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “The voting members of each Council, who are not employed by the Federal Government or any State or local government, shall receive compensation at the daily rate for GS–18 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) of this section, and the nonvoting member appointed pursuant to subsection (c)(2) of this section shall be reimbursed for actual expenses incurred in the performance of such duties, and other nonvoting members may be reimbursed for actual expenses.”

Subsec. (e)(3). Pub. L. 101–627, §108(e)(1), substituted “at appropriate times and places in any of the constituent States of the Council” for “in the geographical area concerned”.

Subsec. (e)(4). Pub. L. 101–627, §108(e)(2), inserted at end “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.”

Subsec. (g)(3), (4). Pub. L. 101–627, §108(f), added pars. (3) and (4).

Subsec. (h). Pub. L. 101–627, §108(g), inserted “(except as provided in section 1854(f)(3) of this title)” before “within its geographical” in pars. (1) and (5).

Subsec. (i). Pub. L. 101–627, §108(h), amended subsec. (i) generally. Prior to amendment, subsec. (i) read as follows: “Each Council may comment on, or make recommendations concerning, any activity undertaken, or proposed to be undertaken, by any State or Federal agency that, in the view of the Council, may affect the habitat of a fishery resource under its jurisdiction. Within 45 days after receiving such a comment or recommendation from a Council, a Federal agency must provide a detailed response, in writing, to the Council regarding the matter.”

Subsec. (j)(3)(A). Pub. L. 101–627, §108(i)(1), substituted period for semicolon in cl. (ii), and in concluding provisions struck out “and if any meeting or portion is closed, the Council, committee, or panel concerned shall publish notice of the closure in local newspapers in the major fishing ports within its region (and in other major, affected fishing ports), including the time and place of the meeting.” before “Subparagraphs (D) and (F)” and inserted “of paragraph (2)” after “Subparagraphs (D) and (F)”.

Subsec. (j)(3)(B). Pub. L. 101–627, §108(i)(2), added subpar. (B).

Subsec. (j)(4). Pub. L. 101–627, §120(c), substituted “Council employee” for “council employee”.

Subsec. (j)(6). Pub. L. 101–627, §108(j), added par. (6).

1986—Subsec. (b)(2)(A). Pub. L. 99–659, §104(a)(1)(A), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “The members of each Council required to be appointed by the Secretary must be individuals who are knowledgeable or experienced with regard to the management, conservation, or recreational or commercial harvest of the fishery resources of the geographical area concerned.”

Subsec. (b)(2)(B). Pub. L. 99–659, §104(a)(1)(B), inserted provision that a Governor may not submit the names of individuals to the Secretary for appointment 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, substituted “knowledge and experience” for “knowledge or experience”, and inserted provision that an individual is not eligible for appointment by the Secretary until that individual complies with applicable financial disclosure requirements under subsec. (k) of this section.

Subsec. (b)(3). Pub. L. 99–659, §104(a)(1)(C), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “Each voting member appointed to a Council by the Secretary in accordance with subsection (b)(2) of this section shall serve for a term of 3 years; except that, with respect to the members initially so appointed, the Secretary shall designate up to one-third thereof to serve for a term of 1 year, up to one-third thereof to serve for a term of 2 years, and the remaining such members to serve for a term of 3 years.”

Subsec. (i). Pub. L. 99–659, §104(b), added subsec. (i). Former subsec. (i) redesignated (j).

Subsec. (j). Pub. L. 99–659, §104(b)(1), redesignated former subsec. (i) as (j).

Subsec. (j)(4). Pub. L. 99–659, §104(c), substituted “; except that such procedures, in the case of statistics submitted to the Council by a State or by the Secretary under section 1853(d) of this title, 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” for “; except that such procedures must, in the case of statistics submitted to the Council by a State, be consistent with the laws and regulations of that State concerning the confidentiality of such statistics”.

Subsec. (j)(5). Pub. L. 99–659, §104(d), added par. (5).

Subsec. (k). Pub. L. 99–659, §104(e)(1), added subsec. (k).

1983—Subsec. (a)(1) to (7). Pub. L. 97–453, §5(1)(A), substituted “in accordance with subsection (b)(2)” for “pursuant to subsection (b)(1)(C)” wherever appearing.

Subsec. (a)(8). Pub. L. 97–453, §5(1)(B), substituted provision that 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, for provision that the Western Pacific Fishery Management Council would consist of the State of Hawaii, American Samoa, and Guam and have authority over the fisheries in the Pacific Ocean seaward of such States, and provision that the Western Pacific Council shall have 13 voting members, including 8 appointed by the Secretary in accordance with subsection (b)(2) of this section at least one of whom shall be appointed from each of Hawaii, American Samoa, Guam, and the Northern Mariana Islands, for provision that the Western Pacific Council would have 11 voting members, including 7 appointed by the Secretary pursuant to former subsection (b)(1)(C) of this section (at least one of whom would be appointed from each such State).

Subsec. (b)(1)(C). Pub. L. 97–453, §5(2)(A), substituted reference to subsec. (b)(2) of this section for characterization of the members to be appointed as members of a list of qualified individuals submitted by the Governor of each applicable constituent State, that with respect to initial appointments, such Governors submit such lists to the Secretary as soon as practicable, not later than 45 days after April 13, 1976, that “list of qualified individuals” included the names (including pertinent biographical data) of not less than three such individuals for each applicable vacancy, and that “qualified individual” meant an individual knowledgeable or experienced with regard to the management, conservation, or recreational or commercial harvest, of the fishery resources of the geographical area concerned.

Subsec. (b)(2) to (5). Pub. L. 97–453, §5(2)(B)–(E), added pars. (2) and (5), redesignated existing pars. (2) and (3) as (3) and (4), respectively, and in par. (3), as redesignated, substituted “by the Secretary in accordance with subsection (b)(2) of this section” for “pursuant to paragraph (1)(C)” after “appointed to a Council”.

Subsec. (f)(6). Pub. L. 97–453, §5(3), inserted requirement that the procedures of a Council and associated committees and panels be consistent with the procedural guidelines set forth in subsec. (i)(2).

Subsec. (h)(1). Pub. L. 97–453, §5(4)(A), inserted “that requires conservation and management” after “authority”.

Subsec. (h)(2). Pub. L. 97–453, §5(4)(B), substituted “section 1824(b)(4)(C)” for “section 1824(b)(4)(B)”.

Subsec. (h)(3). Pub. L. 97–453, §5(4)(C), inserted parenthetical definition of “geographical area concerned”.

Subsec. (h)(4). Pub. L. 97–453, §5(4)(D), struck out subpar. (A) which provided for a report, before Feb. 1 of each year, on the Council's activities during the immediately preceding calendar year, and struck out the subparagraph designators before subpars. (B) and (C).

Subsec. (i). Pub. L. 97–453, §5(5), added subsec. (i).

1980—Subsec. (d). Pub. L. 96–561 inserted provision that other nonvoting members may be reimbursed for actual expenses.

1978—Subsec. (h)(5). Pub. L. 95–354 inserted provisions relating to capacity and extent to which United States fish processors will process harvested fish.

Change of Name

Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

Effective Date of 1986 Amendment

Section 104(a)(2) of Pub. L. 99–659 provided that: “The amendments made by paragraph (1) [amending this section] shall apply with respect to voting members of regional fishery management councils who are appointed, and to individuals who are nominated for appointment as voting members, on or after the date of the enactment of this Act [Nov. 14, 1986].”

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Abolition of House Committee on Merchant Marine and Fisheries

Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee on Merchant Marine and Fisheries of House of Representatives treated as referring to Committee on Resources of House of Representatives in case of provisions relating to fisheries, wildlife, international fishing agreements, marine affairs (including coastal zone management) except for measures relating to oil and other pollution of navigable waters, or oceanography by section 1(b)(3) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

Disclosure of Financial Interest by Incumbent Voting Members and Executive Directors

Section 104(e)(2) of Pub. L. 99–659 provided that for purposes of applying subsec. (k) of this section to voting members and executive directors of regional fishery management councils who were serving in those capacities on date on which regulations prescribed to carry out subsec. (k) first took effect, each such member or director must file a disclosure form under subsec. (k) within 45 days after that date.

Directions Regarding Fishery Management Council Membership

Section 113 of Pub. L. 99–659 provided that: “Notwithstanding section 302 of the Act (16 U.S.C. 1852) and effective on and after the date of the enactment of this Act [Nov. 14, 1986], the Secretary shall take action to ensure, to the extent practicable, that those persons dependent for their livelihood upon the fisheries within the respective jurisdictions of the Regional Fishery Management Councils are fairly represented as voting members of the Councils.”

1 So in original. Probably should not be capitalized.

2 So in original. Probably should be subsection “(j)”.

3 So in original. Probably should not be capitalized.

4 So in original. Probably should be “paragraph”.

5 So in original. The word “section” probably should not appear.

6 So in original. Probably should be “subparagraph”.

§1853. Contents of fishery management plans

(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) of this section, or both; and

(C) consistent with the national standards, the other provisions of this chapter, 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 interests 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;


(5) specify the pertinent data which shall be submitted to the Secretary with respect to commercial, recreational,1 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 chapter, and the estimated processing capacity of, and the actual processing capacity utilized by, United States fish processors,2

(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 1855(b)(1)(A) of this title, 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 1854(a) of this title (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;

(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;


(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;

(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;

(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; 3

(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.

(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 for anadromous species or Continental Shelf fishery resources beyond such zone;

(B) the operator of any such vessel; or

(C) any United States fish processor who first receives fish that are subject to the plan;


(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 1884 of this title, 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

(C) with respect to any closure of an area under this chapter 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 1824 of this title;


(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 chapter;

(5) incorporate (consistent with the national standards, the other provisions of this chapter, 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;

(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;


(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 chapter, 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;

(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) 4 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.

(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 1854 of this title; 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 1854 of this title.

(Pub. L. 94–265, title III, §303, Apr. 13, 1976, 90 Stat. 351; Pub. L. 95–354, §5(2), (3), Aug. 28, 1978, 92 Stat. 521; Pub. L. 97–453, §6, Jan. 12, 1983, 96 Stat. 2486; Pub. L. 99–659, title I, §§101(c)(2), 105(a)(1), (b), Nov. 14, 1986, 100 Stat. 3707, 3711; Pub. L. 101–627, title I, §109, Nov. 28, 1990, 104 Stat. 4447; Pub. L. 102–251, title III, §301(g), Mar. 9, 1992, 106 Stat. 64; Pub. L. 104–297, title I, §108(a), (c)–(e), Oct. 11, 1996, 110 Stat. 3574–3576; Pub. L. 106–554, §1(a)(4) [div. B, title I, §144(a)(1), (2)], Dec. 21, 2000, 114 Stat. 2763, 2763A–238; Pub. L. 109–479, title I, §§101(b), 104(a), 105, 106(a)(1), Jan. 12, 2007, 120 Stat. 3579, 3584–3586.)

Amendment of Subsection (b)(1)(A)

Pub. L. 102–251, title III, §§301(g), 308, Mar. 9, 1992, 106 Stat. 64, 66, provided that, effective on the date on which the Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for the United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until the date on which the Agreement enters into force for the United States, subsection (b)(1)(A) is amended by inserting “or special areas,” after “exclusive economic zone” and “or areas” after “such zone”.

References in Text

This chapter, referred to in subsecs. (a)(1)(C), (5) and (b)(2)(C), (4), (5), (10), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

2007—Subsec. (a)(5). Pub. L. 109–479, §104(a)(1), (2), substituted “charter fishing, and fish processing” for “and charter fishing” and inserted “economic information necessary to meet the requirements of this chapter,” after “number of hauls,”.

Subsec. (a)(9). Pub. L. 109–479, §101(b), in introductory provisions, substituted “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—” for “describe the likely effects, if any, of the conservation and management measures on—”.

Subsec. (a)(9)(C). Pub. L. 109–479, §104(a)(3)–(5), added subpar. (C).

Subsec. (a)(13). Pub. L. 109–479, §104(a)(6), (7), substituted “in the fishery, including its economic impact,” for “in the fishery” and struck out “and” after semicolon at end.

Subsec. (a)(14). Pub. L. 109–479, §104(a)(8), (9), substituted “allocate, taking into consideration the economic impact of the harvest restrictions or recovery benefits on the fishery participants in each sector,” for “allocate” and “fishery and;” for “fishery.”

Subsec. (a)(15). Pub. L. 109–479, §104(a)(10), added par. (15).

Subsec. (b)(2). Pub. L. 109–479, §105(1), (2), designated existing provisions as subpar. (A) and added subpars. (B) and (C).

Subsec. (b)(5). Pub. L. 109–479, §105(3), substituted “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;” for “fishery;”.

Subsec. (b)(6). Pub. L. 109–479, §105(4), added par. (6) and struck out former par. (6) which read as follows: “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, and

“(F) any other relevant considerations;”.

Subsec. (b)(7). Pub. L. 109–479, §105(5), struck out “(other than economic data)” after “submit data”.

Subsec. (b)(12), (14). Pub. L. 109–479, §105(6), (7), added par. (12) and redesignated former par. (12) as (14).

Subsec. (d). Pub. L. 109–479, §106(a)(1), struck out subsec. (d) which related to individual fishing quotas.

2000—Subsec. (d)(1)(A), (5). Pub. L. 106–554 substituted “October 1, 2002,” for “October 1, 2000,”.

1996—Subsec. (a)(1)(A). Pub. L. 104–297, §108(a)(1), inserted “and rebuild overfished stocks” after “overfishing”.

Subsec. (a)(5). Pub. L. 104–297, §108(a)(2), inserted “commercial, recreational, and charter fishing in” after “with respect to”.

Subsec. (a)(7). Pub. L. 104–297, §108(a)(3), added par. (7) and struck out former par. (7) which read as follows: “include readily available information regarding the significance of habitat to the fishery and assessment as to the effects which changes to that habitat may have upon the fishery;”.

Subsec. (a)(9)(A). Pub. L. 104–297, §108(a)(5), inserted “and fishing communities” after “fisheries”.

Subsec. (a)(10) to (14). Pub. L. 104–297, §108(a)(4), (6), (7), added pars. (10) to (14).

Subsec. (b)(3). Pub. L. 104–297, §108(c)(1), added par. (3) and struck out former par. (3) which read as follows: “establish specified limitations on the catch of fish (based on area, species, size, number, weight, sex, incidental catch, total biomass, or other factors), which are necessary and appropriate for the conservation and management of the fishery;”.

Subsec. (b)(6). Pub. L. 104–297, §108(c)(2), substituted “limited access system for” for “system for limiting access to” in introductory provisions.

Subsec. (b)(6)(E). Pub. L. 104–297, §108(c)(3), inserted “and any affected fishing communities” after “fishery”.

Subsec. (b)(8). Pub. L. 104–297, §108(c)(4), substituted “require that one or more” for “require that”.

Subsec. (b)(10) to (12). Pub. L. 104–297, §108(c)(5)–(7), added pars. (10) and (11) and redesignated former par. (10) as (12).

Subsec. (c). Pub. L. 104–297, §108(d), added subsec. (c) and struck out heading and text of former subsec. (c). Text read as follows: “The proposed regulations which the Council deems necessary or appropriate for purposes of carrying out a plan or amendment to a plan shall be submitted to the Secretary simultaneously with the plan or amendment for action by the Secretary under sections 1854 and 1855 of this title.”

Subsecs. (d) to (f). Pub. L. 104–297, §108(e), added subsec. (d) and struck out former subsecs. (d) relating to confidentiality of statistics, (e) relating to data collection programs, and (f) relating to restriction on use of certain data.

1990—Subsec. (a)(1)(A). Pub. L. 101–627, §109(a)(1), inserted before semicolon at end “, to prevent overfishing, and to protect, restore, and promote the long-term health and stability of the fishery”.

Subsec. (a)(1)(C). Pub. L. 101–627, §109(a)(2), inserted “regulations implementing recommendations by international organizations in which the United States participates (including but not limited to closed areas, quotas, and size limits),” after “this chapter,”.

Subsec. (a)(6). Pub. L. 101–627, §109(a)(3), amended par. (6) generally. Prior to amendment, par. (6) read as follows: “consider, and may 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 safety of the vessels; and”.

Subsec. (a)(8), (9). Pub. L. 101–627, §109(a)(4), (5), added pars. (8) and (9).

Subsec. (b)(1). Pub. L. 101–627, §109(b)(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “require a permit to be obtained from, and fees to be paid to, the Secretary with respect to any fishing vessel of the United States fishing, or wishing to fish, in the exclusive economic zone, or for anadromous species or Continental Shelf fishery resources beyond such zone;”.

Subsec. (b)(7) to (10). Pub. L. 101–627, §109(b)(2), added pars. (7) and (8) and redesignated former pars. (7) and (8) as (9) and (10), respectively.

Subsec. (d). Pub. L. 101–627, §109(c), in introductory provisions substituted “subsections (a) and (b)” for “subsection (a)(5)”, added par. (2), redesignated former par. (2) as (3), and inserted at end “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 statistic submitted in compliance with a requirement under subsection (a) or (b) of this section.”

Subsec. (f). Pub. L. 101–627, §109(d), added subsec. (f).

1986—Subsec. (a)(6), (7). Pub. L. 99–659, §105(a)(1), added pars. (6) and (7).

Subsec. (b)(1). Pub. L. 99–659, §101(c)(2), substituted “exclusive economic zone” for “fishery conservation zone”.

Subsec. (d). Pub. L. 99–659, §105(b), amended first sentence generally. Prior to amendment, first sentence read as follows: “Any statistics submitted to the Secretary by any person in compliance with any requirement under subsection (a)(5) of this section shall be confidential and shall not be disclosed except when required under court order.”

1983—Subsec. (b)(7), (8). Pub. L. 97–453, §6(1), added par. (7) and redesignated former par. (7) as (8).

Subsec. (c). Pub. L. 97–453, §6(2), substituted provision that the proposed regulation which the Council deems necessary or appropriate for purposes of carrying out a plan or amendment to a plan shall be submitted to the Secretary simultaneously with the plan or amendment for action by the Secretary under sections 1854 and 1855 of this title, for provision that any Council could prepare any proposed regulations which it deemed necessary and appropriate to carry out any fishery management plan, or any amendment to any fishery management plan, which was prepared by it, and that such proposed regulations would be submitted to the Secretary, together with such plan or amendment, for action by the Secretary pursuant to sections 1854 and 1855 of this title.

Subsec. (e). Pub. L. 97–453, §6(3), added subsec. (e).

1978—Subsec. (a)(4)(C). Pub. L. 95–354, §5(2), added subpar. (C).

Subsec. (a)(5). Pub. L. 95–354, §5(3), inserted provisions relating to estimated processing capacity of, and the actual processing utilized by, United States fish processors.

Effective Date of 2007 Amendment; Applicability

Pub. L. 109–479, title I, §104(b), Jan. 12, 2007, 120 Stat. 3584, provided that: “The amendment made by subsection (a)(10) [amending this section]—

“(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 Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1851(a)(1) or 1854(e), respectively).”

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–251 effective on date on which Agreement between United States and Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until date on which Agreement enters into force for United States, see section 308 of Pub. L. 102–251, set out as a note under section 773 of this title.

Effective Date of 1986 Amendment

Section 105(a)(2) of Pub. L. 99–659 provided that: “The amendments made by paragraph (1) [amending this section] apply to each fishery management plan that—

“(A) is submitted to the Secretary of Commerce for review under section 304(a) of the Act [16 U.S.C. 1854(a)], or that is prepared by the Secretary, after January 1, 1987; or

“(B) is in effect on that date, but compliance with those amendments is not required except in conjunction with the amendment to the plan next occurring after that date.”

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Exceptions to Subsection (d)(1) and Section 1883 Plan Restrictions

Pub. L. 106–554, §1(a)(4) [div. B, title I, §144(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–238, provided that: “Notwithstanding sections 303(d)(1)(A) and 303(d)(1)(B) of the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1853(d)(1)(A), (B)], as amended by this section, the Pacific Fishery Management Council may recommend and the Secretary of Commerce may approve and implement any fishery management plan, plan amendment, or regulation, for fixed gear sablefish subject to the jurisdiction of such Council, that—

“(1) allows the use of more than one groundfish fishing permit by each fishing vessel; and/or

“(2) sets cumulative trip limit periods, up to 12 months in any calendar year, that allow fishing vessels a reasonable opportunity to harvest the full amount of the associated trip limits.

Notwithstanding subsection (a) [amending this section and section 1883 of this title], the Gulf of Mexico Fishery Management Council may develop a biological, economic, and social profile of any fishery under its jurisdiction that may be considered for management under a quota management system, including the benefits and consequences of the quota management systems considered. The North Pacific Fishery Management Council shall examine the fisheries under its jurisdiction, particularly the Gulf of Alaska groundfish and Bering Sea crab fisheries, to determine whether rationalization is needed. In particular, the North Pacific Council shall analyze individual fishing quotas, processor quotas, cooperatives, and quotas held by communities. The analysis should include an economic analysis of the impact of all options on communities and processors as well as the fishing fleets. The North Pacific Council shall present its analysis to the appropriations and authorizing committees of the Senate and House of Representatives in a timely manner.”

Implementation of Amendments to Plans Required by Section 108(a) of Pub. L. 104–297

Section 108(b) of Pub. L. 104–297 provided that: “Not later than 24 months after the date of enactment of this Act [Oct. 11, 1996], each Regional Fishery Management Council shall submit to the Secretary of Commerce amendments to each fishery management plan under its authority to comply with the amendments made in subsection (a) of this section [amending this section].”

Individual Fishing Quota Report

Pub. L. 104–297, title I, §108(f)(1)–(5), Oct. 11, 1996, 110 Stat. 3577–3579, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that:

“(1) Not later than October 1, 1998, the National Academy of Sciences, in consultation with the Secretary of Commerce and the Regional Fishery Management Councils, shall submit to the Congress a comprehensive final report on individual fishing quotas, which shall include recommendations to implement a national policy with respect to individual fishing quotas. The report shall address all aspects of such quotas, including an analysis of—

“(A) the effects of limiting or prohibiting the transferability of such quotas;

“(B) mechanisms to prevent foreign control of the harvest of United States fisheries under individual fishing quota programs, including mechanisms to prohibit persons who are not eligible to be deemed a citizen of the United States for the purpose of operating a vessel in the coastwise trade under section 2(a) and section 2(c) of the Shipping Act, 1916 ([former] 46 U.S.C. [App.] 802(a) and (c)) [see 46 U.S.C. 50501(a), (d)] from holding individual fishing quotas;

“(C) the impact of limiting the duration of individual fishing quota programs;

“(D) the impact of authorizing Federal permits to process a quantity of fish that correspond to individual fishing quotas, and of the value created for recipients of any such permits, including a comparison of such value to the value of the corresponding individual fishing quotas;

“(E) mechanisms to provide for diversity and to minimize adverse social and economic impacts on fishing communities, other fisheries affected by the displacement of vessels, and any impacts associated with the shifting of capital value from fishing vessels to individual fishing quotas, as well as the use of capital construction funds to purchase individual fishing quotas;

“(F) mechanisms to provide for effective monitoring and enforcement, including the inspection of fish harvested and incentives to reduce bycatch, and in particular economic discards;

“(G) threshold criteria for determining whether a fishery may be considered for individual fishing quota management, including criteria related to the geographical range, population dynamics and condition of a fish stock, the socioeconomic characteristics of a fishery (including participants’ involvement in multiple fisheries in the region), and participation by commercial, charter, and recreational fishing sectors in the fishery;

“(H) mechanisms to ensure that vessel owners, vessel masters, crew members, and United States fish processors are treated fairly and equitably in initial allocations, to require persons holding individual fishing quotas to be on board the vessel using such quotas, and to facilitate new entry under individual fishing quota programs;

“(I) potential social and economic costs and benefits to the nation, individual fishing quota recipients, and any recipients of Federal permits described in subparagraph (D) under individual fishing quota programs, including from capital gains revenue, the allocation of such quotas or permits through Federal auctions, annual fees and transfer fees at various levels, or other measures;

“(J) the value created for recipients of individual fishing quotas, including a comparison of such value to the value of the fish harvested under such quotas and to the value of permits created by other types of limited access systems, and the effects of creating such value on fishery management and conservation; and

“(K) such other matters as the National Academy of Sciences deems appropriate.

“(2) The report shall include a detailed analysis of individual fishing quota programs already implemented in the United States, including the impacts: of any limits on transferability, on past and present participants, on fishing communities, on the rate and total amount of bycatch (including economic and regulatory discards) in the fishery, on the safety of life and vessels in the fishery, on any excess harvesting or processing capacity in the fishery, on any gear conflicts in the fishery, on product quality from the fishery, on the effectiveness of enforcement in the fishery, on the size and composition of fishing vessel fleets, on the economic value created by individual fishing quotas for initial recipients and non-recipients, on conservation of the fishery resource, on fishermen who rely on participation in several fisheries, on the success in meeting any fishery management plan goals, and the fairness and effectiveness of the methods used for allocating quotas and controlling transferability. The report shall also include any information about individual fishing quota programs in other countries that may be useful.

“(3) The report shall identify and analyze alternative conservation and management measures, including other limited access systems such as individual transferable effort systems, that could accomplish the same objectives as individual fishing quota programs, as well as characteristics that are unique to individual fishing quota programs.

“(4) The Secretary of Commerce shall, in consultation with the National Academy of Sciences, the Councils, the fishing industry, affected States, conservation organizations and other interested persons, establish two individual fishing quota review groups to assist in the preparation of the report, which shall represent: (A) Alaska, Hawaii, and the other Pacific coastal States; and (B) Atlantic coastal States and the Gulf of Mexico coastal States. The Secretary shall, to the extent practicable, achieve a balanced representation of viewpoints among the individuals on each review group. The review groups shall be deemed to be advisory panels under section 302(g) of the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1852(g)], as amended by this Act.

“(5) The Secretary of Commerce, in consultation with the National Academy of Sciences and the Councils, shall conduct public hearings in each Council region to obtain comments on individual fishing quotas for use by the National Academy of Sciences in preparing the report required by this subsection. The National Academy of Sciences shall submit a draft report to the Secretary of Commerce by January 1, 1998. The Secretary of Commerce shall publish in the Federal Register a notice and opportunity for public comment on the draft of the report, or any revision thereof. A detailed summary of comments received and views presented at the hearings, including any dissenting views, shall be included by the National Academy of Sciences in the final report.”

Existing Quota Plans

Section 108(i) of Pub. L. 104–297 provided that: “Nothing in this Act [see Short Title of 1996 Amendment note under section 1801 of this title] 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.”

1 So in original. Probably should be followed by “and”.

2 So in original. The comma probably should be a semicolon.

3 So in original. Probably should be “fishery; and”.

4 So in original. No par. (13) has been enacted.

§1853a. Limited access privilege programs

(a) In general

After January 12, 2007, 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 chapter—

(1) shall be considered a permit for the purposes of sections 1857, 1858, and 1859 of this title;

(2) may be revoked, limited, or modified at any time in accordance with this chapter, 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.

(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 chapter, 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

(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.

(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, among willing parties 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 1 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.

(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


(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.

(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 January 12, 2007, 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 1883(c) of this title 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 (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 1854(c) or 1854(g) of this title.

(9) Antitrust savings clause

Nothing in this chapter 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 section 12 of title 15, except that such term includes section 45 of title 15 to the extent that such section 45 applies to unfair methods of competition.

(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 1855(h)(5)(B) of this title 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 1854(d)(2) of this title, 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 January 12, 2007, 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, 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, to have committed an act prohibited by section 1857 of this title; 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).

(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 1854(d)(2) of this title to be used, pursuant to section 53706(a)(7) of title 46, 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 chapter, 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 chapter, 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 January 12, 2007.

(i) Transition rules

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 January 12, 2007, except that—

(1) the requirements of section 1853(d) of this title in effect on the day before January 12, 2007, shall apply to any such program;

(2) 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

(3) nothing in this subsection precludes a Council from incorporating criteria contained in this section into any such plans.

(Pub. L. 94–265, title III, §303A, as added Pub. L. 109–479, title I, §106(a)(2), Jan. 12, 2007, 120 Stat. 3586; amended Pub. L. 110–161, div. B, title V, §529, Dec. 26, 2007, 121 Stat. 1930.)

References in Text

This chapter, referred to in subsecs. (b), (c)(1)(G), (9), (g)(2), and (h), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, referred to in subsec. (h), is Pub. L. 109–479, Jan. 12, 2007, 120 Stat. 3575. Section 302(f) of the Act (120 Stat. 3624) is not classified to the Code. For complete classification of this Act to the Code, see Short Title of 2007 Amendment note set out under section 1801 of this title and Tables.

Amendments

2007—Subsec. (c)(4)(A)(iii). Pub. L. 110–161, §529(1), substituted “association, among willing parties” for “association”.

Subsec. (i). Pub. L. 110–161, §529(2)–(4), struck out designation and heading of par. (1), redesignated subpars. (A) to (C) of former par. (1) as pars. (1) to (3), respectively, realigned margins, and struck out heading and text of former par. (2). Text of former par. (2) read as follows: “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.”

Effective Date of 2007 Amendment

Pub. L. 110–161, div. B, title V, §529, Dec. 26, 2007, 121 Stat. 1930, provided that the amendment made by section 529 is effective Jan. 13, 2007.

Application With American Fisheries Act

Pub. L. 109–479, title I, §106(e), Jan. 12, 2007, 120 Stat. 3594, provided that: “Nothing in section 303A of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) [16 U.S.C. 1853a], as added by subsection (a), shall be construed to modify or supersede any provision of the American Fisheries Act [title II of div. C of Pub. L. 105–277, see Tables for classification] ([former] 46 U.S.C. 12102 note [see 46 U.S.C. 12113(e), (f), (h), (i)]; 16 U.S.C. 1851 note; et alia).”

1 So in original. Probably should be “its”.

§1854. Action by Secretary

(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 chapter, 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 1853(a)(6) of this title.


(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.

(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) of this section, 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.

(b) Review of regulations

(1) Upon transmittal by the Council to the Secretary of proposed regulations prepared under section 1853(c) of this title, 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 chapter 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 chapter, 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.

(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 chapter, 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.


(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.


(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.

(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 chapter, and with any other applicable law.

(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 1853(b)(1) of this title. 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.

(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 chapter and shall be deposited in the Limited Access System Administration Fund established under section 1855(h)(5)(B) of this title.

(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.

(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.

(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 1852(a)(3) of this title) 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.


(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.


(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) of this section.

(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 1855(c) of this title until such measures can be replaced by such plan, amendment, or regulations. Such measures, if otherwise in compliance with the provisions of this chapter, 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 1852(a)(3) of this title 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.

(f) Fisheries under authority of more than one Council

(1) Except as provided in paragraph (3),1 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.

(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) of this section with respect to any highly migratory species fishery to which section 1852(a)(3) of this title 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 1852(g) of this title;

(B) establish an advisory panel under section 1852(g) of this title 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.

(2) Certain fish excluded from “bycatch” definition

Notwithstanding section 1802(2) of this title, 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 chapter or the Western and Central Pacific Fisheries Convention Implementation Act [16 U.S.C. 6901 et seq.], 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 chapter.

(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.

(i) 2 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 chapter 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 chapter.

(3) Schedule for promulgation of final procedures

The Secretary shall—

(A) propose revised procedures within 6 months after January 12, 2007;

(B) provide 90 days for public review and comments; and

(C) promulgate final procedures no later than 12 months after January 12, 2007.

(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.

(i) 2 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,3 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 1852(a)(3) of this title 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.

(Pub. L. 94–265, title III, §304, Apr. 13, 1976, 90 Stat. 352; Pub. L. 97–453, §7(a), Jan. 12, 1983, 96 Stat. 2487; Pub. L. 99–659, title I, §106, Nov. 14, 1986, 100 Stat. 3712; Pub. L. 101–627, title I, §§110(a), (b)(1), (c), 111(a)(2), 120(d), Nov. 28, 1990, 104 Stat. 4449–4452, 4459; Pub. L. 102–567, title III, §303, Oct. 29, 1992, 106 Stat. 4283; Pub. L. 103–206, title VII, §702, Dec. 20, 1993, 107 Stat. 2446; Pub. L. 104–297, title I, §109(a)–(c), (e)–(g), (i), Oct. 11, 1996, 110 Stat. 3581–3585, 3587; Pub. L. 109–479, §3(d)(2), title I, §§104(c), 106(b), (d), 107, title IV, §406, Jan. 12, 2007, 120 Stat. 3578, 3584, 3593, 3594, 3633.)

References in Text

This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Paragraph (3), referred to in subsec. (f)(1), was repealed by Pub. L. 104–297, title I, §109(f), Oct. 11, 1996, 110 Stat. 3585.

The Atlantic Tunas Convention Act of 1975, referred to in subsec. (g)(2), is Pub. L. 94–70, Aug. 5, 1975, 89 Stat. 385, as amended, which is classified generally to chapter 16A (§971 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 971 of this title and Tables.

The Western and Central Pacific Fisheries Convention Implementation Act, referred to in subsec. (g)(2), is title V of Pub. L. 109–479, Jan. 12, 2007, 120 Stat. 3635, which is classified generally to chapter 88 (§6901 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables.

The National Environmental Policy Act, referred to in subsec. (i)(1), probably means the National Environmental Policy Act of 1969, Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

Amendments

2007—Subsec. (c)(3). Pub. L. 109–479, §3(d)(2)(A), substituted “limited access privilege” for “individual fishing quota”.

Subsec. (d)(2)(A). Pub. L. 109–479, §106(b), substituted “management, data collection, and enforcement” for “management and enforcement” in introductory provisions.

Subsec. (d)(2)(A)(i). Pub. L. 109–479, §3(d)(2)(B), substituted “limited access privilege” for “individual fishing quota”.

Subsec. (d)(2)(C)(i). Pub. L. 109–479, §106(d), substituted “section 1855(h)(5)(B) of this title.” for “section 1855(h)(5)(B) of this title, except that the portion of any such fees reserved under section 1853(d)(4)(A) of this title shall be deposited in the Treasury and available, subject to annual appropriations, to cover the costs of new direct loan obligations and new loan guarantee commitments as required by section 661c(b)(1) of title 2.”

Subsec. (e)(3). Pub. L. 109–479, §104(c)(1), (2), substituted “2 years after” for “one year of” and inserted “and implement” after “prepare” in introductory provisions.

Subsec. (e)(3)(A). Pub. L. 109–479, §104(c)(3), inserted “immediately” after “overfishing”.

Subsec. (e)(4)(A). Pub. L. 109–479, §104(c)(4), struck out “ending overfishing and” before “rebuilding” in introductory provisions.

Subsec. (e)(5). Pub. L. 109–479, §104(c)(5), substituted “2-year” for “one-year”.

Subsec. (g)(2). Pub. L. 109–479, §406(b), substituted “(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,” for “(16 U.S.C. 971d)”.

Subsec. (i). Pub. L. 109–479, §406(a), added subsec. (i) relating to international overfishing.

Pub. L. 109–479, §107, added subsec. (i) relating to environmental review process.

1996—Subsecs. (a), (b). Pub. L. 104–297, §109(a), added subsecs. (a) and (b) and struck out former subsecs. (a) which related to actions by Secretary after receipt of a fishery management plan or amendment to a plan and (b) which related to implementation of approved plans and amendments and submission and review of revised plans and amendments.

Subsec. (c). Pub. L. 104–297, §109(b)(1), amended heading to read “Preparation and review of Secretarial plans”.

Subsec. (c)(1). Pub. L. 104–297, §109(b)(2)–(4), struck out “or” at end of subpar. (A), substituted “or amendment; or” for “or amendment, as the case may be.” in subpar. (B), added subpar. (C), and struck out concluding provisions which read as follows: “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.”

Subsec. (c)(2). Pub. L. 104–297, §109(b)(5), added par. (2) and struck out former par. (2) which related to procedures for making fishery management plans and amendments available for review and comment.

Subsec. (c)(3). Pub. L. 104–297, §109(b)(6), (7), inserted “for a fishery under the authority of a Council” after “paragraph (1)” and substituted “system, including any individual fishing quota program” for “system described in section 1853(b)(6) of this title”.

Subsec. (c)(4) to (7). Pub. L. 104–297, §109(b)(8), added pars. (4) to (7).

Subsec. (d). Pub. L. 104–297, §109(c), designated existing provisions as par. (1) and added par. (2).

Subsec. (e). Pub. L. 104–297, §109(e), amended heading and text of subsec. (e) generally. Prior to amendment, subsec. (e) required Secretary to initiate and maintain a comprehensive program of fishery research.

Subsec. (f)(3). Pub. L. 104–297, §109(f), struck out par. (3) which related to authority of Secretary over any highly migratory species fishery that is within the area of authority of more than one of certain Councils and to the preparation and amendment of fishery management plans with respect to such fishery.

Subsec. (g). Pub. L. 104–297, §109(g), added subsec. (g) and struck out former subsec. (g) which required the Secretary to establish a 3-year program to assess the impact on fishery resources of incidental harvest by the shrimp trawl fishery within the authority of the Gulf of Mexico Fishery Management Council and the South Atlantic Fishery Management Council.

Subsec. (h). Pub. L. 104–297, §109(i), added subsec. (h).

1993—Subsec. (g)(6)(B). Pub. L. 103–206 substituted “April 1, 1994” for “January 1, 1994”.

1992—Subsec. (e)(1). Pub. L. 102–567 added par. (1). Former par. (1) redesignated (2).

Subsec. (e)(2). Pub. L. 102–567 redesignated par. (1) as (2) and substituted “(3)” for “(2)” in subpar. (A). Former par. (2) redesignated (3).

Subsec. (e)(3). Pub. L. 102–567 redesignated par. (2) as (3) and substituted “(2)” for “(1)” in introductory provisions. Former par. (3) redesignated (4).

Subsec. (e)(4). Pub. L. 102–567 redesignated par. (3) as (4) and substituted “(2)” for “(1)”.

1990—Subsec. (b)(1), (3)(D). Pub. L. 101–627, §111(a)(2)(A), (B), substituted “section 1855(a)” for “section 1855(c)”.

Subsec. (c)(2)(B). Pub. L. 101–627, §120(d), substituted “appropriate Council” for “appropriate council”.

Pub. L. 101–627, §111(a)(2)(C), substituted “section 1855(a)” for “section 1855(c)”.

Subsec. (e). Pub. L. 101–627, §110(a), amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: “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 chapter. Such program shall be designed to acquire knowledge and information, including statistics, on fishery conservation and management and on the economics of the fisheries, including, but not limited to, biological research concerning the interdependence of fisheries or stocks of fish, the impact of pollution on fish, the impact of wetland and estuarine degradation, and other matters bearing upon the abundance and availability of fish. The Secretary shall annually review and update the comprehensive program and make the results of the review and update available to the Councils.”

Subsec. (f). Pub. L. 101–627, §110(b)(1), in heading substituted “Fisheries under authority of more than one Council” for “Miscellaneous duties”, in par. (1) substituted “Except as provided in paragraph (3), if” for “If”, and added par. (3).

Subsec. (g). Pub. L. 101–627, §110(c), added subsec. (g).

1986—Subsec. (a)(1). Pub. L. 99–659, §106(1)(A), struck out “(the date of receipt of which is hereafter in this section referred to as the ‘receipt date’)” after “by a Council” in introductory provisions.

Subsec. (a)(1)(A), (B). Pub. L. 99–659, §106(1)(B), (C), added subpar. (A) and redesignated former subpars. (A) and (B) as (B) and (C), respectively.

Subsec. (a)(1)(C). Pub. L. 99–659, §106(1)(B), (D), redesignated former subpar. (B) as (C) and substituted “60-day” for “75-day”. Former subpar. (C) redesignated (D).

Subsec. (a)(1)(D). Pub. L. 99–659, §106(1)(B), (E), redesignated former subpar. (C) as (D) and substituted “15th day” for “30th day”.

Subsec. (a)(2). Pub. L. 99–659, §106(1)(F), substituted “paragraph (1)(B)” for “paragraph (1)(A)” in introductory provisions and inserted “and to fishery access adjustments referred to in section 1853(a)(6) of this title” in subpar. (C).

Subsec. (a)(3). Pub. L. 99–659, §106(1)(G), added par. (3).

Subsec. (b)(1)(A). Pub. L. 99–659, §106(2)(A), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “the Secretary does not notify the Council in writing of his disapproval, or partial disapproval, under paragraph (2), of the plan or amendment before the close of the 95th day after the receipt date; or”.

Subsec. (b)(1)(B). Pub. L. 99–659, §106(2)(B), substituted “60th day” for “75th day”.

Subsec. (b)(2). Pub. L. 99–659, §106(2)(C), substituted “paragraph (1)(B)” for “paragraph (1)(A)” in introductory provisions.

Subsec. (b)(3)(A). Pub. L. 99–659, §106(2)(D)(i), inserted “disapproves a proposed plan or amendment under subsection (a)(1)(A)(ii) of this section, or”.

Subsec. (b)(3)(B)(i), (C)(i). Pub. L. 99–659, §106(2)(D)(ii), substituted “subsection (a)(1)(B)” for “subsection (a)(1)(A)”.

Subsec. (c)(2)(A)(ii). Pub. L. 99–659, §106(3)(A), substituted “60-day” for “75-day”.

Subsec. (c)(2)(A)(iii). Pub. L. 99–659, §106(3)(B), substituted “15th day” for “30th day”.

Subsec. (c)(2)(B). Pub. L. 99–659, §106(3)(C), substituted “60-day” for “75-day” in two places.

Subsec. (e). Pub. L. 99–659, §106(4), inserted “, in cooperation with the Councils,”, “and on the economics of the fisheries”, and “The Secretary shall annually review and update the comprehensive program and make the results of the review and update available to the Councils.”

1983—Subsec. (a). Pub. L. 97–453, §7(a)(1), amended subsec. (a) generally, which had provided that within 60 days after the Secretary received any fishery management plan, or any amendment to any such plan, which was prepared by any Council, the Secretary was to review such plan or amendment pursuant to subsection (b) of this section, notify such Council in writing of his approval, disapproval, or partial disapproval of such plan or amendment, and that in the case of disapproval or partial disapproval, the Secretary was to include in such notification a statement and explanation of the Secretary's objections and the reasons therefor, suggestions for improvement, a request to such Council to change such plan or amendment to satisfy the objections, and a request to resubmit the plan or amendment, as so modified, to the Secretary within 45 days after the date on which the Council received such notification.

Subsec. (b). Pub. L. 97–453, §7(a)(1), amended subsec. (b) generally, which had provided that the Secretary was to review any fishery management plan, and any amendment to any such plan, prepared by any Council and submitted to him to determine whether it was consistent with the national standards, the other provisions of this chapter, and any other applicable law, and that in carrying out such review, the Secretary was to consult with the Secretary of State with respect to foreign fishing, and the Secretary of the department in which the Coast Guard was operating with respect to enforcement at sea.

Subsec. (c)(1). Pub. L. 97–453, §7(a)(2)(A), in subpar. (B) substituted “or disapproves a revised plan or amendment, and the Council involved fails to submit a revised or further revised plan or amendment, as the case may be” for “and the Council involved fails to change such plan or amendment in accordance with the notification made under subsection (a)(2) of this section”, and added to the provisions following subpar. (B) a requirement that the Secretary also prepare such proposed regulations as he deems necessary or appropriate to carry out each plan or amendment prepared by him under this paragraph.

Subsec. (c)(2). Pub. L. 97–453, §7(a)(2)(B), amended par. (2) generally, which had provided that whenever, pursuant to paragraph (1), the Secretary prepared a fishery management plan or amendment, the Secretary was to promptly transmit such plan or amendment to the appropriate Council for consideration and comment, that within 45 days after the date of receipt of such plan or amendment, the appropriate Council could recommend, to the Secretary, changes in such plan or amendment, consistent with the national standards, the other provisions of this chapter, and any other applicable law, and that after the expiration of such 45-day period, the Secretary could implement such plan or amendment pursuant to section 1855 of this title.

Subsec. (d). Pub. L. 97–453, §7(a)(3), inserted provisions relating to agreements with the States for the administration of the permit system and the permissible accrual to the States of fees collected under the system.

Effective Date of 2007 Amendment

Pub. L. 109–479, title I, §104(d), Jan. 12, 2007, 120 Stat. 3585, provided that: “The amendments made by subsection (c) [amending this section] shall take effect 30 months after the date of enactment of this Act [Jan. 12, 2007].”

Effective Date of 1983 Amendment

Section 7(b) of Pub. L. 97–453 provided that: “The amendments made by subsection (a) [amending this section] shall only apply with respect to fishery management plans and amendments thereto that are initially submitted to the Secretary of Commerce on or after the date of the enactment of this Act [Jan. 12, 1983] for action under section 304 [this section].”

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Abolition of House Committee on Merchant Marine and Fisheries

Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. For treatment of references to Committee on Merchant Marine and Fisheries, see section 1(b)(3) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress.

International Fisheries Agreement

Pub. L. 111–348, title II, Jan. 4, 2011, 124 Stat. 3671, provided that:

“SEC. 201. SHORT TITLE.

“This title may be cited as the ‘International Fisheries Agreement Clarification Act’.

“SEC. 202. INTERNATIONAL FISHERY AGREEMENT.

“Consistent with the intent of provisions of the Magnuson-Stevens Fishery and Conservation and Management Act [Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq.] relating to international agreements, the Secretary of Commerce and the New England Fishery Management Council may, for the purpose of rebuilding those portions of fish stocks covered by the United States-Canada Transboundary Resource Sharing Understanding on the date of enactment of this Act [Jan. 4, 2011]—

“(1) take into account the Understanding and decisions made under that Understanding in the application of section 304(e)(4)(A)(i) of the Act (16 U.S.C. 1854(e)(4)(A)(i));

“(2) consider decisions made under that Understanding as ‘management measures under an international agreement’ that ‘dictate otherwise’ for purposes of section 304(e)(4)(A)(ii) of the Act (16 U.S.C. 1854(e)(4)(A)(ii)[)]; and

“(3) establish catch levels for those portions of fish stocks within their respective geographic areas covered by the Understanding on the date of enactment of this Act that exceed the catch levels otherwise required under the Northeast Multispecies Fishery Management Plan if—

“(A) overfishing is ended immediately;

“(B) the fishing mortality level ensures rebuilding within a time period for rebuilding specified taking into account the Understanding pursuant to paragraphs (1) and (2) of this subsection; and

“(C) such catch levels are consistent with that Understanding.

“SEC. 203. APPLICATION WITH OTHER LAWS.

“Nothing in this title shall be construed to amend the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1851 [1801] et seq.) or to limit or otherwise alter the authority of the Secretary of Commerce under that Act concerning other species.

“SEC. 204. EFFECTIVE DATE.

“(a) In General.—Except as provided in subsection (b), section 202 shall apply with respect to fishing years beginning after April 30, 2010.

“(b) Special Rule.—Section 202(3)(B) shall only apply with respect to fishing years beginning after April 30, 2012.”

Delay of Collection of Fees in Quahog and Wreckfish Fisheries

Section 109(d) of Pub. L. 104–297, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “Notwithstanding any other provision of law, the Secretary shall not begin the collection of fees under section 304(d)(2) of the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1854(d)(2)], as amended by this Act, in the surf clam and ocean (including mahogany) quahog fishery or in the wreckfish fishery until after January 1, 2000.”

Comprehensive Management System for Atlantic Pelagic Longline Fishery

Section 109(h) of Pub. L. 104–297, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that:

“(1) The Secretary of Commerce shall—

“(A) establish an advisory panel under section 302(g)(4) of the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1852(g)(4)], 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-Stevens 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.”

Inapplicability of Subsection (h) to American Lobster Fishery Management Plan

Section 109(j) of Pub. L. 104–297, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “Section 304(h) of the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1854(h)], as amended by this Act, shall not apply to the American Lobster Fishery Management Plan.”

Interim Management of Highly Migratory Species Fisheries

Section 108(k) of Pub. L. 101–627, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “Notwithstanding the amendments made by subsections (a) and (g) [amending section 1852 of this title], any fishery management plan or amendment which—

“(1) addresses a highly migratory species fishery to which section 304(f)(3) of the Magnuson-Stevens Fishery Conservation and Management Act [former 16 U.S.C. 1854(f)(3)] (as amended by this Act) 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.”

1 See References in Text note below.

2 So in original. Two subsecs. (i) have been enacted.

3 So in original. Probably should be followed by “shall”.

§1855. Other requirements and authority

(a) Gear evaluation and notification of entry

(1) Not later than 18 months after October 11, 1996, 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 1853(a) of this title; and

(B) to which section 1852(a)(3) of this title 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).

(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 1852(a)(3) of this title 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) of this section 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 1852(a)(3) of this title applies, determines that such unlisted gear or unlisted fishery would compromise the effectiveness of conservation and management efforts under this chapter.

(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.

(b) Fish habitat

(1)(A) The Secretary shall, within 6 months of October 11, 1996, 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 chapter.

(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 chapter, 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.

(c) Emergency actions and interim measures

(1) If the Secretary finds that an emergency exists or that interim measures are needed to reduce overfishing for any fishery, he may promulgate emergency regulations or interim measures necessary to address the emergency or overfishing, without regard to whether a fishery management plan exists for such fishery.

(2) If a Council finds that an emergency 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 emergency 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 action; and

(B) the Secretary may promulgate emergency 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.


(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.

(d) Responsibility of 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 chapter. The Secretary may promulgate such regulations, in accordance with section 553 of title 5, as may be necessary to discharge such responsibility or to carry out any other provision of this chapter.

(e) Effect of certain laws on certain time requirements

The Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.),1 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 1854 of this title as they apply to the functions of the Secretary under such provisions.

(f) Judicial review

(1) Regulations promulgated by the Secretary under this chapter 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, 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.

(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 1854(e)(5) of this title, for a fishery for which the Secretary has authority under section 1854(g) of this title, or for any other fishery with the approval of the appropriate Council.

(B) No later than 180 days after October 11, 1996, 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.

(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.

(h) Central registry system for limited access system permits

(1) Within 6 months after October 11, 1996, 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 1853(b)(6) of this title 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 1881a(b) of this title; 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.

(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 1854(d)(1) of this title, 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 chapter 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.

(i) Alaska and western Pacific community development programs

(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.

(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 July 11, 2006, 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.

(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.

(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.

(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.

(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 chapter, 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 1854(d)(2) of this title 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.

(4) After October 11, 1996, 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.

(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 marine-related 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 seafood-related 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.

(k) Multispecies groundfish

(1) In general

Within 60 days after January 12, 2007, 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 1856(b) of this title.

(Pub. L. 94–265, title III, §305, Apr. 13, 1976, 90 Stat. 354; Pub. L. 96–561, title II, §235, Dec. 22, 1980, 94 Stat. 3299; Pub. L. 97–453, §8, Jan. 12, 1983, 96 Stat. 2490; Pub. L. 101–627, title I, §§110(b)(2), 111(a)(1), (b), Nov. 28, 1990, 104 Stat. 4451, 4452; Pub. L. 104–297, title I, §§110(a)–(d), 111(a), Oct. 11, 1996, 110 Stat. 3587–3590, 3592; Pub. L. 109–241, title IV, §416(a), July 11, 2006, 120 Stat. 540; Pub. L. 109–479, §3(d)(3), title I, §§108–110, 116(b)(1), Jan. 12, 2007, 120 Stat. 3578, 3594–3596, 3606.)

References in Text

This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

The Paperwork Reduction Act of 1980, referred to in subsec. (e), is Pub. L. 96–511, Dec. 11, 1980, 94 Stat. 2812, as amended, which was classified principally to chapter 35 (§3501 et seq.) of Title 44, Public Printing and Documents, prior to the general amendment of that chapter by Pub. L. 104–13, §2, May 22, 1995, 109 Stat. 163. For complete classification of this Act to the Code, see Short Title of 1980 Amendment note set out under section 101 of Title 44 and Tables.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), referred to in subsec. (e), is Pub. L. 96–354, Sept. 19, 1980, 94 Stat. 1164, which is classified generally to chapter 6 (§601 et seq.) of Title 5, Government Organization and Employees. For complete classification of the Act to the Code, see Short Title note set out under section 601 of Title 5 and Tables.

Executive Order Numbered 12866, referred to in subsec. (e), is set out as a note under section 601 of Title 5, Government Organization and Employees.

The Internal Revenue Code of 1986, referred to in subsec. (h)(3), is classified generally to Title 26, Internal Revenue Code.

Amendments

2007—Subsec. (c)(3)(B). Pub. L. 109–479, §108(a), which directed substitution of “186 days,” for “180 days,” the second time appearing, was executed by making the substitution the only place that phrase appeared, to reflect the probable intent of Congress.

Subsec. (c)(3)(D). Pub. L. 109–479, §108(b), inserted “or interim measures” after “emergency regulations”.

Subsec. (h)(1). Pub. L. 109–479, §3(d)(3), substituted “limited access privileges,” for “individual fishing quotas,” in introductory provisions.

Subsec. (i)(1)(B)(ii). Pub. L. 109–479, §116(b)(1)(C), which directed insertion of “The total allocation (directed and nontarget combined) for a fishery to which subclause (I) or (II) applies may not be exceeded.” after cl. (ii), was executed by making the insertion as concluding provisions of cl. (ii), to reflect the probable intent of Congress.

Subsec. (i)(1)(B)(ii)(I). Pub. L. 109–479, §116(b)(1)(A), substituted “total allocation (directed and nontarget combined) of 10.7 percent effective January 1, 2008; and” for “directed fishing allocation of 10 percent upon the establishment of a quota program, fishing cooperative, sector allocation, or other rationalization program in any sector of the fishery; and”.

Subsec. (i)(1)(B)(ii)(II). Pub. L. 109–479, §116(b)(1)(B), substituted “total allocation (directed and nontarget combined) of 10.7 percent.” for “directed fishing allocation of 10 percent.”

Subsec. (i)(1)(C). Pub. L. 109–479, §116(b)(1)(D), inserted at end “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.”

Subsec. (j). Pub. L. 109–479, §109, added subsec. (j).

Subsec. (k). Pub. L. 109–479, §110, added subsec. (k).

2006—Subsec. (i)(1). Pub. L. 109–241 added par. (1) and struck out former par. (1) which related to the western Alaska community development quota program.

1996—Pub. L. 104–297, §110(a)(1), (3), substituted “Other requirements and authority” for “Implementation of fishery management plans” as section catchline.

Subsec. (a). Pub. L. 104–297, §110(a)(1), (3), added subsec. (a) and struck out heading and text of former subsec. (a). Text read as follows: “The Secretary shall promulgate each regulation that is necessary to carry out a plan or amendment—

“(1) within 110 days after the plan or amendment was received by him for action under section 1854(a) of this title, if such plan or amendment takes effect under section 1854(b)(1) of this title;

“(2) within 75 days after a revised plan or amendment was received by him under section 1854(b) of this title, if such plan or amendment takes effect under paragraph (3)(D) of such section; or

“(3) within such time as he deems appropriate in the case of a plan or amendment prepared by him under section 1854(c) or (f)(3) of this title.”

Subsec. (b). Pub. L. 104–297, §110(a)(3), added subsec. (b). Former subsec. (b) redesignated (f).

Subsec. (c). Pub. L. 104–297, §110(b)(1), inserted “and interim measures” after “actions” in heading.

Subsec. (c)(1). Pub. L. 104–297, §110(b)(2)(C), which directed insertion of “or overfishing” after “emergency”, was executed by making the insertion after “the emergency” to reflect the probable intent of Congress.

Pub. L. 104–297, §110(b)(2)(A), (B), substituted “or that interim measures are needed to reduce overfishing for” for “involving” and inserted “or interim measures” after “emergency regulations”.

Subsec. (c)(2). Pub. L. 104–297, §110(b)(2)(C), which directed insertion of “or overfishing” after “emergency”, was executed by making the insertion after “the emergency” in subpars. (A) and (B) to reflect the probable intent of Congress.

Pub. L. 104–297, §110(b)(2)(A), (B), substituted “or that interim measures are needed to reduce overfishing for” for “involving” in introductory provisions and inserted “or interim measures” after “emergency regulations” in subpars. (A) and (B).

Subsec. (c)(3). Pub. L. 104–297, §110(b)(3)(A), inserted “or interim measure” after “emergency regulation” in two places in introductory provisions.

Subsec. (c)(3)(B). Pub. L. 104–297, §110(b)(3)(B), (D), added subpar. (B) and struck out former subpar. (B) which read as follows: “shall remain in effect for not more than 90 days after the date of such publication, except that any such regulation may, by agreement of the Secretary and the Council, be promulgated for one additional period of not more than 90 days; and”.

Subsec. (c)(3)(C). Pub. L. 104–297, §110(b)(3)(D), added subpar. (C). Former subpar. (C) redesignated (D).

Subsec. (c)(3)(D). Pub. L. 104–297, §110(b)(3)(C), redesignated subpar. (C) as (D).

Subsec. (e). Pub. L. 104–297, §110(c), substituted “12866, dated September 30, 1993,” for “12291, dated February 17, 1981,” and “subsections (a), (b), and (c) of section 1854 of this title” for “subsection (c) of this section or section 1854(a) and (b) of this title”.

Subsec. (f). Pub. L. 104–297, §110(a)(2), redesignated subsec. (b) as (f).

Subsecs. (g), (h). Pub. L. 104–297, §110(d), added subsecs. (g) and (h).

Subsec. (i). Pub. L. 104–297, §111(a), added subsec. (i).

1990—Subsec. (a). Pub. L. 101–627, §§110(b)(2), 111(a)(1)(A), redesignated subsec. (c) as (a) and substituted “section 1854(c) or (f)(3)” for “section 1854(c)”.

Subsec. (b). Pub. L. 101–627, §111(a)(1)(A), (b), redesignated subsec. (d) as (b) and amended it generally. Prior to amendment, subsec. (b) read as follows: “Regulations promulgated by the Secretary under this chapter shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of title 5, if a petition for such review is filed within 30 days after the date on which the regulations are promulgated; except that (1) section 705 of such title is not applicable, and (2) the appropriate court shall only set aside any such regulation on a ground specified in section 706(2)(A), (B), (C), or (D) of such title.”

Subsecs. (c) to (e), (g), (h). Pub. L. 101–627, §111(a)(1), redesignated subsecs. (e), (g), and (h) as (c), (d), and (e), respectively.

1983—Subsec. (a). Pub. L. 97–453, §8(1), struck out subsec. (a) which had provided that, as soon as practicable after the Secretary approved pursuant to section 1854(a) and (b) of this title any fishery management plan or amendment or prepared pursuant to section 1854(c) of this title any fishery management plan or amendment, the Secretary was to publish a notice of availability of such plan or amendment and any regulations which he proposed to promulgate to implement such plan or amendment in the Federal Register, and that interested persons were to be afforded a period of not less than 45 days after such publication within which to submit in writing data, views, or comments on the plan or amendment, and on the proposed regulations.

Subsec. (b). Pub. L. 97–453, §8(1), struck out subsec. (b) which had provided that the Secretary might schedule a hearing, in accordance with section 553 of title 5, on any fishery management plan, any amendment to any such plan, any regulations to implement any such plan or amendment and that if any such hearing was scheduled, the Secretary could postpone the effective date of the regulations proposed to implement such plan or amendment, or take such other action as he deemed appropriate to preserve the rights or status of any person, pending its outcome.

Subsec. (c). Pub. L. 97–453, §8(2), substituted provision that the Secretary shall promulgate each regulation that is necessary to carry out a plan or amendment within 110 days after the plan or amendment was received by him for action under section 1854(a) of this title if such plan or amendment takes effect under section 1854(b)(1) of this title, within 75 days after a revised plan or amendment was received by him under section 1854(b) of this title if such plan or amendment takes effect under paragraph (3)(D) of such section, or within such time as he deems appropriate in the case of a plan or amendment prepared by him under section 1854(c) of this title, for provision that the Secretary promulgate regulations to implement any fishery management plan or any amendment to any such plan after consideration of all relevant matters presented to him during the 45-day period referred to in former subsection (a) of this section and produced in any hearing held under former subsection (b) of this section if he found the plan or amendment consistent with the national standards, the other provisions of this chapter, and any other applicable law, and that to the extent practicable, such regulation be put into effect in a manner not disruptive of the regular fishing season for any fishery.

Subsec. (e). Pub. L. 97–453, §8(3), substituted provision that if the Secretary finds that an emergency exists involving any fishery, he may promulgate emergency regulations necessary to address the emergency, without regard to whether a fishery management plan exists for such fishery, that if a Council finds that an emergency exists involving any fishery within its jurisdiction, whether or not a fishery management plan exists for such fishery, the Secretary shall promulgate emergency regulations under paragraph (1) to address the emergency if the Council, by unanimous vote of the members who are voting members, requests the taking of such action, and the Secretary may promulgate emergency regulations under paragraph (1) to address the emergency if the Council, by less than a unanimous vote, requests the taking of such action, for provision that if the Secretary found that an emergency involving any fishery resources existed, he could promulgate emergency regulations, without regard to former subsections (a) and (c) of this section, to implement any fishery management plan, if required, or promulgate emergency regulations to amend any regulation implementing any existing fishery management plan, to the extent required by such emergency, lengthened from 45 days to 90 days the maximum period that emergency regulations may remain in effect after publication in the Federal Register and the maximum additional period for which such regulations may be promulgated, and inserted a provision that emergency regulations promulgated under par. (2) may only be terminated early upon the agreement of the Secretary and the Council concerned.

Subsec. (f). Pub. L. 97–453, §8(4), struck out subsec. (f) which had directed the Secretary to report to the Congress and the President, not later than March 1 of each year, on all activities of the Councils and the Secretary with respect to fishery management plans, regulations to implement such plans, and all other activities relating to the conservation and management of fishery resources undertaken under this chapter during the preceding calendar year.

Subsec. (h). Pub. L. 97–453, §8(5), added subsec. (h).

1980—Subsec. (a). Pub. L. 96–561 inserted “a notice of availability of” after “Federal Register (A)”.

Effective Date of 2007 Amendment

Pub. L. 109–479, title I, §116(b)(2), Jan. 12, 2007, 120 Stat. 3606, provided that: “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 [16 U.S.C. 1855(i)(1)] and of this subsection [amending this section], 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.”

Termination of Administrative Conference of United States

For termination of Administrative Conference of United States, see provision of title IV of Pub. L. 104–52, set out as a note preceding section 591 of Title 5, Government Organization and Employees.

No Interruption of Existing Allocations

Pub. L. 109–241, title IV, §416(b), July 11, 2006, 120 Stat. 545, provided that: “The amendment made by subsection (a) [amending this section] shall not be construed or implemented in a way that causes any interruption in the allocations of fishery resources to the western Alaska community development quota program or in the opportunity of an entity participating in that program to harvest its share of such allocations.”

Eligibility To Participate in Western Alaska Community Development Quota Program

Pub. L. 109–59, title X, §10206, Aug. 10, 2005, 119 Stat. 1934, provided that: “A community shall be eligible to participate in the western Alaska community development quota program established under section 305(i) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1855(i)) if the community—

“(1) is listed in table 7 to part 679 of title 50, Code of Federal Regulations, as in effect on March 8, 2004; or

“(2) was determined to be eligible to participate in such program by the National Marine Fisheries Service on April 19, 1999.”

Community Development Quota Report

Section 108(h) of Pub. L. 104–297 provided that: “Not later than October 1, 1998, the National Academy of Sciences, in consultation with the Secretary, the North Pacific and Western Pacific Councils, communities and organizations participating in the program, participants in affected fisheries, and the affected States, shall submit to the Secretary of Commerce and Congress a comprehensive report on the performance and effectiveness of the community development quota programs under the authority of the North Pacific and Western Pacific Councils. The report shall—

“(1) evaluate the extent to which such programs have met the objective of providing communities with the means to develop ongoing commercial fishing activities;

“(2) evaluate the manner and extent to which such programs have resulted in the communities and residents—

“(A) receiving employment opportunities in commercial fishing and processing; and

“(B) obtaining the capital necessary to invest in commercial fishing, fish processing, and commercial fishing support projects (including infrastructure to support commercial fishing);

“(3) evaluate the social and economic conditions in the participating communities and the extent to which alternative private sector employment opportunities exist;

“(4) evaluate the economic impacts on participants in the affected fisheries, taking into account the condition of the fishery resource, the market, and other relevant factors;

“(5) recommend a proposed schedule for accomplishing the developmental purposes of community development quotas; and

“(6) address such other matters as the National Academy of Sciences deems appropriate.”

Registry Transition for Limited Access System Permits

Section 110(e) of Pub. L. 104–297, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “Security interests on permits described under section 305(h)(1) of the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1855(h)(1)], as amended by this Act, 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.”

Western Pacific Demonstration Projects

Pub. L. 104–297, title I, §111(b), Oct. 11, 1996, 110 Stat. 3594, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41; Pub. L. 106–554, §1(a)(4) [div. B, title I, §144(g)], Dec. 21, 2000, 114 Stat. 2763, 2763A–250; Pub. L. 106–555, title II, §206, Dec. 21, 2000, 114 Stat. 2770; Pub. L. 109–479, title II, §207, Jan. 12, 2007, 120 Stat. 3615, provided that:

“(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 [amending this section and enacting this note] $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-Stevens 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)).”

1 See References in Text note below.

§1856. State jurisdiction

(a) In general

(1) Except as provided in subsection (b) of this section, nothing in this chapter shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.

(2) For the purposes of this chapter, except as provided in subsection (b) of this section, 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

(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.


(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 chapter is approved and implemented for such fishery.

(b) Exception

(1) If the Secretary finds, after notice and an opportunity for a hearing in accordance with section 554 of title 5, that—

(A) the fishing in a fishery, which is covered by a fishery management plan implemented under this chapter, 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).

(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 1824(d) of this title;

(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.


(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 1821(b) of this title during the time the vessel will engage in the fish processing for which permission is sought under paragraph (1)(B).

(Pub. L. 94–265, title III, §306, Apr. 13, 1976, 90 Stat. 355; Pub. L. 97–191, §1, June 1, 1982, 96 Stat. 107; Pub. L. 97–453, §9, Jan. 12, 1983, 96 Stat. 2491; Pub. L. 98–623, title IV, §404(4), Nov. 8, 1984, 98 Stat. 3408; Pub. L. 99–659, title I, §101(c)(2), Nov. 14, 1986, 100 Stat. 3707; Pub. L. 101–627, title I, §112, Nov. 28, 1990, 104 Stat. 4453; Pub. L. 104–297, title I, §112(a)–(c), Oct. 11, 1996, 110 Stat. 3595, 3596.)

References in Text

This chapter, referred to in subsecs. (a)(1), (2), (3)(C) and (b)(1)(A), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

1996—Subsec. (a)(3). Pub. L. 104–297, §112(a), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “Except as otherwise provided by paragraph (2), a State may not directly or indirectly regulate any fishing vessel outside its boundaries, unless the vessel is registered under the law of that State.”

Subsec. (b)(3). Pub. L. 104–297, §112(b), added par. (3).

Subsec. (c)(1)(A). Pub. L. 104–297, §112(c)(1), substituted “(4)(C) or has received a permit under section 1824(d) of this title;” for “(4)(C); and”.

Subsec. (c)(1)(C). Pub. L. 104–297, §112(c)(2), (3), added subpar. (C).

1990—Subsec. (c)(1)(B). Pub. L. 101–627, §112(1), inserted before period at end “and the application specifies the species to be processed”.

Subsec. (c)(2). Pub. L. 101–627, §112(2), added par. (2) and struck out former par. (2) which read as follows: “The Governor of a State may not grant permission for a foreign fishing vessel to engage in fish processing under paragraph (1)(B) if he 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.”

1986—Subsec. (b)(1)(A). Pub. L. 99–659 substituted “exclusive economic zone” for “fishery conservation zone”.

1984—Subsec. (a). Pub. L. 98–623 designated existing provisions as pars. (1) to (3), in par. (2), as so designated, redesignated cls. (1) and (2) as subpars. (A) and (B), respectively, and added subpar. (C), and in par. (3), as so designated, inserted exception relating to par. (2).

1983—Subsec. (a). Pub. L. 97–453 inserted provision delineating the jurisdiction and authority of a State over waters adjacent to the State and over Nantucket Sound.

1982—Subsec. (c). Pub. L. 97–191 added subsec. (c).

Effective Date of 1982 Amendment

Section 3 of Pub. L. 97–191 provided that: “This Act [amending this section and section 1857 of this title] shall take effect on June 1, 1982.”

Authority of States of Washington, Oregon, and California To Manage Dungeness Crab Fishery

Pub. L. 105–384, title II, §203, Nov. 13, 1998, 112 Stat. 3453, as amended by Pub. L. 107–77, title VI, §624, Nov. 28, 2001, 115 Stat. 803; Pub. L. 109–479, title III, §302(e), Jan. 12, 2007, 120 Stat. 3624, provided that:

“(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 [16 U.S.C. 1801 et seq.].

“(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.

“(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 [16 U.S.C. 1801 et seq.].

“(g) Repeal.—[Repealed section 112(d) of Pub. L. 104–297, see below.]

“(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 [now Committee on Natural 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.”


Pub. L. 104–297, title I, §112(d), Oct. 11, 1996, 110 Stat. 3596, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, which provided interim authority to the States of Washington, Oregon, and California to enforce State laws and regulations governing fish harvesting and processing against any vessel operating in the exclusive economic zone off each respective State in a fishery for Dungeness crab (Cancer magister) for which there is no fishery management plan implemented under this chapter, was repealed by Pub. L. 105–384, title II, §203(g), Nov. 13, 1998, 112 Stat. 3454.

Foreign Fish Processing in Norton Sound

Pub. L. 99–509, title V, §5004, Oct. 21, 1986, 100 Stat. 1912, provided that for purposes of processing pink salmon within the internal waters of the State of Alaska, the geographic area bounded on the north by a parallel of latitude of 64 degrees, 23 minutes, on the south by a parallel of latitude of 63 degrees, 51 minutes, on the east by the baseline from which the territorial sea was measured, and on the west by the outer limit of the territorial sea, was to be considered to be internal waters of the State of Alaska for the purposes of subsec. (c)(4)(B) of this section until Sept. 30, 1993.

Territorial Sea and Contiguous Zone of United States

For extension of territorial sea and contiguous zone of United States, see Proc. No. 5928 and Proc. No. 7219, respectively, set out as notes under section 1331 of Title 43, Public Lands.

§1857. Prohibited acts

It is unlawful—

(1) for any person—

(A) to violate any provision of this chapter or any regulation or permit issued pursuant to this chapter;

(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 chapter;

(C) to violate any provision of, or regulation under, an applicable governing international fishery agreement entered into pursuant to section 1821(c) of this title;

(D) to refuse to permit any officer authorized to enforce the provisions of this chapter (as provided for in section 1861 of this title) to board a fishing vessel subject to such person's control for purposes of conducting any search or inspection in connection with the enforcement of this chapter 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 chapter 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 chapter;

(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 subchapter, 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 1 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

(ii) fish contained in such fishing gear;


(L) to forcibly assault, resist, oppose, impede, intimidate, sexually harass, bribe, or interfere with any observer on a vessel under this chapter, or any data collector employed by the National Marine Fisheries Service or under contract to any person to carry out responsibilities under this chapter;

(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 1852(j) of this title, or to knowingly vote on a Council decision in violation of section 1852(j)(7)(A) of this title;

(P)(i) to remove any of the fins of a shark (including the tail) at sea;

(ii) to have custody, control, or possession of any such fin aboard a fishing vessel unless it is naturally attached to the corresponding carcass;

(iii) to transfer any such fin from one vessel to another vessel at sea, or to receive any such fin in such transfer, without the fin naturally attached to the corresponding carcass; or

(iv) to land any such fin that is not naturally attached to the corresponding carcass, or to land any shark carcass without such fins naturally attached;

(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 1861a(b)(2) of this title.


For purposes of subparagraph (P), there shall be a rebuttable presumption that if any shark fin (including the tail) is found aboard a vessel, other than a fishing vessel, without being naturally attached to the corresponding carcass, such fin was transferred in violation of subparagraph (P)(iii) or that if, after landing, the total weight of shark fins (including the tail) landed from any vessel exceeds five percent of the total weight of shark carcasses landed, such fins were taken, held, or landed in violation of subparagraph (P). In such subparagraph, the term “naturally attached”, with respect to a shark fin, means attached to the corresponding shark carcass through some portion of uncut skin.

(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 1821(i) of this title;

(ii) fish processing permitted under section 1856(c) of this title; or

(iii) transshipment at sea of fish or fish products within the boundaries of any State in accordance with a permit approved under section 1824(d) of this title;


(B) in fishing, except recreational fishing permitted under section 1821(i) of this title, within the exclusive economic zone, or for any anadromous species or Continental Shelf fishery resources beyond such zone, unless such fishing is authorized by, and conducted in accordance with, a valid and applicable permit issued pursuant to section 1824(b), (c), or (d) of this title; or

(C) except as permitted under section 1856(c) of this title, 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);


(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 within the boundaries of any State except to the extent that the foreign fishing vessel has been permitted under section 1824(d) of this title or section 1856(c) of this title to receive such fish;

(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 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

(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 1823 of this title, 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.

(Pub. L. 94–265, title III, §307, Apr. 13, 1976, 90 Stat. 355; Pub. L. 95–354, §5(4), Aug. 28, 1978, 92 Stat. 521; Pub. L. 97–191, §2, June 1, 1982, 96 Stat. 107; Pub. L. 97–453, §15(b), Jan. 12, 1983, 96 Stat. 2492; Pub. L. 99–659, title I, §§101(c)(2), 107(a), Nov. 14, 1986, 100 Stat. 3707, 3713; Pub. L. 100–629, §4, Nov. 7, 1988, 102 Stat. 3286; Pub. L. 101–224, §8, Dec. 12, 1989, 103 Stat. 1907; Pub. L. 101–627, title I, §113, Nov. 28, 1990, 104 Stat. 4453; Pub. L. 102–251, title III, §301(h), Mar. 9, 1992, 106 Stat. 64; Pub. L. 104–297, title I, §113, title IV, §405(b)(1), Oct. 11, 1996, 110 Stat. 3597, 3621; Pub. L. 106–557, §3, Dec. 21, 2000, 114 Stat. 2772; Pub. L. 109–479, title I, §118, Jan. 12, 2007, 120 Stat. 3607; Pub. L. 111–348, title I, §103(a), Jan. 4, 2011, 124 Stat. 3670.)

Amendment of Section

Pub. L. 102–251, title III, §§301(h), 308, Mar. 9, 1992, 106 Stat. 64, 66, as amended by Pub. L. 104–297, title IV, §405(b)(1), Oct. 11, 1996, 110 Stat. 3621, provided that, effective on the date on which the Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for the United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until the date on which the Agreement enters into force for the United States, this section is amended:


(1) in paragraph (1)(K), by inserting “or special areas” immediately after “exclusive economic zone”;

(2) in paragraph (2)(B), by inserting “or areas” immediately after “such zone”;

(3) in paragraph (3), by inserting “or special areas” immediately after “exclusive economic zone”; and

(4) in paragraph (4), by inserting “or special areas” immediately after “exclusive economic zone”.

References in Text

This chapter, referred to in par. (1), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

The Atlantic Coastal Fisheries Cooperative Management Act, referred to in par. (1)(J)(i), is title VIII of Pub. L. 103–206, Dec. 20, 1993, 107 Stat. 2447, as amended, which is classified principally to chapter 71 (§5101 et seq.) of this title. For complete classification of title VIII to the Code, see Short Title note set out under section 5101 of this title and Tables.

Amendments

2011—Par. (1). Pub. L. 111–348, §103(a)(2), substituted “For purposes of subparagraph (P), there shall be a rebuttable presumption that if any shark fin (including the tail) is found aboard a vessel, other than a fishing vessel, without being naturally attached to the corresponding carcass, such fin was transferred in violation of subparagraph (P)(iii) or that if, after landing, the total weight of shark fins (including the tail) landed from any vessel exceeds five percent of the total weight of shark carcasses landed, such fins were taken, held, or landed in violation of subparagraph (P). In such subparagraph, the term ‘naturally attached’, with respect to a shark fin, means attached to the corresponding shark carcass through some portion of uncut skin.” for “For 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.” in concluding provisions.

Par. (1)(P). Pub. L. 111–348, §103(a)(1), amended subpar. (P) generally. Prior to amendment, subpar. (P) read as follows:

“(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;”.

2007—Par. (1)(Q), (R). Pub. L. 109–479 added subpars. (Q) and (R).

2000—Par. (1). Pub. L. 106–557 added subpar. (P) and concluding provisions.

1996—Par. (1)(J)(i). Pub. L. 104–297, §113(a), substituted “plan implemented” for “plan, implemented” and inserted before semicolon at end “, 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.)”.

Par. (1)(K). Pub. L. 104–297, §113(b)(2), substituted “gear;” for “gear,” at end of cl. (ii) and struck out concluding provisions which read as follows: “or to attempt to do so;”.

Pub. L. 104–297, §113(b)(1), which directed substitution of “to steal or attempt to steal or to negligently and without authorization” for “knowingly steal or without authorization, to”, was executed by making the substitution for “knowingly steal, or without authorization, to” to reflect the probable intent of Congress.

Par. (1)(L). Pub. L. 104–297, §113(c), amended subpar. (L) generally. Prior to amendment, subpar. (L) read as follows: “to forcibly assault, resist, oppose, impede, intimidate, or interfere with any observer on a vessel under this chapter;”.

Par. (1)(O). Pub. L. 104–297, §113(d), added subpar. (O).

Par. (2)(A). Pub. L. 104–297, §113(e), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “in fishing within the boundaries of any State, except recreational fishing permitted under section 1821(j) of this title;”.

Par. (2)(B). Pub. L. 104–297, §113(f), substituted “1821(i)” for “1821(j)” and “1824(b), (c), or (d)” for “1824(b) or (c)”.

Par. (3). Pub. L. 104–297, §113(g), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “for any vessel of the United States, and for the owner or operator of any vessel of the United States, to transfer directly or indirectly, or attempt to so transfer, any United States harvested fish to any foreign fishing vessel, while such foreign vessel is within the exclusive economic zone, unless the foreign fishing vessel has been issued a permit under section 1824 of this title which authorizes the receipt by such vessel of United States harvested fish of the species concerned;”.

Par. (4). Pub. L. 104–297, §113(h), inserted “or within the boundaries of any State” after “zone” in introductory provisions.

1990—Par. (1)(K) to (N). Pub. L. 101–627, §113(a), added subpars. (K) to (N).

Par. (5). Pub. L. 101–627, §113(b), added par. (5).

1989—Par. (1)(J). Pub. L. 101–224 added subpar. (J).

1988—Par. (4). Pub. L. 100–629 added par. (4).

1986—Par. (1)(I). Pub. L. 99–659, §107(a), added subpar. (I).

Pars. (2)(B), (3). Pub. L. 99–659, §101(c)(2), substituted “exclusive economic zone” for “fishery conservation zone”.

1983—Par. (2)(A). Pub. L. 97–453, §15(b)(A), substituted “in fishing within the boundaries of any State, except recreational fishing permitted under section 1821(j) of this title” for “in fishing within the boundaries of any State”.

Par. (2)(B). Pub. L. 97–453, §15(b)(B), inserted “, except recreational fishing permitted under section 1821(j) of this title,” after “in fishing”.

1982—Par. (2). Pub. L. 97–191, §2(1), struck out “in fishing” in provisions preceding subpar. (A).

Par. (2)(A). Pub. L. 97–191, §2(2), inserted “in fishing” at beginning and struck out “or” at end.

Par. (2)(B). Pub. L. 97–191, §2(3), inserted “in fishing” at beginning and substituted “or” for “and” at end.

Par. (2)(C). Pub. L. 97–191, §2(4), added subpar. (C).

1978—Par. (3). Pub. L. 95–354 added par. (3).

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–251 effective on date on which Agreement between United States and Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until date on which Agreement enters into force for United States, see section 308 of Pub. L. 102–251, set out as a note under section 773 of this title.

Effective Date of 1982 Amendment

Amendment by Pub. L. 97–191 effective June 1, 1982, see section 3 of Pub. L. 97–191, set out as a note under section 1856 of this title.

Effective Date

Section 312 of Pub. L. 94–265, provided that this section and sections 1858 to 1861 of this title were to take effect Mar. 1, 1977, prior to the general amendment of section 312 by Pub. L. 104–297, title I, §116(a), Oct. 11, 1996, 110 Stat. 3600. See section 1861a of this title.

Savings Clause

Pub. L. 111–348, title I, §103(b), Jan. 4, 2011, 124 Stat. 3670, provided that:

“(1) In general.—The amendments made by subsection (a) [amending this section] do not apply to an individual engaged in commercial fishing for smooth dogfish (Mustelus canis) in that area of the waters of the United States located shoreward of a line drawn in such a manner that each point on it is 50 nautical miles from the baseline of a State from which the territorial sea is measured, if the individual holds a valid State commercial fishing license, unless the total weight of smooth dogfish fins landed or found on board a vessel to which this subsection applies exceeds 12 percent of the total weight of smooth dogfish carcasses landed or found on board.

“(2) Definitions.—In this subsection:

“(A) Commercial fishing.—The term ‘commercial fishing’ has the meaning given that term in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802).

“(B) State.—The term ‘State’ has the meaning given that term in section 803 of Public Law 103–206 (16 U.S.C. 5102).”

1 So in original.

§1858. Civil penalties and permit sanctions

(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, to have committed an act prohibited by section 1857 of this title 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.

(b) Review of civil penalty

Any person against whom a civil penalty is assessed under subsection (a) of this section or against whom a permit sanction is imposed under subsection (g) of this section (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. 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.

(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.

(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 1857 of this title shall be liable in rem for any civil penalty assessed for such violation under this section 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.

(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.

(f) Subpenas

For the purposes of conducting any hearing under this section, the Secretary may issue subpenas 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 subpena 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.

(g) Permit sanctions

(1) In any case in which (A) a vessel has been used in the commission of an act prohibited under section 1857 of this title, (B) the owner or operator of a vessel or any other person who has been issued or has applied for a permit under this chapter has acted in violation of section 1857 of this title, (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 chapter 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.


(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 a 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.

(Pub. L. 94–265, title III, §308, Apr. 13, 1976, 90 Stat. 356; Pub. L. 97–453, §10, Jan. 12, 1983, 96 Stat. 2491; Pub. L. 99–659, title I, §108, Nov. 14, 1986, 100 Stat. 3713; Pub. L. 101–627, title I, §114(a), Nov. 28, 1990, 104 Stat. 4454; Pub. L. 104–297, title I, §114(a)–(c), Oct. 11, 1996, 110 Stat. 3598, 3599.)

References in Text

This chapter, referred to in subsec. (g)(1), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

1996—Subsec. (a). Pub. L. 104–297, §114(a), struck out “ability to pay,” after “history of prior offenses,” and inserted at end “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.”

Subsec. (b). Pub. L. 104–297, §114(b), amended first sentence generally. Prior to amendment, first sentence read as follows: “Any person against whom a civil penalty is assessed under subsection (a) of this section may obtain review thereof in the United States district court for the appropriate district by filing a complaint in such court within 30 days from the date of such order and by simultaneously serving a copy of such complaint by certified mail on the Secretary, the Attorney General and the appropriate United States Attorney.”

Subsec. (g)(1). Pub. L. 104–297, §114(c), substituted “(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,” for “or (C) 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 fishery resource law statute enforced by the Secretary has not been paid and is overdue,”.

1990—Pub. L. 101–627, §114(a)(1), inserted “and permit sanctions” after “penalties” in section catchline.

Subsec. (a). Pub. L. 101–627, §114(a)(2), substituted “$100,000” for “$25,000”.

Subsec. (g). Pub. L. 101–627, §114(a)(3), added subsec. (g).

1986—Subsec. (b). Pub. L. 99–659, §108(1), amended first sentence generally. Prior to amendment, the sentence read as follows: “Any person against whom a civil penalty is assessed under subsection (a) of this section may obtain review thereof in the appropriate court of the United States by filing a notice of appeal in such court within 30 days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the Secretary”.

Subsecs. (d) to (f). Pub. L. 99–659, §108(2), (3), added subsec. (d) and redesignated former subsecs. (d) and (e) as (e) and (f), respectively.

1983—Subsec. (e). Pub. L. 97–453 added subsec. (e).

Effective Date

Section effective Mar. 1, 1977, see section 312 of Pub. L. 94–265, formerly set out as a note under section 1857 of this title.

§1859. Criminal offenses

(a) Offenses

A person is guilty of an offense if he commits any act prohibited by—

(1) section 1857(1)(D), (E), (F), (H), (I), or (L) of this title; or

(2) section 1857(2) of this title.

(b) Punishment

Any offense described in subsection (a)(1) of this section 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 1857(1)(L) of this title or any officer authorized to enforce the provisions of this chapter (as provided for in section 1861 of this title), 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) of this section is punishable by a fine of not more than $200,000.

(c) Jurisdiction

There is Federal jurisdiction over any offense described in this section.

(Pub. L. 94–265, title III, §309, Apr. 13, 1976, 90 Stat. 357; Pub. L. 97–453, §11(a), Jan. 12, 1983, 96 Stat. 2491; Pub. L. 99–659, title I, §107(b), Nov. 14, 1986, 100 Stat. 3713; Pub. L. 100–66, §2, July 10, 1987, 101 Stat. 384; Pub. L. 101–627, title I, §115, Nov. 28, 1990, 104 Stat. 4455.)

References in Text

This chapter, referred to in subsec. (b), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

1990—Subsec. (a)(1). Pub. L. 101–627, §115(a), amended par. (1) generally, substituting “(I), or (L)” for “or (I)”.

Subsec. (b). Pub. L. 101–627, §115(b), substituted “$100,000” for “$50,000”, substituted “$200,000” for “$100,000” in two places, and inserted “any observer described in section 1857(1)(L) of this title or” after “injury to” and “observer or” before “officer in fear”.

1987—Subsec. (a)(1). Pub. L. 100–66 substituted “(I)” for “(J)”.

1986—Subsec. (a)(1). Pub. L. 99–659 substituted “(H), or (J)” for “or (H)”.

1983—Subsec. (b). Pub. L. 97–453 struck out “, or imprisonment for not more than 1 year, or both” after “subsection (a)(2) of this section is punishable by a fine of not more than $100,000”.

Effective Date of 1983 Amendment

Section 11(b) of Pub. L. 97–453 provided that: “The amendment made by subsection (a) [amending this section] applies with respect to offenses committed under section 309 [this section] on or after the date of the enactment of this Act [Jan. 12, 1983].”

Effective Date

Section effective Mar. 1, 1977, see section 312 of Pub. L. 94–265, formerly set out as a note under section 1857 of this title.

§1860. Civil forfeitures

(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 1857 of this title (other than any act for which the issuance of a citation under section 1861(c) of this title 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 1861(d) of this title shall have jurisdiction, upon application by the Attorney General on behalf of the United States, to order any forfeiture authorized under subsection (a) of this section and any action provided for under subsection (d) of this section.

(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 chapter or for which security has not previously been obtained under subsection (d) of this section. 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 chapter, unless such provisions are inconsistent with the purposes, policy, and provisions of this chapter. The duties and powers imposed upon the Commissioner of Customs or other persons under such provisions shall, with respect to this chapter, be performed by officers or other persons designated for such purpose by the Secretary.

(d) Procedure

(1) Any officer authorized to serve any process in rem which is issued by a court having jurisdiction under section 1861(d) shall—

(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 1861(d) of this title, to release on bond any seized fish or other property or the proceeds from the sale thereof.

(2) Any fish seized pursuant to this chapter 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.

(e) Rebuttable presumptions

(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 1857 of this title were taken or retained in violation of this chapter.

(2) For purposes of this chapter, 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 chapter, 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.

(Pub. L. 94–265, title III, §310, Apr. 13, 1976, 90 Stat. 357; Pub. L. 97–453, §12, Jan. 12, 1983, 96 Stat. 2491; Pub. L. 99–659, title I, §109(a), Nov. 14, 1986, 100 Stat. 3714; Pub. L. 101–627, title I, §116, Nov. 28, 1990, 104 Stat. 4456; Pub. L. 104–297, title I, §114(d), Oct. 11, 1996, 110 Stat. 3599.)

References in Text

This chapter, referred to in subsecs. (c), (d)(2), and (e), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

1996—Subsec. (e)(3). Pub. L. 104–297 added par. (3).

1990—Subsec. (e). Pub. L. 101–627 designated existing provisions as par. (1) and added par. (2).

1986—Subsec. (c). Pub. L. 99–659, §109(a)(1), amended second sentence generally. Prior to amendment, second sentence of subsec. (c) read as follows: “The provisions of the customs laws relating to—

“(1) the disposition of forfeited property,

“(2) the proceeds from the sale of forfeited property,

“(3) the remission or mitigation of forfeitures, and

“(4) the compromise of claims,

shall apply to any forfeiture ordered, and to any case in which forfeiture is alleged to be authorized, under this section, unless such provisions are inconsistent with the purposes, policy, and provisions of this chapter.”

Subsec. (d)(1). Pub. L. 99–659, §109(a)(2), inserted provision that 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 1861(d) of this title, to release on bond any seized fish or other property or the proceeds from the sale thereof.

1983—Subsec. (a). Pub. L. 97–453 inserted “(or the fair market value thereof)” after “fish” wherever appearing.

Effective Date

Section effective Mar. 1, 1977, see section 312 of Pub. L. 94–265, formerly set out as a note under section 1857 of this title.

Transfer of Functions

For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

§1861. Enforcement

(a) Responsibility

The provisions of this chapter 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.

(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) of this section) to enforce the provisions of this chapter may—

(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 1857 of this title;

(ii) board, and search or inspect, any fishing vessel which is subject to the provisions of this chapter;

(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 chapter;

(iv) seize any fish (wherever found) taken or retained in violation of any provision of this chapter;

(v) seize any other evidence related to any violation of any provision of this chapter; and

(vi) access, directly or indirectly, for enforcement purposes any data or information required to be provided under this subchapter or regulations under this subchapter, including data from vessel monitoring systems, satellite-based maritime distress and safety systems, or any similar system, subject to the confidentiality provisions of section 1881a of this title;


(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, 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 chapter (as provided for in this section) finds that a fishing vessel is operating or has been operated in violation of any provision of this chapter, 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) of this section. If a permit has been issued pursuant to this chapter 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.

(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 chapter. 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.

(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 chapter 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 chapter 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 chapter or any other marine 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 1612(b) of title 19, as made applicable by section 1860(c) of this title 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) of this section, or any similar agreement authorized by law.


(2) Any person found in an administrative or judicial proceeding to have violated this chapter 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.

(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) of this section, 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 4 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 chapter 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.

(g) Enforcement in 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.

(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 subchapter 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 section 1525 of title 15; and

(C) shall provide for confidentiality of data and information submitted to the State under section 1881a of this title.

(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.

(i) Improved data sharing

(1) In general

Notwithstanding any other provision of this chapter, as soon as practicable but no later than 21 months after January 12, 2007, the Secretary shall implement data-sharing measures to make any data required to be provided by this chapter 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 1881a(b)(1)(B) of this title.

(2) Agreement required

The Secretary shall promptly enter into an agreement with a State under section 1881a(b)(1)(B) of this title 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.

(j) Definitions

For purposes of this section—

(1) The term “provisions of this chapter” includes (A) any regulation or permit issued pursuant to this chapter, and (B) any provision of, or regulation issued pursuant to, any international fishery agreement under which foreign fishing is authorized by section 1821(b) or (c) of this title, or section 1824(d) of this title, with respect to fishing subject to the exclusive fishery management authority of the United States.

(2) The term “violation of any provision of this chapter” includes (A) the commission of any act prohibited by section 1857 of this title, and (B) the violation of any regulation, permit, or agreement referred to in paragraph (1).

(Pub. L. 94–265, title III, §311, Apr. 13, 1976, 90 Stat. 358; Pub. L. 96–470, title II, §209(e), Oct. 19, 1980, 94 Stat. 2245; Pub. L. 97–453, §§13, 15(c), Jan. 12, 1983, 96 Stat. 2491, 2493; Pub. L. 99–659, title I, §§101(c)(2), 109(b), Nov. 14, 1986, 100 Stat. 3707, 3714; Pub. L. 101–627, title I, §117, Nov. 28, 1990, 104 Stat. 4456; Pub. L. 102–251, title III, §301(i), Mar. 9, 1992, 106 Stat. 64; Pub. L. 102–567, title IX, §901, Oct. 29, 1992, 106 Stat. 4316; Pub. L. 104–297, title I, §115, Oct. 11, 1996, 110 Stat. 3599; Pub. L. 109–479, title I, §111(a), Jan. 12, 2007, 120 Stat. 3596.)

Amendment of Subsection (b)(2)

Pub. L. 102–251, title III, §§301(i), 308, Mar. 9, 1992, 106 Stat. 64, 66, provided that, effective on the date on which the Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for the United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until the date on which the Agreement enters into force for the United States, subsection (b)(2) is amended by inserting “and special areas,” after “exclusive economic zone”.

References in Text

This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

The Lacey Act Amendments of 1981, referred to in subsec. (e), is Pub. L. 97–79, Nov. 16, 1981, 95 Stat. 1073, which is classified principally to chapter 53 (§3371 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 3371 of this title and Tables.

Amendments

2007—Subsec. (b)(1)(A)(vi). Pub. L. 109–479, §111(a)(1)–(3), added cl. (vi).

Subsecs. (h) to (j). Pub. L. 109–479, §111(a)(4), (5), added subsecs. (h) and (i) and redesignated former subsec. (h) as (j).

1996—Subsec. (d). Pub. L. 104–297, §115(a)(2), inserted “, 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” after “District of Hawaii”.

Pub. L. 104–297, §115(a)(1), which directed substitution of “Guam or any” for “Guam, any Commonwealth, territory, or”, was executed by making the substitution for “Guam, and any Commonwealth, territory, or”, to reflect the probable intent of Congress.

Subsec. (e)(1). Pub. L. 104–297, §115(b)(1), substituted “marine resource law” for “fishery resource law” in introductory provisions and in subpars. (A) and (B).

Subsec. (e)(1)(B). Pub. L. 104–297, §115(b)(2), inserted “of not less than 20 percent of the penalty collected or $20,000, whichever is the lesser amount,” after “reward”.

Subsec. (e)(1)(E). Pub. L. 104–297, §115(b)(3), added subpar. (E) and struck out former subpar. (E) which read as follows: “claims of parties in interest to property disposed of under section 1612(b) of title 19 or under other provisions of the customs laws, as made applicable by section 1860(c) of this title to seizures made by the Secretary under this chapter, in amounts determined by the Secretary to be applicable to such claims at the time of seizure; and”.

Subsec. (e)(2). Pub. L. 104–297, §115(c), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Any person assessed a civil penalty for, or convicted of, any violation of this chapter shall be liable for the cost incurred in storage, care, and maintenance of any fish or other property seized in connection with the violation.”

Subsec. (g). Pub. L. 104–297, §115(d), added subsec. (g). Former subsec. (g) redesignated (h).

Subsec. (h). Pub. L. 104–297, §115(d), redesignated subsec. (g) as (h).

Subsec. (h)(1). Pub. L. 104–297, §115(e), which directed amendment of subsec. (i)(1) by substituting “1821(b) or (c) of this title, or section 1824(d) of this title,” for “1821(b), (c) of this title,”, was executed by making the substitution for “1821(b) or (c) of this title” in subsec. (h)(1) to reflect the probable intent of Congress because this section does not contain a subsec. (i).

1992—Subsecs. (f), (g). Pub. L. 102–567 added subsec. (f) and redesignated former subsec. (f) as (g).

1990—Subsec. (e). Pub. L. 101–627 amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: “Notwithstanding any other provision of law, after September 30, 1986, the Secretary or the Secretary of the Treasury may pay from sums received as fines, penalties, or forfeitures of property for violations of any provision of this chapter—

“(1) 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 chapter with respect to that fish or other property; and

“(2) a reward 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 chapter.

Any person assessed a civil penalty for, or convicted of, any violation of any provision of this chapter shall be liable for the cost incurred in storage, care, and maintenance of any fish or other property seized in connection with the violation concerned.”

1986—Subsec. (b)(2). Pub. L. 99–659, §101(c)(2), substituted “exclusive economic zone” for “fishery conservation zone”.

Subsecs. (e), (f). Pub. L. 99–659, §109(b), added subsec. (e) and redesignated former subsec. (e) as (f).

1983—Subsec. (a). Pub. L. 97–453, §15(c), struck out provision that the Secretaries were to report annually on June 30, to each committee of the Congress listed in section 1823(b) of this title and to the Councils, on the degree and extent of known and estimated compliance with the provisions of this chapter during the preceding calendar year.

Subsec. (b)(1). Pub. L. 97–453, §13(1), designated existing provisions as par. (1).

Subsec. (b)(1)(A). Pub. L. 97–453, §13(2), (3), redesignated former par. (1) as subpar. (A) and, in subpar. (A) as redesignated, redesignated former subpars. (A) to (E) as cls. (i) to (v), respectively.

Subsec. (b)(1)(B), (C). Pub. L. 97–453, §13(2), redesignated former pars. (2) and (3) as subpars. (B) and (C), respectively.

Subsec. (b)(2). Pub. L. 97–453, §13(4), added par. (2).

1980—Subsec. (a). Pub. L. 96–470 substituted “annually on June 30” for “semiannually” and inserted “during the preceding calendar year” after “with the provisions of this chapter”.

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–251 effective on date on which Agreement between United States and Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until date on which Agreement enters into force for United States, see section 308 of Pub. L. 102–251, set out as a note under section 773 of this title.

Effective Date

Section effective Mar. 1, 1977, see section 312 of Pub. L. 94–265, formerly set out as a note under section 1857 of this title.

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Fisheries Enforcement Asset Forfeiture Fund and Sanctuaries Enforcement Asset Forfeiture Fund

Pub. L. 112–55, div. B, title I, §§110, 111, Nov. 18, 2011, 125 Stat. 602, provided that:

Sec. 110. There is established in the Treasury a non-interest bearing fund to be known as the ‘Fisheries Enforcement Asset Forfeiture Fund’, which shall consist of all sums received as fines, penalties, and forfeitures of property for violations of any provisions of 16 U.S.C. chapter 38 or of any other marine resource law enforced by the Secretary of Commerce, including the Lacey Act Amendments of 1981 (16 U.S.C. 3371 et seq.) and with the exception of collections pursuant to 16 U.S.C. 1437, which are currently deposited in the Operations, Research, and Facilities account: Provided, That all unobligated balances that have been collected pursuant to 16 U.S.C. 1861 or any other marine resource law enforced by the Secretary of Commerce with the exception of 16 U.S.C. 1437 shall be transferred from the Operations, Research, and Facilities account into the Fisheries Enforcement Asset Forfeiture Fund and shall remain available until expended.

Sec. 111. There is established in the Treasury a non-interest bearing fund to be known as the ‘Sanctuaries Enforcement Asset Forfeiture Fund’, which shall consist of all sums received as fines, penalties, and forfeitures of property for violations of any provisions of 16 U.S.C. chapter 38, which are currently deposited in the Operations, Research, and Facilities account: Provided, That all unobligated balances that have been collected pursuant to 16 U.S.C. 1437 shall be transferred from the Operations, Research, and Facilities account into the Sanctuaries Enforcement Asset Forfeiture Fund and shall remain available until expended.”

Action Against Vessels and Vessel Owners Engaged in Illegal, Unreported, or Unregulated Fishing

Pub. L. 110–161, div. B, title I, §113, Dec. 26, 2007, 121 Stat. 1896, provided that:

“(a) The Secretary of Commerce may—

“(1) develop, maintain, and make public a list of vessels and vessel owners engaged in illegal, unreported, or unregulated fishing, including vessels or vessel owners identified by an international fishery management organization, whether or not the United States is a party to the agreement establishing such organization; and

“(2) take appropriate action against listed vessels and vessel owners, including action against fish, fish parts, or fish products from such vessels, in accordance with applicable United States law and consistent with applicable international law, including principles, rights, and obligations established in applicable international fishery management and trade agreements.

“(b) Action taken by the Secretary under subsection (a)(2) that include measures to restrict use of or access to ports or port services shall apply to all ports of the United States and its territories.

“(c) The Secretary may promulgate regulations to implement this section.”

Integration of Vessel Monitoring System Data

Pub. L. 109–241, title VIII, §803, July 11, 2006, 120 Stat. 563, provided that: “The Secretary of the department in which the Coast Guard is operating shall integrate vessel monitoring system data into its maritime operations databases for the purpose of improving monitoring and enforcement of Federal fisheries laws and work with the Under Secretary of Commerce for Oceans and Atmosphere to ensure effective use of such data for monitoring and enforcement.”

Agreement To Make More Effective Enforcement of Domestic Laws and International Agreements

Pub. L. 102–582, title II, §202, Nov. 2, 1992, 106 Stat. 4905, provided that not later than six months after Nov. 2, 1992, the Secretary of the department in which the Coast Guard is operating, the Secretary of Commerce, and the Secretary of Defense were to enter into an agreement under subsec. (a) of this section to make more effective the enforcement of domestic laws and international agreements that conserve and manage living marine resources of the United States.

§1861a. Transition to sustainable fisheries

(a) Fisheries disaster relief

(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.

(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

(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—

(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 53735 of title 46.


(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 1 or state 1 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.

(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.

(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.

(6) Report.—

(A) In general.—Subject to the availability of funds, the Secretary shall, within 12 months after January 12, 2007, 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 713c–3(b)(1)(A) of title 15;

(B) appropriated for the purposes of this section;

(C) provided by an industry fee system established under subsection (d) of this section and in accordance with section 53735 of title 46; 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) of this section, shall be paid into the fishing capacity reduction fund established under section 53735 of title 46.

(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 1854(d) of this title 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 53735 of title 46. 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.

(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—

(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 non-performance) 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.

(Pub. L. 94–265, title III, §312, as added Pub. L. 104–297, title I, §116(a), Oct. 11, 1996, 110 Stat. 3600; amended Pub. L. 109–479, title I, §112(a), Jan. 12, 2007, 120 Stat. 3598.)

Codification

In subsecs. (b)(1)(C), (c)(1)(C), (2), and (d)(2), “section 53735 of title 46” substituted for “section 1111 of title XI of the Merchant Marine Act, 1936” on authority of Pub. L. 109–304, §18(c), Oct. 6, 2006, 120 Stat. 1709, which Act enacted section 53735 of Title 46, Shipping.

Prior Provisions

A prior section 312 of Pub. L. 94–265, title III, Apr. 13, 1976, 90 Stat. 359, was set out as an Effective Date note under section 1857 of this title, prior to being amended generally by Pub. L. 104–297.

Amendments

2007—Subsec. (a)(1)(B). Pub. L. 109–479, §112(a)(1), substituted “measures, including regulatory restrictions (including those imposed as a result of judicial action) imposed to protect human health or the marine environment;” for “measures;”.

Subsec. (a)(4). Pub. L. 109–479, §112(a)(2), substituted “2007 through 2013.” for “1996, 1997, 1998, and 1999.”

Subsec. (b)(1). Pub. L. 109–479, §112(a)(3), in introductory provisions, substituted “the Governor of a State for fisheries under State authority, or a majority of permit holders in the fishery, may conduct a voluntary fishing” for “or the Governor of a State for fisheries under State authority, may conduct a fishing”.

Subsec. (b)(1)(B)(i). Pub. L. 109–479, §112(a)(4), inserted “practicable” after “entrants,”.

Subsec. (b)(1)(C). Pub. L. 109–479, §112(a)(5), substituted “cost-effective and, in the instance of a program involving an industry fee system, prospectively” for “cost-effective and”.

Subsec. (b)(2)(A). Pub. L. 109–479, §112(a)(6), added subpar. (A) and struck out former subpar. (A) which read as follows: “the owner of a fishing vessel, if such vessel is (i) scrapped, or (ii) through the Secretary of the department in which the Coast Guard is operating, subjected to title restrictions that permanently prohibit and effectively prevent its use in fishing, and if the permit authorizing the participation of the vessel in the fishery is surrendered for permanent revocation and the owner relinquishes any claim associated with the vessel and permit that could qualify such owner for any present or future limited access system permit in the fishery for which the program is established; or”.

Subsec. (b)(4). Pub. L. 109–479, §112(a)(7), substituted “The harvester proponents of each program and the Secretary shall consult, as appropriate and practicable, with Councils,” for “The Secretary shall consult, as appropriate, with Councils,”.

Subsec. (b)(5), (6). Pub. L. 109–479, §112(a)(8), added pars. (5) and (6).

Subsec. (d)(1)(A). Pub. L. 109–479, §112(a)(9), (10), in introductory provisions, substituted “Secretary” for “Secretary, at the request of the appropriate Council,” before “may conduct” and “Secretary” for “Secretary, in consultation with the Council,” before “shall—”.

Subsec. (d)(1)(B). Pub. L. 109–479, §112(a)(11), substituted “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.” for “a two-thirds majority of the participants voting.”

Subsec. (d)(2)(C). Pub. L. 109–479, §112(a)(12), substituted “establish, unless the Secretary determines that such fees should be collected from the seller;” for “establish;”.

Subsec. (e). Pub. L. 109–479, §112(a)(13), added subsec. (e) and struck out former subsec. (e) which related to implementation plan.

Effective Date

Pub. L. 109–479, title I, §112(b), Jan. 12, 2007, 120 Stat. 3601, provided that: “Sections 116, 203, 204, 205, and 206 of the Sustainable Fisheries Act [Pub. L. 104–297, see Tables for classification] are deemed to have added sections 312, 402, 403, 404, and 405 [16 U.S.C. 1861a, 1881a to 1881d], respectively to the Act [Pub. L. 94–265] as of the date of enactment of the Sustainable Fisheries Act [Oct. 11, 1996].”

Study of Federal Investment in Fisheries

Pub. L. 104–297, title I, §116(b), Oct. 11, 1996, 110 Stat. 3603, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “The Secretary of Commerce shall establish a task force comprised of interested parties to study and report to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Resources [now Committee on Natural Resources] of the House of Representatives within 2 years of the date of enactment of this Act [Oct. 11, 1996] on the role of the Federal Government in—

“(1) subsidizing the expansion and contraction of fishing capacity in fishing fleets managed under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.); and

“(2) otherwise influencing the aggregate capital investments in fisheries.”

1 So in original. Probably should be capitalized.

§1861b. Fisheries enforcement plans and reporting

(a) Fisheries enforcement plans

In preparing the Coast Guard's annual fisheries enforcement plan, the Commandant of the Coast Guard shall consult with the Under Secretary of Commerce for Oceans and Atmosphere and with State and local enforcement authorities.

(b) Fishery patrols

Prior to undertaking fisheries patrols, the Commandant of the Coast Guard shall notify the Under Secretary of Commerce for Oceans and Atmosphere and appropriate State and local enforcement authorities of the projected dates for such patrols.

(c) Annual summary

The Commandant of the Coast Guard shall prepare and make available to the Under Secretary of Commerce for Oceans and Atmosphere, State and local enforcement entities, and other relevant stakeholders, an annual summary report of fisheries enforcement activities for the preceding year, including a summary of the number of patrols, law enforcement actions taken, and resource hours expended.

(Pub. L. 108–293, title II, §224, Aug. 9, 2004, 118 Stat. 1040.)

Codification

Section was enacted as part of the Coast Guard and Maritime Transportation Act of 2004, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

§1862. North Pacific fisheries conservation

(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,1 of fees, which may vary by fishery, management area, or observer coverage level, to pay for the cost of implementing the plan.

(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.


(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;

(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 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 1854(d) of this title; and

(J) meet the requirements of section 9701(b) of title 31.

(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.

(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 this 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.

(f) Bycatch reduction

In implementing section 1853(a)(11) of this title 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.

(g) Bycatch reduction incentives

(1) Notwithstanding section 1854(d) of this title, the North Pacific Council may submit, and the Secretary may approve, consistent with the provisions of this chapter, 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 1853(d) of this title, and in addition to the authority provided in section 1853(b)(10) of this title, 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) of this section 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.

(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 chapter, 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) 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.

(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.

(j) Bering Sea and Aleutian Islands crab rationalization

(1) By not later than January 1, 2005, the Secretary shall approve and hereafter 2 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 chapter, 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 chapter 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 53735 and 53702(b) of title 46.

(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 chapter 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 1857, 1858, and 1859 of this title, and may be revoked or limited at any time in accordance with this chapter. 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 1853 of this title 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 1881a(b)(1) of this title 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 1858, 1860, and 1861 of this title 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 1857(l3 of this title shall apply to any facility owned or controlled by a person holding individual processing quota.

(Pub. L. 94–265, title III, §313, as added Pub. L. 101–627, title I, §118(a), Nov. 28, 1990, 104 Stat. 4457; amended Pub. L. 102–582, title IV, §404, Nov. 2, 1992, 106 Stat. 4909; Pub. L. 104–297, title I, §117(a), Oct. 11, 1996, 110 Stat. 3603; Pub. L. 108–199, div. B, title VIII, §801, Jan. 23, 2004, 118 Stat. 108; Pub. L. 109–479, title II, §214, Jan. 12, 2007, 120 Stat. 3619.)

References in Text

This chapter, referred to in subsecs. (g)(1), (h)(1), and (j)(2), (3), (6), (7), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Hereafter, referred to in subsec. (j)(1), probably means on and after the date of enactment of Pub. L. 108–199, which enacted subsec. (j) of this section and was approved Jan. 23, 2004.

Codification

In subsec. (j)(4), “sections 53735 and 53702(b) of title 46” substituted for “sections 1111 and 1112 of title XI of the Merchant Marine Act, 1936 (46 U.S.C. App. 1279f, 1279g)” on authority of Pub. L. 109–304, §18(c), Oct. 6, 2006, 120 Stat. 1709, which Act enacted sections 53702 and 53735 of Title 46, Shipping.

Amendments

2007—Subsec. (a). Pub. L. 109–479, §214(1), substituted “any fishery under the Council's jurisdiction except a salmon fishery” for “all fisheries under the Council's jurisdiction except salmon fisheries” in introductory provisions.

Subsec. (a)(2). Pub. L. 109–479, §214(2), added par. (2) and struck out former par. (2) which read as follows: “establishes a system of fees to pay for the costs of implementing the plan.”

Subsec. (b)(2)(A). Pub. L. 109–479, §214(3), substituted “observers, or electronic monitoring systems,” for “observers”.

Subsec. (b)(2)(E). Pub. L. 109–479, §214(4), inserted “a fixed amount reflecting actual observer costs as described in subparagraph (A) or” after “expressed as”.

Subsec. (b)(2)(F). Pub. L. 109–479, §214(5), (6), inserted “some or” after “against” and “or an electronic monitoring system” after “observer”.

Subsec. (b)(2)(I), (J). Pub. L. 109–479, §214(7), (8), added subpar. (I) and redesignated former subpar. (I) as (J).

2004—Subsec. (j). Pub. L. 108–199 added subsec. (j).

1996—Pub. L. 104–297, §117(a)(1), substituted “conservation” for “research plan” in section catchline.

Subsec. (a). Pub. L. 104–297, §117(a)(2), substituted “North Pacific Council” for “North Pacific Fishery Management Council” in introductory provisions.

Subsecs. (f) to (i). Pub. L. 104–297, §117(a)(3), added subsecs. (f) to (i).

1992—Subsec. (b)(2)(E). Pub. L. 102–582 substituted “2 percent, of the unprocessed ex-vessel” for “one percentum, of the”.

1 So in original.

2 See References in Text note below.

3 So in original. Probably should be section “1857(1)”.

§1863. Northwest Atlantic Ocean Fisheries Reinvestment Program

(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 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 (1), under the terms and conditions provided in section 713c–3(c) of title 15, 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 chapter 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 713c–3(b) of title 15.

(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.

(Pub. L. 94–265, title III, §314, as added Pub. L. 102–567, title IX, §902(a), Oct. 29, 1992, 106 Stat. 4317; amended Pub. L. 104–297, title I, §117(b), Oct. 11, 1996, 110 Stat. 3604.)

References in Text

This chapter, referred to in subsec. (a)(3), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

The Food, Agriculture, Conservation, and Trade Act of 1990, referred to in subsec. (b), is Pub. L. 101–624, Nov. 28, 1990, 104 Stat. 3359, as amended. For complete classification of this Act to the Code, see Short Title of 1990 Amendment note set out under section 1421 of Title 7, Agriculture, and Tables.

Amendments

1996—Subsec. (a)(4). Pub. L. 104–297 substituted “1999” for “1997”.

1 So in original. Probably should be “paragraph”.

§1864. Regional coastal disaster assistance, transition, and recovery program

(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;

(C) funding, pursuant to the requirements of section 1861a(b) of this title, 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 1861a of this title or section 4107(d) of this title.

(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 1861a(b) of this title to ensure excess capacity does not re-enter the fishery.

(4) No matching required

The Secretary may waive the matching requirements of section 1861a of this title, section 4107 of this title, 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 4107(d)(3) of this title 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 1861a(a) of this title or a fishery resource disaster or section 4107(d) of this title.

(Pub. L. 94–265, title III, §315, as added Pub. L. 109–479, title I, §113(a), Jan. 12, 2007, 120 Stat. 3601.)

Fisheries Hurricane Assistance Program

Pub. L. 109–479, title I, §115, Jan. 12, 2007, 120 Stat. 3604, provided that:

“(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.”

§1865. Bycatch reduction engineering program

(a) Bycatch reduction engineering program

Not later than 1 year after January 12, 2007, 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 chapter;

(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 1 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.

(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.

(Pub. L. 94–265, title III, §316, as added Pub. L. 109–479, title I, §116(a), Jan. 12, 2007, 120 Stat. 3605.)

References in Text

This chapter, referred to in subsec. (a)(2), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Change of Name

Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

1 So in original. Probably should be “of the”.

§1866. Shark feeding

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.

(Pub. L. 94–265, title III, §317, as added Pub. L. 109–479, title I, §119, Jan. 12, 2007, 120 Stat. 3607.)

§1867. Cooperative research and management program

(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 chapter 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:

(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 January 12, 2007, 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.

(Pub. L. 94–265, title III, §318, as added Pub. L. 109–479, title II, §204, Jan. 12, 2007, 120 Stat. 3614.)

References in Text

This chapter, referred to in subsec. (a), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

§1868. Herring study

(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.

(Pub. L. 94–265, title III, §319, as added Pub. L. 109–479, title II, §205, Jan. 12, 2007, 120 Stat. 3615.)

§1869. Restoration study

(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.

(Pub. L. 94–265, title III, §320, as added Pub. L. 109–479, title II, §206, Jan. 12, 2007, 120 Stat. 3615.)

SUBCHAPTER V—FISHERY MONITORING AND RESEARCH

§1881. Registration and information management

(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 chapter, 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

(10) include procedures necessary to ensure—

(A) the confidentiality of information collected under this section in accordance with section 1881a(b) of this title; and

(B) the timely release or availability to the public of information collected under this section consistent with section 1881a(b) of this title.

(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 1 1853(a)(5) of this title or requested by the Council under section 1881a of this title.

(d) Use of registration

Any registration recommended under this section shall not be considered a permit for the purposes of this chapter, 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 chapter.

(e) Public comment

Within one year after October 11, 1996, 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) of this section. 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.

(f) Congressional transmittal

Within 60 days after the end of the comment period and after consideration of comments received under subsection (e) of this section, 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) of this section; and

(3) recommendations for any such additional legislation as the Secretary considers necessary or desirable to implement the proposed system.

(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 January 12, 2007, 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.

(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.

(Pub. L. 94–265, title IV, §401, as added Pub. L. 104–297, title II, §202, Oct. 11, 1996, 110 Stat. 3605; amended Pub. L. 109–479, title II, §201, Jan. 12, 2007, 120 Stat. 3611.)

References in Text

This chapter, referred to in subsecs. (a)(1) and (d), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

The Marine Mammal Protection Act, referred to in subsec. (a)(1), probably means the Marine Mammal Protection Act of 1972, Pub. L. 92–522, Oct. 21, 1972, 86 Stat. 1027, as amended, which is classified generally to chapter 31 (§1361 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1361 of this title and Tables.

Prior Provisions

A prior section 1881, Pub. L. 94–265, title IV, §401, Apr. 13, 1976, 90 Stat. 359, related to authority to amend regulations to conform to Law of the Sea Treaty, prior to repeal by Pub. L. 99–659, title I, §110, Nov. 14, 1986, 100 Stat. 3715.

Amendments

2007—Subsec. (g). Pub. L. 109–479 added subsec. (g) and struck out former subsec. (g) which required a report to Congress.

Change of Name

Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

1 So in original. Probably should be “section”.

§1881a. Information collection

(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.

(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 chapter 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 chapter;

(G) when such information is required to be submitted to the Secretary for any determination under a limited access program; or

(H) in support of homeland and national security activities, including the Coast Guard's homeland security missions as defined in section 468(a)(2) of title 6.


(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 chapter, 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 chapter 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 chapter, 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 chapter or 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.

(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.

(Pub. L. 94–265, title IV, §402, as added Pub. L. 104–297, title II, §203, Oct. 11, 1996, 110 Stat. 3607; amended Pub. L. 109–479, §3(d)(1)(A), title II, §§202, 203(a), Jan. 12, 2007, 120 Stat. 3578, 3612, 3613.)

References in Text

This chapter, referred to in subsecs. (b)(1), (3) and (c)(1), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

The Marine Mammal Protection Act of 1972, referred to in subsec. (c)(1), is Pub. L. 92–522, Oct. 21, 1972, 86 Stat. 1027, as amended, which is classified generally to chapter 31 (§1361 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1361 of this title and Tables.

The Endangered Species Act, referred to in subsec. (c)(1), probably means the Endangered Species Act of 1973, Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, as amended, which is classified generally to chapter 35 (§1531 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of this title and Tables.

Prior Provisions

A prior section 402 of Pub. L. 94–265 repealed former sections 1081 to 1086 and 1091 to 1094 of this title, prior to being amended generally by Pub. L. 104–297.

Amendments

2007—Subsec. (a). Pub. L. 109–479, §202, substituted “Collection programs” for “Council requests” in heading, designated existing provisions as par. (1), inserted heading, realigned margins, in first sentence, struck out “(other than information that would disclose proprietary or confidential commercial or financial information regarding fishing operations or fish processing operations)” after “additional information” and “types of information”, in last sentence, substituted “paragraph” for “subsection”, and added par. (2).

Subsec. (b). Pub. L. 109–479, §203(a)(1), (2), added pars. (1) and (2), redesignated former par. (2) as (3) and realigned margins, and struck out former par. (1) which related to confidentiality of information submitted to the Secretary and exceptions.

Subsec. (b)(1)(D). Pub. L. 109–479, §3(d)(1)(A), substituted “a limited access privilege” for “an individual fishing quota”.

Subsec. (b)(3). Pub. L. 109–479, §203(a)(3), substituted “(2)(A).” for “(1)(E).”

§1881b. Observers

(a) Guidelines for carrying observers

Within one year after October 11, 1996, 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.

(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 chapter 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.).

(Pub. L. 94–265, title IV, §403, as added Pub. L. 104–297, title II, §204, Oct. 11, 1996, 110 Stat. 3609.)

References in Text

This chapter, referred to in subsec. (c), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

The Marine Mammal Protection Act of 1972, referred to in subsec. (c), is Pub. L. 92–522, Oct. 21, 1972, 86 Stat. 1027, as amended, which is classified generally to chapter 31 (§1361 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1361 of this title and Tables.

The Federal Employee Compensation Act, referred to in subsec. (c), is act Sept. 7, 1916, ch. 458, 39 Stat. 742, as amended, which was repealed and the provisions thereof were reenacted as subchapter I (§8101 et seq.) of chapter 81 of Title 5, Government Organization and Employees, by Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 378.

Prior Provisions

A prior section 403 of Pub. L. 94–265 amended sections 1972 and 1973 of Title 22, Foreign Relations and Intercourse, and enacted provisions formerly set out as notes under sections 1972 and 1973 of Title 22, prior to being amended generally by Pub. L. 104–297.

§1881c. Fisheries research

(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 chapter. 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 October 11, 1996, 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) of this section;

(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.

(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.

(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) of this section, 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.

(Pub. L. 94–265, title IV, §404, as added Pub. L. 104–297, title II, §205, Oct. 11, 1996, 110 Stat. 3609; amended Pub. L. 109–479, title II, §203(b), Jan. 12, 2007, 120 Stat. 3614.)

References in Text

This chapter, referred to in subsec. (a), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Prior Provisions

A prior section 404 of Pub. L. 94–265, amended section 1362 of this title and enacted provisions formerly set out as a note under section 1362 of this title, prior to being amended generally by Pub. L. 104–297.

Amendments

2007—Subsec. (c)(4). Pub. L. 109–479 struck out “under section 1881 of this title” after “system”.

Change of Name

Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

Study of Contribution of Bycatch to Charitable Organizations

Section 208 of Pub. L. 104–297, as amended by Pub. L. 104–208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that:

“(a) Study.—The Secretary of Commerce shall conduct a study of the contribution of bycatch to charitable organizations by commercial fishermen. The study shall include determinations of—

“(1) the amount of bycatch that is contributed each year to charitable organizations by commercial fishermen;

“(2) the economic benefits to commercial fishermen from those contributions; and

“(3) the impact on fisheries of the availability of those benefits.

“(b) Report.—Not later than 1 year after the date of enactment of this Act [Oct. 11, 1996], the Secretary of Commerce shall submit to the Congress a report containing determinations made in the study under subsection (a).

“(c) Bycatch Defined.—In this section the term ‘bycatch’ has the meaning given that term in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1802], as amended by section 102 of this Act.”

§1881d. Incidental harvest research

(a) Collection of information

Within nine months after October 11, 1996, 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) of this section 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.

(c) Collection and assessment of specific stock information

For stocks of fish identified pursuant to subsection (b) of this section, 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 October 11, 1996, 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 chapter 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.

(Pub. L. 94–265, title IV, §405, as added Pub. L. 104–297, title II, §206, Oct. 11, 1996, 110 Stat. 3611.)

References in Text

This chapter, referred to in subsec. (f), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Prior Provisions

A prior section 405 of Pub. L. 94–265, amended section 971 of this title and enacted provisions formerly set out as a note under section 971 of this title, prior to being amended generally by Pub. L. 104–297.

Change of Name

Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

§1882. Fisheries systems research

(a) Establishment of panel

Not later than 180 days after October 11, 1996, the Secretary shall establish an advisory panel under this chapter 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) of this section, solicit recommendations from the National Academy of Sciences.

(d) Report

Within 2 years after October 11, 1996, 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 1852(g) of this title.

(f) Regional ecosystem research

(1) Study

Within 180 days after January 12, 2007, 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,1 state,1 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

(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.

(Pub. L. 94–265, title IV, §406, Apr. 13, 1976, 90 Stat. 361; Pub. L. 95–354, §1, Aug. 28, 1978, 92 Stat. 519; Pub. L. 96–61, §1, Aug. 15, 1979, 93 Stat. 407; Pub. L. 97–453, §14(a), Jan. 12, 1983, 96 Stat. 2492; Pub. L. 99–659, title I, §111(a), Nov. 14, 1986, 100 Stat. 3715; Pub. L. 101–627, title I, §119, Nov. 28, 1990, 104 Stat. 4459; Pub. L. 104–297, title II, §207(a), Oct. 11, 1996, 110 Stat. 3612; Pub. L. 109–479, title II, §210, Jan. 12, 2007, 120 Stat. 3617.)

References in Text

This chapter, referred to in subsec. (a), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Codification

October 11, 1996, referred to in subsec. (d), was in the original “the date of enactment of this Act”, which was translated as meaning the date of enactment of Pub. L. 104–297, which amended this section generally, to reflect the probable intent of Congress.

Amendments

2007—Subsec. (f). Pub. L. 109–479 added subsec. (f).

1996—Pub. L. 104–297 amended section catchline and text generally. Prior to amendment, section authorized appropriations to carry out this chapter for fiscal year ending June 30, 1976 to fiscal year ending September 30, 1993.

1990—Pars. (16) to (19). Pub. L. 101–627 added pars. (16) to (19).

1986—Pars. (12) to (15). Pub. L. 99–659 added pars. (12) to (15).

1983—Pars. (9) to (11). Pub. L. 97–453 added pars. (9) to (11).

1979—Pars. (6) to (8). Pub. L. 96–61 added pars. (6) to (8).

1978—Par. (5). Pub. L. 95–354 added par. (5).

1 So in original. Probably should be capitalized.

§1883. Gulf of Mexico red snapper research

(a) Independent peer review

(1) Within 30 days of October 11, 1996, 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 chapter; 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 chapter 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 October 11, 1996.

(b) Prohibition

In addition to the restrictions under section 1853(d)(1)(A) of this title, 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 chapter 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

(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 October 11, 1996, 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.

(Pub. L. 94–265, title IV, §407, as added Pub. L. 104–297, title II, §207(b), Oct. 11, 1996, 110 Stat. 3612; amended Pub. L. 106–554, §1(a)(4) [div. B, title I, §144(a)(3), (4)], Dec. 21, 2000, 114 Stat. 2763, 2763A–238; Pub. L. 109–479, §3(d)(1)(B), Jan. 12, 2007, 120 Stat. 3578.)

References in Text

This chapter, referred to in subsecs. (a)(1)(C), (2)(B) and (b), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

2007—Subsecs. (a)(1)(D), (c)(1). Pub. L. 109–479 substituted “a limited access privilege” for “an individual fishing quota”.

2000—Subsecs. (b), (c)(1). Pub. L. 106–554 substituted “October 1, 2002,” for “October 1, 2000,”.

§1884. Deep sea coral research and technology program

(a) In general

The Secretary, in consultation with appropriate regional fishery management councils and in coordination with other federal 1 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 January 12, 2007, 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.

(Pub. L. 94–265, title IV, §408, as added Pub. L. 109–479, title II, §211, Jan. 12, 2007, 120 Stat. 3618.)

1 So in original. Probably should be capitalized.

SUBCHAPTER VI—MISCELLANEOUS

Codification

This subchapter was enacted as part of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

§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.).

(Pub. L. 109–479, title I, §106(c), Jan. 12, 2007, 120 Stat. 3593.)

References in Text

The Magnuson-Stevens Fishery Conservation and Management Act, referred to in text, is Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Codification

Section was enacted as part of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

§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.

(Pub. L. 109–479, title I, §117, Jan. 12, 2007, 120 Stat. 3606.)

Codification

Section was enacted as part of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

§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

(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 non-profit 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.

(Pub. L. 109–479, title II, §208, Jan. 12, 2007, 120 Stat. 3616.)

References in Text

This Act, referred to in subsecs. (b)(7) and (e), is Pub. L. 109–479, Jan. 12, 2007, 120 Stat. 3575, known as the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006. For complete classification of this Act to the Code, see Short Title of 2007 Amendment note set out under section 1801 of this title and Tables.

The Magnuson-Stevens Fishery Conservation and Management Act, referred to in subsecs. (b)(7), (c)(1), and (e), is Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Codification

Section was enacted as part of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

§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.

(Pub. L. 109–479, title IV, §407, Jan. 12, 2007, 120 Stat. 3634.)

Codification

Section was enacted as part of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

§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.

(Pub. L. 109–479, title IV, §408, Jan. 12, 2007, 120 Stat. 3634.)

Codification

Section was enacted as part of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, and not as part of the Magnuson-Stevens Fishery Conservation and Management Act which comprises this chapter.

Change of Name

Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.