[Senate Report 109-229]
[From the U.S. Government Publishing Office]
109th Congress
2nd Session SENATE Report
109-229
_______________________________________________________________________
Calendar No. 389
MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT REAUTHORIZATION
ACT OF 2005
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 2012
DATE deg.April 4, 2006.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred ninth congress
second session
TED STEVENS, Alaska, Chairman
DANIEL K. INOUYE, Hawaii, Co-Chairman
JOHN McCAIN, Arizona JOHN D. ROCKEFELLER IV, West
CONRAD BURNS, Montana Virginia
TRENT LOTT, Mississippi JOHN F. KERRY, Massachusetts
KAY BAILEY HUTCHISON, Texas BYRON L. DORGAN, North Dakota
OLYMPIA J. SNOWE, Maine BARBARA BOXER, California
GORDON H. SMITH, Oregon BILL NELSON, Florida
JOHN ENSIGN, Nevada MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire E. BENJAMIN NELSON, Nebraska
JIM DEMINT, South Carolina MARK PRYOR, Arkansas
DAVID VITTER, Louisiana
Lisa Sutherland, Staff Director
Christine Drager Kurth, Deputy Staff Director
Kenneth Nahigian, Chief Counsel
Margaret Cummisky, Democratic Staff Director and Chief Counsel
Samuel Whitehorn, Democratic Deputy Staff Director and General Counsel
Calendar No. 389
109th Congress Report
SENATE
2d Session 109-229
======================================================================
MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT REAUTHORIZATION
ACT OF 2005
_______
April 4, 2006.--Ordered to be printed
_______
Mr. Stevens, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 2012]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 2012) to authorize
appropriations to the Secretary of Commerce for the Magnuson-
Stevens Fishery Conservation and Management Act for fiscal
years 2006 through 2012, and for other purposes, having
considered the same, reports favorably thereon with an
amendment (in the nature of a substitute) and recommends that
the bill joint resolution deg. (as amended) do pass.
Purpose of the Bill
The purpose of S. 2012 is to reauthorize the Magnuson-Stevens
Fishery and Conservation and Management Act (16 U.S.C. 1801 et
seq.) (Magnuson-Stevens Act). In particular, S. 2012 would
amend the Magnuson-Stevens Act to: (1) improve the regional
fishery management council decision-making process, including
strengthening the role science plays in management decisions,
(2) provide consistency in the environmental review process,
(3) establish national criteria for quota-based programs
(limited access privilege programs), (4) strengthen fisheries
enforcement, (5) improve the sustainability of fishing
practices, and (6) strengthen compliance authorities for
international fisheries management. S. 2012 would authorize
appropriations of $328 million for fiscal year (FY) 2006 and
such sums as necessary for FYs 2007 through 2012 to carry out
the purposes of the Magnuson-Stevens Act. S. 2012 also contains
provisions to combat illegal, unreported, and unregulated
fishing and other unsustainable high seas fishing activities,
and the bill would reauthorize and amend several other relevant
fishery statutes, and it contains implementing legislation for
two international fisheries treaties.
Background and Needs
The exclusive ocean jurisdiction of the United States is
larger than its combined land mass, and the fishery resources
managed in this vast marine environment are an important
national asset. At the end of 2004, our nation's commercial
fisheries were valued at more than $31.6 billion, and saltwater
recreational fishing generated an additional $30.5 billion in
sales. In that year, the United States landed over 9.6 billion
pounds of fish and shellfish. According to the United Nations
Food and Agriculture Organization, Americans rank as the third
largest consumer of seafood in the world. In 2004, the United
States consumed 4.8 billion pounds of seafood, up to 16.6
pounds per person annually, and generated $61.9 billion in
consumer expenditures. While the U.S. is one of the world's
largest seafood exporters ($3.7 billion in 2004), the nation
imports over 80 percent of domestically consumed seafood.
Currently, the largest offshore fishery in terms of volume
landed is walleye pollock, with 3.4 billion pounds in 2004. By
value, the leading U.S. fisheries in 2004 were: crab, at $447.9
million; shrimp, at $425.6 million; lobster, at $344.1 million;
and scallops, at $322.1 million.
MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT
The enactment of the Fishery Conservation and Management Act
of 1976 (P.L. 94-265) ushered in a new era of marine fishery
management for the United States by establishing a national
framework for conserving and managing marine fisheries within a
200-mile wide zone contiguous to the United States. Authority
to develop and recommend management measures in specific
regions was divided among eight regional fishery management
councils (Councils). The 1996 Sustainable Fisheries Act (SFA)
(P.L. 104-297) substantially amended the legislation, which was
renamed the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act), to improve conservation
and management, and assist fishing communities in adapting to
the ensuing changes. The authorization of appropriations for
SFA expired in 1999.
The Councils established under the Magnuson-Stevens Act are
the New England Council, Mid-Atlantic Council, South Atlantic
Council, Caribbean Council, Gulf of Mexico Council, Pacific
Council, North Pacific Council, and Western Pacific Council.
Each Council is comprised of industry, recreational,
governmental, and some non-affiliated representatives (e.g.,
scientists) and each has authority over the fisheries seaward
of the States comprising the region for which it has
responsibility. The voting members of each Council include the
regional fisheries director of the National Oceanic and
Atmospheric Administration (NOAA), the chief fishery official
from each State, and between four and twelve individuals with
fishery expertise. The primary responsibility of each Council
is to develop fishery management plans (FMPs) for important
fishery resources. Each plan must be consistent with the ten
national standards established under the Magnuson-Stevens Act,
including a requirement that the plan prevent overfishing. An
environmental assessment or impact statement is prepared for
every FMP, which is then subject to public hearings.
The Secretary of Commerce (Secretary), through NOAA's
National Marine Fisheries Service (NMFS), administers the
Magnuson-Stevens Act and reviews, approves (or disapproves),
and implements each FMP prepared by a Council. The Secretary
must report annually on the health of marine fisheries and
identify fisheries that either are overfished, or approaching
an overfished condition. For fisheries identified as either
overfished, or approaching an overfished condition, the
appropriate Council is given one year to develop a plan to stop
overfishing and rebuild the fishery, and the Secretary is
required to intervene if either the Council fails to act or a
Council-prepared plan is inconsistent with the national
standards. While a rebuilding plan is being formulated, the
Council and Secretary can impose interim or emergency
restrictions to reduce overfishing. In addition, the Secretary
is responsible for the development of plans for wide-ranging
Atlantic fish species like tuna and swordfish, also known as
``highly migratory species.'' Fisheries law enforcement is the
joint responsibility of the Secretary and the Secretary of the
department in which the Coast Guard is operating.
RECOMMENDATIONS OF THE U.S. COMMISSION ON OCEAN POLICY
The U.S. Commission on Ocean Policy (U.S. Ocean Commission),
established pursuant to the Oceans Act of 2000 (P.L. 106-256),
submitted its final report to Congress in September 2004. This
comprehensive evaluation of U.S. ocean policy, the first in
over 30 years, provided important recommendations for the
reauthorization of the Magnuson-Stevens Act. While the
Commission found that the existing Federal system for managing
the nation's fisheries provided a solid foundation, it
suggested a number of improvements. The following major
recommendations of the Commission for the reauthorization of
the Magnuson-Stevens Act were a catalyst for moving the
legislation forward and were incorporated in S. 2012:
Require the Councils to make management
decisions based on the findings of their scientific and
statistical committees (SSCs).
Require nominees to the SSCs to be
individuals with strong technical credentials and
experience, selected from Federal, State, or academia.
Require each Council to set harvest limits
at or below the allowable biological catch determined
by its SSC.
Develop a process for independent peer
review of scientific information provided by the SSCs
to the Councils.
Require all saltwater fishermen to obtain
licenses to better assess the impacts that recreational
fishing has on fisheries, and improve collection of
data.
Require newly appointed Council members to
complete a training course within six months of their
appointment covering a variety of topics relevant to
preparing and better understanding fishery management.
Affirm that fish managers can use dedicated
access privileges (e.g., limited access privilege
programs), including community quotas, cooperatives,
and geographically based programs.
Provide national guidelines for dedicated
access privileges that allow for regional flexibility
in implementation and consider the biological, social,
and economic goals of the plan; provide for periodic
review; include measures to prevent excessive share
consolidation; and be adopted only after adequate
public discussion and consultation with all affected
stakeholders.
Take steps to reduce the overcapitalization
of fisheries.
Expand NMFS' use of joint enforcement
agreements to implement cooperative fisheries
enforcement programs with State agencies.
Move the management of fisheries towards an
ecosystem approach, considering the health of non-
commercial resources, and non-fishing impacts on fish
stocks, such as pollution.
Pursue, enforce, and implement international
fishing agreements.
Continue to press for inclusion of
environmental objectives as legitimate elements of
trade policy, which can play an important role in
marine conservation.
Many of these recommendations were supported by the
Department of Commerce, which either began implementation or
included them in its proposed reauthorization legislation. Even
where the recommendations could be achieved under existing
Magnuson-Stevens Act authority, such as ecosystem
considerations and joint enforcement agreements, the Committee
has included language in S. 2012 to signal its support for
their continued implementation. Explanations of these
provisions appear below and in the section-by-section
description of the bill.
OTHER AUTHORIZATIONS
ATLANTIC STRIPED BASS CONSERVATION ACT
Congress passed the Atlantic Striped Bass Conservation Act
(P.L. 98-613) in 1984 in response to the critical decline of
Atlantic striped bass, an important commercial and recreational
species in the northeast. It granted oversight authority to the
Atlantic States Marine Fisheries Commission (ASMFC) and
required the Secretary of Commerce to institute a moratorium on
striped bass fishing in any State that failed to comply with
the ASMFC's plan for striped bass. The Atlantic Striped Bass
Conservation Act has been amended several times, clarifying
management and enforcement authorities and reauthorizing
appropriations. Appropriations have been divided between the
Secretaries of Commerce and Interior who share responsibility
for oversight of the ASMFC's striped bass management. S. 2012
would further reauthorize appropriations of $1 million to the
Secretary of Commerce and $250,000 to the Secretary of the
Interior for each of FYs 2006 through 2010.
YUKON RIVER SALMON ACT OF 2000
The Yukon River Salmon Act of 2000 (P.L. 106-450) amended
language in the Fisheries Act of 1995 (P.L. 104-43) that
created the U.S. section of the Yukon River Salmon Panel. The
panel advises the Secretary of State in matters relating to
international management of the salmon population in the Yukon
River, which has its source in Canada, transverses Alaska, and
empties into the Bering Strait. The Yukon River Salmon Act also
authorized $4 million in appropriations for each of FYs 2000
through 2003. S. 2012 would extend the current authorizations
of appropriations through 2010.
SHARK FINNING PROHIBITION ACT
In 2000, Congress passed the Shark Finning Prohibition Act
(P.L. 106-557) in an attempt to curtail the practice of shark
finning in U.S. fisheries. Shark finning involves catching a
shark, removing the fins, and discarding the carcass at sea.
The Shark Finning Prohibition Act also prohibits processing or
landing a shark fin without the corresponding carcass. It
further requires the Secretary to initiate discussions and
agreements with other nations to expand shark finning
prohibition efforts in order to ensure protection for highly
migratory shark species. S. 2012 would reinstate and extend the
authorization of this Act from FYs 2006 through 2010.
PACIFIC SALMON TREATY ACT
In an effort to improve cooperation in the management and
enhancement of transboundary Pacific salmon stocks, the U.S.
and Canada signed the Pacific Salmon Treaty (Treaty) in 1985.
The same year, Congress passed the Pacific Salmon Treaty Act
(PSTA) (P.L. 99-5) to: (1) establish the U.S. delegation to the
Pacific Salmon Commission as directed by the Treaty and (2)
clarify matters of jurisdiction, enforcement, adoption of
regulations, and authorization of appropriations under the
Treaty. Subsequent appropriations have been divided between the
Northern Boundary and Transboundary Rivers Restoration and
Enhancement Fund (Northern Fund) and the Southern Boundary
Restoration and Enhancement Fund (Southern Fund). S. 2012 would
insert language authorizing the Northern and Southern Funds and
provide guidelines for fund administration, and it would make a
technical correction clarifying the proper location of previous
appropriations language. S. 2012 also would reauthorize the
PSTA from 2006 through 2009.
STATE AUTHORITY FOR DUNGENESS CRAB FISHERY MANAGEMENT
In 1996 the SFA granted the States of California, Oregon, and
Washington interim authority through September 30, 1999, to
manage the Dungeness crab fishery out to the 200-mile limit of
the exclusive economic zone (EEZ) until a Federal plan
developed by the Pacific Council is approved by the Secretary.
The SFA also required the Pacific States Marine Fisheries
Commission (PSMFC) to submit a report to Congress detailing the
``health and management'' of the fishery. In 1997, the PSFMC
recommended to Congress that the States' interim authority be
continued until Federal management offered better management
options with no time limit. The PSMFC concurred in 1998 and
Congress responded by extending the sunset clause on States'
authority through September 30, 2001, and again through
September 30, 2006. In 2005, the Council reaffirmed its
position that State management is adequate, the PSMFC role in
facilitating the tri-State effort is working well, management
measures are preventing overfishing, and that the status quo be
retained for the time being. The PSMFC requested a ten-year
extension. S. 2012 would respond by making two changes to this
existing legislation: (1) extend the States' interim authority
through September 30, 2016 and (2) change the description of
the report to be issued by the PSFMC to ``status and
management'' of the fishery, and specify additional criteria to
be included in that report. Such criteria shall include
descriptions of stock status and trends, a description of the
research and reviews used to determine such trends, and
measures being implemented to prevent over-exploitation of the
Dungeness crab fishery.
Summary of Provisions
S. 2012 includes provisions to improve the effectiveness of
the Magnuson-Stevens Act and strengthen fishery conservation
and management both domestically and internationally. Some of
the more substantive changes contained in S. 2012 include: (1)
a new requirement for Councils to establish an annual catch
limit capped at optimal yield (OY) for each of its managed
fisheries, and to ensure any overages are deducted from the
following year's annual limit, (2) a provision to strengthen
the process for SSCs to provide scientific advice to Councils,
(3) the development of a environmental review process that
integrates and conforms the environmental impact assessment
requirements of both the Magnuson-Stevens Act and the National
Environmental Policy Act (NEPA) into one consistent and
predictable review process for fishery management, (4) national
criteria for quota programs (known as ``limited access
privilege programs''), including quota programs for fishing
communities and RFAs, (5) a program to develop and engineer new
technological devices to reduce bycatch and mortality
associated with bycatch, (6) incentives for increased U.S.
ownership of shoreside fishery-related infrastructure, and (7)
strengthened controls on illegal, unreported, and unregulated
fishing that also would require other nations to provide
comparable protections to populations of living marine
resources at risk from high seas fishing activities.
Several provisions in S. 2012 received considerable attention
and generated important discussion over the last year and merit
additional comment below.
OVERFISHING AND ANNUAL CATCH LIMITS
The SFA established new requirements in the Magnuson-Stevens
Act designed to prevent overfishing and rebuild overfished or
depleted fisheries. The SFA attempted to address overfishing by
capping fish harvests at maximum sustainable yield (MSY) and
requiring FMPs to include measures to rebuild overfished
stocks. However, recent evaluations of stock status have shown
that ten years after enactment of the SFA, overfishing is still
occurring in a number of fisheries, even those fisheries under
a rebuilding plan established early in the SFA implementation
process.
Establishing a scientifically-based total allowable catch
(TAC) for each managed fishery was a unanimous recommendation
from all of the Council chairs, a recommendation of the
Managing Our Nation's Fisheries Conference II final report, and
a recommendation of the U.S. Ocean Commission. Requiring
routine adherence to an annual catch limit or TAC is a well-
known management approach that has been utilized effectively by
several Councils, but failure to adopt this technique more
broadly has contributed to continued overfishing. Many
commercial and recreational fisheries do not use TACs, opting
instead to use effort controls that allow catch to be spread
out among a variety of vessel sizes and gear types. TACs, when
coupled with sector-based management, can end the race for fish
and prevent impacts on communities and specific gear types
while providing a more efficient method of adhering to
mortality limits. Nevertheless, some regions argued that with
proper accountability safeguards, effort controls could achieve
the same results with less disruption to the fishery. However,
the Committee concluded that explicit direction is needed to
ensure accountability in all regions. After numerous meetings
and discussions with the Councils, industry, and conservation
groups, the Committee determined that, to ensure compliance
with the 1996 amendments, S. 2012 needed to require that: (1)
scientifically established annual catch limits be set and
adhered to in each managed fishery, and (2) any catch in excess
of that limit (overages) should be deducted from the following
year's catch limit through appropriate management measures.
As a result, section 104 of the bill would require each FMP
to contain a mechanism to establish an annual catch limit at or
below OY, which the Magnuson-Stevens Act defines as being
capped at MSY. In addition, the section would require that any
overages be deducted from the following year's catch and such a
deduction may employ the types of control measures used in that
fishery, which could include TACs or effort controls. Section
103(b) would require the SSCs to provide recommendations for
the Council to consider in establishing the annual catch
limits. The Committee intends that these annual catch limits,
taken with the existing overfishing and rebuilding authorities,
will ensure full compliance with the Magnuson-Stevens Act,
thereby producing better data collection on the abundance of
the stocks and eventually providing real time catch figures--
information that will help achieve greater accountability in
fishery management. The intent of this provision is not only to
prevent overfishing from occurring, but also to drive
improvements in fishery data collection and research to develop
a more precise assessment of the amount of fish that can be
caught without exceeding OY. Such improvements are likely to
increase the reliability of management measures to keep
mortality within sustainable levels. A two-year phase-in of the
annual catch limit requirement is provided to allow adequate
transition time for fisheries not currently managed under catch
limits and to allow for adjustments as new plans and amendments
are developed by each Council.
INCREASING THE ROLE OF SCIENCE IN DECISION-MAKING
The bill's catch limit provision works in concert with a
number of provisions in the bill that respond to calls for
strengthening the role of science in Council decision-making.
First, section 103 of the bill specifies that the role of the
SSCs would be to provide their Councils with the ongoing
scientific advice they require in order to make management
decisions, including development of mortality limits. Such a
role is intended to ensure closer integration of scientific
advice into management decisions nationwide. The SSCs also are
expected to advise the Councils on a variety of other issues,
including stock status and health, bycatch, habitat status, and
socio-economic impacts. The bill would require that SSC
appointees be Federal, State, academic, or independent experts
with strong scientific or technical credentials and experience,
and it would allow for stipends for SSC members not employed by
a government agency. Second, as noted above, section 104 of the
bill would mandate the annual catch limit be set at or below
the OY of the fishery, based on the best available scientific
information, and section 103 would direct the Councils to
consult with its SSCs, or other appropriate scientific body, in
setting such catch limits. Finally, sections 201 and 204
contain provisions intended to improve scientific and economic
data collection in both commercial and recreational fisheries,
including through cooperative research.
COUNCIL PROCESS REFORMS
The bill includes provisions based on both the Department of
Commerce bill and expert reports that respond to calls for
improving the efficiency, integrity, and expertise of the
Council process. Section 103 of the bill would establish a
Council training program open to both new and existing Council
members designed to prepare members for complying with the
legal, scientific, economic, and conflict of interest
requirements applicable to the fishery management process. The
bill also strengthens and clarifies the Magnuson-Stevens Act's
conflict of interest and recusal requirements to ensure that
all potential financial conflicts of interest are disclosed and
made easily accessible for public review.
Sections 103 and 107 of the bill incorporate provisions
designed to improve the speed and uniformity of decision-
making. Section 103 would authorize the establishment of a
Coordinating Committee comprised of Council chairs, vice
chairs, and executive directors as a forum to discuss issues
relevant to all Councils. In addition, section 107 would direct
the Secretary, with public participation and in consultation
with the Council on Environmental Quality (CEQ) and the
Councils, to develop one uniform, fishery management-specific
environmental review process that conforms the National
Environmental Policy Act (NEPA) review, analysis, and public
input schedules to the timelines appropriate for fishery
management decisions under the Magnuson-Stevens Act. The intent
is not to exempt the Magnuson-Stevens Act from NEPA or any of
its substantive environmental protections, including those in
existing regulation, but to establish one consistent, timely,
and predictable regulatory process for fishery management
decisions. The Committee understands that it is not uncommon
for Councils and NMFS to spend several years developing and
reviewing NEPA analyses for FMPs. The Committee intends section
107 to streamline this environmental review process in the
context of fishery management.
NATIONAL GUIDELINES FOR LIMITED ACCESS PRIVILEGE PROGRAMS
Section 106 of the bill would establish national guidelines
for limited access privilege programs (LAPPs) for the
harvesting of fish. These include individual fishing quotas
(IFQs), but are expanded to allow allocation of harvesting
privileges to fishing communities and creation of voluntary
regional fishery associations (RFAs), in order to ensure
inclusion of small vessel or entry-level participants,
communities, and affected non-harvesters, such as processors,
in any plan to rationalize a fishery. Only fisheries that have
been operating under a limited access system for at least one
year would be eligible for consideration for a LAPP. As for any
FMP, LAPPs would be developed by Councils under national
criteria, and subject to Secretarial approval, an approach that
balances the benefits of regional flexibility with the need for
a national policy. The bill would provide for a five-year
administrative review of each program's compliance with the
goals of the program and the Magnuson-Stevens Act.
The Committee incorporated criteria in S. 2012 that would
allow Councils to balance many of the concerns fishermen, crew,
communities, conservation groups, and other interests have had
over the potential impacts of quota or rationalization
programs. Many of these issues were highlighted in the 1999
report of the National Research Council, as well as in
subsequent Committee hearings and expert reports, such as the
report of the U.S. Ocean Commission. These include requirements
regarding eligibility to hold shares, fairness in initial
allocation, excessive share caps, consideration of the needs of
entry-level and small-vessel fishermen, maintaining the
participation of owner-operated fishing vessels, consideration
of crew, prevention of consolidation, and the need to establish
policies on transferability, auctions, and cost recovery.
The bill would address concerns raised by harvesters,
processors, crew, communities, and related businesses about
impacts of harvester quota programs in a region or community,
including quota consolidation or transfer out of the region, by
allowing them to participate in RFAs. Coastal communities
dependent on fishery resources crossing their docks and the
associated taxes and jobs from related shoreside businesses,
have raised concerns that quota programs reward the ``actual
participants'' but ignore the community and next-generation
fishermen who were not part of the initial allocation and could
be forever priced out of the fishery. RFAs are intended to
mitigate such impacts by providing a means of designation or
``linking'' harvesting LAPPs to a region or a community, which
will ensure continued participation of harvesters, processors,
and other community interests dependent on the fishery.
Processors would be eligible to hold LAPPs to harvest fish to
the same extent as permitted under current law, as determined
in the Council allocation process. The bill also would provide
communities with the opportunity to be issued and hold LAPP
quota.
IMPROVING FISHERIES ENFORCEMENT
In response to recommendations by both the U.S. Ocean
Commission and the Department of Commerce, the bill contains
provisions to strengthen enforcement authorities and increase
penalties for violations, consistent with authorities provided
under other legislation. In addition, the bill would authorize
the establishment of joint enforcement agreements under which
the Secretary would deputize and provide Federal funding for
State law enforcement officials to carry out any of the
Secretary's marine law enforcement responsibilities, including
those contained within the Magnuson-Stevens Act.
IMPROVING SUSTAINABILITY OF FISHING PRACTICES
While there has been progress in reducing overfishing after
enactment of the SFA, bycatch reduction remains an important
goal of the Magnuson-Stevens Act and one that could benefit
from greater gear engineering research and deployment. Section
117 of the bill would establish a bycatch reduction engineering
program dedicated to the development of technologies and
methods to improve the ability of fishery participants to
reduce bycatch and associated mortality. Such technologies
should be developed in collaboration with outside experts as
well as industry participants. The provision includes an
outreach mandate to facilitate use of new technologies, and
also encourages the adoption of bycatch reduction incentives in
FMPs, such as bycatch quotas.
In addition, the bill would make changes to address
overcapacity in certain fisheries, which can also contribute to
unsustainable practices. Federal funding for capacity reduction
has declined in recent years, but voluntary capacity reduction
programs can be financed by a long-term Federal loan that may
be reimbursed by landing fees paid by those remaining in the
fishery. Section 113 would establish streamlined procedures for
such voluntary capacity reduction programs, as agreed to by
industry participants, under framework regulations. The bill
would retain all aspects of existing section 312(b) regarding
requirements that any vessel removed through the program must
either be scrapped or prohibited from fishing; and the program
ensures that no new capacity be allowed to re-enter the
fishery. Section 209 of the bill would amend existing loan
programs and construction accounts to assist in these
transitions.
In response to the recent series of fishery disasters around
the country, from hurricanes Katrina and Rita to losses from
harmful algal blooms, section 114 of the bill also would
establish an authority for a multi-State or catastrophic
fishery disaster program. The program would link disaster
assistance under current section 312(a) and the capacity
reduction standards of section 312(b) with an economic fishery
recovery plan that also would consider shoreside and coastal
restoration needs. Such a plan would be developed in
coordination with the affected States and implemented by the
Secretary.
ECOSYSTEM CONSIDERATIONS IN FISHERY MANAGEMENT
The U.S. Ocean Commission recommended that ecosystem
considerations guide management of all marine resources,
including fisheries. A number of the Councils have already
demonstrated progress in implementing ecosystem approaches to
fisheries management using existing Magnuson-Stevens Act
authorities. In recognition of these achievements, and to
clarify existing statutory authority to incorporate ecosystem
considerations in FMPs, section 105 includes a provision that
would expressly authorize FMPs to contain management measures
for the conservation of non-target species and habitat. This
approach should involve multiple and diverse stakeholders in
the decision-making process and should be pursued and improved
through an iterative process in which Councils will learn from
both successes and failures.
Continued progress in this area will require improved
scientific understanding of ecological processes in each
fishery management region, as well as better coordination among
State and Federal agencies responsible for marine resource
science and management, academic and research institutions,
fishery participants, and other interested and knowledgeable
entities. Section 210 of the bill therefore would direct the
Secretary to undertake a study based on the recommendations of
the Ecosystem Principles Advisory Panel established under the
SFA. The study is to report on the state of the science for
advancing the concepts and integration of ecosystems
considerations in regional fishery management and should
provide a roadmap to Councils for increasing the sophistication
and integration of ecosystem considerations in fishery
management.
DESIGNATION OF DEEP SEA CORALS
Scientists and managers have recently begun to gain an
appreciation for the important role that deep, cold water,
coral communities play in regional ecosystems. In recognition
of deep sea coral communities' intrinsic value, section 105 of
the bill would authorize Councils to restrict the use of
destructive gear types within known areas of deep sea coral
habitat. This provision is meant to promote a proactive
approach by the Councils towards the protection of deep sea
corals that also will focus on preventing gear loss and damage.
Section 105 of the bill would authorize discretionary measures
to mitigate effects of certain destructive fishing practices on
deep sea coral habitats in their FMPs, but the measures do not
need to be linked to a determination that the corals comprise
essential fish habitat for the relevant fishery. In addition,
the language for designating deep sea corals in Section 105
would allow for the consideration of sustainable uses of
fishery resources in such areas before restrictions on fishing
and access are put in place.
Section 211 of the bill would provide a complementary deep
sea coral research and technology program to the coral
protection provision included in Section 105. The research and
technology program is meant to conduct basic research, and
provide Councils with information on the location of deep sea
coral habitat and on any ongoing or planned human activity that
could affect such habitat.
STRENGTHENING U.S. LEADERSHIP IN INTERNATIONAL CONSERVATION AND
MANAGEMENT
The U.S. regulatory regime for fisheries management is widely
regarded as one of the most stringent in the world. Sections
401 through 403 contain provisions designed to strengthen the
ability of international fishery management organizations, and
the United States, to ensure appropriate enforcement and
compliance with conservation and management measures in high
seas fisheries. As the Committee heard at a hearing in 2003,
illegal, unreported, and unregulated (IUU) fishing, expanding
fleets, and high bycatch levels, are threats to sustainable
fisheries worldwide. There are few effective tools in place to
ensure international and regional management organizations can
end these practices. These trends have continued under existing
law.
S. 2012 would create a new section 207 of the Magnuson-
Stevens Act that would establish an international compliance
and monitoring program, and contains provisions to help reduce
IUU fishing, promote international cooperation, and strengthen
the ability of regional fishery management organizations to
combat IUU fishing and other harmful fishing practices. The
bill would direct the Secretary to define IUU fishing but, to
ensure the provision covers enforcement gaps identified by the
Committee, it would specify that the definition must include
violations of quotas or other rules established under a
regional or international agreement, as well as overfishing or
use of certain damaging gear in high seas areas where there is
no international or regional conservation and management
regime.
In the case where regional or international fishery
management organizations or the nation in question are unable
to stop IUU fishing, the bill would allow for the use of
measures authorized under the High Seas Driftnet Fisheries
Enforcement Act (P.L. 102-582) to enforce compliance, but to
ensure fairness puts in place procedures to end such measures
on a national or vessel-specific basis if IUU fishing ceases.
The bill would provide a parallel mechanism to encourage use of
new bycatch reduction methods comparable to methods used by
U.S. fishermen in high seas fisheries, for protection of
certain vulnerable species of concern to the United States,
such as endangered sea turtles. The Secretary and the Secretary
of State are would be encouraged to provide assistance to
nations or organizations in development and adoption of such
gear and appropriate fish harvesting plans.
The bill also contains implementing legislation for two
treaties that have received the advice and consent of the
Senate: (1) the Western and Central Pacific Fisheries
Convention--a treaty to establish the first regional management
regime for highly migratory species in the Central and Western
Pacific, and (2) the Pacific Whiting Treaty, to establish an
international scientific and management regime for Pacific
whiting.
FUNDING
The bill would authorize $328 million for the implementation
of activities under the Magnuson-Stevens Act, as revised, in FY
2006, which is the authorization level the Department of
Commerce recommended in its Magnuson-Stevens reauthorization
proposal. Funds required for full implementation of S. 2012 are
not yet known, and thus the bill would authorize such sums as
are necessary for FYs 2007 through 2012. In FY 2005, Congress
provided NOAA with $311 million for Magnuson-Stevens related
activities, and many expert groups have identified the need for
increased funds to address emerging science and management
needs under current Magnuson-Stevens Act requirements.
For example, the U.S. Ocean Commission estimated annual
additional costs for fisheries management over existing levels
at approximately $90 million. None of these amounts include
estimates for capacity reduction, disaster funding or
international measures included in S.2012. NMFS has estimated
that capacity reduction needs in five major U.S. fisheries
alone may total $1 billion. The importance of taking a
realistic look at budget needs was underscored in a 2002 report
by the National Academy of Public Administration, Courts,
Congress, and Constituencies: Managing Fisheries by Default,
which chronicled the science and management impacts of under-
funding the requirements of the 1996 amendments, and made
recommendations for budget and planning changes at NMFS. It
also noted that correct agency budgets could not support a
sustained ecosystem-based management system, which could
require as much as $340 million more than FY 2000 levels.
In order to address the growing need for additional funding
for fisheries technology, science, and related information, the
bill includes a provision that would establish a new Fisheries
Conservation and Management Fund. This fund is intended to
respond to the recommendation by the U.S. Ocean Commission for
dedicated funding for ocean-related needs, but establishes a
fishery management-specific fund, patterned on the Wallop-
Breaux Trust Fund ``user pays, user benefits'' model. Section
208 would provide that allocations from the fund would be
determined in consultation with the Councils, and would be for
specific activities not funded under current law, including
technology upgrades, cooperative research, gear buybacks and
development, and sustainable seafood marketing and handling
activities. Money to be deposited in the fund would include any
quota set-asides designated by a Council, targeted
appropriations, and donated funds.
Legislative History
The Magnuson-Stevens Act was last reauthorized in 1996
(Public Law 104-297) providing authorization of appropriations
through FY 1999. The Committee has held numerous hearings on
the reauthorization of the Magnuson-Stevens Act since its
authorization expired. The provisions contained in S. 2012
reflect some of those earlier discussions. In addition,
Chairman Stevens and Co-Chairman Inouye held several listening
sessions with a variety of constituents during 2005 to provide
Committee members and staff an informal forum for open dialogue
on the many complex, and sometimes divisive, issues facing this
process.
On February 17, 2005, a listening session for Committee
members and staff was held with the Chairmen and Executive
Directors of all eight Councils, focusing on issues such as
reconciling the similar requirements of NEPA and the Magnuson-
Stevens Act in development of FMPs, and ongoing Council work on
ecosystem-based fishery management. A listening session held
with national environmental groups on April 12, 2005, provided
an important discussion on Council reforms, the need to end
overfishing and rebuild stocks, and the growing problem of
illegal, unreported and unregulated fishing on the high seas.
On May 19, 2005, commercial fishing industry groups provided
recommendations at a listening session that focused on
standards for quota programs that allow for sustained
participation of coastal communities in the fishery and the
ability for the fishing industry to grow in the global seafood
market.
On August 4, 2005, the Chairman and Co-Chairman released a
discussion draft of S. 2012 for comment. This draft was based
on the Department of Commerce's reauthorization proposal,
listening sessions, and the recommendations contained in the
following expert reports and documents: the Reports of the U.S.
Commission on Ocean Policy and Pew Ocean Commission, consensus
positions of the Council chairs, the Managing Our Fisheries II
Conference Report (2004), and Sharing The Fish: Toward a
National Policy on Individual Fishing Quotas (National Research
Council, 1999). Numerous groups provided specific expertise for
the development of the bill, including the Department of
Commerce, the Councils, State fishery managers, industry
(fishermen, processors, and suppliers), environmental groups,
sportsmen and recreational groups, and members of the U.S.
Commission on Ocean Policy.
During the month of August, Committee staff met with all
sectors of the fishing industry, States, conservation and other
interest groups, concerned individuals, the Department of
Commerce, and Members' staff to discuss any potential questions
or issues with the draft bill or recommendations on its
improvement. Over 700 comments were received, read,
categorized, and evaluated by Committee staff for consideration
by Senators Stevens and Inouye for inclusion in the introduced
bill.
S. 2012 was introduced in the Senate on November 15, 2005, by
Senators Stevens and Inouye and was cosponsored at that time by
Senators Snowe, Cantwell, Vitter, and Boxer. The bill was
referred to the Senate Committee on Commerce, Science, and
Transportation. On November 16, 2005, the Committee held a full
Committee hearing on S. 2012, which received broad support from
Committee members, with eleven cosponsors representing all the
coastal regions of the United States. On December 15, 2005, the
Committee considered the bill in an open Executive Session.
Senator Stevens offered a substitute amendment to S. 2012 at
the Executive Session, it was agreed to by voice vote without
objection, and the Committee ordered S. 2012 reported subject
to amendment. No other amendments were offered.
Estimated Costs
In compliance with subsection (a)(3) of paragraph 11 of rule
XXVI of the Standing Rules of the Senate, the Committee states
that, in its opinion, it is necessary to dispense with the
requirements of paragraphs (1) and (2) of that subsection in
order to expedite the business of the Senate.
Regulatory Impact Statement
In compliance with subsection (b)(2) of paragraph 11
of rule XXVI of the Standing Rules of the Senate, the Committee
states that, in its opinion, it is necessary to dispense with
the requirements of paragraph (1) of that subsection in order
to expedite the business of the Senate. deg.
Because S. ------ does not create any new programs,
the legislation will have no additional regulatory impact, and
will result in no additional reporting requirements. The
legislation will have no further effect on the number or types
of individuals and businesses regulated, the economic impact of
such regulation, the personal privacy of affected individuals,
or the paperwork required from such individuals and
businesses. deg.
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 2012 as reported by the Committee would authorize
appropriations for the Magnuson-Stevens Fishery Conservation
and Management Act. The bill would have impacts on fishery
regulations in Federal waters.
ECONOMIC IMPACT
The bill, as reported, provides authorization of
appropriations of $328 million for the Secretary of Commerce
for FY 2007, and such sums as may be necessary for FYs 2007
through 2012 to carry out the provisions of the Magnuson-
Stevens Act.
PRIVACY
The reported bill would have little, if any, impact on the
personal privacy of U.S. citizens. Council members would have
an increased financial disclosure requirement.
PAPERWORK
The reported bill may increase paperwork requirements for the
private sector engaged in the commercial fishing industry or
recreational fishing, including charter fishing business
operations. Members of the Councils would be required to
complete a member training course to prepare and better
understand fishery management.
Section-by-Section Analysis
Section 1. Short title and table of contents.
This section sets forth the short title of the bill, the
``Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2005,'' and the table of contents of the
bill.
Section 2. Amendment of Magnuson-Stevens Fishery Conservation and
Management Act.
This section provides that any amendments or repeals set
forth in the bill are to the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act, 16
U.S.C. 1801 et seq.), unless otherwise indicated.
Section 3. Changes in findings and definitions.
This section would make a number changes to the findings and
definitions set forth in sections 2 and 3 of the Magnuson-
Stevens Act respectively. The section also would make technical
and conforming changes to reflect the use of the term ``limited
access privilege'' in place of ``individual fishing quota'' in
various sections of the Magnuson-Stevens Act, as revised by the
draft.
In addition, the section would insert a new finding in
section 2(a) of the Magnuson-Stevens Act, acknowledging that a
number of Councils have demonstrated progress in integrating
ecosystem considerations in fisheries management under existing
authorities in the Magnuson-Stevens Act.
This section also would make the following changes to
definitions in section 3 of the Magnuson-Stevens Act:
Defines the term ``confidential
information'' to mean any information submitted to the
Secretary that could cause competitive harm if
disclosed.
Defines the term ``regional fishery
association'' (RFA) as an association formed for mutual
benefit of members for social or economic benefit in a
region or subregion, and, is comprised of persons
engaged in fish harvesting or processing in that region
or subregion or who own or operate businesses
substantially dependent on a fishery.
Defines the term ``import'' as it applies to
fisheries products or goods and specifies that the
definition does not apply to fish caught within the
U.S. EEZ or by a U.S. vessel.
Defines the term ``limited access
privilege'' as a permit issued for the harvesting in a
limited access system authorized under section 107 of
the bill. The definition mirrors the existing
definition of individual fishing quota, but does not
include language from that definition specifying that
the quantity of fish involved must be expressed as a
percentage of the allowable catch, which is intended to
indicate that quantities may be expressed by volume
alone. The provision specifies that IFQs are included
in the definition but that community development quotas
(CDQs) are not.
Defines the term ``observer information'' to
cover the broad range of information that may be
collected by a fishery observer, electronic monitoring
system, or as part of a cooperative research program.
Section 4. Highly migratory species.
This section would amend section 102 of the Magnuson-Stevens
Act to ensure that any Council or Secretarial action pursuant
to an international fishery agreement must reflect the
traditional level of U.S. participation in the fishery,
relative to other nations. This change is intended to ensure
fair treatment of U.S. fishermen in both negotiation of
international measures and in development of domestic
management measures to achieve internationally-agreed
conservation and management goals. It is particularly focused
on initiating high-level international discussions in the
interest of avoiding the imposition of management measures
solely on U.S. vessels when foreign vessels participating in
the same fishery are not required to meet similar requirements.
Amended subsection 102(c) would require the Secretary to
promote provisions of the Magnuson-Stevens Act relating to the
rebuilding of a stock that is, or is approaching, being
overfished if an international fishery organization does not
have a process for developing a formal plan.
Section 5. Total allowable level of foreign fishing.
This section contains technical amendments to section 201(d)
of the Magnuson-Stevens Act to clarify that allocations of the
total allowable level of foreign fishing (TALFF) would be
discretionary and that any TALFF allocation would be set at
zero for fisheries with adequate or excess capacity. This
provision is intended to ensure that Councils not be required
to declare TALFF when harvesting levels are below MSY in order
to safeguard the stock or associated stocks from excessive
fishing effort.
Section 6. Western Pacific Sustainable Fisheries Fund
This section would amend section 204(e) of the Magnuson-
Stevens Act, which governs the establishment of Pacific Insular
Area fishing agreements with foreign nations. The amendment
would allow funds or contributions given to support a marine
conservation plan in a Pacific insular area to be deposited in
the Western Pacific Sustainable Fisheries Fund. Currently, the
fund can only receive money through foreign fishing agreements
that allow fishing in the EEZ around the Pacific remote island
areas. Presently, there are no such foreign fishing agreements,
creating a shortage of funds.
Subsection 204(e)(8) currently mandates all fines and
penalties imposed under the Magnuson-Stevens Act in the EEZ
adjacent to American Samoa, Guam, and the Northern Marianna
Islands, minus enforcement costs, to be deposited in the
treasury of the relevant Pacific insular area. The amendment
would remove the requirement to subtract enforcement costs from
these funds and also require that such funds collected in the
EEZ adjacent to Midway Atoll, Johnston Atoll, Kingman Reef,
Palmyra Atoll, Jarvis, Howland, and Wake Islands be deposited
in the Western Pacific Sustainable Fisheries Fund.
Section 7. Authorization of appropriations.
This section would authorize appropriations for activities
under the Magnuson-Stevens Act, as amended, for $328 million in
FY 2006, and such sums as necessary for FY 2007 through 2012.
TITLE I--CONSERVATION AND MANAGEMENT
Section 101. Cumulative impacts.
Under National Standard 8, section 301(a)(8) of the Magnuson-
Stevens Act, management measures must take into account the
importance of fishery resources to fishing communities. This
section would amend National Standard 8 to require the
evaluation to utilize the best data and methodology available.
This clarifies that the Committee intends that the ``best
scientific information available'' requirement of National
Standard 2 should extend to economic and social information
evaluated under National Standard 8. This requirement is not
limited to evaluation of economic and social impacts under
National Standard 8, but would apply to all such evaluations
under the Magnuson-Stevens Act. The provision also would amend
section 303(a)(9) to require the cumulative economic and social
impacts of conservation and management measures be included in
any fishery impact assessment submitted as part of a FMP.
Section 102. Caribbean Council jurisdiction.
This section would amend section 302(a)(1)(D) of the
Magnuson-Stevens Act to clarify that the jurisdictional
boundaries of the Caribbean Fishery Management Council include
the U.S. waters surrounding all U.S. territories in the
Caribbean Sea. Current law provides the Council jurisdiction
over the fisheries seaward of the Virgin Islands and Puerto
Rico, which are both defined under the Magnuson-Stevens Act as
``States.'' This provision, which was proposed by the
Department of Commerce, extends the Council's jurisdiction to
the areas seaward of other territories and possessions in the
Caribbean. This will enable the Council to address the
conservation of coral reefs, reef fish, queen conch, and spiny
lobsters in areas not presently under its jurisdiction.
Section 103. Regional Fishery Management Councils.
This section would make a number of changes to section 302 of
the Magnuson-Stevens Act, which defines and authorizes the
activities of the Councils. Under this broad heading, the bill
includes provisions covering the following topics:
Tribal Alternate on Pacific Council.--Subsection 103(a) of
the bill amends section 302(b)(5), which establishes the voting
membership of the Councils. The amendment would allow the
tribal representative on the Pacific Council to appoint an
alternate during the period of the representative's term. Such
an alternate is required to be knowledgeable concerning tribal
rights and law, as well as the fishery resources of the
geographical area concerned.
Scientific and Statistical Committees (SSCs).--Subsection
103(b) of the bill amends section 302(g) to more fully set
forth the role of the SSCs in the Council process. This
subsection responds to recommendations to increase the role of
science Council decision- making. The amendment adds new
sections 302(g)(1)(B)-(E), and reclassifies the existing text
of section 302(g)(1) into subsection (1)(A) with modifications.
Subsection 302(g)(1)(A), as amended, would expand the role of
the SSCs to include responsibility for peer review of
scientific and socio-economic information relevant to Council
development and amendment of any FMP.
In addition, new subsection 302(g)(1)(B) would direct each
SSC to provide its Council with ongoing scientific advice for
fishery management decisions. The Committee intends that the
addition of the term ``ongoing'' will ensure that all Councils
routinely utilize and consult with their SSCs in the
development of management measures. Currently, some SSCs are
integrally involved in the development and review of management
measures, meeting concurrently or on a similar schedule as the
Council. Others provide scientific information only when asked
by a Council, which may be limited to one or two times per
year. The intent of this provision is to ensure that each
Council utilizes its SSC meaningfully throughout the management
process. The provision also specifies that the types of advice
to be provided by SSCs would include recommendations for
acceptable biological catch or MSY, as well as reports on
socio-economic impacts, stock status and health, bycatch,
habitat status, and the sustainability of fishery practices.
New subsection 302(g)(1)(C) would require all SSC appointees
to be Federal, State, academic, or independent experts with
strong scientific or technical credentials and experience. The
Committee intends, with this requirement, to respond to the
recommendations of the U.S. Ocean Commission that SSC members
have the requisite qualifications to ensure sound scientific
advice is provided to the Councils.
New subsection 302(g)(1)(D) would authorize the Secretary to
establish a peer review process with each Council for
scientific information used by that Council. Such a process
would provide the best scientific information available as
required under National Standard 1 and be adequate to respond
to recommendations by the U.S. Ocean Commission and other
experts that Council decision-making be guided by scientific
advice. The provision states that such peer review process,
which may include existing committees or panels, shall satisfy
the requirements established in the FY 2001 appropriations
legislation for review of Federal scientific information. These
requirements are often too onerous and time-consuming to
accommodate fishery management procedures and timetables.
New subsection 302(g)(1)(E) would authorize the Secretary to
pay members of a SSC or advisory panel a stipend so long as
they are not Federal or State employees. This provision is
intended to help Councils attract, as resources provided by the
Secretary allow, qualified experts to serve on SSCs who
otherwise may not have the funding necessary to enable them to
perform the required work.
Council Functions.--Subsection 103(c) of the bill would amend
section 302(h) of the Magnuson-Stevens Act to require Councils
to develop annual catch limits for each managed fishery after
considering the recommendations of their SSC or the peer review
process described above. The Committee has not included an
absolute requirement that the Council be bound by SSC
recommendations due to concerns that such a requirement would
unduly politicize the SSC process and be too rigid to take into
account unique circumstances. However, the Committee expects
Councils to follow the recommendation of the SSC or the
appropriate peer review process, which the Magnuson-Stevens Act
ensures will represent the best scientific information
available. Section 104 of the bill sets forth the mechanism for
ensuring this catch limit is established for the fishery by
requiring its inclusion in each FMP or amendment. That
provision provides further scientific accountability by
ensuring that the catch limits do not exceed OY, which is
capped in the Magnuson-Stevens Act at the maximum sustainable
level.
Regular and Emergency Meetings and Closed Meetings.--
Subsections (d) and (e) of section 103 of the bill would alter
existing notification requirements for Council meetings by
amending sections 302(i)(2)(C) and 302(i)(3)(B) of the
Magnuson-Stevens Act to eliminate the requirement to notice
meetings in newspapers, and allowing the Councils the
flexibility to provide notice of meetings 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.
Council Training Program.--Subsection 103(f) of the bill
would amend section 302 of the Magnuson-Stevens Act by adding a
new subsection (k), which would establish a Council training
program. New section 302(k) would require the Secretary, in
consultation with the Councils and the National Sea Grant
College Program, to develop a training course for new Council
members to provide them with a background in a variety of
topics relevant to fishery management. Topics may include
fishery science, management, conflict of interest requirements,
economics, tribal rights and customs, and legal requirements.
The course would be open to both new and existing Council
members, and would also be available to members of committees
or advisory panels as resources allow. The Committee believes
that all participants in the Council process would benefit from
this course, but understands there may be resource limitations.
Nevertheless, the Committee expects that Councils will
implement policies to ensure that new members have completed
the training course prior to participating in Council
deliberations on management measures.
Council Coordinating Committee.--Subsection 103(g) would
amend section 302(i) of the Magnuson-Stevens Act to authorize
the establishment of a Council Coordinating Committee comprised
of Council Chairs, Vice Chairs, and Executive Directors as a
forum to discuss issues relevant to all Councils. This
Coordinating Committee would be subject to the same procedural
and notice requirements as the Councils and advisory bodies
under section 302(i) of the Magnuson-Stevens Act.
Conflicts of Interest.--Subsection 103(h) of the bill would
amend section 302(j) of the Magnuson-Stevens Act to improve
transparency of the process for disclosure of financial
interests and recusal by Council members. Under current law,
Council members are required to disclose any financial
arrangements they, any family member, or organization in which
the individual holds a position, may have in any harvesting,
processing, or marketing activity undertaken within a fishery
over which the Council has jurisdiction. The changes made by
this subsection would ensure that financial interests
associated with lobbying and advocacy must also be disclosed,
as well as financial interests (such as contractual
arrangements) of the member with any other individual or
organization with a financial interest in such fishery
activities undertaken in a fishery under Council jurisdiction.
In addition, the provision would require that all such
disclosure information, which is currently publicly available
at Council offices during business hours, also be made
available over the internet. Finally, this subsection requires
the Secretary to report to Congress annually, beginning in
2008, on action taken to implement the requirements of section
302(j), as amended, to ensure that the conflict of interest
requirements of the Magnuson-Stevens Act are being adequately
enforced by the Secretary and to provide further transparency.
Gulf of Mexico Fisheries Management Council.--Subsection
103(i) of the bill would amend section 302(b)(2) of the
Magnuson-Stevens Act to establish guidelines for State
Governors and the Secretary in the nomination and selection of
voting members to the Gulf of Mexico Council. The provision,
intended to remain in force until the authorization of
appropriations expires at the end of FY 2012, would require the
Secretary to select candidates for Council membership that
would maintain a balance of five members from the commercial
sector, five members from the recreational sector, and one
other individual who is knowledgeable in the conservation and
management of fishery resources within the Gulf of Mexico
Council's jurisdiction. It would further require that any slate
of candidates submitted by a Governor to the Secretary must
include at least one individual representing the commercial,
recreational, and charter fishing sectors, as well as one other
individual knowledgeable in the conservation and management of
fisheries resources within the jurisdiction of the Gulf of
Mexico Council. If the Secretary makes a determination that a
slate of candidates does not meet these requirements, the
amendment would solicit the public for nominations to the
Council through a notice in the Federal Register. Finally, the
amendment would specify that owners or operators of fish farms
outside the U.S. would not qualify as representatives of the
commercial fishing sector.
Report and Recommendations on Gulf Council Amendment.--
Section 103(j) of the bill would require the Secretary to
evaluate the success of the guidelines provided in section
103(i) in creating a fair and balanced representation of the
commercial and recreational sectors on the Gulf of Mexico
Council. This evaluation, and a report to Congress on the
findings, would be required to be completed by August, 2011,
prior to the expiration of the authorizations for the Magnuson-
Stevens Act. The report should include recommendations on any
changes that may be necessary to achieve fair representation
and whether to renew the authority contained in section 103(i).
Section 104. Fishery management plan requirements.
This section would amend section 303(a) of the Magnuson-
Stevens Act, which sets forth the mandatory requirements of
FMPs. Section 104 would expand the categories of data that may
be submitted, ensure that the plan describes the economic
importance of the sectors participating in a fishery, consider
the economic impacts on a sector when allocating harvest
restrictions among sectors, and require that each plan include
a mechanism for establishing an enforceable annual catch limit.
Other amendments to section 303(a) relating to cumulative
impact assessments are made in section 101 of the bill.
New Information and Analyses.--Section 104(a) would amend
section 303(a)(5) of the Magnuson-Stevens Act to include fish
processors and charter fishing among the sectors of a fishery
from which data may be collected and to include economic data
among the types of data submitted to the Secretary in a FMP.
The provision also would amend section 303(a)(13) to require an
assessment of the relative economic importance of the
commercial, recreational, and charter fishing sectors of the
fishery and amend section 303(a)(14) to ensure that in
allocating harvest restrictions among sectors, the economic
impact of such restrictions on each sector participating in the
fishery is considered.
Annual Catch Limits.--Section 104 would also create a new
subsection 303(a)(15) to require each FMP to provide a
mechanism for setting annual catch limits for each managed
sector in the plan (including for a multiyear plan). Such a
limit should be set at or below OY as based on the best
scientific information available. If a harvest exceeds the
annual catch limit, any excess would be deducted from the
following year's catch limit through management measures
determined appropriate by the Council for the fishery,
including by adjusting the following year's management measures
and input controls or reducing the fishing mortality rate in
the following year. New subsection (15) applies this annual
catch limit and adjustment requirement on a sector-specific
basis so that harvest overages in one sector result in
adjustments in the following year only in that sector. The
Committee expects that if a sector is likely to exceed its
annual catch limit, the Council will restrict that sector's
harvest to ensure the sector stays within its annual catch
limit.
This provision is intended to provide a transparent
accounting mechanism to help ensure that each fishery is in
compliance with the overfishing and rebuilding requirements of
the Magnuson-Stevens Act. The 1996 amendments made by the SFA
established new requirements to cap harvests at sustainable
levels and to establish plans to rebuild overfished fisheries,
and there has been progress in achieving these goals in a
number of fisheries. However, a full 10 years after passage of
the SFA, recent evaluations of stock status have revealed that
overfishing is still occurring in a number of fisheries, even
those fisheries under a rebuilding plan or determined to be
overfished during the early phase of SFA implementation. In
many cases, this has resulted from failure of a plan to require
adherence to scientifically-established mortality limits from
one year to the next. As a result, the Committee determined
that it needed to include a new mechanism in FMPs for ensuring
compliance with the existing conservation requirements.
Existing requirements of the Magnuson-Stevens Act.--
The SFA established for the first time that harvests
must be capped at scientifically-determined sustainable
levels, i.e. below MSY. National Standard 1 of the
Magnuson-Stevens Act (16 USC 1851(a)(1)) provides that
conservation and management measures in any FMP shall
``prevent overfishing, while achieving, on a continuing
basis, the [OY] from each fishery...'' The Magnuson-
Stevens Act defines ``OY'' as the amount of fish that
will provide the greatest overall benefit to the
Nation, ``prescribed as such on the basis of the [MSY]
from the fishery, as reduced by any relevant economic,
social, or ecological factor,'' and in the case of an
overfished fishery, provides for rebuilding to a level
consistent with producing the MSY in such fishery
(U.S.C. 16 1802(28)). Overfishing is defined in the Act
``as a rate or level of fishing mortality that
jeopardizes the capacity of a fishery to produce the
[MSY] on a continuing basis.'' (16 U.S.C. 1802(29)).
MSY is a theoretical concept meaning the amount that is
``the largest long-term average catch or yield that can
be taken from a stock or stock complex under prevailing
ecological and environmental conditions'' (50 Fed. Reg.
Sec. 600.310(c)(2)(i)) .
Section 304 of the Magnuson-Stevens Act requires preparation
of a rebuilding plan for any overfished fishery that specifies
a time period for ending overfishing and rebuilding the
fishery. Section 304(e)(4) requires the rebuilding time period
to: (1) be as short as possible, taking into account the status
and biology of the stock of fish, the needs of the fishing
communities, and the interaction of the overfished stocks of
fish within the marine ecosystem, and (2) not exceed 10 years,
except in cases where the biology of the stock of fish, or
other environmental conditions dictate otherwise. Congress
assumed that, on average, 10 years would provide sufficient
rebuilding time for many species, based on their life history,
but in any particular case, the biology of the stock would
govern if 10 years was not enough time for recovery. NMFS
guidelines issued in 1998 interpreted the Magnuson-Stevens Act
to provide that whenever it would take longer than 10 years to
rebuild an overfished species, NMFS would set a ceiling on the
rebuilding duration that would be reached by adding the
shortest possible time to rebuild plus ``one mean generation
time'' based on the species' life history characteristics. A
``mean generation time'' is defined by NMFS to be the time it
will take for an average mature fish to be replaced by its
offspring.
Taken together, these provisions were intended to end
overfishing and rebuild overfished stocks in a reasonable
period of time. Congress envisioned some pragmatic flexibility
on the timeframe for ending overfishing in order for the
Secretary and the Councils to identify fisheries in which
overfishing was occurring, evaluate the status of the stocks,
and then make necessary changes in the FMPs to end the
overfishing activity and rebuild these stocks to sustainable
levels. However, the effects of overfishing that continues
during a rebuilding period have been exacerbated when
rebuilding periods have been extended based on the biology of
the stock (as permitted by the Magnuson-Stevens Act), or ``re-
set'' based on new information that increased the biomass
target for the stock, in which case overfishing continues long
after the 10 year rebuilding benchmark.
The goal of the Magnuson-Stevens Act should be to produce MSY
``on a continuing basis'' in order to end overfishing and
rebuild fisheries within a reasonable period of time. To
achieve this goal, plans must establish a reasonable end-date
for fishing beyond sustainable levels, particularly because it
is necessary to ensure that overfishing during the rebuilding
period will not undermine rebuilding goals. In addition, as
noted by the U.S. Ocean Commission, even where target catch
levels are set in a plan at sustainable levels, amounts
harvested over such levels in one year have not been accounted
for in setting the next year's levels, which has resulted in
compounding problems for the stocks at issue.
Changes to the Magnuson-Stevens Act.--S. 2012 would
preserve existing law on overfishing and rebuilding,
since the Committee believes that the basic provisions
are sound. However, the bill would amend the Magnuson-
Stevens Act to require establishment of a mandatory
accounting mechanism in every FMP to keep harvests at
sustainable levels. Such mechanism would assure annual
harvests will be at or below OY (thus below MSY), based
on the best scientific information available. While
some of the best managed fisheries use TAC-based
management, the most direct means of controlling
mortality, a Council can use any management measure
deemed appropriate for the fishery (e.g., days at sea/
trip limits, bag limits, escapement). However, the
Council must assure that amounts taken over OY are
deducted from the next year's limit, utilizing similar
measures.
The Committee expects that TAC-managed fisheries will
continue to use TACs and that fisheries managed using other
effort controls may continue to use presently employed methods
though some may consider moving to TAC-based management over
time. Although some regions have avoided using TACs because
they fear they may inspire a ``race for fish,'' experience in
other regions has shown that sector-based TACs offer management
certainty and community protections that can address these
concerns.
The Committee recognizes that almost every Council implements
multi-year plans or multi-species FMPs, and believes the annual
catch limit can be met in these types of plans. Section 104
allows multi-year plans to continue if they include a mechanism
for establishing catch limits (and adjusting for over- or
under-harvesting) within the years covered in the FMP. The
annual catch limit process is distinct from stock status and
fishing mortality rate determinations, which may take place on
a two to five year cycle, although such determinations will
influence the specific ``catch limit'' that is established for
the year or years covered in the FMP.
Furthermore, the Committee believes that the annual catch
limit mechanism could apply to the overall catch limit for all
species under a multi-species FMP. Several Councils have
developed multi-species management plans for fisheries that
employ a wide variety of gear types. For example, Pacific cod,
pollock, and flatfish are major fisheries in the North Pacific
and are targeted by multiple gear types (trawl, hook-and-line,
pot, jig gear). Currently, NMFS credits both directed harvest
of Pacific cod and the incidental harvest of Pacific cod
against the Pacific cod annual catch limit to ensure that
Pacific cod are not over harvested. When cod is open for
directed fishing, all cod must be retained. Directed fishing
for Pacific cod is closed when the amount of cod available for
harvest in the directed fishery is caught, reserving the
remainder of the annual catch limit for incidental catch in
other groundfish fisheries. NMFS then allows vessels to retain
incidental catches of Pacific cod (if the annual catch limit
has not been reached) taken in other directed fisheries that
are open, up to a maximum retainable amount (determined in
regulations). Catch of all species, whether targeted or taken
as bycatch, whether retained or discarded, count toward the
annual catch limits, and fisheries are closed when these limits
are reached.
The Committee heard numerous concerns that the science and
data collection, including catch reporting, is not yet timely
or sufficient for setting annual catch limits, particularly in
a multi-species fishery. However, better and timelier data
collection and reporting should result from establishing an
annual catch limit before the fishery season begins and
managing to that limit, as has been demonstrated in a number of
fisheries. Furthermore, S.2012 supports the expanded use of
catch monitoring technologies and improved information
concerning fishing effort and stock status which should assist
in providing the data needed to improve catch limit compliance.
Section 105. Fishery management plan discretionary provisions.
This section would make a number of changes to section 303(b)
of the Magnuson-Stevens Act, which governs the discretionary
provisions that may be included in a FMP.
Deep Sea Coral Protection Zones.--Section 105(2) of the bill
would add subsection 303(b)(2)(B), which would authorize
Councils to restrict certain types of fishing in zones where
deep sea corals have been identified by the deep sea coral
research and technology program established in section 211 of
the bill. Deep sea coral communities provide critical habitat
for many species, including several that are commercially
important, and may host greater biological diversity than their
shallow water counterparts. They can also provide scientists
with data on historical climate patterns and hold great promise
as a potential source of future medicines. However, these
communities, which may include both coral and sponge species,
are extremely susceptible to damage from certain types of
fishing gear and techniques. Such interactions are also of
concern to industry because of economic impacts to fishermen
from lost or damaged gear. The section is intended to permit a
Council to establish closures to address these problems without
requiring a prior identification of the area as essential fish
habitat. Closures to protect deep sea coral under this section
will only be initiated after known locations of deep sea corals
have been identified, as provided in section 408. In addition,
the Committee intends consideration of long-term sustainable
uses to ensure the Councils can provide opportunities for the
continued use in the fishery of gear that does not cause
physical damage to deep sea coral.
Access to Restricted Areas.--Section 105(2) would add
subsection 303(b)(2)(C) to establish four criteria that must be
met under the Magnuson-Stevens Act whenever a Council elects to
close an area to all fishing activity. These criteria, which
are consistent with the recommendations of the U.S. Ocean
Commission, are that: (1) that such closure be based on the
best available science, as required under National Standard 1,
(2) such closure include criteria to assess the conservation
benefit thereof, (3) there is a timetable for review of the
closure's performance, and (4) such closure is based on an
assessment of the benefits and impacts of the closure in
relation to other management measures. While the Committee
expects FMPs generally will address all four criteria in any
fishing closure, in a case where all fishing is prohibited,
extra care should be taken to ensure each criterion is met.
Consideration of Interstate Differences.--Section 105(3)
would amend section 303(b)(5) of the Magnuson-Stevens Act to
authorize a Council to consider differences within a fishery
but between various States and ports, including distance to
fishing grounds and the proximity to time and area closures, in
their FMPs.
Limited Access Systems.--Section 105(4) would amend section
303(b)(6) to clarify that, in addition to the current criteria
for establishing limited access systems, a Council must also
consider the conservation requirements of the Magnuson-Stevens
Act and the fair and equitable distribution of access
privileges. While these criteria are already contained in two
of the National Standards, the Committee's intent is to
highlight their importance in the context of other listed
considerations.
Economic Data Collection.--Sections 105(5)-(7) would make
technical changes in several subsections of 303(b) to allow for
the collection of economic data from fish processors.
NEPA Compliance.--The bill would create a new subsection
303(b)(12) to allow an FMP to set forth a process for
compliance with NEPA established pursuant to section 107 of the
bill.
Ecological Factors.--The bill would create a new subsection
303(b)(13) to allow an FMP to include management measures that
consider a variety of ecological factors affecting fishery
populations, including the conservation of target and non-
target species. This provision is intended to encourage
Councils to continue to include ecosystem considerations in
FMPs.
Section 106. Limited Access Privilege Programs.
This section would create a new Magnuson-Stevens Act section
303A to authorize Councils to create a Limited Access Privilege
Program (LAPP) for the harvesting of fish within a given
fishery. A LAPP, defined in section 3 of the bill, includes
individual fishing quota (IFQ) programs as well as other
programs in which a permit is issued to a specific person or
authorized entity that allows harvest of a specified unit or
units of the TAC of a fishery. All LAPPs would be subject to
Secretarial approval through the FMP process and could only be
developed for a fishery already being run under a limited
access system.
The bill also contains specific provisions that would
authorize the issuance of quota to fishing communities and for
the creation of regional fishery associations (RFAs). These
provisions were created in response to the concerns of
communities and shoreside businesses around the country over
the economic harm that could result from consolidation of quota
in IFQs and similar programs. Many of these concerns were
reflected in hearings and expert reports, including the 1999
National Research Council report required under the SFA. While
some groups argued that allocating specific shares of
processing privileges (``processor shares'') would provide
economic stability to communities, other groups believed that
no special status should be granted to processors. The
Committee chose to take a broader, community-based view and
allow allocation of harvesting privileges to communities, and
inclusion of processors and other shore-based businesses in
RFAs with LAPP holders which would allow for the designation or
linkage of LAPPs to a region or community.
In particular, the Committee recognizes that many small, poor
coastal communities lack the resources to enter fisheries that
may be subject to future LAPPs, and they have often been
overlooked in allocation decisions. The Committee cautions the
Councils not to use the requirements of section 106 to prevent
these communities from being fully included in allocation of
the fishery resource.
In addition, LAPPs are not intended to be used as a mechanism
to reduce harvests through refinement of catch quota by those
who are not fishery participants. Total quota available for
harvest is established separately under the conservation
requirements of the Act. Therefore, this section restricts the
holding, acquisition, use, or issuance of LAPPs only to persons
who substantially participate in a fishery.
The new section 303A would set forth the following provisions
concerning LAPPs:
No Creation of Right, Title, or Interest.--The new section
303A(b) would re-affirm existing law relating to IFQs that a
LAPP is a permit that may be revoked or limited at any time
without right to compensation. This permit would be considered
a grant of permission to participate in the fishery and, as
such, would not grant the holder any right to a fish before it
was harvested. As a permit, the privilege could also be revoked
or modified for any failure to comply with the program or if
the system is found to have jeopardized the sustainability of
the stock or the safety of fishermen.
Requirements for Limited Access Privileges.--New section
303A(c)(1) lists the criteria that any proposed LAPP must meet.
These requirements specify that any LAPP must:
(A) Assist in rebuilding an overfished fishery;
(B) Reduce capacity in a fishery that is over
capacity;
(C) Promote fishing safety and fishery conservation
and management;
(D) Prohibit any person other than a U.S. citizen,
corporation, partnership, or other entity established
under the laws of the United States or a State, or
resident alien that meets the requisite participation
and eligibility requirements, from holding a harvesting
privilege;
(E) Require that processing of fish harvested under a
LAPP be done within U.S. jurisdiction, i.e. in U.S.
territory or by vessels of the United States. New
section 303A(c)(2) would allow a waiver of this
requirement for fisheries that have historically
processed their catch outside the United States if the
United States has a seafood safety equivalency
agreement with the country where processing is to
occur;
(F) Specify the goals of the program;
(G) Be subject to continual monitoring with a formal
review of the program every 5 years which shall include
any modifications needed to ensure the program meets
its goals;
(H) Include an effective system for monitoring,
management, and enforcement, including the use of
observers of electronic monitoring systems;
(I) Include an appeals process for administrative
review of Secretarial determinations;
(J) Provide for a separate review process,
established by the Secretary in consultation with the
Department of Justice and Federal Trade Commission, to
determine if any acts of illegal collusion, anti-
competition, antitrust, or price-fixing occurs among
members of RFAs established under the program; and
(K) Provide for the revocation of privilege held by
anyone who violates U.S. antitrust laws.
Fishing Communities.--New section 303A(c)(3) would establish
that fishing communities may be deemed eligible to receive and
hold harvest privileges if they meet criteria developed by the
relevant Council. According to new section 303A(c)(3)(A)(i),
the community would have to: (1) be located within the
management area of the relevant Council, (2) meet criteria
developed by the relevant Council, approved by the Secretary,
and published in the Federal Register, (3) consist of residents
who conduct commercial or recreational fishing, processing, or
fishery-dependent support businesses within the relevant
Council's jurisdiction, and (4) develop and submit a community
sustainability plan to the Council and Secretary. This plan
must address the social and economic development needs of the
community, including those who have not historically had access
to resources to participate in the fishery. Failure to adhere
to this plan will result in the loss of any privilege.
Participation criteria for a Council to consider are: (1)
traditional fishing or processing practices in, and dependence
on, the fishery, (2) the cultural and social framework of the
fishing community, (3) economic barriers to access to the
fishery, (4) the existence and severity of projected socio-
economic impacts associated with a LAPP on participants in the
fishery and related businesses, (5) the expected effectiveness,
transparency and equitability of the community sustainability
plan, and (6) the potential for improving economic conditions
in remote coastal communities that lack the resources to
participate in fishery related activities. The Committee
intends the Councils to consider as ``traditional'' those uses
that pre-date contemporary commercial fishing in smaller,
isolated communities that can demonstrate historic dependence
on combination fisheries or participation in the fishery during
years that may not fall within the qualifying period for
individual LAPPs.
Regional Fishery Associations.--RFAs provide for persons in
the limited access fisheries in a specific region or subregion
to make voluntary arrangements for their own mutual interest,
and to promote the economic and social well-being of the
region. The Committee intends that participation in a
particular RFA will be limited to persons substantially
participating in or substantially dependent on one or more
fisheries subject to a LAPP within the RFA's region or
subregion of concern. Determinations of substantial
participation and substantial dependence shall be established
by the Secretary upon recommendation by the Council. In an RFA,
quota would be allocated to the harvester but classified for
use in a specific region in order to maintain a relative
balance between the harvesting sector receiving the quota and
the communities, processors, and other fishery-related
businesses that have become dependent on the resource entering
their port. Establishment of such RFAs would allow for
mitigation of any impacts of a LAPP on a variety of community
and fishery-related business interests, without allocation to
individual companies of an exclusive right to process fish. The
bill would also allow a Council to consider regional or port-
specific landing requirements to maintain a relative balance of
the commercial industry sectors, such that fishermen,
processors, and communities could participate in and benefit
from the rationalized fishery.
New section 303A(c)(4) would provide that an RFA may
participate in a LAPP if it meets certain eligibility and
participation criteria. To be eligible, an RFA must: (1) be
located within the management area of the relevant Council, (2)
meet criteria developed by the relevant Council, approved by
the Secretary, and published in the Federal Register, (3) be
voluntary organizations with bylaws and procedures and
consisting of members who conduct commercial or recreational
fishing, fish processing, or support businesses, and (4)
develop and submit an RFA sustainability plan to the relevant
Council and Secretary. Failure to adhere to this plan would
result in the loss of harvest privileges.
RFA participation criteria set by a Council must consider:
(1) traditional fishing or processing practices, (2) the
cultural and social framework relevant to the fishery, (3)
economic barriers to access to the fishery, (4) the existence
and severity of projected socio-economic impacts associated
with a LAPP on participants in the fishery and its related
businesses, (5) the administrative and fiduciary soundness of
the RFA, and (6) the expected effectiveness, transparency, and
equitability of the RFA's sustainability plan.
Allocation.--New section 303A(c)(5) would require LAPPs to
provide a fair and equitable distribution of the initial
allocation of catch in a way that:
(A) Considers catch history, employment, investment,
dependence on the fishery, and historic participation
of fishing communities;
(B) Considers the basic social and cultural framework
of the fishery, and promotes the sustained
participation of small, owner-operated fishing vessels
and communities that depend on the fisheries, which
could include regional landing requirements;
(C) Assists entry level and small scale members of
the fishing community;
(D) Limits the maximum share of the access privileges
able to be held, acquired, or used by a qualified
entity; and
(E) Authorizes all those who substantially
participate in the fishery to hold a limited access
privilege.
Program Initiation.--New section 303A(c)(6) would provide
that any Council may establish a LAPP in an FMP or FMP
amendment on its own initiative or in response to a petition
certified by the Secretary and signed by a group of fishermen
representing a majority of the permit holders or allocation
within a multi-species fishery. Section 303A(c)(6)(B) provides
that for a petition initiated in the Gulf of Mexico region for
a fishery using multi-species permits, only those fishermen who
had substantially fished the species named in the petition
would be eligible to sign.
Subsection 303A(c)(6)(D) would specify that in the New
England and Gulf of Mexico regions any IFQ program would also
be subject to a final referendum in order to be approved.
Approval in New England would require a 2/3 majority of voting
permit holders and approval in the Gulf of Mexico would require
a majority of eligible permit holders. Only fishermen who have
fished the species in question will be eligible to vote in a
Gulf of Mexico referendum on an IFQ in a multi-species fishery.
With respect to such Gulf of Mexico programs, the majority vote
may be measured by weighting votes considering the quantity of
fish authorized to be harvested under the permit (e.g., 200
pounds per day or 2,000 pounds per day). The Gulf of Mexico Red
Snapper Fishery would be exempted from these requirements. The
Secretary would be responsible for the conduct of the
referendum and any referenda would not be subject to the
requirements of the Paperwork Reduction Act (Chapter 33 of 44
U.S.C.).
Transferability.--New subsection 303A(c)(7) would require a
Council to establish a policy on the transferability of
privileges and a program to monitor such transfers that is
consistent with the policies that the Council established
during the allocation process, including with respect to
continued participation of small vessel owner-operators and
communities.
Preparation and Implementation of Secretarial Plans.--New
subsection 303A(c)(8) would state that any FMP prepared by the
Secretary for Atlantic highly migratory species under section
304(g) of the Magnuson-Stevens Act would be required to meet
the same requirements for any potential LAPPs.
Antitrust Savings Clause.--New subsection 303A(c)(9) would
provide a savings clause stating that nothing in the Magnuson-
Stevens Act shall waive any U.S. antitrust laws as defined in
the first section of the Clayton Act or section 5 of the
Federal Trade Commission Act.
Auction and Other Programs.--New section 303A(d) would
authorize a Council to use an auction or other system to
collect royalties from the initial distribution of privilege in
a LAPP if: (1) the system or program is conducted in a manner
consistent with the requirements, and (2) revenues from the
distribution system are deposited in the limited access system
administration fund (established in section 305(h)(5)(b) of the
Magnuson-Stevens Act). Funds from the limited access system
administration fund would be made available through annual
appropriations.
Cost Recovery.--New section 303A(e) would require a Council
that develops a LAPP to establish a methodology for assessing
the management, data collection and analysis, and enforcement
programs, and provide for a schedule of fees to support these
activities. Section 106(b) amends section 304(d)(2)(A) of the
Magnuson-Stevens Act to establish technical amendments allowing
the collection of fees for this purpose.
Limited Duration.--New section 303A(f) would authorize a
Council to establish limits on the duration of any LAPP
allocation and provide a mechanism for participants and new
entrants to require or re-acquire allocations.
Limited Access Privilege Assisted Purchase Program.--New
section 303A(g) would retain language of existing section
303(d)(4), which authorizes Councils to allow 25 percent of
fees collected from a fishery to be used to aid entry-level and
small boat fishermen in purchasing shares. Such a program would
be developed under a Council's standard rules and procedures
and be subject to public comment. The Secretary would be
prohibited from approving a plan that has not met all the other
requirements for LAPPs.
Effect on Certain Existing Shares and Programs.--New section
303A(h) would ensure that section 303A would not require a
reallocation of quota share from any limited access system,
including sector allocations, submitted to the Secretary and
approved by the Council prior to the date of enactment of this
bill.
However, the LAPP provisions of S. 2012 adopt the
recommendations of the U.S. Ocean Commission, and the Committee
expects that quota programs now being developed by the Councils
will incorporate these recommendations even before enactment of
this legislation. The Committee recognizes that Councils must
move forward on programs under development and does not intend
to cause unwarranted delays by requiring mature plans to be re-
drafted wholesale. But Councils should attempt to ensure plans
adhere to the spirit of the criteria recommended by the U.S.
Ocean Commission and those contained in the bill in order to
improve the consistency and fairness of future programs.
Fees.--Section 106(b) would amend section 304(d)(2)(A) of the
Magnuson-Stevens Act to authorize the Secretary to collect fees
from any LAPP to cover the costs of the data collection, in
addition to fees for enforcement and management, already
permitted under current law.
Investment in United States Seafood Processing Facilities.--
Section 106(c) would direct the Secretary to work with the
Small Business Administration and other Federal Agencies to
develop incentives for U.S. investment in U.S. seafood
processing facilities for fisheries that lack U.S. based
facilities.
Application with American Fisheries Act.--Subsection 106(e)
of the bill contains a savings clause, stating that any changes
in law contained in section 106 would not supersede the
requirements of the American Fisheries Act (46 U.S.C. 12102
note; 16 U.S.C. 1851 note et alia).
Section 107. Environmental review process.
This section would add a new subsection 304(i) to the
Magnuson-Stevens Act requiring the Secretary, with public
participation and in consultation with the Council on
Environmental Quality (CEQ) and the Councils, to develop
integrated procedures for compliance with NEPA. These
integrated procedures would then be established as the sole
environmental impact assessment for FMPs. Such a procedure
would have to meet a number of criteria including: (1)
conformity to timelines for review and approval of FMPs, and
(2) integration of the environmental analytical procedures and
public input timelines with FMP preparation and dissemination.
The Secretary would be given 12 months to propose the revised
procedures, allow a requisite 90 days for public comment, and
promulgate final procedures 18 months after enactment of the
bill.
Section 108. Emergency regulations.
This section would amend section 305(c)(3)(B) of the
Magnuson-Stevens Act to extend from 180 to 186 days the period
during which an emergency amendment to an FMP may remain in
effect. It also permits a potential extension period of the
same length. These changes would allow an emergency regulation
to remain in effect for a full year.
Section 109. Western Pacific Community Development
This provision would create a new subsection 305(j),
directing the Secretary to create a pilot program for
regionally based marine education programs in the western
Pacific. The program's goal would be to increase communication,
education, and training with regard to marine resource issues
throughout the region, especially among indigenous Pacific
islanders, native Hawaiians, and other underrepresented groups.
Subsection 305(j)(2) specifies that the program is required to
have six components:
(1) marine science and technology education focused
on preparing residents for employment in related
fields;
(2) fisheries and seafood related training
programs, including observer training programs;
(3) outreach programs and materials designed to
inform residents about the quality and sustainability
of wild caught fish or fish products farmed through
responsible aquaculture, particularly in Hawaii and the
western Pacific;
(4) programs to identify methods and technologies
that will improve data collection and quality, and
increase the sustainability of fishing practices and
that may be shared with other communities and nations
in the western and central Pacific;
(5) enhancement of science-based fishery management
with local and traditional knowledge (including Pacific
islander and native Hawaiian knowledge); and
(6) development of partnerships with other western
Pacific island agencies, academic institutions, and
other entities to meet the purposes of the section.
Section 110. Western Alaska Community Development Quota Program.
This section would amend section 305(i)(1) of the Magnuson-
Stevens Act to clarify that communities currently participating
in the western Alaska community development quota programs that
were included in NMFS regulations in effect on January 1, 2004
or were approved by NMFS on April 19, 1999 are authorized by
statute to participate in the progress.
Section 111. Secretarial action on State groundfish fishing.
This section would add a new subsection 305(k) to the
Magnuson-Stevens Act to require the Secretary to make a
determination within 60 days of enactment as to whether fishing
in State waters on regulated species in the New England multi-
species complex without a New England multi-species groundfish
fishery permit is consistent with the relevant Federal FMP. If
the Secretary finds that such fishing activity in State waters
is not consistent with the Federal plan, the Secretary would be
directed to notify the State and develop measures to establish
consistency with the Federal plan, in consultation with the New
England Council.
Section 112. Joint enforcement agreements.
This section would add section 311(b)(1)(A)(vi) to the
Magnuson-Stevens Act, clarifying that enforcement authority for
any marine resource law administered by the Secretary is given
jointly to the Secretary of Commerce and the Secretary of the
department in which the Coast Guard is operating. This
enforcement authority is also broadened to allow any officer of
the Secretaries to access any data required to be submitted
under this title. The provision specifically mentions
information from Global Maritime Distress and Safety Systems
(GMDSS), vessel monitoring systems, or other similar systems.
Data collected from these systems would be subject to all the
confidentiality requirements of section 402 of the Magnuson-
Stevens Act.
This section also would add two new sections to section 311
of the Magnuson-Stevens Act. These provisions, designated
section 311(h) and section 311(i), would authorize the
Secretary to enter into joint enforcement agreements (JEAs)
with the States for the enforcement of marine resource laws.
Joint enforcement agreements.--New subsection 311(h) would
authorize State Governors to apply to the Secretary for
execution of a JEA. Such an agreement would deputize and
provide Federal funding for State law enforcement officials to
carry out any of the Secretary's marine law enforcement
responsibilities, including those contained within the
Magnuson-Stevens Act. All coastal states, including those
bordering the Great Lakes, are eligible to enter into a JEA
with the Secretary. Each JEA is required to:
Be consistent with the purposes of section
311;
Contain an allocation of funds that will be
distributed equitably among participating States, based
on: (1) consideration of Federal enforcement needs, (2)
State enforcement needs, and (3) State enforcement
capacity; and
Provide for the confidentiality of data and
information to States pursuant to section 402 of the
Magnuson-Stevens Act.
Improved data sharing.--New subsection 311(i) is designed to
ensure that States which enter into a JEA under this section,
or a confidentiality agreement under section 402(b)(1)(B) of
the Magnuson-Stevens Act, may also gain access to data gathered
by the Secretary from GMDSS, vessel monitoring systems, or
similar systems subject to certain conditions.
Report on using GMDSS.--Section 112(b) would also require
NMFS and the Coast Guard to submit a report to Congress on the
following aspects of the use of GMDSS and similar systems in
JEAs:
(1) A cost-benefit analysis of the feasibility,
value, and cost of using the GMDSS, vessel monitoring
system, or similar system in fishery management and
enforcement if the Federal government were to bear the
primary capital investment costs.
(2) The cumulative impact of existing system
requirements for commercial vessels.
(3) Whether the GMDSS requirements would overlap with
existing requirements.
(4) How to address data integration from such
systems.
(5) How to maximize data sharing between Federal and
State governments while considering appropriate levels
of confidentiality.
(6) How to develop, purchase, or distribute GMDSS or
similar systems to regulated vessels.
Section 113. Transition to sustainable fisheries.
This section makes a number of changes to section 312 of the
Magnuson-Stevens Act. Most of the changes relate to subsections
312(b)-(e), which establish the fishing capacity reduction
program, but two technical changes are made to subsection
312(a), regarding fisheries disaster relief. The changes to
section 312(a) would include harvest restrictions to protect
human health or the marine environment, including under other
statutory authority, among the causes of a fishery failure that
could qualify a community for disaster relief, and reauthorize
the program for FY 2006 through 2012.
Amendments to Subsection 312(b)-(d) include technical changes
that would:
Allow a majority of permit holders or
individuals holding a majority of the allocation in a
fishery to conduct a voluntary fishing capacity
reduction program. Currently only a Council or State
may request that the Secretary initiate such a program.
Include achieving stability, safety, or
organizational effectiveness in the list of qualified
reasons for initiating a capacity reduction program.
Require a program involving industry fee
systems to demonstrate the prospect of paying off its
debts rather than demonstrate certainty.
Require that if payment is made to a vessel
owner under a capacity reduction program, the owner
must also relinquish any claim to a permit associated
with the vessel or the vessel itself, and that the
vessel be either scrapped or permanently prohibited
from use for fishing in State, Federal, or high seas
area, or in the waters of a foreign nation.
Include harvester proponents of a capacity
reduction program in consultations between the
Secretary and the relevant Council.
Allow the Secretary to conduct a referendum
on establishing an industry fee system to fund a
capacity reduction program without request of the
Councils.
Reduce the requirements for a successful
referendum on an industry fee system to a simple
majority of those voting, rather than a two-thirds
majority.
Allow industry fees to be collected from the
seller rather than only the first ex-vessel fish
purchaser.
The bill also would revise subsection 312(e) of the Magnuson-
Stevens Act, which establishes requirements for implementation
of a voluntary capacity reduction program. Revised subsections
312(e)(1)-(2) would direct the Secretary to propose and adopt
framework regulations for all capacity reduction programs and
implement all such programs through the adoption and
promulgation of program regulations. Revised subsection
312(e)(3) would establish a harvester proponents'
implementation plan for those capacity reduction programs
funded through an industry fee system. Under this plan, the
Secretary would not be able to propose implementing regulations
until the harvester proponents of the plan provide a proposal
that: (1) specifies the type and number of vessels or permits
eligible to participate, taking into account various
considerations, and (2) outlines procedures for program
participation. Revised subsection 312(e)(4) would direct the
Secretary to enter into a contract with each person
participating in a program. Such a contract would be required
to be consistent with the framework and implementing
regulations. Revised subsections 312(e)(5)-(6) would establish
the procedures for reduction auctions which are to take place
if a capacity reduction program does not involve a fair market
assessment.
Section 114. Regional coastal disaster assistance, transition, and
recovery program.
This section would create a new section 315 in the Magnuson-
Stevens Act to establish a regional coastal disaster
assistance, transition, and recovery program. This program
would authorize the Secretary, in consultation with the
relevant Governors, to provide immediate relief to the fishery
sector of a region afflicted by a catastrophic fishery
disaster. Economic assistance would be made available for: (1)
meeting immediate shoreside infrastructure needs, (2) financial
assistance and job training for fishermen in a fishery that may
be temporarily closed, (3) funding for a capacity reduction
program under section 312(b), and (4) any other activities
authorized under the fisheries disaster assistance provisions
in section 312(a) of the Magnuson-Stevens Act, or section
308(d) of the Interjurisdictional Fisheries Act of 1986. Any
fisherman who opts to scrap a fishing vessel would be eligible
for job training.
New section 315(b)(4) would allow the Secretary to waive the
State or local matching requirements of section 308(d)(3) of
the Interjurisdictional Fisheries Act or section 312 of the
Magnuson-Stevens Act if no such funds are available and if the
benefits of full Federal financing outweigh the cost. However,
a State would be required to meet the requirements of section
312(b), the fisheries disaster relief provision of the
Magnuson-Stevens Act. New section 315(c) would direct the
Secretary to provide the Governor of each State participating
in a program under this section with a comprehensive socio-
economic evaluation of the affected fisheries to aid in the
assessment of their future viability. New section 315(d) would
define a catastrophic fishery disaster as a natural disaster, a
judicial closure, or regulatory fishery closure to protect
human health or the marine environment that: (1) results in
economic loss to coastal or fishing communities, (2) affects
more than one fishery managed by a State, interstate fishery
commission, or pursuant to a Federal FMP, and (3) is determined
to be a fishery failure under section 312(a) of the Magnuson-
Stevens Act or a resource disaster under section 308(d) of the
Interjurisdictional Fisheries Act of 1986.
Section 115. Fishery finance program hurricane assistance.
This section would create a program directing the Secretary,
subject to appropriations, to provide assistance to holders of
fishery finance program (FFP) loans who were affected by
Hurricanes Katrina or Rita. Any funds would be made available
to loan holders based on their outstanding balance in order to:
(1) defer principal payments for one year and reamortize the
debt, (2) extend the term of the loan for one year, (3) pay the
interest costs for loans during FY 2006-2012, and (4) provide
opportunities for loan forgiveness subject to Secretarial
approval. To be eligible for this program, loan holders must
use monies for the new investment in, repair, or replacement of
vessels, facilities, or fisheries infrastructure for use within
the affected areas.
Eligibility for such assistance would be limited to holders
of FFP loans who use the assistance to replace any damaged
capital for use within the declared disaster area. The section
would authorize up to $15 million for each eligible FFP loan
holder for FY 2006 through 2012.
Section 116. Shrimp fisheries hurricane assistance program.
This section would authorize $17,500,000 for FY 2006 through
2011 to the Secretary in order to carry out a disaster
assistance program in the Gulf of Mexico shrimp fishing
industry. Monies would be allocated to States based on the
percentage of the shrimp catch caught by their Gulf Coast
fisheries and would be used for such purposes as marketing,
seafood testing programs, development of limited access
programs, bycatch reduction, capacity reduction, and individual
and small business personal assistance.
Section 117. Bycatch reduction engineering program.
This section would create a new section 316 of the Magnuson-
Stevens Act directing the Secretary, in cooperation with the
Councils and other interests, to create a bycatch reduction
engineering program within one year of enactment. The program
would be tasked with developing technological devices and
engineering techniques for minimizing bycatch, seabird bycatch,
bycatch mortality, and post-release mortality. The provision
requires the program to: (1) be regionally based, (2)
coordinate with projects under the Magnuson-Stevens Act's
cooperative research and management program, (3) use
information and outreach to encourage the adoption of new
technologies, and (4) provide for consultation with Councils so
they may incorporate new approaches to bycatch reduction in
FMPs.
This section would also authorize an FMP to contain various
incentives to encourage the reduction of all types of bycatch.
These incentives could include the use of bycatch quota,
measures to promote the use of gear that reduces bycatch rates,
post-release mortality, or other measures as determined by the
best scientific information available.
Section 118. Community-based restoration program for fishery and
coastal habitats.
This section would authorize the existing NMFS community-
based restoration program to implement and support the
restoration of fishery and coastal habitats. The program would
be authorized to--
(1) provide funding and expertise to communities in
order to assist them with habitat restoration;
(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 community support and volunteer
participation in habitat restoration;
(6) promote stewardship of fishery and coastal
habitats; and
(7) leverage resources at national, regional, and
local levels.
Section 119. Prohibited acts.
This section would add two items to the list of prohibited
acts in section 307(1) of the Magnuson-Stevens Act: (1) a
prohibition on commercial activity with respect to any fish
acquired in violation of any foreign law or regulation, and (2)
a prohibition on the use of any vessel that has been removed
from a fishery through the fishing capacity reduction program
described in section 312(b)(2) of the Magnuson-Stevens Act.
These provisions are similar to language contained in the Lacey
Act (16 U.S.C. 3371 et seq.), but their placement here would
make transgressors subject to penalties under the Magnuson-
Stevens Act as well.
Section 120. Enforcement.
This section would amend sections 308 through 311 of the
Magnuson-Stevens Act to make a number of technical and
substantive changes to the authority of the Secretary and the
ways in which civil and criminal penalties are assessed,
enforced, and administered under the Magnuson-Stevens Act.
The Committee expects the Agency to exercise discretion in
the enforcement of these provisions. This increase in civil
penalties is needed in order to make the collections from
violations more than the cost of doing business in particularly
lucrative fisheries and to provide an adequate response to
especially egregious violations or violations involving repeat
offenders. The Committee feels an increase in penalties for
criminal offenses and the possibility of imprisonment is
particularly justified to provide adequate enforcement measures
to deter egregious, large-scale and repeat violators, who feel
monetary fines are a normal part of commercial fishing
operations. However, the new maximums and enhanced enforcement
authority should be focused on large-scale and repeat violators
and are not intended for use in routine enforcement cases.
Amendments to section 308: Civil Enforcement. Section
120(a)(1)-(5) would amend section 308 to: (1) raise the maximum
civil penalty from $100,000 to $240,000, (2) give the Secretary
authority to issue subpoenas for the purposes of any
investigation carried out under the Magnuson-Stevens Act or any
other marine resource law enforced by the Secretary, (3) make
technical changes to clarify that transfer of ownership of a
permit, such as those held in a LAPP, does not release it from
any sanctions held against it, and (4) make other technical
changes to include settlement of civil forfeitures in language
regarding the reinstatement of permits. In addition, this
section would amend section 308(a)(4) of the Magnuson-Stevens
Act to allow the Secretary to use subpoenas in the
investigation of alleged violations of the Magnuson-Stevens Act
and other marine resource laws enforced by the Secretary.
Existing law authorizes subpoenas for civil penalty hearings
but not for the investigations of alleged violations. The
Committee intends the inclusion of investigative subpoena
authority to allow for more thorough investigations of an
alleged violation prior to a decision to issue a notice of
violation and assessment of civil monetary penalty.
Amendments to section 309: Criminal penalties.--Section
120(b) would amend Magnuson-Stevens Act sections 309(a)-(c)
which govern criminal penalties, in order to:
Increase the maximum penalty for non-violent
criminal violations of Magnuson-Stevens Act provisions
under sections 307(1)(D),(E),(F),(H),(I),(L) or section
307(2) to $500,000 and 5 years imprisonment except for
corporations or other organizations, for which the
maximum penalty would be $1 million. The Magnuson-
Stevens Act currently authorizes penalties of $100,000
and/or six months imprisonment for violations of the
section 307(1) provisions listed above, and fines of
$200,000 but no imprisonment for violations of section
307(2). The violations covered under this provision are
generally related to enforcement actions or unlicensed
fishing in State waters and are not changed from the
current Act.
Remove the fine levied for aggravated
criminal offenses but keep the penalty of up to 10
years in prison. This penalty is currently levied
against individuals who threaten or commit a violent
offense against observers and enforcement officers. The
amendment would also extend the coverage to Council
members or staff.
Criminalize knowing violations of any other
provisions of section 307 of the Magnuson-Stevens Act
and set the maximum penalty at 5 years imprisonment
and/or fines as stipulated by Title 18. U.S.C. This
change would bring the Magnuson-Stevens Act into parity
with other environmental management statutes such as
the Clean Water Act.
Establish that legal actions related to the
Magnuson-Stevens Act fall under the jurisdiction of the
U.S. district courts and that each violation of
Magnuson-Stevens Act provisions shall be considered a
separate offense.
Amendments to section 310: Civil forfeitures.--Section 120(c)
would make technical changes to section 310(a) of the Magnuson-
Stevens Act in order to clarify that vessel forfeiture will not
be imposed as a penalty for violations of Magnuson-Stevens Act
provisions in cases where a citation issued under section
311(a) is deemed sufficient.
Amendments to section 311: Enforcement responsibility.--
Sections 120(d) and (e) would make technical changes to
sections 311(a) and (b) to clarify that the Secretary has the
authority to enforce any marine resource law administered by
the Secretary and to use, by agreement, the services of any
other Federal, State, Territory, Commonwealth, or Tribal agency
in doing so. Section 120(f) would make a technical change to
section 311(e)(1)(b) to allow the Secretary to pay rewards less
than $20,000 or 20 percent of the penalty in question for
assistance in resolving a violation of the Magnuson-Stevens
Act. Previously, rewards were to be not less than $20,000 or 20
percent of the penalty.
TITLE II--INFORMATION AND RESEARCH
Section 201. Recreational fisheries information.
This section would create a new subsection 401(g) of the
Magnuson-Stevens Act that would direct the Secretary to
establish a national program for the registration of marine
recreational fishermen. The new registry would include all
individuals who fish recreationally: (1) in the EEZ, (2) for
anadromous species, or (3) for continental shelf fishery
resources beyond the EEZ. New subsection 401(g)(2) would
require the Secretary to exempt any individuals or charter
fishing vessels from the registry if they are already
registered in a State which uses that information to assist in
completing marine recreational fisheries statistical surveys or
for evaluating the effects of proposed conservation and
management measures.
Subsection 401(g)(3) would direct the Secretary to establish
a program for improving the marine recreational fisheries
statistical surveys including to the extent possible: (1)
dockside interviews, (2) surveys to target anglers registered
at the State or local level, (3) collection of trip data from
charter fishing vessels, and (4) development of a weather
corrective factor to be applied to catch estimates. The
Secretary would report to Congress on the program's progress
two years after its establishment. Improved fishing data
collection is imperative to the successful implementation of
section 104(7) of the Magnuson-Stevens Act. Additionally, this
will help ensure that all fish caught under a recreational
permit are accurately accounted for under that recreational
sector's allocation.
Section 202. Collection of information.
This section would amend section 402(a) of the Magnuson-
Stevens Act to allow Councils to request that the Secretary
gather economic data regarding fish or fish processing
operations. It would also authorize the Secretary to initiate
an additional information collection program if it is deemed
necessary.
Section 203. Access to certain information.
This section would make technical changes to section 402(b),
which governs the handling of confidential information pursuant
to the Magnuson-Stevens Act. An amendment to section 402(b)(1)
would clarify that confidential information, as defined in this
bill, would be kept confidential and be exempt from disclosure
under the Freedom of Information Act, except to various parties
or under certain circumstances. These exemptions include: (1)
Federal or Council employees responsible for fishery
management, (2) State or Marine Fishery Commission employees,
subject to a confidentiality agreement prohibiting public
disclosure of information, (3) State employees charged with
fishery management in a State party to a JEA, (4) use to verify
catch in a LAPP, subject to a confidentiality agreement
prohibiting public disclosure of information, (5) with written
authorization from the appropriate parties, (6) use in
Secretarial determinations in a LAPP, and (7) use in support of
homeland security activities.
This section would also make requisite technical changes and
inset a new section 402(b)(2) to govern the confidentiality of
observer information. This information would be deemed
confidential, with the exceptions described above and three
additional exceptions: (1) for the North Pacific Council to
allow disclosure of bycatch information, (2) when the
information is necessary to adjudicate observer certifications,
and (3) for the training and assessment of observers.
Section 204. Cooperative research and management program.
This section would create a new section 317 of the Magnuson-
Stevens Act. This new section would establish a cooperative
research and management program to fund partnerships between
Federal and State entities in research and management
activities that are consistent with the goals of the Magnuson-
Stevens Act. The program would be implemented on a regional
basis and be developed and conducted through partnerships among
Federal and State managers and scientists, commercial and
recreational fishing industry participants, and educational
institutions.
Project eligibility would be based on a determination of
critical need by the Councils, made in consultation with the
Secretary. Funding would be awarded on a competitive basis and
based on regional needs with priority given to projects
designed to: (1) collect data to improve stock assessments, (2)
assess bycatch or post release mortality, (3) reduce bycatch or
post release mortality, (4) identify or conserve habitat areas
of particular concern, and (5) collect and compile socio-
economic data. The Committee expects the Secretary to be
sensitive to the research needs of each fisheries region and
the expectation that each region should be treated fairly with
respect to such allocation.
New subsection 317(d) would direct the Secretary to establish
a uniform, but regionally based, expedited permitting process
for projects under this section within six months after
enactment. Any programs funded through quota set-asides within
a fishery would be exempt from the requirements of this
section.
Section 205. Herring study.
This section would create a new section 318 in the Magnuson-
Stevens Act that would authorize the Secretary to conduct a
study on herring in the northwest Atlantic to examine its
abundance, distribution, and role as a forage fish for other
commercially important stocks. An interim report on the study
would be due at the end of FY 2008, and a final report would be
due within three months of the study's completion. The section
would authorize $2 million for FY 2007 through 2009 to complete
the study.
Section 206. Restoration study.
This section would create a new section 319 in the Magnuson-
Stevens Act that would authorize the Secretary to conduct a
study to update the scientific information and protocols needed
to improve coastal habitat restoration. The section would
authorize $500,000 for FY 2007 to complete the study.
Section 207. Western Pacific fishery demonstration projects.
This section would amend section 111(b) of the SFA to remove
the Secretary of the Interior as a granting agent for western
Pacific demonstration projects and to remove limits on the
number of projects that may exist at a given time. This section
also contains a technical correction to language in section
111(b)(6) of the SFA.
Section 208. Fisheries conservation and management fund.
This section would direct the Secretary to establish a
fishery conservation and management fund that shall be
available to the Secretary to disburse on a regional basis for
purposes including: (1) efforts to improve fishery harvest data
collection, (2) cooperative fishery research and analysis, (3)
development of methods or technology to improve the quality,
safety, and value of landed fish, (4) analysis of fishery
products for health benefits and risk, (5) marketing including
consumer education, and (6) financial assistance to fishermen
to offset the costs of modifying gear to comply with the
Magnuson-Stevens Act. The fund may receive deposits from the
sale of quota set aside by a Council for that purpose or from
outside sources, including donations from State and local
authorities and private or non-profit organizations. Money in
the fund would be disbursed to the various management regions
based on a consensus decision by the Councils except that no
region would receive less than 5 percent of the Fund.
Section 209. Use of fishery finance program and capital construction
fund for sustainable purposes.
This section would amend the Merchant Marine Act of 1936 (46
U.S.C. App. 1274(a)(7)) to expand the eligibility for federally
guaranteed loans, under the FFP. The expansion would include
activities that assist in the transition to reduced fishing
capacity, outlays for technologies, or upgrades designed to
improve collection and reporting on fishery-dependent data to
reduce bycatch, improve selectivity, reduce adverse impacts of
fishing gear, or to increase vessel safety. These provisions
would implement recommendations of the fishery financial
investment task force established under the SFA. Subsection
209(b) would expand the purposes of the capital construction
fund by authorizing termination and withdrawal from a fund in
exchange for the retirement of the related commercial fishing
vessels and commercial fishing permits. Persons could also
withdraw money from the fund for investment in shoreside
fishery related facilities for the purpose of promoting U.S.
ownership.
Section 210. Regional ecosystem research.
This section would add a new subsection 406(f) to the
Magnuson-Stevens Act. This subsection would direct the
Secretary, in consultation with the Councils, to undertake a
study on the state of the science for advancing the concepts
and integration of ecosystem considerations in regional fishery
management. The study would be based on the recommendations of
the Ecosystem Principles Advisory Panel, established in section
406 of the Magnuson-Stevens Act, and would include--
(1) recommendations on data requirements for
understanding ecosystem processes;
(2) recommendations for incorporating broad
stakeholder participation;
(3) recommendations on how to account for the effects
of environmental variation in fish stocks; and
(4) a description of existing and developing Council
efforts to implement ecosystem approaches.
The study would be completed six months after enactment.
Section 211. Deep sea coral research and technology program.
This section would create a new section 408 in the Magnuson-
Stevens Act to direct the Secretary to establish a deep sea
coral research and technology program. This program would be
developed in consultation with appropriate Councils and in
coordination with other Federal agencies and education
institutions. Its purpose would be to--
(1) identify existing research on, and known
locations of, deep sea corals;
(2) locate and map deep sea corals;
(3) monitor activity in known areas of deep sea
corals;
(4) conduct research, including cooperative research
with the fishing industry, on deep sea corals and
survey methods;
(5) develop technologies to reduce the interaction
between fishing gear and deep sea corals; and
(6) prioritize program activities in areas where deep
sea corals are known to occur.
This program would benefit from the active participation of a
wide range of knowledgeable individuals including commercial
fishermen, recreational fishermen, independent scientists,
government officials, conservationists, and other members of
the public. The Secretary and Councils should strive to involve
these individuals in the design and implementation of this
research program. All data collected by the program would be
transmitted to the appropriate Council, and the Secretary would
be required to submit a biennial report to Congress on steps
taken to identify, monitor and protect deep sea corals.
Section 212. Impact of turtle excluder devices on shrimping.
This section would direct the Undersecretary of Commerce for
Oceans and Atmosphere to establish an agreement with the
National Academy of Sciences to conduct a study on the effect
of turtle excluder devices on the shrimping industry. This
would authorize the same study for which funding was provided
in a previous appropriations bill.
Section 213. Hurricane effects on shrimp and oyster fisheries and
habitats.
This section would direct the Secretary to complete two
reports within six months of enactment, detailing the effects
of Hurricanes Katrina and Rita on commercial and recreational
fisheries and fishery habitat in States bordering the Gulf of
Mexico. Subsection 213(c) of the bill would direct the
Secretary to restore fishery habitats, including shrimp and
oyster habitats, in Louisiana and Mississippi.
TITLE III--OTHER FISHERIES STATUTES
Section 301. Amendments to Northern Pacific Halibut Act.
This section would make technical changes and would amend
section 8(a) of the Northern Pacific Halibut Act of 1982 (NPHA)
to expand its Permit Sanctions and Criminal and Civil Penalties
provisions as follows: (1) by raising caps on civil penalties
to $200,000 from $25,000, and (2) by allowing the Secretary to
consider information on the ability of a violator to pay a
penalty if such information is provided 30 days prior to the
hearing.
Permit sanctions.--Subsection 301(b) of the bill would allow
the Secretary, after a hearing, to deny, suspend, revoke, or
impose additional conditions on any permit issued under the
NPHA for the following transgressions: (1) use of a vessel in a
prohibited act, (2) violation of the Magnuson-Stevens Act by a
permit holder or vessel owner/operator, or (3) failure of a
permit holder or vessel owner/operator to pay any portion of a
fine or civil penalty associated with the violation of any
marine resource law enforced by the Secretary. Prior to
imposing any sanctions, the Secretary must consider the same
mitigating factors as for assessing a civil penalty, including
the nature, circumstances, extent, and gravity of the
violation, and the violator's degree of culpability, past
history, and any other matters justice may require. A permit
sanction would remain in place, including through any transfer
of ownership, until all fines and settlements have been paid.
Criminal penalties.--Subsection 301(c) of the bill would
raise the cap on fines associated with criminal penalties under
the Magnuson-Stevens Act from $50,000 to $200,000, except in
cases involving weapons or assault on an officer, in which case
the fine is raised from $100,000 to $400,000.
Section 302. Reauthorization of other fisheries acts.
This section would reauthorize a number of additional
fisheries acts including the:
Atlantic Striped Bass Conservation Act.--$1 million is
authorized to the Secretary of Commerce and $250,000 to the
Secretary of the Interior for each of FY 2006 through 2010.
Yukon River Salmon Act of 2000.--$4 million is authorized for
each of FY 2006 through 2010.
Shark Finning Prohibition Act.--Reauthorized at the same
funding level for FY 2006 through 2010.
Pacific Salmon Treaty Act.--This provision would take
language related to the 1999 Pacific Salmon Treaty Agreement
between the United States and Canada, from the Commerce,
Justice, and Science portion of the FY 2000 omnibus
appropriations bill and transfer it to the Pacific Salmon
Treaty Act (16 U.S.C. 3631 et seq.). This language covers the
authorization and management of the Northern and Southern
Boundary Restoration and Enhancement Funds and would
reauthorize the funds for FY 2006 through 2009.
State Authority for Dungeness Crab Fishery Management.--This
provision would make technical amendments to PL 105-384 to
extend the authority of States to manage the Dungeness Crab
fishery in the EEZ adjacent to State waters through 2016. The
extension would provide time for the States to consider long
term management needs, including development of a capacity
reduction plan. The provision also changes the State reporting
requirements to a report on stock ``status'' rather than
``health'' and stipulates that such reports must include
information on: (1) stock status and trends, (2) a description
of the types of scientific information and processes used to
determine the stock trends, and (3) measures implemented or
planned that are designed to end overfishing in the fishery.
TITLE IV--INTERNATIONAL
The Magnuson-Stevens Act requirements govern fishing within
the 4.5 million square mile U.S. EEZ, as well as harvesting
activities by U.S. fishermen on the high seas. However, many
other countries do not impose the same stringent regime on
their fishing fleets, either within their EEZs or on the high
seas. Moreover, many fisheries are not covered by international
agreements. Even when agreements exist, implementation is slow,
and management requirements are weak or ineffective in the face
of economic pressures. The absence of effective management
rules has both economic and conservation implications for U.S.
industry and management. There is a clear need to ensure other
nations, particularly those that fish on shared or high seas
stocks, adhere to conservation and management standards
comparable to those adhered to by U.S. fishermen both in U.S.
waters and on the high seas.
To the extent that fish stocks found in the U.S. EEZ migrate
outside these boundaries, unsustainable fishing practices of
foreign fleets adversely impact fish stocks and undermine the
effectiveness of the U.S. management measures. In addition, as
high seas stocks decline due to foreign overfishing, and as
bycatch of endangered or protected species by those fisheries
increases, additional restrictions placed on U.S. vessels under
the Magnuson-Stevens Act or other U.S. law both disadvantage
U.S. fleets and fail to address the problem. For example, a
court barred the Hawaiian long-line fishing fleet, a tiny
fraction of the Pacific longline fleet (1-3 percent), from
harvesting swordfish (and initially, tuna) on the high seas as
a result of concerns over interactions with endangered sea
turtles. However, longline fleets from other nations, which are
growing annually, continued to fish those same stocks without
protective measures, disadvantaging U.S. fishermen, and
increasing threats to sea turtles.
U.S. fishermen feel these effects in the marketplace, as they
must compete with cheaper imports harvested using unsustainable
fishing practices, while bearing the costs of compliance with
U.S. law. In addition, exploitation of fishery resources by
unregulated, expanding foreign fleets on the high seas has
resulted in falling world prices for many species. The growing
U.S. appetite for fish, and flow of inexpensive imports to the
United States, provides foreign fleets an incentive to maximize
unsustainable harvests, while economically disadvantaging U.S.
fishermen.
As such, the following provisions are included in S. 2012 in
order to strengthen the ability of international fishery
organizations and the United States to ensure compliance with,
enforcement of, and adherence to existing international
conservation and management measures for high seas fisheries.
Section 401. International monitoring and compliance.
This section would create a new section 207 of the Magnuson-
Stevens Act. The new section would contain provisions
authorizing the Secretary to promote improved monitoring and
compliance for high seas fisheries or fisheries governed by
international or regional fishery management agreements. To
accomplish these goals, the provision would authorize the
Secretary to--
(1) share information on harvesting and processing
capacity and IUU fishing on the high seas with law
enforcement organizations of foreign nations and
international organizations;
(2) further develop real time information sharing
capabilities, on IUU fishing;
(3) participate in global and regional efforts to
build an international network for monitoring;
(4) support efforts to create an international
registry of fishing vessels;
(5) enhance regional enforcement capabilities through
the use of remote sensing technology;
(6) provide technical assistance to developing
countries to improve their monitoring, control, and
surveillance capabilities; and
(7) support efforts requiring all large-scale fishing
vessels operating on the high seas to be fitted with
vessel monitoring systems by the end of 2008.
Section 402. Finding with respect to illegal, unreported, and
unregulated fishing.
This section would add a new finding to subsection 2(a) of
the Magnuson-Stevens Act stating that international cooperation
is necessary to address IUU fishing.
Section 403. Action to end illegal, unreported, or unregulated fishing
and reduce bycatch of protected marine species.
This section would amend the High Seas Driftnet Fisheries
Enforcement Act (16 U.S.C. 1826a et seq.) by creating four new
sections, 607-610, that aim to improve: (1) United States
awareness of the status of international marine resources, and
(2) international compliance with laws on IUU fishing and
protected marine resources. This information would be
summarized in a biennial report (Report) created by the
Secretary.
Biennial report on international compliance.--New section 607
would require the Secretary to report to Congress every two
years containing the following information: (1) state of
knowledge of the status of international living marine
resources of interest to the United States, (2) a list of
nations identified under new sections 609 and 610, (3) a
description of efforts taken by nations to comply with new
sections 609 and 610, (4) a description of progress made at the
international level pursuant to new section 608, in
strengthening international fishery management organizations
with the goal of ending IUU fishing, and (5) a plan of action
for implementing international measures to reduce the impacts
of fishing on protected marine resources.
Action to strengthen international fishery management
organizations.--New section 608 would direct the Secretary, in
consultation with the Secretary of State, to improve the
effectiveness of international fishery management organizations
(IFMOs) by urging those organizations to which the United
States is a party to: (1) incorporate sanctions against member
or nonmember governments with vessels engaging in IUU fishing,
(2) seek adoption of lists of IUU vessels including authorized
(green) and unauthorized (red) vessel lists, (3) seek
international adoption of a vessel monitoring system to
document capacity, (4) increase the use of observers and
compliance monitoring technologies, (5) adopt greater port
state controls in all nations, (6) seek adoption of market
related measures to combat IUU fishing including import
prohibitions, restrictions, and catch documentation schemes,
and (7) urge other nations at all levels, including the
Convention on International Trade in Endangered Species and the
World Trade Organization, to adopt measures to restrict trade
in IUU products.
Illegal, unreported, or unregulated fishing.--New section 609
would describe the process for identifying nations whose
vessels participate in IUU fishing. For a nation to be listed,
the Secretary must determine that vessels of that nation have
engaged in IUU fishing within the past year; and that the
relevant IFMO has not implemented measures to end IUU fishing
by that nation's vessels or that the nation is not party to an
IFMO, or no relevant IFMO exists. Listing a nation in the
Report shall constitute an identification under section
101(b)(1)(a) of the High Seas Driftnet Enforcement Act (16
U.S.C. 1826a(b)(1)(A)). This identification would require the
Secretary of the Treasury to: (1) withhold or revoke the
clearance of any vessels of the identified nation and deny them
entry into the navigable waters or any port of the United
States, (2) prohibit the importation of fish, fish products, or
sport fishing gear from that nation, and (3) impose other
economic sanctions if items (1) and (2) are not successful in
stopping the violation.
New section 609(c) would require the Secretary, in
consultation with the Secretary of State to notify the
President and the nation in question of its status within 60
days of submitting a report to Congress pursuant to section
607. The Secretary must also initiate consultations with listed
nations to encourage them to take corrective action and, notify
any relevant IFMOs of the actions taken by the United States.
New section 609(d) would require the Secretary to establish a
procedure for certifying that a listed nation is taking
corrective action. Such a determination must be provided in the
Report for each listed nation. To become certified as taking
corrective action a nation must provide documentary evidence,
or the relevant IFMO must implement measures that are effective
in ending IUU fishing by the listed nation. Alternatively, the
Secretary may certify vessels from a listed nation on a
shipment by shipment or other similar basis. If a nation
becomes certified as taking corrective action it would not be
subject to the sanctions described above.
The new section 609(e) would direct the Secretary to
promulgate a definition of IUU fishing within three months of
enactment. Such a definition would include: (1) fishing
activities that violate IFMO agreements to which the United
States is a party, (2) overfishing of fish stocks shared with
the United States for which there are no international
management measures or in areas not covered by an IFMO or
agreement, and (3) fishing activity that has adverse impacts on
seamounts, hydrothermal vents, and deep water corals located
beyond national jurisdiction for which there are no applicable
management measures or in areas with no applicable IFMO or
agreement. The Secretary would be authorized to receive such
sums as necessary to carry out section 609 for FY 2006 through
2012.
Equivalent conservation measures.--New section 610 would
establish a similar listing procedure to section 609 for
nations that fail to end or reduce bycatch of protected living
marine resources by using regulatory measures that are
comparable to those of the United States, taking into account
different conditions. The section would define a protected
living marine resource as non-target fish, marine mammals, or
sea turtles in areas beyond U.S. jurisdiction that are
protected under U.S. law or international agreement. This
definition includes sharks, but does not include any other fish
species managed under the Magnuson-Stevens Act, Atlantic Tunas
Convention Act, or another IFMO.
To be listed in the Report: (1) vessels of that nation must
have been engaged in fishing practices during the past year
that result in bycatch of a protected marine resource, (2) the
relevant international or regional organization must have
failed to implement effective measures to end or reduce the
impacts, and (3) the nation in question must have failed to
adopt a regulatory program governing such practices that is
comparable to that of the United States. The notification,
consultation, sanctions, and certification provisions of this
section are all similar to those of section 609 except that the
Secretary must seek international agreements for restricting
fishing practices that result in the bycatch of protected
marine resources through the United Nations Food and
Agriculture Organization as well as the relevant IFMO. The
Secretary must also seek the amendment of any relevant
international treaty to ensure that it is consistent with the
requirements of this section. In certifying a nation as taking
corrective action, the Secretary must ensure that the nation in
question is taking measures to maximize the probability of
post-release survival, including the mandatory use of circle
hooks in pelagic longline fishing.
This section would also require the Secretary to assist
nations in achieving certification, including by undertaking
cooperative research activities, facilitating the transfer of
appropriate technology, and designing and implementing fish
harvesting plans. The Secretary would be authorized to receive
such sums as are necessary for FY 2006 through 2012 to carry
out this section.
Sec. 404. Monitoring of Pacific insular area fisheries.
Section 404 would amend sections 201(h)(2)(B) and
204(e)(4)(A)(i) of the Magnuson-Stevens Act. These sections
concern observer coverage of foreign fishing under a Pacific
insular area fishery agreement. The amendments would allow
foreign fishing under such an agreement to be monitored by any
program that the Secretary determines is adequate to monitor
harvest, bycatch, and compliance with U.S. laws. The existing
law appears to require 100 percent observer coverage in these
fisheries, and some foreign nations have expressed concern over
the high cost of maintaining that level of coverage. These
changes would recognize that automated vessel monitoring
systems have become a valuable tool that can effectively
complement an observer program, thus enabling foreign fishing
to be monitored successfully at a lower cost.
Section 405. Reauthorization of the Atlantic Tunas Convention Act.
This section would reauthorize the Atlantic Tunas Convention
Act (ATCA) for $5,495 million in FY 2006, $5,770 million for
each of FY 2007 and 2008, $6,058 million for each of FY 2009
and 2010; and $6,361 million for each of FY 2011 and 2012.
These funding levels represent a 5 percent increase per year.
Of the total authorization, $160,000 per year would be
allocated to the advisory committee established under ATCA and
$4,500 million per year would be allocated to research
activities. This section would also establish a cooperative
research program on Atlantic billfish that would be allocated
$3 million based on the Atlantic Billfish Research Plan of
2002. This program would be established at the Southeast
Fisheries Science Center.
Section 406. International overfishing and domestic equity.
Section 406(a) would amend section 304(e) of the Magnuson-
Stevens Act which addresses rebuilding in overfished fisheries.
The amendment would add a new subsection 304(e)(8) to address a
situation in which a fishery is overfished due to international
fishing pressure and for which no international agreement or
measures exist to end overfishing. In this event, the provision
would direct the Secretary to seek international action to end
overfishing. The relevant Council would also be directed to
recommend regulations for U.S. fishermen relative to their
impact on the fishery and to provide recommendations for
international action.
Section 406(b) would amend section 304(g)(2) of the Magnuson-
Stevens Act which states that any highly migratory species
managed by the Secretary or pursuant to the ATCA that are
caught and released as part of a tagging study shall not be
considered bycatch. The amendment would expand this exemption
to highly migratory species managed by a Council or pursuant to
the Western and Central Pacific Fisheries Convention
Implementation Act described in title V.
TITLE V--IMPLEMENTATION OF WESTERN AND CENTRAL PACIFIC FISHERIES
CONVENTION
Title V contains the Western and Central Pacific Fisheries
Convention Implementation Act (WCPFC Implementation Act), which
is legislation to implement the Convention on the Conservation
and Management of Highly Migratory Stocks in the Western and
Central Pacific Ocean (Convention), adopted on September 5,
2000 in Honolulu, Hawaii. The Convention, which the United
States signed in 2000, became effective on June 19, 2004 prior
to U.S. ratification. The President transmitted the Convention
to the Senate on May 16, 2005, and the Senate provided its
advice and consent on November 17, 2005.
The objective of the Convention is to ensure the long-term
conservation and sustainable use of tuna and other highly
migratory stocks in the Western and Central Pacific Ocean, and
also will be an important tool in helping to reduce the impact
of fishing for such stocks on non-target species. The
Convention adopts provisions that implement key aspects of the
1995 United Nations Fish Stocks Agreement, including provisions
on compliance and enforcement, and bycatch of non-target
species.
Section 501 sets forth the title of the legislation, and
section 502 sets forth the definitions for terms used in the
WCPFC Implementation Act, including ``Convention Area,'' which
is the same as that which appears in the Convention, and
``highly migratory fish stocks,'' which tracks the definition
in the United States Convention on the Law of the Sea. Examples
of highly migratory species include tuna, swordfish, marlin and
related highly migratory species.
Section 503 would set forth the President's authority to
nominate five commissioners (and alternates) to represent the
United States on the Convention's governing Commission, as well
as their status and associated administrative matters. The
section would direct that one commissioner be an officer or
employee of the Department of Commerce (e.g., of NMFS), to
ensure the U.S. government is represented. Another commissioner
position is set aside for the Chairman or a sitting member of
the Western Pacific Council, which has authority under the
Magnuson-Stevens Act over development of FMPs for vessels of
the United States fishing for highly migratory species in the
areas seaward of Hawaii and U.S. Pacific island areas,
including, American Samoa, Guam, and the Northern Mariana
Islands. The Committee expects the Commissioners to include
representatives of each of the harvesting sectors participating
in the fisheries of the Convention Area, which should also
provide geographic diversity among the Commissioners.
Section 503 (d) would authorize U.S. Commission members to
appoint an Advisory Committee and establishes the status,
terms, and responsibilities of such a Committee. Section 503
(f) would provide for the development of a memorandum of
understanding (MOU) among the Secretary, the Secretary of
State, and the three Councils in the Pacific, setting forth a
clear understanding of the roles of the respective Councils in
international fishery management discussions relating to stocks
under Council jurisdiction, as well as with respect to
development of domestic fishing regulations for such stocks
that are consistent with international management actions.
Section 504 authorizes the Secretary of State, in
consultation with the Secretary and the U.S. commissioners, to
approve or disapprove acts of the Commission and act on them
either directly or by referral to the appropriate authority.
Section 505 would authorize the Secretary, in consultation with
the Coast Guard and the appropriate Councils, to implement and
enforce the provisions, and any regulations issued under, the
WCPFC Implementation Act. Consistent with practice in other
regions of the country, implementation of any discretionary
provisions of the Convention relating to stocks under Council
jurisdiction could be made, to the extent practicable and
within necessary timelines, under procedures used in the
Magnuson-Stevens Act.
Section 506 would set forth other authorities of the
Secretary under the WCPFC Implementation Act, including all
relevant research, permitting, and enforcement pursuant.
Subsection (b) would provide that all violations of the WCPFC
Implementation Act shall be prosecuted in the same manner, by
the same means, and with the same powers provided to the
Secretary under the Magnuson-Stevens Act, and section 507(b)
would state that any violation of the WCPFC Implementation Act
shall be enforced as if it were a violation of section 307
(Prohibited Acts) of the Magnuson-Stevens Act.
Section 508 would authorize the Commissioners, through the
Secretary of State and with the concurrence of the Secretary or
other organization involved, to cooperate with Federal, State,
and private institutions and organizations to carry out their
duties under the Convention.
Section 509 would direct the Secretary of State to ensure
participation by American Samoa, Guam, and the Northern Mariana
Islands to the same extent provided to territories of other
nations. Finally, section 510 would authorize to the Secretary
such sums as may be necessary for implementation of the WCPFC
Implementation Act.
TITLE VI--PACIFIC WHITING
Title VI implements the terms of the Agreement on Pacific
Hake/Whiting as signed by the United States and Canada in
November, 2003 (Agreement). It shall be known as the Pacific
Whiting Act of 2005 (Pacific Whiting Act).
Section 601 sets out the title of the legislation, and
section 602 provides a list of definitions used in the Pacific
Whiting Act, including ``offshore whiting resource,'' which is
defined as the transboundary stock of whiting excluding that
portion of the stock located in Puget Sound and the Strait of
Georgia.
Sections 603 through 606 would authorize the Secretary, in
consultation with the Secretary of State, to appoint U.S.
representatives to the various groups and committees authorized
by the Agreement. Section 603 would authorize the appointment
of four U.S. members of the joint management committee. These
representatives would include an official of NOAA, a member of
the Pacific Council, one member from a list submitted by the
treaty Indian tribes with rights to the offshore whiting
resource, and one appointee from the commercial fishing sector.
The term of office for each member would be 4 years. Section
604 would authorize the appointment of not more than two
scientific experts to the scientific review group for renewable
terms of not more than four years. Section 605 would authorize
the appointment of between six and twelve U.S. members to serve
as scientific experts on the joint technical committee,
including at least one NOAA official. Section 606 would
authorize appointment of between six and twelve members of the
advisory panel. These members shall have knowledge of or
experience with the offshore whiting resource, and shall not be
U.S. employees.
Section 607 would authorize the Secretary, in conjunction
with the Secretary of State, to accept or reject
recommendations of the joint management committee. Section
607(b) would authorize the Secretary to promulgate regulations
and cooperate with Canadian officials.
Section 608 would require the Secretary to establish a catch
level for Pacific whiting according to the standards of the
agreement but, otherwise, to manage the Pacific whiting fishery
according to the standards set forth in the Magnuson-Stevens
Act. The agreement stipulates that the Secretary shall set the
annual catch level in accordance with the recommendations of
the joint management committee in years when both Canadian and
U.S. members of the Committee agree on the appropriate level.
In years when no agreement is reached, the Secretary shall set
a catch level such that it: (1) takes into account the
recommendations of the Pacific Council, (2) uses the best
scientific information available, and (3) is based on the
default total allowable catch and allocation rules set forth in
the Agreement.
Section 609 would deal with administrative matters such as
employment status of Commissioners and their compensation.
Section 610 would authorize the Secretary to enforce the
provisions of this title, including prosecution of all
violations under the authority of the Magnuson-Stevens Act.
Finally, section 611 would authorize appropriation of such sums
as may be necessary for the implementation of the Pacific
Whiting Act.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
NORTHERN PACIFIC HALIBUT ACT OF 1982
SEC. 8. CIVIL PENALTY; PROCEDURE.
[16 U.S.C. 773f]
(a) Liability; Continuing Violations; Notice; Determination
of Amount.--Any person who is found by the Secretary, after
notice and opportunity for a hearing in accordance with section
554 of title 5, United States Code, to have committed an act
prohibited by section 7 shall be liable to the United States
for a civil penalty. The amount of the civil penalty shall not
exceed [$25,000] $200,000 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 taken into
account the nature, circumstances, extent, and gravity of the
prohibited acts committed and, with respect to the [violation,
the degree of culpability, and history of prior offenses,
ability to pay,] 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 if the information is
provided to the Secretary at least 30 days prior to an
administrative hearing.
(b) Judicial Review.--Any person against whom a civil penalty
is assessed under subsection (a) may obtain a 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 and the Attorney General. The
Secretary shall promptly file in such court a certified copy of
the record upon which such violation was found or such penalty
imposed, in accordance with rules prescribed pursuant to
section 2112 of title 28, United States Code. The findings and
order of the Secretary shall be set aside by such court if they
are not found to be supported by substantial evidence, as
provided in section 706(2) of title 5, United States Code.
(c) Recovery of Assessed Penalties by Attorney General.--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 validity and appropriateness of the final order
imposing the civil penalty shall not be subject to review.
(d) Compromise, Modification, and Remission of Penalties.--
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.
(e) Revocation or Suspension of Permit.--
(1) In general.--The Secretary may take any action
described in paragraph (2) in any case in which--
(A) a vessel has been used in the commission
of any act prohibited under section 7;
(B) the owner or operator of a vessel or any
other person who has been issued or has applied
for a permit under this Act has acted in
violation of section 7; or
(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.
(2) Permit-related actions.--Under the circumstances
described in paragraph (1) the Secretary may--
(A) revoke any permit issued with respect to
such vessel or person, with or without
prejudice to the issuance of subsequent
permits;
(B) suspend such permit for a period of time
considered by the Secretary to be appropriate;
(C) deny such permit; or
(D) impose additional conditions and
restrictions on any permit issued to or applied
for by such vessel or person under this Act
and, with respect to any foreign fishing
vessel, on the approved application of the
foreign nation involved and on any permit
issued under that application.
(3) Factors to Be Considered.--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.
(4) Transfers of ownership.--Transfer of ownership of
a vessel, a permit, or any interest in a permit, 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, permit, or interest in a permit,
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, permit, or interest at the
time of the transfer.
(5) Reinstatement.--In the case of any permit that is
suspended under this subsection for nonpayment of a
civil penalty, criminal fine, or any amount in
settlement of a civil forfeiture, the Secretary shall
reinstate the permit upon payment of the penalty, fine,
or settlement amount and interest thereon at the
prevailing rate.
(6) Hearing.--No sanction shall be imposed under this
subsection unless there has been prior opportunity for
a hearing on the facts underlying the violation for
which the sanction is imposed either in conjunction
with a civil penalty proceeding under this section or
otherwise.
(7) Permit defined.--In this subsection, the term
``permit'' means any license, certificate, approval,
registration, charter, membership, exemption, or other
form of permission issued by the Commission or the
Secretary, and includes any quota share or other
transferable quota issued by the Secretary.
SEC. 9. CRIMES AND CRIMINAL PENALTIES.
[16 U.S.C. 773g]
(a) Offenses.--A person is guilty of any offense if he
commits an act prohibited by section 7(a)(2), (3), (4), or (6);
or section 7(b).
(b) Fines; Imprisonment.--Any offense described in subsection
(a) is punishable by a fine of not more than [$50,000] $200,000
or imprisonment for not more than 6 months or both; except that
if in the commission of any offense the person uses a dangerous
weapon, engages in conduct that causes bodily injury to any
officer authorized to enforce the provisions of this Act, or
places any such officer in fear of imminent bodily injury the
offense is punishable by a fine of not more than [$100,000,]
$400,000, or imprisonment for not more than 10 years or both.
ATLANTIC TUNAS CONVENTION ACT of 1975
[SEC. 10. AUTHORIZATION OF APPROPRIATIONS.
[16 U.S.C. 971h]
[(a) In General.--There are authorized to be appropriated to
carry out this Act, including use for payment of the United
States share of the joint expenses of the Commission as
provided in Article X of the Convention, the following sums:
[(1) For each of fiscal years 2003 and 2004,
$5,480,000.
[(2) For each of fiscal years 2005 and 2006,
$5,495,000.
[(b) Allocation.--Of amounts available under this section for
each fiscal year--
[(1) $150,000 are authorized for the advisory
committee established under section 4 and the species
working groups established under section 4A; and
[(2) $4,240,000 are authorized for research
activities under this Act and the Act of September 4,
1980 (16 U.S.C. 971i).]
SEC. 10. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated to
the Secretary to carry out this Act, including use for payment
of the United States share of the joint expenses of the
Commission as provided in Article X of the Convention--
(1) $5,495,000 for fiscal year 2006;
(2) $5,770,000 for each of fiscal years 2007 and
2008;
(3) $6,058,000 for each of fiscal years 2009 and
2010; and
(4) $6,631,000 for each of fiscal years 2011 and
2012.
(b) Allocation.--Of the amounts made available under
subsection (a) for each fiscal year--
(1) $160,000 are authorized for the advisory
committee established under section 4 of this Act and
the species working groups established under section 4A
of this Act; and
(2) $7,500,000 are authorized for research activities
under this Act and section 3 of Public Law 96-339 (16
U.S.C. 971i), of which $3,000,000 shall be for the
cooperative research program under section 3(b)(2)(H)
of that section (16 U.S.C. 971i(b)(2)(H).
PUBLIC LAW 96-339
SEC. 3. BIENNIAL REPORT ON BLUEFIN TUNA; HIGHLY MIGRATORY SPECIES
RESEARCH AND MONITORING.
[16 U.S.C. 971i]
(a) [Omitted. The report required by subsection (a) was
terminated by section 3003 of the Federal Reports Elimination
and Sunset Act of 1995 (31 U.S.C. 1113 note).]
(b) Highly Migratory Species Research and Monitoring.--
(1) Within 6 months after the date of enactment of
the Atlantic Tunas Convention Authorization Act of
1995, the Secretary of Commerce, in cooperation with
the advisory committee established under section 4 of
the Atlantic Tunas Convention Act of 1975 (16 U.S.C.
971b) and in consultation with the United States
Commissioners on the International Commission for the
Conservation of Atlantic Tunas (referred to elsewhere
in this section as the ``Commission'') and the
Secretary of State, shall develop and implement a
comprehensive research and monitoring program to
support the conservation and management of Atlantic
bluefin tuna and other highly migratory species that
shall--
(A) identify and define the range of stocks
of highly migratory species in the Atlantic
Ocean, including Atlantic bluefin tuna; and
(B) provide for appropriate participation by
nations which are members of the Commission.
(2) The program shall provide for, but not be limited
to--
(A) statistically designed cooperative
tagging studies;
(B) genetic and biochemical stock analyses;
(C) population censuses carried out through
aerial surveys of fishing grounds and known
migration areas;
(D) adequate observer coverage and port
sampling of commercial and recreational fishing
activity;
(E) collection of comparable real-time data
on commercial and recreational catches and
landings through the use of permits, logbooks,
landing reports for charter operations and
fishing tournaments, and programs to provide
reliable reporting of the catch by private
anglers;
(F) studies of the life history parameters of
Atlantic bluefin tuna and other highly
migratory species;
(G) integration of data from all sources and
the preparation of data bases to support
management decisions; [and]
(H) include a cooperative research program on
Atlantic billfish based on the Southeast
Fisheries Science Center Atlantic Billfish
Research Plan of 2002; and
[(H)] (I) other research as necessary.
(3) In developing a program under this section, the
Secretary shall--
(A) ensure that personnel and resources of
each regional research center shall have
substantial participation in the stock
assessments and monitoring of highly migratory
species that occur in the region;
(B) provide for comparable monitoring of all
United States fishermen to which the Atlantic
Tunas Convention Act of 1975 applies with
respect to effort and species composition of
catch and discards;
(C) consult with relevant Federal and State
agencies, scientific and technical experts,
commercial and recreational fishermen, 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; and
(D) through the Secretary of State, encourage
other member nations to adopt a similar
program.
SHARK FINNING PROHIBITION ACT
SEC. 10. AUTHORIZATION OF APPROPRIATIONS.
[16 U.S.C. 1822 note]
There are authorized to be appropriated to the Secretary of
Commerce for [fiscal years 2001 through 2005] fiscal years 2006
through 2010 such sums as are necessary to carry out this Act.
ATLANTIC STRIPED BASS CONSERVATION ACT
SEC. 7. AUTHORIZATION OF APPROPRIATIONS; COOPERATIVE AGREEMENTS.
[16 U.S.C. 5156]
[(a) Authorization.--For each of fiscal years 2001, 2002, and
2003, there are authorized to be appropriated to carry out this
Act--
[(1) $1,000,000 to the Secretary of Commerce; and
[(2) $250,000 to the Secretary of the Interior.]
(a) Authorization.--For each of fiscal years 2006, 2007,
2008, 2009, and 2010, there are authorized to be appropriated
to carry out this Act--
(1) $1,000,000 to the Secretary of Commerce; and
(2) $250,000 to the Secretary of the Interior.
(b) Cooperative Agreements.--The Secretaries may enter into
cooperative agreements with the Atlantic States Marine
Fisheries Commission or with States, for the purpose of using
amounts appropriated pursuant to this section to provide
financial assistance for carrying out the purposes of this Act.
YUKON RIVER SALMON ACT OF 2000
SEC. 208. AUTHORIZATION OF APPROPRIATIONS.
[16 U.S.C. 5727]
There are authorized to be appropriated to the Secretary of
the Interior to carry out this title [$4,000,000 for each of
fiscal years 2004 through 2008,] $4,000,000 for each of fiscal
years 2006 through 2010, of which--
(1) such sums as are necessary shall be available
each fiscal year for travel expenses of Panel members,
alternate Panel members, United States members of the
Joint Technical Committee established by paragraph C.2
of the memorandum of understanding concerning the
Pacific Salmon Treaty between the Government of the
United States and the Government of Canada (recorded
January 28, 1985), and members of an advisory committee
established and appointed under section 203, in
accordance with Federal Travel Regulations and sections
5701, 5702, 5704 through 5708, and 5731 of title 5,
United States Code;
(2) such sums as are necessary shall be available for
the United States share of expenses incurred by the
Joint Technical Committee and any panel established by
any agreement between the Government of the United
States and the Government of Canada for restoration and
enhancement of salmon originating in Canada;
(3) up to $3,000,000 shall be available each fiscal
year for activities by the Department of the Interior
and the Department of Commerce for survey, restoration,
and enhancement activities related to salmon stocks
originating from the Yukon River in Canada, of which up
to $1,200,000 shall be available each fiscal year for
Yukon River salmon stock restoration and enhancement
projects under section 207(b); and
(4) $600,000 shall be available each fiscal year for
cooperative salmon research and management projects in
the portion of the Yukon River drainage located in the
United States that are recommended by the Panel.
SUSTAINABLE FISHERIES ACT
SEC. 111. PACIFIC COMMUNITY FISHERIES.
[16 U.S.C. 1855 note]
(a) [Omitted. Subsection (a) amended section 305 of the
Magnuson-Stevens Fishery Conservation and Management Act.]
(b) Western Pacific Demonstration Projects.--(1) The
Secretary of Commerce [and the Secretary of the Interior are]
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 [not less
than three and not more than five] fishery demonstration
projects to foster and promote traditional indigenous fishing
practices. There are authorized to be appropriated to carry out
this section $500,000 for each fiscal year.
(2) Demonstration projects funded pursuant to this subsection
shall foster and promote the involvement of western Pacific
communities in western Pacific fisheries and may--
(A) identify and apply traditional indigenous fishing
practices;
(B) develop or enhance western Pacific community-
based fishing opportunities; and
(C) involve research, community education, or the
acquisition of materials and equipment necessary to
carry out any such demonstration project.
(3)(A) The Western Pacific Fishery Management Council, in
consultation with the Secretary of Commerce, shall establish an
advisory panel under section 302(g) of the Magnuson-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) For the purposes of this subsection, ``western Pacific
community'' shall mean a community eligible to participate
under section 305(i)(2)(B) of the Magnuson-Stevens Fishery
Conservation and Management Act, as amended by this Act.]
(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)).
MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT
SEC. 2. FINDINGS, PURPOSES AND POLICY.
[16 U.S.C. 1801]
(a) Findings.--The Congress finds and declares the following:
(1) The fish off the coasts of the United States, the
highly migratory species of the high seas, the species
which dwell on or in the Continental Shelf appertaining
to the United States, and the anadromous species which
spawn in United States rivers or estuaries, constitute
valuable and renewable natural resources. These fishery
resources contribute to the food supply, economy, and
health of the Nation and provide recreational
opportunities.
(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 Act.
(12) International cooperation is necessary to
address illegal, unreported, and unregulated fishing
and other fishing practices which may harm the
sustainability of living marine resources and
disadvantage the United States fishing industry.
(b) Purposes.--It is therefore declared to be the purposes of
the Congress in this Act--
(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 State, 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 Act--
(1) to maintain without change the existing
territorial or other ocean jurisdiction of the United
States for all purposes other than the conservation and
management of fishery resources, as provided for in
this Act;
(2) to authorize no impediment to, or interference
with, recognized legitimate uses of the high seas,
except as necessary for the conservation and management
of fishery resources, as provided for in this Act;
(3) to assure that the national fishery conservation
and management program utilizes, and is based upon, the
best scientific information available; involves, and is
responsive to the needs of, interested and affected
States and citizens; considers efficiency; draws upon
Federal, State, and academic capabilities in carrying
out research, administration, management, and
enforcement; considers the effects of fishing on
immature fish and encourages development of practical
measures that minimize bycatch and avoid unnecessary
waste of fish; and is workable and effective;
(4) to permit foreign fishing consistent with the
provisions of this Act;
(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.
SEC. 3. DEFINITIONS.
[16 U.S.C. 1802]
As used in this Act, unless the context otherwise requires--
(1) The term ``anadromous species'' means species of
fish which spawn in fresh or estuarine waters of the
United States and which migrate to ocean waters.
(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, United States Code) 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 ``confidential information'' means--
(A) trade secrets; or
(B) commercial or financial information the
disclosure of which is likely to result in
substantial harm to the competitive position of
the person who submitted the information to the
Secretary.
[(7)] (8) 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 Act.
[(8)] (9) The term ``Council'' means any Regional
Fishery Management Council established under section
302.
[(9)] (10) 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)] (11) The term ``essential fish habitat'' means
those waters and substrate necessary to fish for
spawning, breeding, feeding or growth to maturity.
[(11)] (12) The term ``exclusive economic zone''
means the zone established by Proclamation Numbered
5030, dated March 10, 1983. For purposes of applying
this Act, the inner boundary of that zone is a line
coterminous with the seaward boundary of each of the
coastal States.
[(12)] (13) The term ``fish'' means finfish,
mollusks, crustaceans, and all other forms of marine
animal and plant life other than marine mammals, and
birds.
[(13)] (14) 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.
(15) 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.
[(14)] (16) The term ``fishery resource'' means any
fishery, any stock of fish, any species of fish, and
any habitat of fish.
[(15)] (17) 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.
[(16)] (18) 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.
[(17)] (19) 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.
[(18)] (20) The term ``foreign fishing'' means
fishing by a vessel other than a vessel of the United
States.
[(19)] (21) 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.
[(20)] (22) The term ``highly migratory species''
means tuna species, marlin (Tetrapturus spp. and
Makaira spp.), oceanic sharks, sailfishes (Istiophorus
spp.), and swordfish (Xiphias gladius).
(23) 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.
[(21)] (24) The term ``individual fishing quota''
means a Federal permit under a limited access system to
harvest a quantity of fish, expressed by a unit or
units representing a percentage of the total allowable
catch of a fishery that may be received or held for
exclusive use by a person. Such term does not include
community development quotas as described in section
305(i).
[(22)] (25) 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.
[(23)] (26) 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.
(27) The term ``limited access privilege''--
(A) means a Federal permit, issued as part of
a limited access system under section 303A to
harvest a quantity of fish that may be received
or held for exclusive use by a person; and
(B) includes an individual fishing quota; but
(C) does not include community development
quotas as described in section 305(i).
[(24)] (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.
[(25)] (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.
[(26)] (30) The term ``national standards'' means the
national standards for fishery conservation and
management set forth in section 301.
[(27)] (31) The term ``observer'' means any person
required or authorized to be carried on a vessel for
conservation and management purposes by regulations or
permits under this Act.
(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.
[(28)] (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.
[(29)] (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.
[(30)] (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.
[(31)] (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.
[(32)] (37) The term ``recreational fishing'' means
fishing for sport or pleasure.
[(33)] (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.
[(34)] (39) The term ``Secretary'' means the
Secretary of Commerce or his designee.
[(35)] (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.
[(36)] (41) 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.
[(37)] (42) The term ``stock of fish'' means a
species, subspecies, geographical grouping, or other
category of fish capable of management as a unit.
[(38)] (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.
[(39)] (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.
[(40)] (45) The term ``United States'', when used in
a geographical context, means all the States thereof.
[(41)] (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.
[(42)] (47) The term ``United States harvested fish''
means fish caught, taken, or harvested by vessels of
the United States within any fishery regulated under
this Act.
[(43)] (48) The term ``vessel of the United States''
means--
(A) any vessel documented under chapter 121
of title 46, United States Code;
(B) any vessel numbered in accordance with
chapter 123 of title 46, United States Code,
and measuring less than 5 net tons;
(C) any vessel numbered in accordance with
chapter 123 of title 46, United States Code,
and used exclusively for pleasure; or
(D) any vessel not equipped with propulsion
machinery of any kind and used exclusively for
pleasure.
[(44)] (49) The term ``vessel subject to the
jurisdiction of the United States'' has the same
meaning such term has in section 3(c) of the Maritime
Drug Law Enforcement Act (46 U.S.C. App. 1903(c)).
[(45)] (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.
[SEC. 4. AUTHORIZATION OF APPROPRIATIONS.
[16 U.S.C. 1803]
[There are authorized to be appropriated to the Secretary for
the purposes of carrying out the provisions of this Act, not to
exceed the following sums:
[(1) $147,000,000 for fiscal year 1996;
[(2) $151,000,000 for fiscal year 1997;
[(3) $155,000,000 for fiscal year 1998; and
[(4) $159,000,000 for fiscal year 1999.]
SEC. 4. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Secretary to
carry out the provisions of this Act--
(1) $328,004,000 for fiscal year 2006; and
(2) such sums as may be necessary for fiscal years
2007 through 2012.
* * * * * * *
SEC. 102. HIGHLY MIGRATORY SPECIES.
[16 U.S.C. 1812]
(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.--For fisheries being managed
under an international fisheries agreement to which the United
States is a party, Council or Secretarial action, if any, shall
reflect 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 Act in this regard
shall be communicated to and promoted by the United States in
the international or regional fisheries organization.
* * * * * * *
SEC. 201. FOREIGN FISHING.
[16 U.S.C. 1821]
(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) or
section 204(e), or under a permit issued under section
204(d);
(2) is not prohibited under subsection (f); and
(3) is conducted under, and in accordance with, a
valid and applicable permit issued pursuant to section
204.
(b) Existing International Fishery Agreements.--Foreign
fishing described in subsection (a) may be conducted pursuant
to an international fishery agreement (subject to the
provisions of section 202(b) or (c), if such agreement--
(1) was in effect on the date of enactment of this
Act; and
(2) has not expired, been renegotiated, or otherwise
ceased to be of force and effect with respect to the
United States.
(c) Governing International Fishery Agreements.--Foreign
fishing described in subsection (a) may be conducted pursuant
to an international fishery agreement (other than a treaty)
which meets the requirements of this subsection if such
agreement becomes effective after application of section 203.
Any such international fishery agreement shall hereafter in
this Act be referred to as a ``governing international fishery
agreement''. Each governing international fishery agreement
shall acknowledge the exclusive fishery management authority of
the United States, as set forth in this Act. It is the sense of
the Congress that each such agreement shall include a binding
commitment, on the part of such foreign nation and its fishing
vessels, to comply with the following terms and conditions:
(1) The foreign nation, and the owner or operator of
any fishing vessel fishing pursuant to such agreement,
will abide by all regulations promulgated by the
Secretary pursuant to this Act, including any
regulations promulgated to implement any applicable
fishery management plan or any preliminary fishery
management plan.
(2) The foreign nation, and the owner or operator of
any fishing vessel fishing pursuant to such agreement,
will abide by the requirement that--
(A) any officer authorized to enforce the
provisions of this Act (as provided for in
section 311) be permitted--
(i) to board, and search or inspect,
any such vessel at any time,
(ii) to make arrests and seizures
provided for in section 311(b) whenever
such officer has reasonable cause to
believe, as a result of such a search
or inspection, that any such vessel or
any person has committed an act
prohibited by section 307, and
(iii) to examine and make notations
on the permit issued pursuant to
section 204 for such vessel;
(B) the permit issued for any such vessel
pursuant to section 204 be prominently
displayed in the wheelhouse of such vessel;
(C) transponders, or such other appropriate
position-fixing and identification equipment as
the Secretary of the department in which the
Coast Guard is operating determines to be
appropriate, be installed and maintained in
working order on each such vessel;
(D) United States observers required under
subsection (h) be permitted to be stationed
aboard any such vessel and that all of the
costs incurred incident to such stationing,
including the costs of data editing and entry
and observer monitoring, be paid for, in
accordance with such subsection, by the owner
or operator of the vessel;
(E) any fees required under section
204(b)(10) be paid in advance;
(F) agents be appointed and maintained within
the United States who are authorized to receive
and respond to any legal process issued in the
United States with respect to such owner or
operator; and
(G) responsibility be assumed, in accordance
with any requirements prescribed by the
Secretary, for the reimbursement of United
States citizens for any loss of, or damage to,
their fishing vessels, fishing gear, or catch
which is caused by any fishing vessel of that
nation; and will abide by any other monitoring,
compliance, or enforcement requirement related
to fishery conservation and management which is
included in such agreement.
(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).
(4) The foreign nation will--
(A) apply, pursuant to section 204, for any
required permits;
(B) deliver promptly to the owner or operator
of the appropriate fishing vessel any permit
which is issued under that section for such
vessel;
(C) abide by, and take appropriate steps
under its own laws to assure that all such
owners and operators comply with, section
204(a) and the applicable conditions and
restrictions established under section
204(b)(7); and
(D) take, or refrain from taking, as
appropriate, actions of the kind referred to in
subsection (e)(1) in order to receive favorable
allocations under such subsection.
(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, [shall be] is that portion of the optimum
yield of such fishery which [will not] cannot, or will not, be
harvested by vessels of the United States, as determined in
accordance with this Act. Allocations of the total allowable
level of foreign fishing are discretionary, except that the
total allowable level shall be zero for fisheries determined by
the Secretary to have adequate or excess 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 8(a) of the Fishermen's
Protective Act of 1967 (22 U.S.C.
1978(a)).
(ii) The term ``remedial period''
means the 365-day period beginning on
the date on which a certification is
issued with respect to a foreign
country.
(B) If the Secretary issues a certification
with respect to any foreign country, then each
allocation under paragraph (1) that--
(i) is in effect for that foreign
country on the date of issuance; or
(ii) is not in effect on such date
but would, without regard to this
paragraph, be made to the foreign
country within the remedial period;
shall be reduced by the Secretary of
State, in consultation with the
Secretary, by not less than 50 percent.
(C) The following apply for purposes of
administering subparagraph (B) with respect to
any foreign country:
(i) If on the date of certification,
the foreign country has harvested a
portion, but not all, of the quantity
of fish specified under any allocation,
the reduction under subparagraph (B)
for that allocation shall be applied
with respect to the quantity not
harvested as of such date.
(ii) If the Secretary notified the
Secretary of State that it is not
likely that the certification of the
foreign country will be terminated
under section 8(d) of the Fishermen's
Protective Act of 1967 before the close
of the period for which an allocation
is applicable or before the close of
the remedial period (whichever close
first occurs) the Secretary of State,
in consultation with the Secretary,
shall reallocate any portion of any
reduction made under subparagraph (B)
among one or more foreign countries for
which no certification is in effect.
(iii) If the certification is
terminated under such section 8(d)
during the remedial period, the
Secretary of State shall return to the
foreign country that portion of any
allocation reduced under subparagraph
(B) that was not reallocated under
clause (ii); unless the harvesting of
the fish covered by the allocation is
otherwise prohibited under this Act.
(iv) The Secretary may refund or
credit, by reason of reduction of any
allocation under this paragraph, any
fee paid under section 204.
(D) If the certification of a foreign country
is not terminated under section 8(d) of the
Fishermen's Protective Act of 1967 before the
close of the last day of the remedial period,
the Secretary of State--
(i) with respect to any allocation
made to that country and in effect (as
reduced under subparagraph (B)) on such
last day, shall rescind, effective on
and after the day after such last day,
any harvested 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 204(b), shall
prepare a preliminary fishery management plan for any fishery
covered by such application if the Secretary determines that no
fishery management plan for that fishery will be prepared and
implemented, pursuant to title III, before March 1, 1977. To
the extent practicable, each such plan--
(1) shall contain a preliminary description of the
fishery and a preliminary determination as to--
(A) the optimum yield from such fishery;
(B) when appropriate, the capacity and extent
to which United States fish processors will
process that portion of such optimum yield that
will be harvested by vessels of the United
States; and
(C) the total allowable level of foreign
fishing with respect to such fishery;
(2) shall require each foreign fishing vessel engaged
or wishing to engage in such fishery to obtain a permit
from the Secretary;
(3) shall require the submission of pertinent data to
the Secretary, with respect to such fishery, as
described in section 303(a)(5); and
(4) may, to the extent necessary to prevent
irreversible effects from overfishing, with respect to
such fishery, contain conservation and management
measures applicable to foreign fishing which--
(A) are determined to be necessary and
appropriate for the conservation and management
of such fishery,
(B) are consistent with the national
standards, the other provisions of this Act,
and other applicable law, and
(C) are described in section 303(b)(2), (3),
(4), (5), and (7).
Each preliminary fishery management plan shall be in effect
with respect to foreign fishing for which permits have been
issued until a fishery management plan is prepared and
implemented, pursuant to title III, with respect to such
fishery. The Secretary may, in accordance with section 553 of
title 5, United States Code, also prepare and promulgate
interim regulations with respect to any such preliminary plan.
Such regulations shall be in effect until regulations
implementing the applicable fishery management plan are
promulgated pursuant to section 305.
(h) Full Observer Coverage Program.--
(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
[that is at least equal in effectiveness to the
program established by the Secretary;] 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 Act; and shall cooperate in carrying out such
other scientific programs relating to the conservation
and management of living resources as the Secretary
deems appropriate.
(4) In addition to any fee imposed under section
204(b)(10) of this Act and section 10(e) of the
Fishermen's Protective Act of 1967 (22 U.S.C. 1980(e))
with respect to foreign fishing for any year after
1980, the Secretary shall impose, with respect to each
foreign fishing vessel for which a permit is issued
under such section 204, a surcharge in an amount
sufficient to cover all the costs of providing a United
States observer aboard that vessel. The failure to pay
any surcharge imposed under this paragraph shall be
treated by the Secretary as a failure to pay the permit
fee for such vessel under section 204(b)(10). All
surcharges collected by the Secretary under this
paragraph shall be deposited in the Foreign Fishing
Observer Fund established by paragraph (5).
(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 Act.
(i) Recreational Fishing.--Notwithstanding any other
provision of this title, foreign fishing vessels which are not
operated for profit may engage in recreational fishing within
the exclusive economic zone 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 304. The Secretary
shall consult with the Secretary of State and the Secretary of
the Department in which the Coast Guard is operating in
formulating the conditions and restrictions to be applied by
the Secretary under the authority of this subsection.
* * * * * * *
SEC. 204. PERMITS FOR FOREIGN FISHING.
[16 U.S.C. 1824]
(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). No
permit issued under this section may be valid for
longer than a year; and section 558(c) of title 5,
United States Code, does not apply to the renewal of
any such permit.
(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
Act, or he may disapprove all or any portion of
the application.
(B)(i) In the case of any application which
specifies that one or more foreign fishing
vessels propose to receive at sea United States
harvested fish from vessels of the United
States, the Secretary may approve the
application unless the Secretary determines, on
the basis of the views, recommendations, and
comments referred to in subparagraph (A) and
other pertinent information, that United States
fish processors have adequate capacity, and
will utilize such capacity, to process all
United States harvested fish from the fishery
concerned.
(ii) The amount or tonnage of United
States harvested fish which may be
received at sea during any year by
foreign fishing vessels under permits
approved under this paragraph may not
exceed that portion of the optimum
yield of the fishery concerned which
will not be utilized by United States
fish processors.
(iii) In deciding whether to approve
any application under this
subparagraph, the Secretary may take
into account, with respect to the
foreign nation concerned, such other
matters as the Secretary deems
appropriate.
(7) Establishment of conditions and restrictions.--
The Secretary shall establish conditions and
restrictions which shall be included in each permit
issued pursuant to any application approved under
paragraph (6) or subsection (d) and which must be
complied with by the owner or operator of the fishing
vessel for which the permit is issued. Such conditions
and restrictions shall include the following:
(A) All of the requirements of any applicable
fishery management plan, or preliminary fishery
management plan, and any applicable Federal or
State fishing regulations.
(B) The requirement that no permit may be
used by any vessel other than the fishing
vessel for which it is issued.
(C) The requirements described in section
201(c)(1), (2), and (3).
(D) If the permit is issued other than
pursuant to an application approved under
paragraph (6)(B) or subsection (d), the
restriction that the foreign fishing vessel may
not receive at sea United States harvested fish
from vessels of the United States.
(E) If the permit is issued pursuant to an
application approved under paragraph (6)(B),
the maximum amount or tonnage of United States
harvested fish which may be received at sea
from vessels of the United States.
(F) Any other condition and restriction
related to fishery conservation and management
which the Secretary prescribes as necessary and
appropriate.
(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 201(b) and which
wishes to engage in fishing described in subsection (a). Each
such permit shall set forth the terms and conditions contained
in the agreement that apply with respect to such fishing, and
shall include the additional requirement that the owner or
operator of the fishing vessel for which the permit is issued
shall prominently display such permit in the wheelhouse of such
vessel and show it, upon request, to any officer authorized to
enforce the provisions of this Act (as provided for in section
311). The Secretary of State, after consultation with the
Secretary and the Secretary of the department in which the
Coast Guard is operating, shall prescribe the form and manner
in which applications for registration permits may be made, and
the forms of such permits. The Secretary of State may
establish, require the payment of, and collect fees for
registration permits; except that the level of such fees shall
not exceed the administrative costs incurred by him in issuing
such permits.
(d) Transshipment Permits.--
(1) Authority to issue permits.--The Secretary may
issue a transshipment permit under this subsection
which authorizes a vessel other than a vessel of the
United States to engage in fishing consisting solely of
transporting fish or fish products at sea from a point
within the exclusive economic zone or, with the
concurrence of a State, within the boundaries of that
State, to a point outside the United States to any
person who--
(A) submits an application which is approved
by the Secretary under paragraph (3); and
(B) pays a fee imposed under paragraph (7).
(2) Transmittal.--Upon receipt of an application for
a permit under this subsection, the Secretary shall
promptly transmit copies of the application to the
Secretary of State, Secretary of the department in
which the Coast Guard is operating, any appropriate
Council, and any affected State.
(3) Approval of application.--The Secretary may
approve, in consultation with the appropriate Council
or Marine Fisheries Commission, an application for a
permit under this section if the Secretary determines
that--
(A) the transportation of fish or fish
products to be conducted under the permit, as
described in the application, will be in the
interest of the United States and will meet the
applicable requirements of this Act;
(B) the applicant will comply with the
requirements described in section 201(c)(2)
with respect to activities authorized by any
permit issued pursuant to the application;
(C) the applicant has established any bonds
or financial assurances that may be required by
the Secretary; and
(D) no owner or operator of a vessel of the
United States which has adequate capacity to
perform the transportation for which the
application is submitted has indicated to the
Secretary an interest in performing the
transportation at fair and reasonable rates.
(4) Whole or partial approval.--The Secretary may
approve all or any portion of an application under
paragraph (3).
(5) Failure to approve application.--If the Secretary
does not approve any portion of an application
submitted under paragraph (1), the Secretary shall
promptly inform the applicant and specify the reasons
therefor.
(6) Conditions and restrictions.--The Secretary shall
establish and include in each permit under this
subsection conditions and restrictions, including those
conditions and restrictions set forth in subsection
(b)(7), which shall be complied with by the owner and
operator of the vessel for which the permit is issued.
(7) Fees.--The Secretary shall collect a fee for each
permit issued under this subsection, in an amount
adequate to recover the costs incurred by the United
States in issuing the permit, except that the Secretary
shall waive the fee for the permit if the foreign
nation under which the vessel is registered does not
collect a fee from a vessel of the United States
engaged in similar activities in the waters of such
foreign nation.
(e) Pacific Insular Areas.--
(1) Negotiation of pacific insular area fishery
agreements.--The Secretary of State, with the
concurrence of the Secretary and in consultation with
any appropriate Council, may negotiate and enter into a
Pacific Insular Area fishery agreement to authorize
foreign fishing within the exclusive economic zone
adjacent to a Pacific Insular Area--
(A) in the case of American Samoa, Guam, or
the Northern Mariana Islands, at the request
and with the concurrence of, and in
consultation with, the Governor of the Pacific
Insular Area to which such agreement applies;
and
(B) in the case of a Pacific Insular Area
other than American Samoa, Guam, or the
Northern Mariana Islands, at the request of the
Western Pacific Council.
(2) Agreement terms and conditions.--A Pacific
Insular Area fishery agreement--
(A) shall not be considered to supersede any
governing international fishery agreement
currently in effect under this Act, but shall
provide an alternative basis for the conduct of
foreign fishing within the exclusive economic
zone adjacent to Pacific Insular Areas;
(B) shall be negotiated and implemented
consistent only with the governing
international fishery agreement provisions of
this title specifically made applicable in this
subsection;
(C) may not be negotiated with a nation that
is in violation of a governing international
fishery agreement in effect under this Act;
(D) shall not be entered into if it is
determined by the Governor of the applicable
Pacific Insular Area with respect to agreements
initiated under paragraph (1)(A), or the
Western Pacific Council with respect to
agreements initiated under paragraph (1)(B),
that such an agreement will adversely affect
the fishing activities of the indigenous people
of such Pacific Insular Area;
(E) shall be valid for a period not to exceed
three years and shall only become effective
according to the procedures in section 203; and
(F) shall require the foreign nation and its
fishing vessels to comply with the requirements
of paragraphs (1), (2), (3) and (4)(A) of
section 201(c), section 201 (d), and section
201(h).
(3) Permits for foreign fishing.--
(A) Application for permits for foreign
fishing authorized under a Pacific Insular
Areas fishing agreement shall be made,
considered and approved or disapproved in
accordance with paragraphs (3), (4), (5), (6),
(7)(A) and (B), (8), and (9) of subsection (b),
and shall include any conditions and
restrictions established by the Secretary in
consultation with the Secretary of State, the
Secretary of the department in which the Coast
Guard is operating, the Governor of the
applicable Pacific Insular Area, and the
appropriate Council.
(B) If a foreign nation notifies the
Secretary of State of its acceptance of the
requirements of this paragraph, paragraph
(2)(F), and paragraph (5), including any
conditions and restrictions established under
subparagraph (A), the Secretary of State shall
promptly transmit such notification to the
Secretary. Upon receipt of any payment required
under a Pacific Insular Area fishing agreement,
the Secretary shall thereupon issue to such
foreign nation, through the Secretary of State,
permits for the appropriate fishing vessels of
that nation. Each permit shall contain a
statement of all of the requirements,
conditions, and restrictions established under
this subsection which apply to the fishing
vessel for which the permit is issued.
(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) 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 201(h);]
(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 Act.
(8) Use of fines and penalties.--In the case of
violations occurring within the exclusive economic zone
off American Samoa, Guam, or the Northern Mariana
Islands, amounts received by the Secretary which are
attributable to fines or penalties imposed under this
Act, including such sums collected from the forfeiture
and disposition or sale of property seized subject to
its [authority, after payment of direct costs of the
enforcement action to all entities involved in such
action,] shall be deposited into the Treasury of the
Pacific Insular Area adjacent to the exclusive economic
zone in which the violation occurred, to be used for
fisheries enforcement and for implementation of a
marine conservation plan under paragraph (4). In the
case of violations by foreign vessels occurring within
the exclusive economic zones off Midway Atoll, Johnston
Atoll, Kingman Reef, Palmyra Atoll, Jarvis, Howland,
Baker, and Wake Islands, amounts received by the
Secretary attributable to fines and penalties imposed
under this Act, shall be deposited into the Western
Pacific Sustainable Fisheries Fund established under
paragraph (7) of this subsection.
* * * * * * *
SEC. 207. 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 title.
(b) Specific Authorities.--In carrying out subsection (a),
the Secretary may--
(1) share information on harvesting and processing
capacity and illegal, unreported and unregulated
fishing on the high seas, in areas covered by
international fishery management agreements, and by
vessels of other nations within the United States
exclusive economic zone, with relevant law enforcement
organizations of foreign nations and relevant
international organizations;
(2) further develop real time information sharing
capabilities, particularly on harvesting and processing
capacity and illegal, unreported and unregulated
fishing;
(3) participate in global and regional efforts to
build an international network for monitoring, control,
and surveillance of high seas fishing and fishing under
regional or global agreements;
(4) support efforts to create an international
registry or database of fishing vessels, including by
building on or enhancing registries developed by
international fishery management organizations;
(5) enhance enforcement capabilities through the
application of commercial or governmental remote
sensing technology to locate or identify vessels
engaged in illegal, unreported, or unregulated fishing
on the high seas, including encroachments into the
exclusive economic zone by fishing vessels of other
nations;
(6) provide technical or other assistance to
developing countries to improve their monitoring,
control, and surveillance capabilities; and
(7) support coordinated international efforts to
ensure that all large-scale fishing vessels operating
on the high seas are required by their flag State to be
fitted with vessel monitoring systems no later than
December 31, 2008, or earlier if so decided by the
relevant flag State or any relevant international
fishery management organization.
SEC. 301. NATIONAL STANDARDS FOR FISHERY CONSERVATION AND MANAGEMENT.
[16 U.S.C. 1851]
(a) In General.--Any fishery management plan prepared, and
any regulation promulgated to implement any such plan, pursuant
to this title shall be consistent with the following national
standards for fishery conservation and management.
(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
Act (including the prevention of overfishing and
rebuilding of overfished stocks), take into account the
importance of fishery resources to fishing communities
by utilizing economic and social data and assessment
methods based on the best economic and social
information available, 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.
SEC. 302. REGIONAL FISHERY MANAGEMENT COUNCILS.
[16 U.S.C. 1852]
(a) Establishment.--
(1) There shall be established, within 120 days after
the date of the enactment of this Act, eight Regional
Fishery Management Councils, as follows:
(A) New England Council.--The New England
Fishery Management Council shall consist of the
States of Maine, New Hampshire, Massachusetts,
Rhode Island, and Connecticut and shall have
authority over the fisheries in the Atlantic
Ocean seaward of such States (except as
provided in paragraph (3). The New England
Council shall have 18 voting members, including
12 appointed by the Secretary in accordance
with subsection (b)(2) (at least one of whom
shall be appointed from each such State).
(B) Mid-Atlantic Council.--The Mid-Atlantic
Fishery Management Council shall consist of the
States of New York, New Jersey, Delaware,
Pennsylvania, Maryland, Virginia, and North
Carolina and shall have authority over the
fisheries in the Atlantic Ocean seaward of such
States (except North Carolina, and as provided
in paragraph (3). The Mid-Atlantic Council
shall have 21 voting members, including 13
appointed by the Secretary in accordance with
subsection (b)(2) (at least one of whom shall
be appointed from each such State).
(C) South Atlantic Council.--The South
Atlantic Fishery Management Council shall
consist of the States of North Carolina, South
Carolina, Georgia, and Florida and shall have
authority over the fisheries in the Atlantic
Ocean seaward of such States (except as
provided in paragraph (3). The South Atlantic
Council shall have 13 voting members, including
8 appointed by the Secretary in accordance with
subsection (b)(2) (at least one of whom shall
be appointed from each such State).
(D) Caribbean Council.--The Caribbean Fishery
Management Council shall consist of the Virgin
Islands and the Commonwealth of Puerto Rico and
shall have authority over the fisheries in the
Caribbean Sea and Atlantic Ocean seaward of
such States and of commonwealths, territories,
and possessions of the United States in the
Caribbean Sea (except as provided in paragraph
(3). The Caribbean Council shall have 7 voting
members, including 4 appointed by the Secretary
in accordance with subsection (b)(2) (at least
one of whom shall be appointed from each such
State).
(E) Gulf Council.--The Gulf of Mexico Fishery
Management Council shall consist of the States
of Texas, Louisiana, Mississippi, Alabama, and
Florida and shall have authority over the
fisheries in the Gulf of Mexico seaward of such
States (except as provided in paragraph (3).
The Gulf Council shall have 17 voting members,
including 11 appointed by the Secretary in
accordance with subsection (b)(2) (at least one
of whom shall be appointed from each such
State).
(F) Pacific Council.--The Pacific Fishery
Management Council shall consist of the States
of California, Oregon, Washington, and Idaho
and shall have authority over the fisheries in
the Pacific Ocean seaward of such States. The
Pacific Council shall have 14 voting members,
including 8 appointed by the Secretary in
accordance with subsection (b)(2) (at least one
of whom shall be appointed from each such
State), and including one appointed from an
Indian tribe with Federally recognized fishing
rights from California, Oregon, Washington, or
Idaho in accordance with subsection (b)(5).
(G) North Pacific Council.--The North Pacific
Fishery Management Council shall consist of the
States of Alaska, Washington, and Oregon and
shall have authority over the fisheries in the
Arctic Ocean, Bering Sea, and Pacific Ocean
seaward of Alaska. The North Pacific Council
shall have 11 voting members, including 7
appointed by the Secretary in accordance with
subsection (b)(2)(5 of whom shall be appointed
from the State of Alaska and 2 of whom shall be
appointed from the State of Washington).
(H) Western Pacific Council.--The Western
Pacific Fishery Management Council shall
consist of the States of Hawaii, American
Samoa, Guam, and the Northern Mariana Islands
and shall have authority over the fisheries in
the Pacific Ocean seaward of such States and of
the Commonwealths, territories, and possessions
of the United States in the Pacific Ocean area.
The Western Pacific Council shall have 13
voting members, including 8 appointed by the
Secretary in accordance with subsection (b)(2)
(at least one of whom shall be appointed from
each of the following States: Hawaii, American
Samoa, Guam, and the Northern Mariana Islands).
(2) Each Council shall reflect the expertise and
interest of the several constituent States in the ocean
area over which such Council is granted authority.
(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 the date of enactment of the Fishery
Conservation Amendments of 1990, the Secretary shall,
by regulation, prescribe criteria for determining
whether an individual satisfies the requirements of
this subparagraph.
(B) The Secretary, in making appointments
under this section, shall, to the extent
practicable, ensure a fair and balanced
apportionment, on a rotating or other basis, of
the active participants (or their
representatives) in the commercial and
recreational fisheries under the jurisdiction
of the Council. On January 31, 1991, and each
year thereafter, the Secretary shall submit to
the Committee on Commerce, Science, and
Transportation of the Senate and the Committee
on Merchant Marine and Fisheries of the House
of Representatives a report on the actions
taken by the Secretary to ensure that such fair
and balanced apportionment is achieved. The
report shall--
(i) list the fisheries under the
jurisdiction of each Council, outlining
for each fishery the type and quantity
of fish harvested, fishing and
processing methods employed, the number
of participants, the duration and range
of the fishery, and other
distinguishing characteristics;
(ii) assess the membership of each
Council in terms of the apportionment
of the active participants in each such
fishery; and
(iii) state the Secretary's plans and
schedule for actions to achieve a fair
and balanced apportionment on the
Council for the active participants in
any such fishery.
(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).
(D)(i) The Secretary shall appoint to the Gulf of Mexico
Fisheries Management Council--
(I) 5 representatives of the commercial fishing
sector;
(II) 5 representatives of the recreational fishing
and charter fishing sectors; and
(III) 1 other individual who is knowledgeable
regarding the conservation and management of fisheries
resources in the jurisdiction of the Council.
(ii) 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.
(iii) If the Secretary determines that the list of names
submitted by the Governor does not meet the requirements of
clause (ii), 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.
(iv) For purposes of clause (ii), an individual who owns or
operates a fish farm outside of the Unites States shall not be
considered to be a representative of the commercial fishing
sector.
[(D)] (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 recognized fishing rights from California,
Oregon, Washington, or Idaho from a list of not less
than 3 individuals submitted by the tribal governments.
The Secretary, in consultation with the Secretary of
the Interior and tribal governments, shall establish by
regulation the procedure for submitting a list under
this subparagraph.
(B) Representation shall be rotated among the
tribes taking into consideration--
(i) the qualifications of the
individuals on the list referred to in
subparagraph (A),
(ii) the various rights of the Indian
tribes involved and judicial cases that
set forth how those rights are to be
exercised, and
(iii) the geographic area in which
the tribe of the representative is
located.
(C) A vacancy occurring prior to the
expiration of any term shall be filled in the
same manner as set out in subparagraphs (A) and
(B), except that the Secretary may use the list
from which the vacating representative was
chosen.
(D) The tribal representative appointed under
subparagraph (A) may designate as an alternate, during
the period of the representative's term, an individual
knowledgeable concerning tribal rights, tribal law, and
the fishery resources of the geographical area
concerned.
(6) The Secretary may remove for cause any member of
a Council required to be appointed by the Secretary in
accordance with paragraphs (2) or (5) if--
(A) the Council concerned first recommends
removal by not less than two-thirds of the
members who are voting members and submits such
removal recommendation to the Secretary in
writing together with a statement of the basis
for the recommendation; or
(B) the member is found by the Secretary,
after notice and an opportunity for a hearing
in accordance with section 554 of title 5,
United States Code, to have committed an act
prohibited by section 307(1)(O).
(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), and the nonvoting member appointed
pursuant to subsection (c)(2) shall be reimbursed for actual
expenses incurred in the performance of such duties, and other
nonvoting members and Council staff members may be reimbursed
for actual expenses.
(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 Act.
(3) The Secretary shall provide to each Council such
administrative and technical support services as are
necessary for the effective functioning of such
Council.
(4) The Administrator of General Services shall
furnish each Council with such offices, equipment,
supplies, and services as he is authorized to furnish
to any other agency or instrumentality of the United
States.
(5) The Secretary and the Secretary of State shall
furnish each Council with relevant information
concerning foreign fishing and international fishery
agreements.
(6) Each Council shall determine its organization,
and prescribe its practices and procedures for carrying
out its functions under this Act, in accordance with
such uniform standards as are prescribed by the
Secretary. The procedures of a Council, and of its
scientific and statistical committee and advisory
panels established under subsection (g), must be
consistent with the procedural guidelines set forth in
subsection (i)(2). Each Council shall publish and make
available to the public a statement of its
organization, practices, and procedures.
(7) The Secretary shall pay--
(A) the compensation and expenses provided
for in subsection (d);
(B) appropriate compensation to employees
appointed under paragraph (1);
(C) the amounts required for reimbursement of
other Federal agencies under paragraphs (2) and
(4);
(D) the actual expenses of the members of the
committees and panels established under
subsection (g); and
(E) such other costs as the Secretary
determines are necessary to the performance of
the functions of the Councils.
[(g) Committees and Panels.--(1) 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.]
(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 or maximum sustainable
yield, and reports on stock status and health, bycatch,
habitat status, socio-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 with strong scientific or technical
credentials and experience.
(D) 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).
(E) In addition to the provisions of section
302(f)(7), the Secretary may 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.
(2) Each Council shall establish such [other]
advisory panels as are necessary or appropriate to
assist it in carrying out its functions under this Act.
(3)(A) Each Council shall establish and maintain a
fishing industry advisory committee which shall provide
information and recommendations on, and assist in the
development of, fishery management plans and amendments
to such plans.
(B) Appointments to a committee established under
subparagraph (A) shall be made by each Council in such
a manner as to provide fair representation to
commercial fishing interests in the geographical area
of authority of the Council.
(4) The Secretary shall establish advisory panels to
assist in the collection and evaluation of information
relevant to the development of any fishery management
plan or plan amendment for a fishery to which
subsection (a)(3) applies. Each advisory panel shall
participate in all aspects of the development of the
plan or amendment; be balanced in its representation of
commercial, recreational, and other interests; and
consist of not less than 7 individuals who are
knowledgeable about the fishery for which the plan or
amendment is developed, selected from among--
(A) members of advisory committees and
species working groups appointed under Acts
implementing relevant international fishery
agreements pertaining to highly migratory
species; and
(B) other interested persons.
(5) Decisions and recommendations made by committees
and panels established under this subsection shall be
considered to be advisory in nature.
(h) Functions.--Each Council shall, in accordance with the
provisions of this Act--
(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 204(b)(4)(C) or
section 204(d), and any fishery management plan or
amendment transmitted to it under section 304(c)(4);
(3) conduct public hearings, at appropriate times and
in appropriate locations in the geographical area
concerned, so as to allow all interested persons an
opportunity to be heard in the development of fishery
management plans and amendments to such plans, and with
respect to the administration and implementation of the
provisions of this Act (and for purposes of this
paragraph, the term ``geographical area concerned'' may
include an area under the authority of another Council
if the fish in the fishery concerned migrate into, or
occur in, that area or if the matters being heard
affect fishermen of that area; but not unless such
other Council is first consulted regarding the conduct
of such hearings within its area);
(4) submit to the Secretary such periodic reports as
the Council deems appropriate, and any other relevant
report which may be requested by the Secretary;
(5) review on a continuing basis, and revise as
appropriate, the assessments and specifications made
pursuant to section 303(a)(3) and (4) with respect to
the optimum yield from, the capacity and extent to
which United States fish processors will process United
States harvested fish from, and the total allowable
level of foreign fishing in, each fishery (except as
provided in subsection (a)(3)) within its geographical
area of [authority, and] authority;
(6) adopt annual catch limits for each of its managed
fisheries after considering the recommendations of its
scientific and statistical committee or the peer review
process established under subsection (g); and''.
[(6)] (7) conduct any other activities which are
required by, or provided for in, this Act or which are
necessary and appropriate to the foregoing functions.
(i) Procedural Matters.--
(1) The Federal Advisory Committee Act (5 U.S.C. App.
1) shall not apply [to the Councils or to the
scientific and statistical committees or advisory
panels established under subsection (g).] 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, and
of the scientific and statistical committee and
advisory panels established under subsection (g):] 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 [published in local newspapers]
provided by any means that will result in wide
publicity (except that e-mail notification and
website postings alone are not sufficient) 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.] fishery). Timely
notice of each regular meeting shall also be
published in the Federal Register. The
published agenda of the meeting may not be
modified to include additional matters for
Council action without public notice or within
14 days prior to the meeting date, unless such
modification is to address an emergency action
under section 305(c), in which case public
notice shall be given immediately.
(D) Interested persons shall be permitted to
present oral or written statements regarding
the matters on the agenda at meetings. All
written information submitted to a Council by
an interested person shall include a statement
of the source and date of such information. Any
oral or written statement shall include a brief
description of the background and interests of
the person in the subject of the oral or
written statement.
(E) Detailed minutes of each meeting of the
Council, except for any closed session, shall
be kept and shall contain a record of the
persons present, a complete and accurate
description of matters discussed and
conclusions reached, and copies of all
statements filed. The Chairman shall certify
the accuracy of the minutes of each such
meeting and submit a copy thereof to the
Secretary. The minutes shall be made available
to any court of competent jurisdiction.
(F) Subject to the procedures established
under paragraph (4), and the guidelines
prescribed by the Secretary under section
402(b), relating to confidentiality, the
administrative record, including minutes
required under subparagraph (E), of each
meeting, and records or other documents which
were made available to or prepared for or by
the Council, committee, or panel incident to
the meeting, shall be available for public
inspection and copying at a single location in
the offices of the Council or the Secretary, as
appropriate.
(3)(A) Each Council, the Council Coordination
Committee established under subsection (1), scientific
and statistical committee, other committee, 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 [notify local
newspapers] provide notice by any means that
will result in wide publicity in the major
fishing ports within its region (and in other
major, affected fishing ports), including in
that notification the time and place of the
meeting. This subparagraph does not require
notification regarding any brief closure of a
portion of a meeting in order to discuss
employment or other internal administrative
matters.
(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 402(b), must be consistent with the laws
and regulations of that State, or with the procedures
of the Secretary, as the case may be, concerning the
confidentiality of the statistics.
(5) Each Council shall specify those procedures that
are necessary or appropriate to ensure that the
committees and advisory panels established under
subsection (g) are involved, on a continuing basis, in
the development and amendment of fishery management
plans.
(6) At any time when a Council determines it
appropriate to consider new information from a State or
Federal agency or from a Council advisory body, the
Council shall give comparable consideration to new
information offered at that time by interested members
of the public. Interested parties shall have a
reasonable opportunity to respond to new data or
information before the Council takes final action on
conservation and management measures.
(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); or
(ii) is a voting member of a Council
appointed--
(I) under subsection (b)(2);
or
(II) under subsection (b)(5)
who is not subject to
disclosure and recusal
requirements under the laws of
an Indian tribal government;
and
(B) the term ``designated official'' means a
person with expertise in Federal conflict-of-
interest requirements who is designated by the
Secretary, in consultation with the Council, to
attend Council meetings and make determinations
under paragraph (7)(B).
(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.] jurisdiction, or with respect
to any other 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, and made available for
public inspection at reasonable hours, at the
Council offices; and]
(B) be kept on file by the Council and made
available on the Internet and for public
inspection at the Council offices during
reasonable times; 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
the date of enactment of the Sustainable
Fisheries Act, shall promulgate regulations
which prohibit an affected individual from
voting in accordance with subparagraph (A), and
which allow for the making of determinations
under subparagraphs (B) and (C).
(8) Section 208 of title 18, United States Code, does
not apply to an affected individual referred to in
paragraph (1)(A)(ii) during any time in which that
individual is in compliance with the regulations
prescribed under paragraph (5).
(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.
(k) Council Training Program.--
(1) Training course.--Within 6 months after the date
of enactment of the Magnuson-Stevens Fishery
Conservation and Management Reauthorization Act of
2005, the Secretary, in consultation with the Councils
and the National Sea Grant College Program, shall
develop a training course for newly appointed Council
members. The course may cover a variety of topics
relevant to matters before the Councils, including--
(A) fishery science and basic stock
assessment methods;
(B) fishery management techniques, data
needs, and Council procedures;
(C) social science and fishery economics;
(D) tribal treaty rights and native customs,
access, and other rights related to Western
Pacific indigenous communities;
(E) legal requirements of this Act, including
conflict of interest and disclosure provisions
of this section and related policies;
(F) other relevant legal and regulatory
requirements, including the National
Environmental Policy Act (42 U.S.C. 4321 et
seq.);
(G) public process for development of fishery
management plans; and
(H) other topics suggested by the Council.
(2) Member training.--The training course shall be
available to both new and existing Council members, and
may be made available to committee or advisory panel
members as resources allow.
(l) Council Coordination Committee.--The Councils may
establish a Council coordination committee consisting of the
chairs, vice chairs, and executive directors of each of the 8
Councils described in subsection (a)(1), or other Council
members or staff, in order to discuss issues of relevance to
all Councils, including issues related to the implementation of
this Act.
SEC. 303. CONTENTS OF FISHERY MANAGEMENT PLANS.
[16 U.S.C. 1853]
(a) Required Provisions.--Any fishery management plan which
is prepared by any Council, or by the Secretary, with respect
to any fishery, shall--
(1) contain the conservation and management measures,
applicable to foreign fishing and fishing by vessels of
the United States, which are--
(A) necessary and appropriate for the
conservation and management of the fishery, to
prevent overfishing and rebuild overfished
stocks, and to protect, restore, and promote
the long-term health and stability of the
fishery;
(B) described in this subsection or
subsection (b), or both; and
(C) consistent with the national standards,
the other provisions of this Act, regulations
implementing recommendations by international
organizations in which the United States
participates (including but not limited to
closed areas, quotas, and size limits), and any
other applicable law;
(2) contain a description of the fishery, including,
but not limited to, the number of vessels involved, the
type and quantity of fishing gear used, the species of
fish involved and their location, the cost likely to be
incurred in management, actual and potential revenues
from the fishery, any recreational 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, [and charter fishing] charter fishing,
and fish processing in the fishery, including, but not
limited to, information regarding the type and quantity
of fishing gear used, catch by species in numbers of
fish or weight thereof, areas in which fishing was
engaged in, time of fishing, number of hauls, economic
information necessary to meet the requirements of this
Act, and the estimated processing capacity of, and the
actual processing capacity utilized by, United States
fish processors,
(6) consider and provide for temporary adjustments,
after consultation with the Coast Guard and persons
utilizing the fishery, regarding access to the fishery
for vessels otherwise prevented from harvesting because
of weather or other ocean conditions affecting the safe
conduct of the fishery; except that the adjustment
shall not adversely affect conservation efforts in
other fisheries or discriminate among participants in
the affected fishery;
(7) describe and identify essential fish habitat for
the fishery based on the guidelines established by the
Secretary under section 305(b)(1)(A), minimize to the
extent practicable adverse effects on such habitat
caused by fishing, and identify other actions to
encourage the conservation and enhancement of such
habitat;
(8) in the case of a fishery management plan that,
after January 1, 1991, is submitted to the Secretary
for review under section 304(a) (including any plan for
which an amendment is submitted to the Secretary for
such review) or is prepared by the Secretary, assess
and specify the nature and extent of scientific data
which is needed for effective implementation of the
plan;
(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
[describe the likely effects, if any, of the
conservation and management measures on--] analyze the
likely effects, if any, including the cumulative
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;
and
(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;
(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] fishery, including their
economic impact, and, to the extent practicable,
quantify trends in landings of the managed fishery
resource by the commercial, recreational, and charter
fishing sectors; [and]
(14) to the extent that rebuilding plans or other
conservation and management measures which reduce the
overall harvest in a fishery are necessary, [allocate]
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.] fishery; and
(15) provide a mechanism for specifying annual catch
limits in the plan (including a multiyear plan), the
implementing regulations, or the annual specifications
that shall be established by the Council or Secretary
based on the best scientific information available at a
level that does not exceed optimum yield, and, for
purposes of which harvests exceeding the specified
annual catch limit (including the specified annual
catch limit for a sector) shall either be deducted from
the following year's annual catch limit (including the
annual catch limit for that sector), or by adjusting
other management measures and input controls such that
the fishing mortality rate for the following year is
reduced to account for the overage to achieve the
overfishing and rebuilding objectives of the plan for
that sector.
(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 408, to protect
deep sea corals from physical damage from fishing gear
or to prevent loss or damage to such fishing gear from
interactions with deep sea corals, after considering
long-term sustainable uses of fishery resources in such
areas; and
(C) with respect to any closure of an area to all
fisheries managed under this Act, ensure that such
closure--
(i) is based on the best scientific
information available;
(ii) includes criteria to assess the
conservation benefit of the closed area;
(iii) establishes a timetable for review of
the closed area's performance that is
consistent with the purposes of the closed
area; and
(iv) is based on an assessment of the
benefits and impacts of the closure, including
its size, in relation to other management
measures (either alone or in combination with
such measures), including the benefits and
impacts of limiting access to: users of the
area, overall fishing activity, fishery
science, and fishery and marine conservation;
(3) establish specified limitations which are
necessary and appropriate for the conservation and
management of the fishery on the--
(A) catch of fish (based on area, species,
size, number, weight, sex, bycatch, total
biomass, or other factors);
(B) sale of fish caught during commercial,
recreational, or charter fishing, consistent
with any applicable Federal and State safety
and quality requirements; and
(C) transshipment or transportation of fish
or fish products under permits issued pursuant
to section 204;
(4) prohibit, limit, condition, or require the use of
specified types and quantities of fishing gear, fishing
vessels, or equipment for such vessels, including
devices which may be required to facilitate enforcement
of the provisions of this Act;
(5) incorporate (consistent with the national
standards, the other provisions of this Act, and any
other applicable law) the relevant fishery conservation
and management measures of the coastal States nearest
to the [fishery;] fishery and take into account the
different circumstances affecting fisheries from
different States and port, 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, and
[(F) any other relevant considerations;]
(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) the conservation requirements of this Act
with respect to the fishery;
(B) present participation in the fishery;
(C) historical fishing practices in, and
dependence on, the fishery;
(D) the economics of the fishery;
(E) the capability of fishing vessels used in
the fishery to engage in other fisheries;
(F) the cultural and social framework
relevant to the fishery and any affected
fishing communities;
(G) the fair and equitable distribution of
access privileges to a public resource; and
(H) any other relevant considerations;
(7) require fish processors who first receive fish
that are subject to the plan to submit data [(other
than economic data)] which are necessary for the
conservation and management of the fishery;
(8) require that one or more observers be carried on
board a vessel of the United States engaged in fishing
for species that are subject to the plan, for the
purpose of collecting data necessary for the
conservation and management of the fishery; except that
such a vessel shall not be required to carry an
observer on board if the facilities of the vessel for
the quartering of an observer, or for carrying out
observer functions, are so inadequate or unsafe that
the health or safety of the observer or the safe
operation of the vessel would be jeopardized;
(9) assess and specify the effect which the
conservation and management measures of the plan will
have on the stocks of naturally spawning anadromous
fish in the region;
(10) include, consistent with the other provisions of
this Act, conservation and management measures that
provide harvest incentives for participants within each
gear group to employ fishing practices that result in
lower levels of bycatch or in lower levels of the
mortality of bycatch;
(11) reserve a portion of the allowable biological
catch of the fishery for use in scientific research;
[and]
(12) establish a process for complying with the
National Environmental Policy Act (42 U.S.C. 4321 et
seq.) pursuant to section 304(h) of this Act;
(13) 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
[(12)] (14) 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
304; and
(2) making modifications to regulations implementing
a fishery management plan or plan amendment may be
submitted to the Secretary at any time after the plan
or amendment is approved under section 304.
[(d) Individual Fishing Quotas.--(1)(A) A Council may not
submit and the Secretary may not approve or implement before
October 1, 2002, any fishery management plan, plan amendment,
or regulation under this Act which creates a new individual
fishing quota program.
[(B) Any fishery management plan, plan amendment, or
regulation approved by the Secretary on or after
January 4, 1995, which creates any new individual
fishing quota program shall be repealed and immediately
returned by the Secretary to the appropriate Council
and shall not be resubmitted, reapproved, or
implemented during the moratorium set forth in
subparagraph (A).
[(2)(A) No provision of law shall be construed to limit the
authority of a Council to submit and the Secretary to approve
the termination or limitation, without compensation to holders
of any limited access system permits, of a fishery management
plan, plan amendment, or regulation that provides for a limited
access system, including an individual fishing quota program.
[(B) This subsection shall not be construed to prohibit a
Council from submitting, or the Secretary from approving and
implementing, amendments to the North Pacific halibut and
sablefish, South Atlantic wreckfish, or Mid-Atlantic surf clam
and ocean (including mahogany) quahog individual fishing quota
programs.
[(3) An individual fishing quota or other limited access
system authorization--
[(A) shall be considered a permit for the purposes of
sections 307, 308, and 309;
[(B) may be revoked or limited at any time in
accordance with this Act;
[(C) shall not confer any right of compensation to
the holder of such individual fishing quota or other
such limited access system authorization if it is
revoked or limited; and
[(D) shall not create, or be construed to create, any
right, title, or interest in or to any fish before the
fish is harvested.
[(4)(A) A Council may submit, and the Secretary may approve
and implement, a program which reserves up to 25 percent of any
fees collected from a fishery under section 304(d)(2) to be
used, pursuant to section 1104A(a)(7) of the Merchant Marine
Act, 1936 (46 U.S.C. App. 1274(a)(7)), to issue obligations
that aid in financing the--
[(i) purchase of individual fishing quotas in that
fishery by fishermen who fish from small vessels; and
[(ii) first-time purchase of individual fishing
quotas in that fishery by entry level fishermen.
[(B) A Council making a submission under subparagraph (A)
shall recommend criteria, consistent with the provisions of
this Act, that a fisherman must meet to qualify for guarantees
under clauses (i) and (ii) of subparagraph (A) and the portion
of funds to be allocated for guarantees under each clause.
[(5) In submitting and approving any new individual fishing
quota program on or after October 1, 2002, the Councils and the
Secretary shall consider the report of the National Academy of
Sciences required under section 108(f) of the Sustainable
Fisheries Act, and any recommendations contained in such
report, and shall ensure that any such program--
[(A) establishes procedures and requirements for the
review and revision of the terms of any such program
(including any revisions that may be necessary once a
national policy with respect to individual fishing
quota programs is implemented), and, if appropriate,
for the renewal, reallocation, or reissuance of
individual fishing quotas;
[(B) provides for the effective enforcement and
management of any such program, including adequate
observer coverage, and for fees under section 304(d)(2)
to recover actual costs directly related to such
enforcement and management; and
[(C) provides for a fair and equitable initial
allocation of individual fishing quotas, prevents any
person from acquiring an excessive share of the
individual fishing quotas issued, and considers the
allocation of a portion of the annual harvest in the
fishery for entry-level fishermen, small vessel owners,
and crew members who do not hold or qualify for
individual fishing quotas.]
SEC. 303A. LIMITED ACCESS PRIVILEGE PROGRAMS.
(a) In General.--After the date of enactment of the Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act
of 2005, 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.--A limited
access system, limited access privilege, quota share, or other
authorization established, implemented, or managed under this
Act--
(1) shall be considered a permit for the purposes of
sections 307, 308, and 309;
(2) may be revoked, limited, or modified at any time
in accordance with this Act, including revocation for
failure to comply with the terms of the plan or 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.--In addition to complying with the
other requirements of this Act, 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; and
(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) the safety of human life at sea;
and
(ii) the conservation and management
of the fishery;
(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;
(E) require that all fish harvested under a
limited access privilege program be processed
by vessels of the United States, in United
States waters, or on United States soil
(including any territory of the United States).
(F) specify the goals of the program;
(G) include provisions for the regular
monitoring and review by the Council and the
Secretary of the operations of the program,
including determining progress in meeting the
goals of the program and this Act, and any
necessary modification of the program to meet
those goals, with a formal and detailed review
5 years after the establishment of the program
and every 5 years thereafter;
(H) include an effective system for
enforcement, monitoring, and management of the
program, including the use of observers;
(I) include an appeals process for
administrative review of determinations with
respect to the Secretary's decisions regarding
administration of the limited access privilege
program;
(J) provide for the establishment by the
Secretary, in consultation with the Department
of Justice and the Federal Trade Commission,
for an information collection and review
process to provide any additional information
needed by the Department of Justice and the
Federal Trade Commission 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 (or other assurance that
seafood safety procedures to be used in such
processing are equivalent or superior to the
applicable United States seafood safety
standards).
(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 fishing 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 limited access
privileges granted under this section
for any person who fails to comply with
the requirements of the plan.
(B) Participation criteria.--In developing
participation criteria for eligible communities
under this paragraph, a Council shall
consider--
(i) traditional fishing or processing
practices in, and dependence on, the
fishery;
(ii) the cultural and social
framework relevant to the fishery;
(iii) economic barriers to access to
fishery;
(iv) the existence and severity of
projected economic and social impacts
associated with implementation of
limited access privilege programs on
harvesters, captains, crew, processors,
and other businesses substantially
dependent upon the fishery in the
region or subregion;
(v) the expected effectiveness,
operational transparency, and
equitability of the community
sustainability plan; and
(vi) the potential for improving
economic conditions in remote coastal
communities lacking resources to
participate in harvesting or processing
activities in the fishery.
(4) Regional fishery associations.--
(A) In general.--To be eligible to
participate in a limited access privilege
program to harvest fish, a regional fishery
association shall--
(i) be located within the management
area of the relevant Council;
(ii) meet criteria developed by the
relevant Council, approved by the
Secretary, and published in the Federal
Register;
(iii) be a voluntary association with
established by-laws and operating
procedures consisting of participants
in the fishery, including commercial or
recreational fishing, processing,
fishery-dependent support businesses,
or fishing communities; and
(iv) 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 limited access privileges
granted under this section for any person who
fails to comply with the requirements of the
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, upon the
administrative and fiduciary soundness
of the association and its by-laws; and
(v) 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) to the extent practicable, consider the
basic cultural and social framework of the
fishery, especially through 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;
(C) include measures to assist, when
necessary and appropriate, entry-level and
small vessel operators, captains, crew, and
fishing communities through set-asides of
harvesting allocations, including providing
privileges and, where appropriate, recommending
the provision of economic assistance in the
purchase of limited access privileges to
harvest fish;
(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, acquired, or use;
and
(ii) establishing any other
limitations or measures necessary to
prevent an inequitable concentration of
limited access privileges;
(E) establish procedures to address
geographic or other consolidation in both the
harvesting and processing sectors of the
fishery; and
(F) authorize limited access privileges to
harvest fish to be held, acquired, or used by
or issued under the system to persons who
substantially participate in the fishery, as
specified by the Council, including, as
appropriate, fishing vessel owners, vessel
captains, vessel crew members, fishing
communities, and regional fishery associations.
(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, 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 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, 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 the
date of enactment of the Magnuson-
Stevens Fishery Conservation and
Management Reauthorization Act of 2005,
the Secretary shall publish guidelines
and procedures to determine procedures
and voting eligibility requirements for
referenda and to conduct such referenda
in a fair and equitable manner.
(iii) The provisions of section
407(c) of this Act shall apply in lieu
of this subparagraph for an individual
fishing quota program for the Gulf of
Mexico commercial red snapper fishery.
(iv) Chapter 35 of title 44, United
States Code, (commonly known as the
Paperwork Reduction Act) does not apply
to the referenda conducted under this
subparagraph.
(7) Transferability.--In establishing a limited
access privilege program, a Council shall--
(A) establish a policy on the transferability
of limited access privilege shares (through
sale or lease), including a policy on any
conditions that apply to the transferability of
limited access privilege shares that is
consistent with the policies adopted by the
Council for the fishery under paragraph (3);
and
(B) establish criteria for the approval and
monitoring of transfers (including sales and
leases) of limited access privilege shares.
(8) Preparation and implementation of Secretarial
Plans.--This subsection also applies to a plan prepared
and implemented by the Secretary under section 304(g).
(9) Antitrust savings clause.--Nothing in this Act
shall be construed to modify, impair, or supersede the
operation of any of the antitrust laws. For purposes of
the preceding sentence, the term ``antitrust laws'' has
the meaning given such term in subsection (a) of the
first section of the Clayton Act, except that such term
includes section 5 of the Federal Trade Commission Act
to the extent that such section 5 applies to unfair
methods of competition.
(d) Auction and Other Programs.--In establishing a limited
access privilege program, a Council may consider, and provide
for, 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
subsection (c)(3)(A); and
(2) revenues generated through such a royalty program
are deposited in the Limited Access System
Administration Fund established by section 305(h)(5)(B)
and available subject to annual appropriations.
(e) Cost Recovery.--In establishing a limited access
privilege program, a Council shall--
(1) develop a methodology and the means to identify
and assess the management, data collection and
analysis, and enforcement programs that are directly
related to and in support of the program; and
(2) provide, under section 304(d)(2), for a program
of fees paid by limited access privilege holders that
will cover the costs of management, data collection and
analysis, and enforcement activities.
(f) Limited Duration.--In establishing a limited access
privilege program after the date of enactment of the Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act
of 2005, a Council may establish--
(1) a set term after which any initial or subsequent
allocation of a limited access privilege shall expire;
(2) different set terms within a fishery if the
Council determines that variation of terms will further
management goals; and
(3) a mechanism under which participants in and
entrants to the program may acquire or reacquire
allocations.
(g) Limited Access Privilege Assisted Purchase Program.--
(1) In general.--A Council may submit, and the
Secretary may approve and implement, a program which
reserves up to 25 percent of any fees collected from a
fishery under section 304(d)(2) to be used, pursuant to
section 1104A(a)(7) of the Merchant Marine Act, 1936
(46 U.S.C. App. 1274(a)(7)), to issue obligations that
aid in financing--
(A) the purchase of limited access privileges
in that fishery by fishermen who fish from
small vessels; and
(B) the first-time purchase of limited access
privileges in that fishery by entry level
fishermen.
(2) Eligibility criteria.--A Council making a
submission under paragraph (1) shall recommend
criteria, consistent with the provisions of this Act,
that a fisherman must meet to qualify for guarantees
under subparagraphs (A) and (B) of paragraph (1) and
the portion of funds to be allocated for guarantees
under each subparagraph.
(h) Effect on Certain Existing Shares and Programs.--Nothing
in this Act, or the amendments made by the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act of
2005, shall be construed to require a reallocation of
individual quota shares, processor quota shares, cooperative
programs, or other quota programs, including sector allocation,
under development or submitted by a Council or approved by the
Secretary or by Congressional action before the date of
enactment of the Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act of 2005.
SEC. 304. ACTION BY SECRETARY.
[16 U.S.C. 1854]
(a) Review of Plans.--
(1) Upon transmittal by the Council to the Secretary
of a fishery management plan or plan amendment, the
Secretary shall--
(A) immediately commence a review of the plan
or amendment to determine whether it is
consistent with the national standards, the
other provisions of this Act, and any other
applicable law; and
(B) immediately publish in the Federal
Register a notice stating that the plan or
amendment is available and that written
information, views, or comments of interested
persons on the plan or amendment may be
submitted to the Secretary during the 60-day
period beginning on the date the notice is
published.
(2) In undertaking the review required under
paragraph (1), the Secretary shall--
(A) take into account the information, views,
and comments received from interested persons;
(B) consult with the Secretary of State with
respect to foreign fishing; and
(C) consult with the Secretary of the
department in which the Coast Guard is
operating with respect to enforcement at sea
and to fishery access adjustments referred to
in section 303(a)(6).
(3) The Secretary shall approve, disapprove, or
partially approve a plan or amendment within 30 days of
the end of the comment period under paragraph (1) by
written notice to the Council. A notice of disapproval
or partial approval shall specify--
(A) the applicable law with which the plan or
amendment is inconsistent;
(B) the nature of such inconsistencies; and
(C) recommendations concerning the actions
that could be taken by the Council to conform
such plan or amendment to the requirements of
applicable law. If the Secretary does not
notify a Council within 30 days of the end of
the comment period of the approval,
disapproval, or partial approval of a plan or
amendment, then such plan or amendment shall
take effect as if approved.
(4) If the Secretary disapproves or partially
approves a plan or amendment, the Council may submit a
revised plan or amendment to the Secretary for review
under this subsection.
(5) For purposes of this subsection and subsection
(b), the term ``immediately'' means on or before the
5th day after the day on which a Council transmits to
the Secretary a fishery management plan, plan
amendment, or proposed regulation that the Council
characterizes as final.
(b) Review of Regulations.--(1) Upon transmittal by the
Council to the Secretary of proposed regulations prepared under
section 303(c), the Secretary shall immediately initiate an
evaluation of the proposed regulations to determine whether
they are consistent with the fishery management plan, plan
amendment, this Act and other applicable law. Within 15 days of
initiating such evaluation the Secretary shall make a
determination and--
(A) if that determination is affirmative, the
Secretary shall publish such regulations in the Federal
Register, with such technical changes as may be
necessary for clarity and an explanation of those
changes, for a public comment period of 15 to 60 days;
or
(B) if that determination is negative, the Secretary
shall notify the Council in writing of the
inconsistencies and provide recommendations on
revisions that would make the proposed regulations
consistent with the fishery management plan, plan
amendment, this Act, and other applicable law.
(2) Upon receiving a notification under paragraph (1)(B), the
Council may revise the proposed regulations and submit them to
the Secretary for reevaluation under paragraph (1).
(3) The Secretary shall promulgate final regulations within
30 days after the end of the comment period under paragraph
(1)(A). The Secretary shall consult with the Council before
making any revisions to the proposed regulations, and must
publish in the Federal Register an explanation of any
differences between the proposed and final regulations.
(c) Preparation and Review of Secretarial Plans.--(1) The
Secretary may prepare a fishery management plan, with respect
to any fishery, or any amendment to any such plan, in
accordance with the national standards, the other provisions of
this Act, and any other applicable law, if--
(A) the appropriate Council fails to develop and
submit to the Secretary, after a reasonable period of
time, a fishery management plan for such fishery, or
any necessary amendment to such a plan, if such fishery
requires conservation and management;
(B) the Secretary disapproves or partially
disapproves any such plan or amendment, or disapproves
a revised plan or amendment, and the Council involved
fails to submit a revised or further revised plan or
amendment; or
(C) the Secretary is given authority to prepare such
plan or amendment under this section.
(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 [individual fishing quota] 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 Act, 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 303(b)(1). The Secretary may
enter into a cooperative agreement with the States concerned
under which the States administer the permit system and the
agreement may provide that all or part of the fees collected
under the system shall accrue to the States. The level of fees
charged under this subsection shall not exceed the
administrative costs incurred in issuing the permits.
(2)(A) Notwithstanding paragraph (1), the Secretary is
authorized and shall collect a fee to recover the actual costs
directly related to the [management and enforcement]
management, data collection, and enforcement of any--
(i) [individual fishing quota] limited access
privilege program; and
(ii) community development quota program that
allocates a percentage of the total allowable catch of
a fishery to such program.
(B) Such fee shall not exceed 3 percent of the ex-vessel
value of fish harvested under any such program, and shall be
collected at either the time of the landing, filing of a
landing report, or sale of such fish during a fishing season or
in the last quarter of the calendar year in which the fish is
harvested.
(C)(i) Fees collected under this paragraph shall be in
addition to any other fees charged under this Act and shall be
deposited in the Limited Access System Administration Fund
established under [section 305(h)(5)(B), except that the
portion of any such fees reserved under section 303(d)(4)(A)
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 504(b)(1) of the Federal Credit Reform Act (2 U.S.C.
661c(b)(1)).] section 305(h)(5)(B).
(ii) Upon application by a State, the Secretary shall
transfer to such State up to 33 percent of any fee collected
pursuant to subparagraph (A) under a community development
quota program and deposited in the Limited Access System
Administration Fund in order to reimburse such State for actual
costs directly incurred in the management and enforcement of
such program.
(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 one year of an identification under
paragraph (1) or notification under paragraphs (2) or
(7), the appropriate Council (or the Secretary, for
fisheries under section 302(a)(3)) shall prepare a
fishery management plan, plan amendment, or proposed
regulations for the fishery to which the identification
or notice applies--
(A) to end overfishing 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 ending
overfishing and 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 one-year period beginning on the
date of identification or notification that a fishery
is overfished, the Council does not submit to the
Secretary a fishery management plan, plan amendment, or
proposed regulations required by paragraph (3)(A), the
Secretary shall prepare a fishery management plan or
plan amendment and any accompanying regulations to stop
overfishing and rebuild affected stocks of fish within
9 months under subsection (c).
(6) During the development of a fishery management
plan, a plan amendment, or proposed regulations
required by this subsection, the Council may request
the Secretary to implement interim measures to reduce
overfishing under section 305(c) until such measures
can be replaced by such plan, amendment, or
regulations. Such measures, if otherwise in compliance
with the provisions of this Act, may be implemented
even though they are not sufficient by themselves to
stop overfishing of a fishery.
(7) The Secretary shall review any fishery management
plan, plan amendment, or regulations required by this
subsection at routine intervals that may not exceed two
years. If the Secretary finds as a result of the review
that such plan, amendment, or regulations have not
resulted in adequate progress toward ending overfishing
and rebuilding affected fish stocks, the Secretary
shall--
(A) in the case of a fishery to which section
302(a)(3) applies, immediately make revisions
necessary to achieve adequate progress; or
(B) for all other fisheries, immediately
notify the appropriate Council. Such
notification shall recommend further
conservation and management measures which the
Council should consider under paragraph (3) to
achieve adequate progress.
(8) The provisions of this paragraph shall apply in
lieu of paragraphs (2) through (7) of this subsection
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--
(A) the Secretary, in cooperation with the
Secretary of State, immediately take
appropriate action at the international level
to end the overfishing; and
(B) within 1 year after the Secretary's
determination, the appropriate Council, or
Secretary, for fisheries under section
302(a)(3) shall--
(i) 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
(ii) 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.
(f) Fisheries under Authority of More Than One Council.--(1)
Except as provided in paragraph (3), 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) with respect to any highly migratory species
fishery to which section 302(a)(3) applies. In preparing and
implementing any such plan or amendment, the Secretary shall--
(A) consult with and consider the comments and views
of affected Councils, commissioners and advisory groups
appointed under Acts implementing relevant
international fishery agreements pertaining to highly
migratory species, and the advisory panel established
under section 302(g);
(B) establish an advisory panel under section 302(g)
for each fishery management plan to be prepared under
this paragraph;
(C) evaluate the likely effects, if any, of
conservation and management measures on participants in
the affected fisheries and minimize, to the extent
practicable, any disadvantage to United States
fishermen in relation to foreign competitors;
(D) with respect to a highly migratory species for
which the United States is authorized to harvest an
allocation, quota, or at a fishing mortality level
under a relevant international fishery agreement,
provide fishing vessels of the United States with a
reasonable opportunity to harvest such allocation,
quota, or at such fishing mortality level;
(E) review, on a continuing basis (and promptly
whenever a recommendation pertaining to fishing for
highly migratory species has been made under a relevant
international fishery agreement), and revise as
appropriate, the conservation and management measures
included in the plan;
(F) diligently pursue, through international entities
(such as the International Commission for the
Conservation of Atlantic Tunas), comparable
international fishery management measures with respect
to fishing for highly migratory species; and
(G) ensure that conservation and management measures
under this subsection--
(i) promote international conservation of the
affected fishery;
(ii) take into consideration traditional
fishing patterns of fishing vessels of the
United States and the operating requirements of
the fisheries;
(iii) are fair and equitable in allocating
fishing privileges among United States
fishermen and do not have economic allocation
as the sole purpose; and
(iv) promote, to the extent practicable,
implementation of scientific research programs
that include the tagging and release of
Atlantic highly migratory species.
(2) Certain fish excluded from ``bycatch'' definition.--
Notwithstanding section 3(2), fish harvested in a commercial
fishery managed by the Secretary under this subsection or the
Atlantic Tunas Convention Act of 1975 [(16 U.S.C. 971d)] (16
U.S.C. 971d), or highly migratory species harvested in a
commercial fishery managed by a Council under this Act or the
Western and Central Pacific Fisheries Convention Implementation
Act, that are not regulatory discards and that are tagged and
released alive under a scientific tagging and release program
established by the Secretary shall not be considered bycatch
for purposes of this Act.
(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) Environmental Review Process.--
(1) Procedures.--The Secretary shall, in consultation
with the Councils and the Council on Environmental
Quality, revise and update agency procedures for
compliance with the National Environmental Policy Act
(42 U.S.C. 4231 et seq.). The procedures shall--
(A) conform to the time lines for review and
approval of fishery management plans and plan
amendments under this section; and
(B) integrate applicable environmental
analytical procedures, including the time
frames for public input, with the procedure for
the preparation and dissemination of fishery
management plans, plan amendments, and other
actions taken or approved pursuant to this Act
in order to provide for timely, clear and
concise analysis that is useful to decision
makers and the public, reduce extraneous
paperwork, and effectively involve the public.
(2) Usage.--The updated agency procedures promulgated
in accordance with this section used by the Councils or
the Secretary shall be the sole environmental impact
assessment procedure for fishery management plans,
amendments, regulations, or other actions taken or
approved pursuant to this Act.
(3) Schedule for promulgation of final procedures.--
The Secretary shall--
(A) propose revised procedures within 12
months after the date of enactment of the
Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act of 2005;
(B) provide 90 days for public review and
comments; and
(C) promulgate final procedures no later than
18 months after the date of enactment of that
Act.
(4) Public participation.--The Secretary is
authorized and directed, in cooperation with the
Council on Environmental Quality and the Councils, to
involve the affected public in the development of
revised procedures, including workshops or other
appropriate means of public involvement.
SEC. 305. OTHER REQUIREMENTS AND AUTHORITY.
[16 U.S.C. 1855]
(a) Gear Evaluation and Notification of Entry.--(1) Not later
than 18 months after the date of enactment of the Sustainable
Fisheries Act, the Secretary shall publish in the Federal
Register, after notice and an opportunity for public comment, a
list of all fisheries--
(A) under the authority of each Council and all
fishing gear used in such fisheries, based on
information submitted by the Councils under section
303(a); and
(B) to which section 302(a)(3) applies and all
fishing gear used in such fisheries.
(2) The Secretary shall include with such list guidelines for
determining when fishing gear or a fishery is sufficiently
different from those listed as to require notification under
paragraph (3).
(3) Effective 180 days after the publication of such list, no
person or vessel may employ fishing gear or engage in a fishery
not included on such list without giving 90 days advance
written notice to the appropriate Council, or the Secretary
with respect to a fishery to which section 302(a)(3) applies. A
signed return receipt shall serve as adequate evidence of such
notice and as the date upon which the 90-day period begins.
(4) A Council may submit to the Secretary any proposed
changes to such list or such guidelines the Council deems
appropriate. The Secretary shall publish a revised list, after
notice and an opportunity for public comment, upon receiving
any such proposed changes from a Council.
(5) A Council may request the Secretary to promulgate
emergency regulations under subsection (c) to prohibit any
persons or vessels from using an unlisted fishing gear or
engaging in an unlisted fishery if the appropriate Council, or
the Secretary for fisheries to which section 302(a)(3) applies,
determines that such unlisted gear or unlisted fishery would
compromise the effectiveness of conservation and management
efforts under this Act.
(6) Nothing in this subsection shall be construed to permit a
person or vessel to engage in fishing or employ fishing gear
when such fishing or gear is prohibited or restricted by
regulation under a fishery management plan or plan amendment,
or under other applicable law.
(b) Fish Habitat.--(1)(A) The Secretary shall, within 6
months of the date of enactment of the Sustainable Fisheries
Act, establish by regulation guidelines to assist the Councils
in the description and identification of essential fish habitat
in fishery management plans (including adverse impacts on such
habitat) and in the consideration of actions to ensure the
conservation and enhancement of such habitat. The Secretary
shall set forth a schedule for the amendment of fishery
management plans to include the identification of essential
fish habitat and for the review and updating of such
identifications based on new scientific evidence or other
relevant information.
(B) The Secretary, in consultation with participants in the
fishery, shall provide each Council with recommendations and
information regarding each fishery under that Council's
authority to assist it in the identification of essential fish
habitat, the adverse impacts on that habitat, and the actions
that should be considered to ensure the conservation and
enhancement of that habitat.
(C) The Secretary shall review programs administered by the
Department of Commerce and ensure that any relevant programs
further the conservation and enhancement of essential fish
habitat.
(D) The Secretary shall coordinate with and provide
information to other Federal agencies to further the
conservation and enhancement of essential fish habitat.
(2) Each Federal agency shall consult with the Secretary with
respect to any action authorized, funded, or undertaken, or
proposed to be authorized, funded, or undertaken, by such
agency that may adversely affect any essential fish habitat
identified under this Act.
(3) Each Council--
(A) may comment on and make recommendations to the
Secretary and any Federal or State agency concerning
any activity authorized, funded, or undertaken, or
proposed to be authorized, funded, or undertaken, by
any Federal or State agency that, in the view of the
Council, may affect the habitat, including essential
fish habitat, of a fishery resource under its
authority; and
(B) shall comment on and make recommendations to the
Secretary and any Federal or State agency concerning
any such activity that, in the view of the Council, is
likely to substantially affect the habitat, including
essential fish habitat, of an anadromous fishery
resource under its authority.
(4)(A) If the Secretary receives information from a Council
or Federal or State agency or determines from other sources
that an action authorized, funded, or undertaken, or proposed
to be authorized, funded, or undertaken, by any State or
Federal agency would adversely affect any essential fish
habitat identified under this Act, the Secretary shall
recommend to such agency measures that can be taken by such
agency to conserve such habitat.
(B) Within 30 days after receiving a recommendation under
subparagraph (A), a Federal agency shall provide a detailed
response in writing to any Council commenting under paragraph
(3) and the Secretary regarding the matter. The response shall
include a description of measures proposed by the agency for
avoiding, mitigating, or offsetting the impact of the activity
on such habitat. In the case of a response that is inconsistent
with the recommendations of the Secretary, the Federal agency
shall explain its reasons for not following the
recommendations.
(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] 186 days
after the date of publication, and may be extended by
publication in the Federal Register for one additional
period of not more than 180 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 Act. The Secretary may promulgate such
regulations, in accordance with section 553 of title 5, United
States Code, as may be necessary to discharge such
responsibility or to carry out any other provision of this Act.
(e) Effect of Certain Laws on Certain Time Requirements.--The
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.), the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and
Executive Order Numbered 12866, dated September 30, 1993, shall
be complied with within the time limitations specified in
subsections (a), (b), and (c) of section 304 as they apply to
the functions of the Secretary under such provisions.
(f) Judicial Review.--(1) Regulations promulgated by the
Secretary under this Act and actions described in paragraph (2)
shall be subject to judicial review to the extent authorized
by, and in accordance with, chapter 7 of title 5, United States
Code, if a petition for such review is filed within 30 days
after the date on which the regulations are promulgated or the
action is published in the Federal Register, as applicable;
except that--
(A) section 705 of such title is not applicable, and
(B) the appropriate court shall only set aside any
such regulation or action on a ground specified in
section 706(2)(A), (B), (C), or (D) of such title.
(2) The actions referred to in paragraph (1) are actions that
are taken by the Secretary under regulations which implement a
fishery management plan, including but not limited to actions
that establish the date of closure of a fishery to commercial
or recreational fishing.
(3)(A) Notwithstanding any other provision of law, the
Secretary shall file a response to any petition filed in
accordance with paragraph (1), not later than 45 days after the
date the Secretary is served with that petition, except that
the appropriate court may extend the period for filing such a
response upon a showing by the Secretary of good cause for that
extension.
(B) A response of the Secretary under this paragraph shall
include a copy of the administrative record for the regulations
that are the subject of the petition.
(4) Upon a motion by the person who files a petition under
this subsection, the appropriate court shall assign the matter
for hearing at the earliest possible date and shall expedite
the matter in every possible way.
(g) Negotiated Conservation and Management Measures.--(1)(A)
In accordance with regulations promulgated by the Secretary
pursuant to this paragraph, a Council may establish a fishery
negotiation panel to assist in the development of specific
conservation and management measures for a fishery under its
authority. The Secretary may establish a fishery negotiation
panel to assist in the development of specific conservation and
management measures required for a fishery under section
304(e)(5), for a fishery for which the Secretary has authority
under section 304(g), or for any other fishery with the
approval of the appropriate Council.
(B) No later than 180 days after the date of enactment of the
Sustainable Fisheries Act, the Secretary shall promulgate
regulations establishing procedures, developed in cooperation
with the Administrative Conference of the United States, for
the establishment and operation of fishery negotiation panels.
Such procedures shall be comparable to the procedures for
negotiated rulemaking established by subchapter III of chapter
5 of title 5, United States Code.
(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
SystemPpermits.--(1) Within 6 months after the date of
enactment of the Sustainable Fisheries Act, the Secretary shall
establish an exclusive central registry system (which may be
administered on a regional basis) for limited access system
permits established under section 303(b)(6) or other Federal
law, including [individual fishing quotas,] limited access
privileges, which shall provide for the registration of title
to, and interests in, such permits, as well as for procedures
for changes in the registration of title to such permits upon
the occurrence of involuntary transfers, judicial or
nonjudicial foreclosure of interests, enforcement of judgments
thereon, and related matters deemed appropriate by the
Secretary. Such registry system shall--
(A) provide a mechanism for filing notice of a
nonjudicial foreclosure or enforcement of a judgment by
which the holder of a senior security interest acquires
or conveys ownership of a permit, and in the event of a
nonjudicial foreclosure, by which the interests of the
holders of junior security interests are released when
the permit is transferred;
(B) provide for public access to the information
filed under such system, notwithstanding section
402(b); and
(C) provide such notice and other requirements of
applicable law that the Secretary deems necessary for
an effective registry system.
(2) The Secretary shall promulgate such regulations as may be
necessary to carry out this subsection, after consulting with
the Councils and providing an opportunity for public comment.
The Secretary is authorized to contract with non-Federal
entities to administer the central registry system.
(3) To be effective and perfected against any person except
the transferor, its heirs and devisees, and persons having
actual notice thereof, all security interests, and all sales
and other transfers of permits described in paragraph (1),
shall be registered in compliance with the regulations
promulgated under paragraph (2). Such registration shall
constitute the exclusive means of perfection of title to, and
security interests in, such permits, except for Federal tax
liens thereon, which shall be perfected exclusively in
accordance with the Internal Revenue Code of 1986 (26 U.S.C. 1
et seq.). The Secretary shall notify both the buyer and seller
of a permit if a lien has been filed by the Secretary of the
Treasury against the permit before collecting any transfer fee
under paragraph (5) of this subsection.
(4) The priority of security interests shall be determined in
order of filing, the first filed having the highest priority. A
validly-filed security interest shall remain valid and
perfected notwithstanding a change in residence or place of
business of the owner of record. For the purposes of this
subsection, ``security interest'' shall include security
interests, assignments, liens and other encumbrances of
whatever kind.
(5)(A) Notwithstanding section 304(d)(1), the Secretary shall
collect a reasonable fee of not more than one-half of one
percent of the value of a limited access system permit upon
registration of the title to such permit with the central
registry system and upon the transfer of such registered title.
Any such fee collected shall be deposited in the Limited Access
System Administration Fund established under subparagraph (B).
(B) There is established in the Treasury a Limited Access
System Administration Fund. The Fund shall be available,
without appropriation or fiscal year limitation, only to the
Secretary for the purposes of--
(i) administering the central registry system; and
(ii) administering and implementing this Act in the
fishery in which the fees were collected. Sums in the
Fund that are not currently needed for these purposes
shall be kept on deposit or invested in obligations of,
or guaranteed by, the United States.
(i) Alaska and Western Pacific Community Development
Programs.--
(1)(A) The North Pacific Council and the Secretary
shall establish a western Alaska community development
quota program under which a percentage of the total
allowable catch of any Bering Sea fishery is allocated
to the program.
(B) [To] Except as provided in subparagraph (E), to
be eligible to participate in the western Alaska
community development quota program under subparagraph
(A) a community shall--
(i) be located within 50 nautical miles from
the baseline from which the breadth of the
territorial sea is measured along the Bering
Sea coast from the Bering Strait to the western
most of the Aleutian Islands, or on an island
within the Bering Sea;
(ii) not be located on the Gulf of Alaska
coast of the north Pacific Ocean;
(iii) meet criteria developed by the Governor
of Alaska, approved by the Secretary, and
published in the Federal Register;
(iv) be certified by the Secretary of the
Interior pursuant to the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.) to be a
Native village;
(v) consist of residents who conduct more
than one-half of their current commercial or
subsistence fishing effort in the waters of the
Bering Sea or waters surrounding the Aleutian
Islands; and
(vi) not have previously developed harvesting
or processing capability sufficient to support
substantial participation in the groundfish
fisheries in the Bering Sea, unless the
community can show that the benefits from an
approved Community Development Plan would be
the only way for the community to realize a
return from previous investments.
(C)(i) Prior to October 1, 2001, the North Pacific
Council may not submit to the Secretary any fishery
management plan, plan amendment, or regulation that
allocates to the western Alaska community development
quota program a percentage of the total allowable catch
of any Bering Sea fishery for which, prior to October
1, 1995, the Council had not approved a percentage of
the total allowable catch for allocation to such
community development quota program. The expiration of
any plan, amendment, or regulation that meets the
requirements of clause (ii) prior to October 1, 2001,
shall not be construed to prohibit the Council from
submitting a revision or extension of such plan,
amendment, or regulation to the Secretary if such
revision or extension complies with the other
requirements of this paragraph.
(ii) With respect to a fishery management
plan, plan amendment, or regulation for a
Bering Sea fishery that--
(I) allocates to the western Alaska
community development quota program a
percentage of the total allowable catch
of such fishery; and
(II) was approved by the North
Pacific Council prior to October 1,
1995; the Secretary shall, except as
provided in clause (iii) and after
approval of such plan, amendment, or
regulation under section 304, allocate
to the program the percentage of the
total allowable catch described in such
plan, amendment, or regulation. Prior
to October 1, 2001, the percentage
submitted by the Council and approved
by the Secretary for any such plan,
amendment, or regulation shall be no
greater than the percentage approved by
the Council for such fishery prior to
October 1, 1995.
(iii) The Secretary shall phase in the
percentage for community development quotas
approved in 1995 by the North Pacific Council
for the Bering Sea crab fisheries as follows:
(I) 3.5 percent of the total
allowable catch of each such fishery
for 1998 shall be allocated to the
western Alaska community development
quota program;
(II) 5 percent of the total allowable
catch of each such fishery for 1999
shall be allocated to the western
Alaska community development quota
program; and
(III) 7.5 percent of the total
allowable catch of each such fishery
for 2000 and thereafter shall be
allocated to the western Alaska
community development quota program,
unless the North Pacific Council
submits and the Secretary approves a
percentage that is no greater than 7.5
percent of the total allowable catch of
each such fishery for 2001 or the North
Pacific Council submits and the
Secretary approves any other percentage
on or after October 1, 2001.
(D) This paragraph shall not be construed to require
the North Pacific Council to resubmit, or the Secretary
to reapprove, any fishery management plan or plan
amendment approved by the North Pacific Council prior
to October 1, 1995, that includes a community
development quota program, or any regulations to
implement such plan or amendment.
(E) A community shall be eligible to
participate in the western Alaska community
development quota program under subparagraph
(A) if the community was--
(i) listed in table 7 to part 679 of
title 50, Code of Federal Regulations,
as in effect on January 1, 2004; or
(ii) approved by the National Marine
Fisheries Service on April 19, 1999.
(2)(A) The Western Pacific Council and the Secretary may
establish a western Pacific community development program for
any fishery under the authority of such Council in order to
provide access to such fishery for western Pacific communities
that participate in the program.
(B) To be eligible to participate in the western Pacific
community development program, a community shall--
(i) be located within the Western Pacific Regional
Fishery Management Area;
(ii) meet criteria developed by the Western Pacific
Council, approved by the Secretary and published in the
Federal Register;
(iii) consist of community residents who are
descended from the aboriginal people indigenous to the
area who conducted commercial or subsistence fishing
using traditional fishing practices in the waters of
the Western Pacific region;
(iv) not have previously developed harvesting or
processing capability sufficient to support substantial
participation in fisheries in the Western Pacific
Regional Fishery Management Area; and
(v) develop and submit a Community Development Plan
to the Western Pacific Council and the Secretary.
(C) In developing the criteria for eligible communities under
subparagraph (B)(ii), the Western Pacific Council shall base
such criteria on traditional fishing practices in or dependence
on the fishery, the cultural and social framework relevant to
the fishery, and economic barriers to access to the fishery.
(D) For the purposes of this subsection ``Western Pacific
Regional Fishery Management Area'' means the area under the
jurisdiction of the Western Pacific Council, or an island
within such area.
(E) Notwithstanding any other provision of this Act, the
Western Pacific Council shall take into account traditional
indigenous fishing practices in preparing any fishery
management plan.
(3) The Secretary shall deduct from any fees collected from a
community development quota program under section 304(d)(2) the
costs incurred by participants in the program for observer and
reporting requirements which are in addition to observer and
reporting requirements of other participants in the fishery in
which the allocation to such program has been made.
(4) After the date of enactment of the Sustainable Fisheries
Act, the North Pacific Council and Western Pacific Council may
not submit to the Secretary a community development quota
program that is not in compliance with this subsection.
(j) Western 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 to foster
understanding, practical use of knowledge (including
native Hawaiian 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 Regional
Fishery Management Council, regional educational
institutions, and local Western 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 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 and the
Western 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 and Central
Pacific;
(E) develop means by which local and
traditional knowledge (including Pacific
islander and Native Hawaiian knowledge) can
enhance science-based management of fishery
resources of the region; and
(F) develop partnerships with other Western
Pacific Island agencies, academic institutions,
and other entities to meet the purposes of this
section.
(k) Multispecies Groundfish.--Within 60 days after the date
of enactment of the Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act of 2005, the Secretary of
Commerce shall determine whether fishing in State waters
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.
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.
* * * * * * *
SEC. 307. PROHIBITED ACTS.
[16 U.S.C. 1857]
It is unlawful--
(1) for any person--
(A) to violate any provision of this Act or
any regulation or permit issued pursuant to
this Act;
(B) to use any fishing vessel to engage in
fishing after the revocation, or during the
period of suspension, of an applicable permit
issued pursuant to this Act;
(C) to violate any provision of, or
regulation under, an applicable governing
international fishery agreement entered into
pursuant to section 201(c);
(D) to refuse to permit any officer
authorized to enforce the provisions of this
Act (as provided for in section 311) to board a
fishing vessel subject to such person's control
for purposes of conducting any search or
inspection in connection with the enforcement
of this Act or any regulation, permit, or
agreement referred to in subparagraph (A) or
(C);
(E) to forcibly assault, resist, oppose,
impede, intimidate, or interfere with any such
authorized officer in the conduct of any search
or inspection described in subparagraph (D);
(F) to resist a lawful arrest for any act
prohibited by this section;
(G) to ship, transport, offer for sale, sell,
purchase, import, export, or have custody,
control, or possession of, any fish taken or
retained in violation of this Act or any
regulation, permit, or agreement referred to in
subparagraph (A) or (C);
(H) to interfere with, delay, or prevent, by
any means, the apprehension or arrest of
another person, knowing that such other person
has committed any act prohibited by this
section;
(I) to knowingly and willfully submit to a
Council, the Secretary, or the Governor of a
State false information (including, but not
limited to, false information regarding the
capacity and extent to which a United States
fish processor, on an annual basis, will
process a portion of the optimum yield of a
fishery that will be harvested by fishing
vessels of the United States) regarding any
matter that the Council, Secretary, or Governor
is considering in the course of carrying out
this Act;
(J) to ship, transport, offer for sale, sell,
or purchase, in interstate or foreign commerce,
any whole live lobster of the species Homarus
americanus, that--
(i) is smaller than the minimum
possession size in effect at the time
under the American Lobster Fishery
Management Plan, as implemented by
regulations published in part 649 of
title 50, Code of Federal Regulations,
or any successor to that plan
implemented under this title, or in the
absence of any such plan, is smaller
than the minimum possession size in
effect at the time under a coastal
fishery management plan for American
lobster adopted by the Atlantic States
Marine Fisheries Commission under the
Atlantic Coastal Fisheries Cooperative
Management Act (16 U.S.C. 5101 et
seq.);
(ii) is bearing eggs attached to its
abdominal appendages; or
(iii) bears evidence of the forcible
removal of extruded eggs from its
abdominal appendages;
(K) to 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,
(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 Act, or any data collector employed by the
National Marine Fisheries Service or under
contract to any person to carry out
responsibilities under this Act;
(M) to engage in large-scale driftnet fishing
that is subject to the jurisdiction of the
United States, including use of a fishing
vessel of the United States to engage in such
fishing beyond the exclusive economic zone of
any nation;
(N) to strip pollock of its roe and discard
the flesh of the pollock;
(O) to knowingly and willfully fail to
disclose, or to falsely disclose, any financial
interest as required under section 302(j), or
to knowingly vote on a Council decision in
violation of section 302(j)(7)(A); [or]
(P)(i) to remove any of the fins of a shark
(including the tail) and discard the carcass of
the shark at sea;
(ii) to have custody, control, or possession
of any such fin aboard a fishing vessel without
the corresponding carcass; or
(iii) to land any such fin without the
corresponding [carcass.]carcass;
(Q) to import, export, transport, sell,
receive, acquire, or purchase in interstate or
foreign commerce any fish taken, possessed,
transported, or sold in violation of any
foreign law or regulation; or
(R) to use any fishing vessel to engage in
fishing in Federal or State waters, or on the
high seas or the waters of another country,
after the Secretary has made a payment to the
owner of that fishing vessel under section
312(b)(2).
For 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.
(2) for any vessel other than a vessel of the United
States, and for the owner or operator of any vessel
other than a vessel of the United States, to engage--
(A) in fishing within the boundaries of any
State, except--
(i) recreational fishing permitted
under section 201(i);
(ii) fish processing permitted under
section 306(c); or
(iii) transshipment at sea of fish or
fish products within the boundaries of
any State in accordance with a permit
approved under section 204(d);
(B) in fishing, except recreational fishing
permitted under section 201(i), within the
exclusive economic zone, or for any anadromous
species or Continental Shelf fishery resources
beyond such zone, unless such fishing is
authorized by, and conducted in accordance
with, a valid and applicable permit issued
pursuant to section 204(b), (c), or (d); or
(C) except as permitted under section 306(c),
in fish processing (as defined in paragraph
(4)(A) of such section) within the internal
waters of a State (as defined in paragraph
(4)(B) of such section);
(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 204(d) or section 306(c) 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 203, or any regulations
issued to implement such an agreement; except that the
binding provisions of such agreement and implementing
regulations shall have been published in the Federal
Register prior to such violation.
SEC. 308. CIVIL PENALTIES AND PERMIT SANCTIONS.
[16 U.S.C. 1858]
(a) Assessment of Penalty.--Any person who is found by the
Secretary, after notice and an opportunity for a hearing in
accordance with section 554 of title 5, United States Code, to
have committed an act prohibited by section 307 shall be liable
to the United States for a civil penalty. The amount of the
civil penalty shall not exceed [$100,000] $240,000 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) or against whom a
permit sanction is imposed under subsection (g) (other than a
permit suspension for nonpayment of penalty or fine) may obtain
review thereof in the United States district court for the
appropriate district by filing a complaint against the
Secretary in such court within 30 days from the date of such
order. The Secretary shall promptly file in such court a
certified copy of the record upon which such violation was
found or such penalty imposed, as provided in section 2112 of
title 28, United States Code. The findings and order of the
Secretary shall be set aside by such court if they are not
found to be supported by substantial evidence, as provided in
section 706(2) of title 5, United States Code.
(c) Action upon Failure to Pay Assessment.--If any person
fails to pay an assessment of a civil penalty after it has
become a final and unappealable order, or after the appropriate
court has entered final judgment in favor of the Secretary, the
Secretary shall refer the matter to the Attorney General of the
United States, who shall recover the amount assessed in any
appropriate district court of the United States. In such
action, the validity and appropriateness of the final order
imposing the civil penalty shall not be subject to review.
(d) In Rem Jurisdiction.--A fishing vessel (including its
fishing gear, furniture, appurtenances, stores, and cargo) used
in the commission of an act prohibited by section 307 shall be
liable in rem for any civil penalty assessed for such violation
under section 308 and may be proceeded against in any district
court of the United States having jurisdiction thereof. Such
penalty shall constitute a maritime lien on such vessel which
may be recovered in an action in rem in the district court of
the United States having jurisdiction over the vessel.
(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,] this Act (or any other marine resource
law enforced by the Secretary), 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 307, (B) the owner or operator of a vessel or any other
person who has been issued or has applied for a permit under
this Act has acted in violation of section 307, (C) any amount
in settlement of a civil forfeiture imposed on a vessel or
other property, or any civil penalty or criminal fine imposed
on a vessel or owner or operator of a vessel or any other
person who has been issued or has applied for a permit under
any marine resource law enforced by the Secretary has not been
paid and is overdue, or (D) any payment required for observer
services provided to or contracted by an owner or operator who
has been issued a permit or applied for a permit under any
marine resource law administered by the Secretary has not been
paid and is overdue, the Secretary may--
(i) revoke any permit issued with respect to such
vessel or person, with or without prejudice to the
issuance of subsequent permits;
(ii) suspend such permit for a period of time
considered by the Secretary to be appropriate;
(iii) deny such permit; or
(iv) impose additional conditions and restrictions on
any permit issued to or applied for by such vessel or
person under this Act and, with respect to foreign
fishing vessels, on the approved application of the
foreign nation involved and on any permit issued under
that application.
(2) In imposing a sanction under this subsection, the
Secretary shall take into account--
(A) the nature, circumstances, extent, and gravity of
the prohibited acts for which the sanction is imposed;
and
(B) with respect to the violator, the degree of
culpability, any history of prior offenses, and such
other matters as justice may require.
(3) Transfer of ownership of a vessel, a permit, or any
interest in a permit, 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, a permit, or any interest in
a permit, 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] the vessel, permit, or interest 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,
or any amount in settlement of a civil forfeiture, the
Secretary shall reinstate the permit upon payment of the
[penalty or fine] penalty, fine, or settlement amount 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.
[SEC. 309. CRIMINAL OFFENSES.
[16 U.S.C. 1859]
[(a) Offenses.--A person is guilty of an offense if he
commits any act prohibited by--
[(1) section 307(1)(D), (E), (F), (H), (I), or (L);
or
[(2) section 307(2).
[(b) Punishment.--Any offense described in subsection (a)(1)
is punishable by a fine or not more than $100,000, or
imprisonment for not more than 6 months, or both; except that
if in the commission of any such offense the person uses a
dangerous weapon, engages in conduct that causes bodily injury
to any observer described in section 307(1)(L) or any officer
authorized to enforce the provisions of this Act (as provided
for in section 311), or places any such observer or officer in
fear of imminent bodily injury, the offense is punishable by a
fine of not more than $200,000, or imprisonment for not more
than 10 years, or both. Any offense described in subsection
(a)(2) is punishable by a fine of not more than $200,000.
[(c) Jurisdiction.--There is Federal jurisdiction over any
offense described in this section.]
SEC. 309. CRIMINAL PENALTIES.
(a) Fines and Imprisonment.--
(1) In general.--Any person (other than a foreign
government or entity thereof) who knowingly violates
subparagraph (D), (E), (F), (H), (I), or (L) of
paragraph (1) of section 307, or paragraph (2) of
section 307, shall be imprisoned for not more than 5
years and fined--
(A) not more than $500,000 if such person is
an individual; or
(B) not more than $1,000,000 if such person
is a corporation or other legal entity other
than an individual.
(2) Aggravated offenses.--Notwithstanding paragraph
(1), the maximum term of imprisonment shall be for not
more than 10 years if--
(A) the violator is an individual; and
(B) in the commission of a violation
described in paragraph (1), that individual--
(A) used a dangerous weapon;
(B) engaged in conduct that caused bodily
injury to any observer described in section
307, any officer authorized to enforce the
provisions of this Act under section 311, or
any Council member or staff; or
(C) placed any such observer, officer,
Council member, or staff in fear of imminent
bodily injury.
(b) Other Violations.--Any person (other than a foreign
government or entity thereof) who knowingly violates any other
provision of section 307 shall be fined under title 18, United
States Code, imprisoned for not more than 5 years, or both.
(c) Jurisdiction.--
(1) In general.--The district courts of the United
States shall have jurisdiction over any action arising
under this Act.
(2) Venue.--For purposes of this Act--
(A) each violation of this Act shall
constitute a separate offense and the offense
shall be deemed to have been committed not only
in the district where it first occurred, but
also in any other district as authorized by
law;
(B) any offense not committed within a
judicial district of the United States is
subject to the venue provisions of section 3238
of title 18, United States Code; and
(C) American Samoa shall be included within
the judicial district of the United States
District Court for the District of Hawaii.
SEC. 310. CIVIL FORFEITURES.
[16 U.S.C. 1860]
(a) In General.--Any fishing vessel (including its fishing
gear, furniture, appurtenances, stores, and cargo) used, and
any fish (or the fair market value thereof) taken or retained,
in any manner, in connection with or as a result of the
commission of any act prohibited by section 307 [(other than
any act for which the issuance of a citation under section
311(c) is sufficient sanction)] shall be subject to forfeiture
to the United [States.] States, except that no fishing vessel
shall be subject to forfeiture under this section as the result
of any act for which the issuance of a citation under section
311(a) is sufficient sanction. All or part of such vessel may,
and all such fish (or the fair market value thereof) shall, be
forfeited to the United States pursuant to a civil proceeding
under this section.
(b) Jurisdiction of District Courts.--Any district court of
the United States which has jurisdiction under section 311(d)
shall have jurisdiction, upon application by the Attorney
General on behalf of the United States, to order any forfeiture
authorized under subsection (a) and any action provided for
under subsection (d).
(c) Judgment.--If a judgment is entered for the United States
in a civil forfeiture proceeding under this section, the
Attorney General may seize any property or other interest
declared forfeited to the United States, which has not
previously been seized pursuant to this Act or for which
security has not previously been obtained under subsection (d).
The provisions of the customs laws relating to--
(1) the seizure, forfeiture, and condemnation of
property for violation of the customs law;
(2) the disposition of such property or the proceeds
from the sale thereof; and
(3) the remission or mitigation of any such
forfeiture; shall apply to seizures and forfeitures
incurred, or alleged to have been incurred, under the
provisions of this Act, unless such provisions are
inconsistent with the purposes, policy, and provisions
of this Act. The duties and powers imposed upon the
Commissioner of Customs or other persons under such
provisions shall, with respect to this Act, be
performed by officers or other persons designated for
such purpose by the Secretary.
(d) Procedure.--(1) Any officer authorized to serve any
process in rem which is issued by a court having jurisdiction
under section 311(d) shall--
(A) stay the execution of such process; or
(B) discharge any fish seized pursuant to such
process; upon the receipt of a satisfactory bond or
other security from any person claiming such property.
Such bond or other security shall be conditioned upon
such person (i) delivering such property to the
appropriate court upon order thereof, without any
impairment of its value, or (ii) paying the monetary
value of such property pursuant to an order of such
court. Judgment shall be recoverable on such bond or
other security against both the principal and any
sureties in the event that any condition thereof is
breached, as determined by such court. Nothing in this
paragraph may be construed to require the Secretary,
except in the Secretary's discretion or pursuant to the
order of a court under section 311(d), to release on
bond any seized fish or other property or the proceeds
from the sale thereof.
(2) Any fish seized pursuant to this Act may be sold, subject
to the approval and direction of the appropriate court, for not
less than the fair market value thereof. The proceeds of any
such sale shall be deposited with such court pending the
disposition of the matter involved.
(e) Rebuttable Presumption.--
(1) For purposes of this section, it shall be a
rebuttable presumption that all fish found on board a
fishing vessel which is seized in connection with an
act prohibited by section 307 were taken or retained in
violation of this Act.
(2) For purposes of this Act, it shall be a
rebuttable presumption that any fish of a species which
spawns in fresh or estuarine waters and migrates to
ocean waters that is found on board a vessel is of
United States origin if the vessel is within the
migratory range of the species during that part of the
year to which the migratory range applies.
(3) For purposes of this Act, it shall be a
rebuttable presumption that any vessel that is
shoreward of the outer boundary of the exclusive
economic zone of the United States or beyond the
exclusive economic zone of any nation, and that has
gear on board that is capable of use for large-scale
driftnet fishing, is engaged in such fishing.
SEC. 311. ENFORCEMENT.
[16 U.S.C. 1861]
(a) Responsibility.--The provisions of this [Act] Act, and
the provisions of any marine resource law administered by the
Secretary, 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,] agency of any State,
Territory, Commonwealth, or Tribe, 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)) to enforce the
provisions of this Act 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 307;
(ii) board, and search or inspect,
any fishing vessel which is subject to
the provisions of this Act;
(iii) seize any fishing vessel
(together with its fishing gear,
furniture, appurtenances, stores, and
cargo) used or employed in, or with
respect to which it reasonably appears
that such vessel was used or employed
in, the violation of any provision of
this Act;
(iv) seize any fish (wherever found)
taken or retained in violation of any
provision of this Act; [and]
(v) seize any other evidence related
to any violation of any provision of
this Act; and
(vi) access, directly or indirectly,
for enforcement purposes any data or
information required to be provided
under this title or regulations under
this title, including data from Global
Maritime Distress and Safety Systems,
vessel monitoring systems, or any
similar system, subject to the
confidentiality provisions of section
402;
(B) execute any warrant or other process
issued by any court of competent jurisdiction;
and
(C) exercise any other lawful authority.
(2) Subject to the direction of the Secretary, a
person charged with law enforcement responsibilities by
the Secretary who is performing a duty related to
enforcement of a law regarding fisheries or other
marine resources may make an arrest without a warrant
for an offense against the United States committed in
his presence, or for a felony cognizable under the laws
of the United States, if he has reasonable grounds to
believe that the person to be arrested has committed or
is committing a felony. The arrest authority described
in the preceding sentence may be conferred upon an
officer or employee of a State agency, subject to such
conditions and restrictions as are set forth by
agreement between the State agency, the Secretary, and,
with respect to enforcement operations within the
exclusive economic zone, the Secretary of the
department in which the Coast Guard is operating.
(c) Issuance of Citations.--If any officer authorized to
enforce the provisions of this Act (as provided for in this
section) finds that a fishing vessel is operating or has been
operated in violation of any provision of this Act, such
officer may, in accordance with regulations issued jointly by
the Secretary and the Secretary of the department in which the
Coast Guard is operating, issue a citation to the owner or
operator of such vessel in lieu of proceeding under subsection
(b). If a permit has been issued pursuant to this Act for such
vessel, such officer shall note the issuance of any citation
under this subsection, including the date thereof and the
reason therefor, on the permit. The Secretary shall maintain a
record of all citations issued pursuant to this subsection.
(d) Jurisdiction of Courts.--The district courts of the
United States shall have exclusive jurisdiction over any case
or controversy arising under the provisions of this Act. In the
case of Guam or any possession of the United States in the
Pacific Ocean, the appropriate court is the United States
District Court for the District of Guam, except that in the
case of American Samoa, the appropriate court is the United
States District Court for the District of Hawaii, and except
that in the case of the Northern Mariana Islands, the
appropriate court is the United States District Court for the
District of the Northern Mariana Islands. Any such court may,
at any time--
(1) enter restraining orders or prohibitions;
(2) issue warrants, process in rem, or other process;
(3) prescribe and accept satisfactory bonds or other
security; and
(4) take such other actions as are in the interest of
justice.
(e) Payment of Storage, Care, and Other Costs.--(1)
Notwithstanding any other provision of law, the Secretary or
the Secretary of the Treasury may pay from sums received as
fines, penalties, and forfeitures of property for violations of
any provisions of this Act or of any other fishery resource law
enforced by the Secretary, including the Lacey Act Amendments
of 1981 (16 U.S.C. 3371 et seq.)--
(A) the reasonable and necessary costs incurred in
providing temporary storage, care, and maintenance of
seized fish or other property pending disposition of
any civil or criminal proceeding alleging a violation
of any provision of this Act or any other marine
resource law enforced by the Secretary with respect to
that fish or other property;
[(B) a reward of not less than 20 percent of the
penalty collected or $20,000, whichever is the lesser
amount, to any person who furnishes information which
leads to an arrest, conviction, civil penalty
assessment, or forfeiture of property for any violation
of any provision of this Act or any other marine
resource law enforced by the Secretary;]
(B) 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 Act or any other marine
resource law enforced by the Secretary of up to the
lesser of--
(i) 20 percent of the penalty or fine
collected; or
(ii) $20,000;
(C) any expenses directly related to investigations
and civil or criminal enforcement proceedings,
including any necessary expenses for equipment,
training, travel, witnesses, and contracting services
directly related to such investigations or proceedings;
(D) any valid liens or mortgages against any property
that has been forfeited;
(E) claims of parties in interest to property
disposed of under section 612(b) of the Tariff Act of
1930 (19 U.S.C. 1612(b)), as made applicable by section
310(c) of this Act or by any other marine resource law
enforced by the Secretary, to seizures made by the
Secretary, in amounts determined by the Secretary to be
applicable to such claims at the time of seizure; and
(F) reimbursement to any Federal or State agency,
including the Coast Guard, for services performed, or
personnel, equipment, or facilities utilized, under any
agreement with the Secretary entered into pursuant to
subsection (a), or any similar agreement authorized by
law.
(2) Any person found in an administrative or judicial
proceeding to have violated this Act or any other marine
resource law enforced by the Secretary shall be liable for the
cost incurred in the sale, storage, care, and maintenance of
any fish or other property lawfully seized in connection with
the violation.
(f) Enforcement of Northeast Multispecies Fishery Management
Plan.--
(1) Enforcement agreements.--Beginning not later than
October 1, 1993, the Secretary shall, if requested by
the Governor of a State represented on the New England
Fishery Management Council, enter into an agreement
under subsection (a), with each of the States
represented on such Council, that authorizes the marine
law enforcement agency of such State to perform duties
of the Secretary relating to enforcement of the
Northeast Multispecies Fishery Management Plan.
(2) Reimbursement.--An agreement with a State under
this subsection shall provide, subject to the
availability of appropriations, for reimbursement of
the State for expenses incurred in detection and
prosecution of violations of any fishery management
plan approved by the Secretary.
(3) Coast Guard enforcement working group.--
(A) Establishment.--The Commander of the
First Coast Guard District shall establish an
informal fisheries enforcement working group to
improve the overall compliance with and
effectiveness of the regulations issued under
the Northeast Multispecies Fishery Management
Plan.
(B) Membership.--The working group shall
consist of members selected by the Commander,
and shall include--
(i) individuals who are
representatives of various fishing
ports located in the States represented
on the New England Fishery Management
Council;
(ii) captains of fishing vessels that
operate in waters under the
jurisdiction of that Council; and
(iii) other individuals the Commander
considers appropriate.
(C) Non-Federal status of working group
members.--An individual shall not receive any
compensation for, and shall not be considered
to be a Federal employee based on, membership
in the working group.
(D) Meetings.--The working group shall meet,
at the call of the Commander, at least 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 Act which are attributable to
fines and penalties imposed for violations of the
Northeast Multispecies Fishery Management Plan shall be
used by the Secretary pursuant to this section to
enforce that Plan.
(g) Enforcement in the Pacific Insular Areas.--The Secretary,
in consultation with the Governors of the Pacific Insular Areas
and the Western Pacific Council, shall to the extent
practicable support cooperative enforcement agreements between
Federal and Pacific Insular Area authorities.
(h) Joint Enforcement Agreements.--
(1) In general.--The Governor of an eligible State
may apply to the Secretary for execution of a joint
enforcement agreement with the Secretary that will
authorize the deputization and funding of State law
enforcement officers with marine law enforcement
responsibilities to perform duties of the Secretary
relating to law enforcement provisions under this title
or any other marine resource law enforced by the
Secretary. Upon receiving an application meeting the
requirements of this subsection, the Secretary may
enter into a joint enforcement agreement with the
requesting State.
(2) Eligible state.--A State is eligible to
participate in the cooperative enforcement agreements
under this section if it is in, or bordering on, the
Atlantic Ocean (including the Caribbean Sea), the
Pacific Ocean, the Arctic Ocean, the Gulf of Mexico,
Long Island Sound, or 1 or more of the Great Lakes.
(3) Requirements.--Joint enforcement agreements
executed under paragraph (1)--
(A) shall be consistent with the purposes and
intent of this section to the extent applicable
to the regulated activities;
(B) may include specifications for joint
management responsibilities as provided by the
first section of Public Law 91-412 (15 U.S.C.
1525); and
(C) shall provide for confidentiality of data
and information submitted to the State under
section 402.
(4) Allocation of funds.--The Secretary shall include
in each joint enforcement agreement an allocation of
funds to assist in management of the agreement. The
allocation shall be fairly distributed among all
eligible States participating in cooperative
enforcement agreements under this subsection, based
upon consideration of Federal marine enforcement needs,
the specific marine conservation enforcement needs of
each participating eligible State, and the capacity of
the State to undertake the marine enforcement mission
and assist with enforcement needs. The agreement may
provide for amounts to be withheld by the Secretary for
the cost of any technical or other assistance provided
to the State by the Secretary under the agreement.
(i) Improved Data Sharing.--
(1) In general.--Notwithstanding any other provision
of this Act, as soon as practicable but no later than
21 months after the date of enactment of the Magnuson-
Stevens Fishery Conservation and Management
Reauthorization Act of 2005, the Secretary shall
implement data-sharing measures to make any data
required to be provided by this Act from Global
Maritime Distress and Safety Systems, vessel monitoring
systems, or similar systems--
(A) directly accessible by State enforcement
officers authorized under subsection (a) of
this section; and
(B) available to a State management agency
involved in, or affected by, management of a
fishery if the State has entered into an
agreement with the Secretary under section
402(b)(1)(B) of this Act.
(2) Agreement required.--The Secretary shall promptly
enter into an agreement with a State under section
402(b)(1)(B) of this Act if--
(A) the Attorney General or highest ranking
legal officer of the State provides a written
opinion or certification that State law allows
the State to maintain the confidentiality of
information required by Federal law to be kept
confidential; or
(B) the Secretary is provided other
reasonable assurance that the State can and
will protect the identity or business of any
person to which such information relates.
[(h)] (j) Definitions.--For purposes of this section--
(1) The term ``provisions of this Act'' includes (A)
any regulation or permit issued pursuant to this Act,
and (B) any provision of, or regulation issued pursuant
to, any international fishery agreement under which
foreign fishing is authorized by section 201(b) or (c),
or section 204(d), with respect to fishing subject to
the exclusive fishery management authority of the
United States.
(2) The term ``violation of any provision of this
Act'' includes (A) the commission of any act prohibited
by section 307, and (B) the violation of any
regulation, permit, or agreement referred to in
paragraph (1).
SEC. 312. TRANSITION TO SUSTAINABLE FISHERIES.
[16 U.S.C. 1861a]
(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;] measures, including regulatory
restrictions imposed to protect human health or the
marine environment and judicially imposed harvest
restrictions; 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 [1996,
1997, 1998, and 1999.] 2006 through 2012.
(b) Fishing Capacity Reduction Program.--
(1) The Secretary, at the request of the appropriate
Council for fisheries under the authority of such
Council, [or the Governor of a State for fisheries
under State authority, may conduct a fishing] 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] cost-effective
and, in the instance of a program involving an
industry fee system, prospectively capable of
repaying any debt obligation incurred under
section 1111 of title XI of the Merchant Marine
Act, 1936.
(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 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]
(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 and such vessel is (i) scrapped,
or (ii) through the Secretary of the department in
which the Coast Guard is operating, subjected to title
restrictions (including loss of the vessel's fisheries
endorsement) that permanently prohibit and effectively
prevent its use in fishing in federal or state waters,
or fishing on the high seas or in the waters of a
foreign nation; or
(B) the holder of a permit authorizing
participation in the fishery, if such permit is
surrendered for permanent revocation, and such
holder relinquishes any claim associated with
the permit and vessel used to harvest fishery
resources under the permit that could qualify
such holder for any present or future limited
access system permit in the fishery for which
the program was established.
(3) Participation in the program shall be voluntary,
but the Secretary shall ensure compliance by all who do
participate.
(4) [The Secretary shall consult, as appropriate,
with Councils,] 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.
(c) Program Funding.--(1) The program may be funded by any
combination of amounts--
(A) available under clause (iv) of section 2(b)(1)(A)
of the Act of August 11, 1939 (15 U.S.C. 713c-
3(b)(1)(A); the Saltonstall-Kennedy Act);
(B) appropriated for the purposes of this section;
(C) provided by an industry fee system established
under subsection (d) and in accordance with section
1111 of title XI of the Merchant Marine Act, 1936; or
(D) provided from any State or other public sources
or private or non-profit organizations.
(2) All funds for the program, including any fees established
under subsection (d), shall be paid into the fishing capacity
reduction fund established under section 1111 of title XI of
the Merchant Marine Act, 1936.
(d) Industry Fee System.--(1)(A) If an industry fee system is
necessary to fund the program, the [Secretary, at the request
of the appropriate Council,] Secretary may conduct a referendum
on such system. Prior to the referendum, the [Secretary, in
consultation with the Council,] 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 [a two-thirds majority of the participants
voting.] at least a majority of the permit holders in the
fishery, or 50 percent of the permitted allocation of the
fishery, who participated in the fishery.
(2) Notwithstanding section 304(d) and consistent with an
approved industry fee system, the Secretary is authorized to
establish such a system to fund the program and repay debt
obligations incurred pursuant to section 1111 of title XI of
the Merchant Marine Act, 1936. The fees for a program
established under this section shall--
(A) be determined by the Secretary and adjusted from
time to time as the Secretary considers necessary to
ensure the availability of sufficient funds to repay
such debt obligations;
(B) not exceed 5 percent of the ex-vessel value of
all fish harvested from the fishery for which the
program is established;
(C) be deducted by the first ex-vessel fish purchaser
from the proceeds otherwise payable to the seller and
accounted for and forwarded by such fish purchasers to
the Secretary in such manner as the Secretary may
[establish;] 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) The Secretary, in consultation
with the appropriate Council or State and other interested
parties, shall prepare and publish in the Federal Register for
a 60-day public comment period an implementation plan,
including proposed regulations, for each program. The
implementation plan shall--
[(A) define criteria for determining types and
numbers of vessels which are eligible for participation
in the program taking into account characteristics of
the fishery, the requirements of applicable fishery
management plans, the needs of fishing communities, and
the need to minimize program costs; and
[(B) establish procedures for program participation
(such as submission of owner bid under an auction
system or fair market-value assessment) including any
terms and conditions for participation which the
Secretary deems to be reasonably necessary to meet the
goals of the program.
[(2) During the 60-day public comment period--
[(A) the Secretary shall conduct a public hearing in
each State affected by the program; and
[(B) the appropriate Council or State shall submit
its comments and recommendations, if any, regarding the
plan and regulations.
[(3) Within 45 days after the close of the public comment
period, the Secretary, in consultation with the appropriate
Council or State, shall analyze the public comment received and
publish in the Federal Register a final implementation plan for
the program and regulations for its implementation. The
Secretary may not adopt a final implementation plan involving
industry fees or debt obligation unless an industry fee system
has been approved by a referendum under this section.]
(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;
(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.
* * * * * * *
SEC. 315. 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;
(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 312(b), to fishermen who are willing to
scrap a fishing vessel and permanently
surrender permits for fisheries named on that
vessel; and
(D) any other activities authorized under
section 312(a) of this Act or section 308(d) of
the Interjurisdictional Fisheries Act of 1986
(16 U.S.C. 4107(d)).
(2) Job training.--Any fisherman who decides to scrap
a fishing vessel under the program shall be eligible
for job training assistance.
(3) State participation obligation.--The
participation by a State in the program shall be
conditioned upon a commitment by the appropriate State
entity to ensure that the relevant State fishery meets
the requirements of section 312(b) of this Act to
ensure excess capacity does not re-enter the fishery.
(4) No matching required.--The Secretary may waive
the matching requirements of section 312 of this Act,
section 308 of the Interjurisdictional Fisheries Act of
1986 (16 U.S.C. 4107), and any other provision of law
under which the Federal share of the cost of any
activity is limited to less than 100 percent if the
Secretary determines that--
(A) no reasonable means are available through
which applicants can meet the matching
requirement; and
(B) the probable benefit of 100 percent
Federal financing outweighs the public interest
in imposition of the matching requirement.
(5) Net revenue limit inapplicable.--Section
308(d)(3) of the Interjurisdictional Fisheries Act (16
U.S.C. 4107(d)(3)) shall not apply to assistance under
this section.
(c) Regional Impact Evaluation.--Within 2 months after a
catastrophic regional fishery disaster the Secretary shall
provide the Governor of each State participating in the program
a comprehensive economic and socio-economic evaluation of the
affected region's fisheries to assist the Governor in assessing
the current and future economic viability of affected
fisheries, including the economic impact of foreign fish
imports and the direct, indirect, or environmental impact of
the disaster on the fishery and coastal communities.
(d) Catastrophic Regional Fishery Disaster Defined.--In this
section the term ``catastrophic regional fishery disaster''
means a natural disaster, including a hurricane or tsunami, or
a judicial or regulatory closure to protect human health or the
marine environment, that--
(1) results in economic losses to coastal or fishing
communities;
(2) affects more than 1 State or a major fishery
managed by a Council or interstate fishery commission;
and
(3) is determined by the Secretary to be a commercial
fishery failure under section 312(a) of this Act or a
fishery resource disaster or section 308(d) of the
Interjurisdictional Fisheries Act of 1986 (16 U.S.C.
4107(d)).
SEC. 316. BYCATCH REDUCTION ENGINEERING PROGRAM.
(a) Bycatch Reduction Engineering Program.--Not later than 1
year after the date of enactment of the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act of
2005, 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 to develop technological devices and other conservation
engineering changes designed to minimize bycatch, seabird
bycatch, bycatch mortality, and post-release mortality in
Federally managed fisheries. The program shall--
(1) be regionally based;
(2) be coordinated with projects conducted under the
cooperative research and management program established
under this Act;
(3) provide information and outreach to fishery
participants that will encourage adoption and use of
technologies developed under the program; and
(4) provide for routine consultation with the
Councils in order to maximize opportunities to
incorporate results of the program in Council actions
and provide incentives for adoption of methods
developed under the program in fishery management plans
developed by the Councils.
(b) Incentives.--Any fishery management plan prepared by a
Council or by the Secretary may establish a system of
incentives to reduce total bycatch and seabird bycatch 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
bycatch rates; and
(3) measures that, based on the best scientific
information available, will reduce bycatch and seabird
bycatch, bycatch mortality, post-release mortality, or
regulatory discards in the fishery.
SEC. 317. 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 Act
and under any other marine resource laws enforced by the
Secretary. The program shall be implemented on a regional basis
and shall be developed and conducted through partnerships among
Federal, State, and Tribal managers and scientists (including
interstate fishery commissions), fishing industry participants,
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 the date of enactment of the Magnuson-Stevens Fishery
Conservation and Management Reauthorization Act of 2005, 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.
SEC. 318. 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.
SEC. 319. 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.
SEC. 401. REGISTRATION AND INFORMATION MANAGEMENT.
[16 U.S.C. 1881]
(a) Standardized Fishing Vessel Registration and Information
Management System.--The Secretary shall, in cooperation with
the Secretary of the department in which the Coast Guard is
operating, the States, the Councils, and Marine Fisheries
Commissions, develop recommendations for implementation of a
standardized fishing vessel registration and information
management system on a regional basis. The recommendations
shall be developed after consultation with interested
governmental and nongovernmental parties and shall--
(1) be designed to standardize the requirements of
vessel registration and information collection systems
required by this Act, the Marine Mammal Protection Act
(16 U.S.C. 1361 et seq.), and any other marine resource
law implemented by the Secretary, and, with the
permission of a State, any marine resource law
implemented by such State;
(2) integrate information collection programs under
existing fishery management plans into a non-
duplicative information collection and management
system;
(3) avoid duplication of existing State, tribal, or
Federal systems and shall utilize, to the maximum
extent practicable, information collected from existing
systems;
(4) provide for implementation of the system through
cooperative agreements with appropriate State,
regional, or tribal entities and Marine Fisheries
Commissions;
(5) provide for funding (subject to appropriations)
to assist appropriate State, regional, or tribal
entities and Marine Fisheries Commissions in
implementation;
(6) establish standardized units of measurement,
nomenclature, and formats for the collection and
submission of information;
(7) minimize the paperwork required for vessels
registered under the system;
(8) include all species of fish within the geographic
areas of authority of the Councils and all fishing
vessels including charter fishing vessels, but
excluding recreational fishing vessels;
(9) require United States fish processors, and fish
dealers and other first ex-vessel purchasers of fish
that are subject to the proposed system, to submit
information (other than economic information) which may
be necessary to meet the goals of the proposed system;
and
(10) include procedures necessary to ensure--
(A) the confidentiality of information
collected under this section in accordance with
section 402(b); and
(B) the timely release or availability to the
public of information collected under this
section consistent with section 402(b).
(b) Fishing Vessel Registration.--The proposed registration
system should, at a minimum, obtain the following information
for each fishing vessel--
(1) the name and official number or other
identification, together with the name and address of
the owner or operator or both;
(2) gross tonnage, vessel capacity, type and quantity
of fishing gear, mode of operation (catcher, catcher
processor, or other), and such other pertinent
information with respect to vessel characteristics as
the Secretary may require; and
(3) identification (by species, gear type, geographic
area of operations, and season) of the fisheries in
which the fishing vessel participates.
(c) Fishery Information.--The proposed information management
system should, at a minimum, provide basic fisheries
performance information for each fishery, including--
(1) the number of vessels participating in the
fishery including charter fishing vessels;
(2) the time period in which the fishery occurs;
(3) the approximate geographic location or official
reporting area where the fishery occurs;
(4) a description of fishing gear used in the
fishery, including the amount and type of such gear and
the appropriate unit of fishing effort; and
(5) other information required under subsection
303(a)(5) or requested by the Council under section
402.
(d) Use of Registration.--Any registration recommended under
this section shall not be considered a permit for the purposes
of this Act, and the Secretary may not propose to revoke,
suspend, deny, or impose any other conditions or restrictions
on any such registration or the use of such registration under
this Act.
(e) Public Comment.--Within one year after the date of
enactment of the Sustainable Fisheries Act, the Secretary shall
publish in the Federal Register for a 60-day public comment
period a proposal that would provide for implementation of a
standardized fishing vessel registration and information
collection system that meets the requirements of subsections
(a) through (c). The proposal shall include--
(1) a description of the arrangements of the
Secretary for consultation and cooperation with the
department in which the Coast Guard is operating, the
States, the Councils, Marine Fisheries Commissions, the
fishing industry and other interested parties; and
(2) any proposed regulations or legislation necessary
to implement the proposal.
(f) Congressional Transmittal.--Within 60 days after the end
of the comment period and after consideration of comments
received under subsection (e), the Secretary shall transmit to
the Committee on Commerce, Science, and Transportation of the
Senate and the Committee on Resources of the House of
Representatives a recommended proposal for implementation of a
national fishing vessel registration system that includes--
(1) any modifications made after comment and
consultation;
(2) a proposed implementation schedule, including a
schedule for the proposed cooperative agreements
required under subsection (a)(4); and
(3) recommendations for any such additional
legislation as the Secretary considers necessary or
desirable to implement the proposed system.
[(g) Report to Congress.--Within 15 months after the date of
enactment of the Sustainable Fisheries Act, the Secretary shall
report to Congress on the need to include recreational fishing
vessels into a national fishing vessel registration and
information collection system. In preparing its report, the
Secretary shall cooperate with the Secretary of the department
in which the Coast Guard is operating, the States, the
Councils, and Marine Fisheries Commissions, and consult with
governmental and nongovernmental parties.]
(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 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.--Within 24 months after the date
of enactment of the Magnuson-Stevens Fishery
conservation and Management Reauthorization Act of
2005, the Secretary 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. Unless the
Secretary determines that alternate methods will
achieve this goal more efficiently and effectively, the
program shall, to the extent possible, include--
(A) an adequate number of dockside interviews
to accurately estimate recreational catch and
effort;
(B) use of surveys that target anglers
registered or licensed at the State or Federal
level to collect participation and effort data;
(C) collection and analysis of vessel trip
report data from charter fishing vessels; and
(D) development of a weather corrective
factor that can be applied to recreational
catch and effort estimates.
(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.
SEC. 402. INFORMATION COLLECTION.
[16 U.S.C. 1881a]
[(a) Council Requests.--] (a) Collection Programs._
(1) Council requests._If a Council determines that
additional information [(other than information that
would disclose proprietary or confidential commercial
or financial information regarding fishing operations
or fish processing operations)] 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 [(other than information that would
disclose proprietary or confidential commercial or
financial information regarding fishing operations or
fish processing operations)] 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 [subsection]
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 by any person in compliance with any
requirement under this Act shall be confidential and shall not
be disclosed, except--
[(A) to Federal employees and Council employees who
are responsible for fishery management plan development
and monitoring;
[(B) to State or Marine Fisheries Commission
employees pursuant to an agreement with the Secretary
that prevents public disclosure of the identity or
business of any person;
[(C) when required by court order;
[(D) when such information is used to verify catch
under [an individual fishing quota program] a limited
access privilege;
[(E) that observer information collected in fisheries
under the authority of the North Pacific Council may be
released to the public as specified in a fishery
management plan or regulation for weekly summary
bycatch information identified by vessel, and for haul-
specific bycatch information without vessel
identification; or
[(F) when the Secretary has obtained written
authorization from the person submitting such
information to release such information to persons for
reasons not otherwise provided for in this subsection,
and such release does not violate other requirements of
this Act.
(b) Confidentiality of Information.--
(1) Any information submitted to the Secretary, a
state fishery management agency, or a marine fisheries
commission by any person in compliance with the
requirements of this Act that contains confidential
information shall be confidential and shall be exempt
from disclosure under section 552(h)(3) of title 5,
United States Code, 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 confidential information relating
to 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 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);
(E) when the Secretary has obtained written
authorization from the person submitting such
information to release such information to
persons for reasons not otherwise provided for
in this subsection, and such release does not
violate other requirements of this Act;
(F) when such information is required to be
submitted to the Secretary for any
determination under a limited access program;
or
(G) in support of homeland and national
security activities, including the Coast
Guard's homeland security missions as defined
in section 888(a)(2) of the Homeland Security
Act of 2002 (6 U.S.C. 468(a)(2)).
(2) Any observer information shall be confidential
and shall not be disclosed, except in accordance with
the requirements of subparagraphs (A) through (G) 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.
[(2)] (3) The Secretary shall, by regulation,
prescribe such procedures as may be necessary to
preserve the confidentiality of information submitted
in compliance with any requirement or regulation under
this Act, except that the Secretary may release or make
public any such information in any aggregate or summary
form which does not directly or indirectly disclose the
identity or business of any person who submits such
information. Nothing in this subsection shall be
interpreted or construed to prevent the use for
conservation and management purposes by the Secretary,
or with the approval of the Secretary, the Council, of
any information submitted in compliance with any
requirement or regulation under this Act or the use,
release, or publication of bycatch information pursuant
to paragraph (1)(E).
(c) Restriction on Use of Certain Information.--(1) The
Secretary shall promulgate regulations to restrict the use, in
civil enforcement or criminal proceedings under this Act, the
Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.),
and the Endangered Species Act (16 U.S.C. 1531 et seq.), of
information collected by voluntary fishery data collectors,
including sea samplers, while aboard any vessel for
conservation and management purposes if the presence of such a
fishery data collector aboard is not required by any of such
Acts or regulations thereunder.
(2) The Secretary may not require the submission of a Federal
or State income tax return or statement as a prerequisite for
issuance of a permit until such time as the Secretary has
promulgated regulations to ensure the confidentiality of
information contained in such return or statement, to limit the
information submitted to that necessary to achieve a
demonstrated conservation and management purpose, and to
provide appropriate penalties for violation of such
regulations.
(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.
SEC. 404. FISHERIES RESEARCH.
[16 U.S.C. 1881c]
(a) In General.--The Secretary shall initiate and maintain,
in cooperation with the Councils, a comprehensive program of
fishery research to carry out and further the purposes, policy,
and provisions of this Act. Such program shall be designed to
acquire knowledge and information, including statistics, on
fishery conservation and management and on the economics and
social characteristics of the fisheries.
(b) Strategic Plan.--Within one year after the date of
enactment of the Sustainable Fisheries Act and at least every 3
years thereafter, the Secretary shall develop and publish in
the Federal Register a strategic plan for fisheries research
for the 5 years immediately following such publication. The
plan shall--
(1) identify and describe a comprehensive program
with a limited number of priority objectives for
research in each of the areas specified in subsection
(c);
(2) indicate goals and timetables for the program
described in paragraph (1);
(3) provide a role for commercial fishermen in such
research, including involvement in field testing;
(4) provide for collection and dissemination, in a
timely manner, of complete and accurate information
concerning fishing activities, catch, effort, stock
assessments, and other research conducted under this
section; and
(5) be developed in cooperation with the Councils and
affected States, and provide for coordination with the
Councils, affected States, and other research entities.
(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 [under section 401] that
will permit the full use of information in the support
of effective fishery conservation and management.
(d) Public Notice.--In developing the plan required under
subsection (a), the Secretary shall consult with relevant
Federal, State, and international agencies, scientific and
technical experts, and other interested persons, public and
private, and shall publish a proposed plan in the Federal
Register for the purpose of receiving public comment on the
plan. The Secretary shall ensure that affected commercial
fishermen are actively involved in the development of the
portion of the plan pertaining to conservation engineering
research. Upon final publication in the Federal Register, the
plan shall be submitted by the Secretary to the Committee on
Commerce, Science, and Transportation of the Senate and the
Committee on Resources of the House of Representatives.
* * * * * * *
SEC. 406. FISHERIES SYSTEMS RESEARCH.
[16 U.S.C. 1882]
(a) Establishment of Panel.--Not later than 180 days after
the date of enactment of the Sustainable Fisheries Act, the
Secretary shall establish an advisory panel under this Act to
develop recommendations to expand the application of ecosystem
principles in fishery conservation and management activities.
(b) Panel Membership.--The advisory panel shall consist of
not more than 20 individuals and include--
(1) individuals with expertise in the structures,
functions, and physical and biological characteristics
of ecosystems; and
(2) representatives from the Councils, States,
fishing industry, conservation organizations, or others
with expertise in the management of marine resources.
(c) Recommendations.--Prior to selecting advisory panel
members, the Secretary shall, with respect to panel members
described in subsection (b)(1), solicit recommendations from
the National Academy of Sciences.
(d) Report.--Within 2 years after the date of enactment of
this Act, the Secretary shall submit to the Congress a
completed report of the panel established under this section,
which shall include--
(1) an analysis of the extent to which ecosystem
principles are being applied in fishery conservation
and management activities, including research
activities;
(2) proposed actions by the Secretary and by the
Congress that should be undertaken to expand the
application of ecosystem principles in fishery
conservation and management; and
(3) such other information as may be appropriate.
(e) Procedural Matter.--The advisory panel established under
this section shall be deemed an advisory panel under section
302(g).
(f) Regional Ecosystem Research.--
(1) Study.--Within 180 days after the date of
enactment of the Magnuson-Stevens Fishery Conservation
and Management Reauthorization Act of 2005, the
Secretary, in consultation with the Councils, shall
undertake and complete a study on the state of the
science for advancing the concepts and integration of
ecosystem considerations in regional fishery
management. The study should build upon the
recommendations of the advisory panel and include--
(A) recommendations for scientific data,
information and technology requirements for
understanding ecosystem processes, and methods
for integrating such information from a variety
of federal, state, and regional sources;
(B) recommendations for processes for
incorporating broad stake holder participation;
(C) recommendations for processes to account
for effects of environmental variation on fish
stocks and fisheries; and
(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.
SEC. 405. GULF OF MEXICO RED SNAPPER RESEARCH.
[16 U.S.C. 1883]
(a) Independent Peer Review.--
(1) Within 30 days of the date of enactment of the
Sustainable Fisheries Act, the Secretary shall initiate
an independent peer review to evaluate--
(A) the accuracy and adequacy of fishery
statistics used by the Secretary for the red
snapper fishery in the Gulf of Mexico to
account for all commercial, recreational, and
charter fishing harvests and fishing effort on
the stock;
(B) the appropriateness of the scientific
methods, information, and models used by the
Secretary to assess the status and trends of
the Gulf of Mexico red snapper stock and as the
basis for the fishery management plan for the
Gulf of Mexico red snapper fishery;
(C) the appropriateness and adequacy of the
management measures in the fishery management
plan for red snapper in the Gulf of Mexico for
conserving and managing the red snapper fishery
under this Act; and
(D) the costs and benefits of all reasonable
alternatives to [an individual fishing quota] a
limited access privilege program for the red
snapper fishery in the Gulf of Mexico.
(2) The Secretary shall ensure that commercial,
recreational, and charter fishermen in the red snapper
fishery in the Gulf of Mexico are provided an
opportunity to--
(A) participate in the peer review under this
subsection; and
(B) provide information to the Secretary
concerning the review of fishery statistics
under this subsection without being subject to
penalty under this Act or other applicable law
for any past violation of a requirement to
report such information to the Secretary.
(3) The Secretary shall submit a detailed written
report on the findings of the peer review conducted
under this subsection to the Gulf Council no later than
one year after the date of enactment of the Sustainable
Fisheries Act.
(b) Prohibition.--In addition to the restrictions under
section 303(d)(1)(A), the Gulf Council may not, prior to
October 1, 2002, undertake or continue the preparation of any
fishery management plan, plan amendment or regulation under
this Act for the Gulf of Mexico commercial red snapper fishery
that creates an individual fishing quota program or that
authorizes the consolidation of licenses, permits, or
endorsements that result in different trip limits for vessels
in the same class.
(c) Referendum.--(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 [an individual fishing quota] 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] limited access
privilege program.
(d) Catch Limits.--Any fishery management plan, plan
amendment, or regulation submitted by the Gulf Council for the
red snapper fishery after the date of enactment of the
Sustainable Fisheries Act shall contain conservation and
management measures that--
(1) establish separate quotas for recreational
fishing (which, for the purposes of this subsection
shall include charter fishing) and commercial fishing
that, when reached, result in a prohibition on the
retention of fish caught during recreational fishing
and commercial fishing, respectively, for the remainder
of the fishing year; and
(2) ensure that such quotas reflect allocations among
such sectors and do not reflect any harvests in excess
of such allocations.
* * * * * * *
SEC. 408. 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 agencies and educational
institutions, shall establish a program--
(1) to identify existing research on, and known
locations of, deep sea corals and submit such
information to the appropriate Councils;
(2) to locate and map locations of deep sea corals
and submit such information to the Councils;
(3) to monitor activity in locations where deep sea
corals are known or likely to occur, based on best
scientific information available, including through
underwater or remote sensing technologies and submit
such information to the appropriate Councils;
(4) to conduct research, including cooperative
research with fishing industry participants, on deep
sea corals and related species, and on survey methods;
(5) to develop technologies or methods designed to
assist fishing industry participants in reducing
interactions between fishing gear and deep sea corals;
and
(6) to prioritize program activities in areas where
deep sea corals are known to occur, and in areas where
scientific modeling or other methods predict deep sea
corals are likely to be present.
(b) Reporting.--Beginning 1 year after the date of enactment
of the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2005, the Secretary, in consultation
with the Councils, shall submit biennial reports to Congress
and the public on steps taken by the Secretary to identify and
monitor, and the Councils to protect, deep sea coral areas,
including summaries of the results of mapping, research, and
data collection performed under the program.
HIGH SEAS DRIFTNET FISHERIES ENFORCEMENT ACT
SEC. 101. DENIAL OF PORT PRIVILEGES AND SANCTIONS FOR HIGH SEAS LARGE-
SCALE DRIFTNET FISHING.
[16 U.S.C. 1826a]
(a) Denial of Port Privileges.--
(1) Publication of list.--Not later than 30 days
after the date of enactment of this Act 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 4197 of the Revised Statutes of the
United States (46 App. U.S.C. 91) 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 the Internal
Revenue Code of 1986 (26 U.S.C. 4162))
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 8(a) of the Fishermen's Protective Act
of 1967 (22 U.S.C. 1978(a)), as amended by this
Act.
SEC. 102. DURATION OF DENIAL OF PORT PRIVILEGES AND SANCTIONS.
[16 U.S.C. 1826b]
Any denial of port privileges or sanction under section 101
with respect to a nation shall remain in effect until such time
as the Secretary of Commerce certifies to the President and the
Congress that such nation has terminated large-scale driftnet
fishing or illegal, unreported, or unregulated fishing by its
nationals and vessels beyond the exclusive economic zone of any
nation.
* * * * * * *
SEC. 607. 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 the
date of enactment of the Magnuson-Stevens Fishery Conservation
and Management Reauthorization Act of 2005, and every 2 years
thereafter, a report that includes--
(1) the state of knowledge on the status of
international living marine resources, including a list
of all 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 sections 609(a) or 610(a), including
the specific offending activities and any subsequent
actions taken pursuant to section 609 or 610;
(3) a description of efforts taken by nations on
those lists to comply with the provisions of sections
609 and 610, and an evaluation of the progress of those
efforts, including steps taken by the United States to
implement those sections and to improve international
compliance;
(4) progress at the international level, pursuant to
section 608, to strengthen the efforts of international
fishery management organizations to end illegal,
unreported, or unregulated fishing; and
(5) a plan of action for ensuring the conclusion and
entry into force of 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.
SEC. 608. ACTION TO STRENGTHEN INTERNATIONAL FISHERY MANAGEMENT
ORGANIZATIONS.
The Secretary, in consultation with the Secretary of State,
and in cooperation with relevant fishery management councils,
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 sanctions
against member or nonmember governments whose
vessels engage in illegal, unreported, or
unregulated fishing;
(B) to seek adoption of lists that identify
fishing vessels engaged in illegal, unreported,
or unregulated fishing, including authorized
(green) and unauthorized (red) vessel lists,
that can be shared among all members and other
international fishery management organizations;
(C) to seek international adoption of a
centralized vessel monitoring system with an
independent secretariat in order to monitor and
document capacity in fleets of all nations
involved in fishing in areas under the an
international fishery management organization's
jurisdiction;
(D) to increase use of observers and
technologies needed to monitor compliance with
conservation and management measures
established by the organization, including
vessel monitoring systems and automatic
identification systems; and
(E) to seek adoption of greater port state
controls in all nations, particularly those
nations whose vessels engage in illegal,
unreported, or unregulated fishing;
(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; and
(3) urging other nations at bilateral, regional, and
international levels, including the Convention on
International Trade in Endangered Species of Fauna and
Flora and the World Trade Organization to take all
steps necessary, consistent with international law, to
adopt measures and policies that will prevent fish or
other living marine resources harvested by vessels
engaged in illegal, unreported, or unregulated fishing
from being traded or imported into their nation or
territories.
SEC. 609. ILLEGAL, UNREPORTED, OR UNREGULATED FISHING.
(a) Identification.--The Secretary shall identify, and list
in the report under section 607, a nation if--
(1) fishing vessels of that nation are engaged, or
have been engaged during the preceding calendar year in
illegal, unreported, or unregulated fishing; and
(2) 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 where no international
fishery management organization exists.
(b) Notification.--An identification under subsection (a) or
section 610(a) is deemed to be an identification under section
101(b)(1)(A) of the High Seas Driftnet Fisheries Enforcement
Act (16 U.S.C. 1826a(b)(1)(A)), and the Secretary shall notify
the President and that nation of such identification.
(c) Consultation.--No later than 60 days after submitting a
report to Congress under section 607, the Secretary, in
consultation with 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, United States Code, and
including notice and an opportunity for comment by the
governments of any nation listed by the Secretary under
subsection (a), for determining if that government has
taken appropriate corrective action with respect to the
offending activities of its fishing vessels identified
in the report under section 607. The Secretary shall
determine, on the basis of the procedure, and certify
to the Congress no later than 90 days after the date on
which the Secretary promulgates a final rule containing
the procedure, and biennially thereafter in the report
under section 607--
(A) whether the government of each nation
identified under subsection (b) 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.--The provisions of
section 101(a) and section 101(b)(3) and (4) of this
Act (16 U.S.C. 1826a(a), (b)(3), and (b)(4)) 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.
(e) Illegal, Unreported, or Unregulated Fishing Defined.--
(1) In general.--In this Act the term ``illegal,
unreported, or unregulated fishing'' has the meaning
established under paragraph (2).
(2) Secretary to define term within legislative
guidelines.--Within 3 months after the date of
enactment of the Magnuson-Stevens Fishery Conservation
and Management Reauthorization Act of 2005, the
Secretary shall publish a definition of the term
``illegal, unreported, or unregulated fishing'' for
purposes of this Act.
(3) Guidelines.--The Secretary shall include in the
definition, at a minimum--
(A) fishing activities that violate
conservation and management measures required
under an international fishery management
agreement to which the United States is a
party, including catch limits or quotas,
capacity restrictions, and bycatch reduction
requirements;
(B) overfishing of fish stocks shared by the
United States, for which there are no
applicable international conservation or
management measures or in areas with no
applicable international fishery management
organization or agreement, that has adverse
impacts on such stocks; and
(C) fishing activity, including bottom
trawling, that have adverse impacts 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 2006 through
2012 such sums as are necessary to carry out this section.
SEC. 610. EQUIVALENT CONSERVATION MEASURES.
(a) Identification.--The Secretary shall identify, and list
in the report under section 607, 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 beyond the exclusive economic zone
that result in bycatch of a protected living
marine resource;
(2) the relevant international organization
for the conservation and protection of such
species or the relevant international or
regional fishery organization has failed to
implement effective measures to end or reduce
the impacts of the fishing practices of the
nation's vessels on such species, or the nation
is not a party to, or does not maintain
cooperating status with, such organization; and
(3) the nation has not adopted a regulatory
program governing such fishing practices and
associated bycatch of protected living marine
resources that are comparable to those 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 requirements of
this section and this Act;
(2) initiate discussions as soon as possible with all
foreign governments which are engaged in, or which have
persons or companies engaged in, fishing activities or
practices described in subsection (a), for the purpose
of entering into bilateral and multilateral treaties
with such countries to protect such species;
(3) seek agreements calling for international
restrictions on fishing activities or practices
described in subsection (a) through the United Nations,
the Food and Agriculture Organization's Committee on
Fisheries, and appropriate international fishery
management bodies; and
(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) Certification.--The Secretary shall determine, on
the basis of a procedure consistent with the provisions
of subchapter II of chapter 5 of title 5, United States
Code, and including notice and an opportunity for
comment by the governments of any nation identified by
the Secretary under subsection (a). The Secretary shall
certify to the Congress by January 31, 2007, and
annually thereafter whether the government of each
harvesting nation--
(A) has provided documentary evidence of the
adoption of a regulatory program governing the
conservation of the protected living marine
resource, including measures to ensure maximum
probability for survival after release, 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) 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 (1) 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.
(3) Effect of Certification.--The provisions of
section 101(a) and section 101(b)(3) and (4) of this
Act (16 U.S.C. 1826a(a), (b)(3), and (b)(4)) 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 occurring in areas beyond United States
jurisdiction that are protected under United States law
or international agreement, including the Marine Mammal
Protection Act, the Endangered Species Act, the Shark
Finning Prohibition Act, and the Convention on
International Trade in Endangered Species of Wild Flora
and Fauna; but
(2) does not include species, except sharks, managed
under the Magnuson-Stevens Fishery Conservation and
Management Act, the Atlantic Tunas Convention Act, or
any international fishery management agreement.
(f) Authorization of Appropriations.--There are authorized to
be appropriated to the Secretary for fiscal years 2006 through
2012 such sums as are necessary to carry out this section.
PUBLIC LAW 105-384
SEC. 203. AUTHORITY OF STATES OF WASHINGTON, OREGON, AND CALIFORNIA TO
MANAGE DUNGENESS CRAB FISHERY.
[16 U.S.C. 1856 note]
(a) In General.--Subject to the provisions of this section
and notwithstanding section 306(a) of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1856(a)),
each of the States of Washington, Oregon, and California may
adopt and enforce State laws and regulations governing fishing
and processing in the exclusive economic zone adjacent to that
State in any Dungeness crab (Cancer magister) fishery for which
there is no fishery management plan in effect under that Act.
(b) Requirements for State Management.--Any law or regulation
adopted by a State under this section for a Dungeness crab
fishery--
(1) except as provided in paragraph (2), shall apply
equally to vessels engaged in the fishery in the
exclusive economic zone and vessels engaged in the
fishery in the waters of the State, and without regard
to the State that issued the permit under which a
vessel is operating;
(2) shall not apply to any fishing by a vessel in
exercise of tribal treaty rights except as provided in
United States v. Washington, D.C. No. CV-70-09213,
United States District Court for the Western District
of Washington; and
(3) shall include any provisions necessary to
implement tribal treaty rights pursuant to the decision
in United States v. Washington, D.C. No. CV-70-09213.
(c) Limitation on Enforcement of State Limited Access
Systems.--Any law of the State of Washington, Oregon, or
California that establishes or implements a limited access
system for a Dungeness crab fishery may not be enforced against
a vessel that is otherwise legally fishing in the exclusive
economic zone adjacent to that State and that is not registered
under the laws of that State, except a law regulating landings.
(d) State Permit or Treaty Right Required.--No vessel may
harvest or process Dungeness crab in the exclusive economic
zone adjacent to the State of Washington, Oregon, or
California, except as authorized by a permit issued by any of
those States or pursuant to any tribal treaty rights to
Dungeness crab pursuant to the decision in United States v.
Washington, D.C. No. CV-70-09213.
(e) State Authority Otherwise Preserved.--Except as expressly
provided in this section, nothing in this section reduces the
authority of any State under the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1801 et seq.) to
regulate fishing, fish processing, or landing of fish.
(f) Termination of Authority.--The authority of the States of
Washington, Oregon, and California under this section with
respect to a Dungeness crab fishery shall expire on the
effective date of a fishery management plan for the fishery
under the Magnuson-Stevens Fishery Conservation and Management
Act.
(g) [Omitted. Subsection (g) repealed section 112(d) of the
Magnuson-Stevens Fishery Conservation and Management Act.]
(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, 2006.] September 30, 2016.
(j) Not later than December 31, 2001, and every 2 years
thereafter, the Pacific State Marine Fisheries Commission shall
submit to the Committee on Commerce, Science, and
Transportation of the Senate and the Committee on Resources of
the House of Representatives a report on the [health] status
and management of the Dungeness Crab fishery located off the
coasts of the States of Washington, Oregon, and [California.]
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.
MERCHANT MARINE ACT, 1936
TITLE XI--FEDERAL SHIP FINANCING GUARANTEE PROGRAM
SEC. 607. CAPITAL CONSTRUCTION FUND.
[46 U.S.C. App. 1177]
(a) Agreement Rules; Persons Eligible; Replacement,
Additional, or Reconstructed Vessels for Prescribed Trade and
Fishery Operations; Amount of Deposits, Annual Limitation;
Conditions and Requirements for Deposits and Withdrawals.--Any
citizen of the United States owning or leasing one or more
eligible vessels (as defined in subsection (k)(l)) may enter
into an agreement with the Secretary under, and as provided in,
this section to establish a capital construction fund
(hereinafter in this section referred to as the ``fund'') with
respect to any or all of such vessels. Any agreement entered
into under this section shall be for the purpose of providing
replacement vessels, additional vessels, or reconstructed
vessels, built in the United States and documented under the
laws of the United States for operation in the United States
foreign, Great Lakes, or noncontiguous domestic trade or in the
fisheries of the United States and shall provide for the
deposit in the fund of the amounts agreed upon as necessary or
appropriate to provide for qualified withdrawals under
subsection (f). The deposits in the fund, and all withdrawals
from the fund, whether qualified or nonqualified, shall be
subject to such conditions and requirements as the Secretary
may by regulations prescribe or are set forth in such
agreement; except that the Secretary may not require any person
to deposit in the fund for any taxable year more than 50
percent of that portion of such person's taxable income for
such year (computed in the manner provided in subsection
(b)(1)(A)) which is attributable to the operation of the
agreement vessels.
(b) Ceiling on Deposits; Lessees; ``Agreement Vessel''
Defined.--
(1) The amount deposited under subsection (a) in the
fund for any taxable year shall not exceed the sum of;
(A) that portion of the taxable income of the
owner or lessee for such year (computed as
provided in chapter 1 of the Internal Revenue
Code of 1954 but without regard to the
carryback of any net operating loss or net
capital loss and without regard to this
section) which is attributable to the operation
of the agreement vessels in the foreign or
domestic commerce of the United States or in
the fisheries of the United States,
(B) the amount allowable as a deduction under
section 167 of the Internal Revenue Code of
1954 for such year with respect to the
agreement vessels,
(C) if the transaction is not taken into
account for purposes of subparagraph (A), the
net proceeds (as defined in joint regulations)
from (i) the sale or other disposition of any
agreement vessel, or (ii) insurance or
indemnity attributable to any agreement vessel,
and
(D) the receipts from the investment or
reinvestment of amounts held in such fund.
(2) In the case of a lessee, the maximum amount which
may be deposited with respect to an agreement vessel by
reason of paragraph (1)(B) for any period shall be
reduced by any amount which, under an agreement entered
into under this section, the owner is required or
permitted to deposit for such period with respect to
such vessel by reason of paragraph (1)(B).
(3) For purposes of paragraph (1), the term
``agreement vessel'' includes barges and containers
which are part of the complement of such vessel and
which are provided for in the agreement.
(c) Investment Requirements; Depositories; Fiduciary
Requirements; Interest-bearing Securities; Stock: Percentage
for Domestic Issues, Listing and Registration, Prudent
Acquisitions, Value and Percentage Equilibrium, and Treatment
of Preferred Issues.--Amounts in any fund established under
this section shall be kept in the depository or depositories
specified in the agreement and shall be subject to such trustee
and other fiduciary requirements as may be specified by the
Secretary. They may be invested only in interest-bearing
securities approved by the Secretary; except that, if the
Secretary consents thereto, an agreed percentage (not in excess
of 60 percent) of the assets of the fund may be invested in the
stock of domestic corporations. Such stock must be currently
fully listed and registered on an exchange registered with the
Securities and Exchange Commission as a national securities
exchange, and must be stock which would be acquired by prudent
men of discretion and intelligence in such matters who are
seeking a reasonable income and the preservation of their
capital. If at any time the fair market value of the stock in
the fund is more than the agreed percentage of the assets in
the fund, any subsequent investment of amounts deposited in the
fund, and any subsequent withdrawal from the fund, shall be
made in such a way as to tend to restore the fund to a
situation in which the fair market value of the stock does not
exceed such agreed percentage. For purposes of this subsection,
if the common stock of a corporation meets the requirements of
this subsection and if the preferred stock of such corporation
would meet such requirements but for the fact that it cannot be
listed and registered as required because it is nonvoting
stock, such preferred stock shall be treated as meeting the
requirements of this subsection.
(d) Nontaxability of Deposits; Eligible Deposits.--
(1) For purposes of the Internal Revenue Code of
1954--
(A) taxable income (determined without regard
to this section and section 7518 of such Code)
for the taxable year shall be reduced by an
amount equal to the amount deposited for the
taxable year out of amounts referred to in
subsection (b)(1)(A),
(B) gain from a transaction referred to in
subsection (b)(1)(C) shall not be taken into
account if an amount equal to the net proceeds
(as defined in joint regulations) from such
transaction is deposited in the fund,
(C) the earnings (including gains and losses)
from the investment and reinvestment of amounts
held in the fund shall not be taken into
account,
(D) the earnings and profits of any
corporation (within the meaning of section 316
of such Code) shall be determined without
regard to this section and section 7518 of such
Code, and
(E) in applying the tax imposed by section
531 of such Code (relating to the accumulated
earnings tax), amounts while held in the fund
shall not be taken into account.
(2) Paragraph (1) shall apply with respect to any
amount only if such amount is deposited in the fund
pursuant to the agreement and not later than the time
provided in joint regulations.
(e) Accounts within Fund: Capital Account, Capital Gain
Account, and Ordinary Income Account; Limitation on Capital
Losses.--For purposes of this section--
(1) Within the fund established pursuant to this
section three accounts shall be maintained:
(A) the capital account,
(B) the capital gain account, and
(C) the ordinary income account.
(2) The capital account shall consist of--
(A) amounts referred to in subsection
(b)(1)(B),
(B) amounts referred to in subsection
(b)(1)(C) other than that portion thereof which
represents gain not taken into account by
reason of subsection (d)(1)(B),
(C) the percentage applicable under section
243(a)(1) of the Internal Revenue Code of 1986
of any dividend received by the fund with
respect to which the person maintaining the
fund would (but for subsection (d)(1)(C)) be
allowed a deduction under section 243 of the
Internal Revenue Code of 1954, and
(D) interest income exempt from taxation
under section 103 of such Code.
(3) The capital gain account shall consist of--
(A) amounts representing capital gains on
assets held for more than 6 months and referred
to in subsection (b)(1)(C) or (b)(1)(D) reduced
by
(B) amounts representing capital losses on
assets held in the fund for more than 6 months.
(4) The ordinary income account shall consist of--
(A) amounts referred to in subsection
(b)(1)(A),
(B)(i) amounts representing capital gains on
assets held for 6 months or less and referred
to in subsection (b)(1)(C) or (b)(1)(D),
reduced by--
(ii) amounts representing capital losses on
assets held in the fund for 6 months or less,
(C) interest (not including any tax-exempt
interest referred to in paragraph (2)(D)) and
other ordinary income (not including any
dividend referred to in subparagraph (E))
received on assets held in the fund,
(D) ordinary income from a transaction
described in subsection (b)(1)(C), and
(E) the portion of any dividend referred to
in paragraph (2)(C) not taken into account
under such paragraph.
(5) Except on termination of a fund, capital losses
referred to in paragraph (3)(B) or in paragraph
(4)(B)(ii) shall be allowed only as an offset to gains
referred to in paragraph (3)(A) or (4)(B)(i),
respectively.
(f) Purposes of Qualified Withdrawals; Nonqualified
Withdrawal Treatment for Nonfulfillment of Substantial
Obligations.--
(1) A qualified withdrawal from the fund is one made
in accordance with the terms of the agreement but only
if it is [for:] for--
(A) the acquisition, construction, or
reconstruction of a qualified [vessel,] vessel;
(B) the acquisition, construction, or
reconstruction of barges and containers which
are part of the complement of a qualified
[vessel, or] vessel;
(C) the payment of the principal on
indebtedness incurred in connection with the
acquisition, construction or reconstruction of
a qualified vessel or a barge or container
which is part of the complement of a qualified
[vessel.] vessel;
(D) in the case of any person for whose
benefit the fund was established and who
participates in the fishing capacity reduction
program under section 312 of the Magnuson-
Stevens Fishery Conservation and Management Act
(16 U.S.C. 1861a)--
(i) if such person remains in the
fishery, the satisfaction of any debt
obligation undertaken pursuant to such
program; and
(ii) if such person withdraws 1 or
more vessels from the fishery, the
substitution of amounts the person
would otherwise receive under such
program for such person's vessel or
permit to engage in the fishery;
(E) the repair, maintenance, or upgrade of an
eligible vessel or its equipment for the
purpose of--
(i) making conservation engineering
changes to reduce bycatch, improve
selectivity of fishing gear, or reduce
adverse impacts of fishing gear;
(ii) improving vessel safety; or
(iii) acquiring, installing, or
upgrading equipment to improve
collection, reporting, or accuracy of
fishery data; or
(F) the acquisition, construction,
reconstruction, upgrading, or investment in
shoreside fishery-related facilities or
infrastructure in the United States for the
purpose of promoting United States ownership of
fishery-related facilities in the United States
without contributing to overcapacity in the
sector.
Except to the extent provided in regulations prescribed by the
Secretary subparagraph (B), and so much of subparagraph (C) as
relates only to barges and containers, shall apply only with
respect to barges and containers constructed in the United
States.
(2) Under joint regulations, if the Secretary
determines that any substantial obligation under or any
agreement is not being fulfilled, he may, after notice
and opportunity for hearing to the person maintaining
the fund, treat the entire fund or any portion thereof
as an amount withdrawn from the fund in a nonqualified
withdrawal.
(g) Tax Treatment of Qualified Withdrawals; Basis:
Reduction.--
(1) Any qualified withdrawal from a fund shall be
treated--
(A) first as made out of the capital account,
(B) second as made out of the capital gain
account, and
(C) third as made out of the ordinary income
account.
(2) If any portion of a qualified withdrawal for a
vessel, barge, or container is made out of the ordinary
income account, the basis of such vessel, barge, or
container shall be reduced by an amount equal to such
portion.
(3) If any portion of a qualified withdrawal for a
vessel, barge, or container is made out of the capital
gain account, the basis of such vessel, barge, or
container shall be reduced by an amount equal to such
portion.
(4) If any portion of a qualified withdrawal to pay
the principal on any indebtedness is made out of the
ordinary income account or the capital gain account,
then an amount equal to the aggregate reduction which
would be required by paragraphs (2) and (3) if this
were a qualified withdrawal for a purpose described in
such paragraphs shall be applied, in the order provided
in joint regulations, to reduce the basis of vessels,
barges, and containers owned by the person maintaining
the fund. Any amount of a withdrawal remaining after
the application of the preceding sentence shall be
treated as a nonqualified withdrawal.
(5) If any property the basis of which was reduced
under paragraph (2), (3), or (4) is disposed of, any
gain realized on such disposition, to the extent it
does not exceed the aggregate reduction in the basis of
such property under such paragraphs, shall be treated
as an amount referred to in subsection (h)(3)(A) which
was withdrawn on the date of such disposition. Subject
to such conditions and requirements as may be provided
in joint regulations, the preceding sentence shall not
apply to a disposition where there is a redeposit in an
amount determined under joint regulations which will,
insofar as practicable, restore the fund to the
position it was in before the withdrawal.
(h) Tax Treatment of Nonqualified Withdrawals; FIFO and LIFO
Bases; Interest Rate.--
(1) Except as provided in subsection (i), any
withdrawal from a fund which is not a qualified
withdrawal shall be treated as a nonqualified
withdrawal.
(2) Any nonqualified withdrawal from a fund shall be
treated--
(A) first as made out of the ordinary income
account,
(B) second as made out of the capital gain
account, and
(C) third as made out of the capital account.
For purposes of this section, items withdrawn
from any account shall be treated as withdrawn
on a first-in-first-out basis; except that (i)
any nonqualified withdrawal for research,
development, and design expenses incident to
new and advanced ship design, machinery and
equipment, and (ii) any amount treated as a
nonqualified withdrawal under the second
sentence of subsection (g)(4), shall be treated
as withdrawn on a last-in-first-out basis.
(3) For purposes of the Internal Revenue Code of
1954--
(A) any amount referred to in paragraph
(2)(A) shall be included in income as an item
of ordinary income for the taxable year in
which the withdrawal is made,
(B) any amount referred to in paragraph
(2)(B) shall be included in income for the
taxable year in which the withdrawal is made as
an item of gain realized during such year from
the disposition of an asset held for more than
6 months, and
(C) for the period on or before the last date
prescribed for payment of tax for the taxable
year in which this withdrawal is made--
(i) no interest shall be payable
under section 6601 of such Code and no
addition to the tax shall be payable
under section 6651 of such Code,
(ii) interest on the amount of the
additional tax attributable to any item
referred to in subparagraph (A) or (B)
shall be paid at the applicable rate
(as defined in paragraph (4)) from the
last date prescribed for payment of the
tax for the taxable year for which such
item was deposited in the fund, and
(iii) no interest shall be payable on
amounts referred to in clauses (i) and
(ii) of paragraph (2) or in the case of
any nonqualified withdrawal arising
from the application of the recapture
provision of section 606(5) of the
Merchant Marine Act of 1936 as in
effect on December 31, 1969.
(4) For purposes of paragraph (3)(C)(ii), the
applicable rate of interest for any nonqualified
withdrawal--
(A) made in a taxable year beginning in 1970
or 1971 is 8 percent, or
(B) made in a taxable year beginning after
1971, shall be determined and published jointly
by the Secretary of the Treasury and the
Secretary and shall bear a relationship to 8
percent which the Secretaries determine under
joint regulations to be comparable to the
relationship which the money rates and
investment yields for the calendar year
immediately preceding the beginning of the
taxable year bear to the money rates and
investment yields for the calendar year 1970.
(5) Amount not withdrawn from fund after 25 years
from deposit taxed as nonqualified withdrawal.--
(A) In general.--The applicable percentage of
any amount which remains in a capital
construction fund at the close of the 26th,
27th, 28th, 29th, or 30th taxable year
following the taxable year for which such
amount was deposited shall be treated as a
nonqualified withdrawal in accordance with the
following table:
------------------------------------------------------------------------
If the amount remains in the
fund at the close of the-- The applicable percentage is--
------------------------------------------------------------------------
26th taxable year............ 20 percent
27th taxable year............ 40 percent
28th taxable year............ 60 percent
29th taxable year............ 80 percent
30th taxable year............ 100 percent.
------------------------------------------------------------------------
(B) Earnings treated as deposits.--The
earnings of any capital construction fund for
any taxable year (other than net gains) shall
be treated for purposes of this paragraph as an
amount deposited for such taxable year.
(C) Amounts committed treated as withdrawn.--
For purposes of subparagraph (A), an amount
shall not be treated as remaining in a capital
construction fund at the close of any taxable
year to the extent there is a binding contract
at the close of such year for a qualified
withdrawal of such amount with respect to an
identified item for which such withdrawal may
be made.
(D) Authority to treat excess funds as
withdrawn.--If the Secretary determines that
the balance in any capital construction fund
exceeds the amount which is appropriate to meet
the vessel construction program objectives of
the person who established such fund, the
amount of such excess shall be treated as a
nonqualified withdrawal under subparagraph (A)
unless such person develops appropriate program
objectives within 3 years to dissipate such
excess.
(E) Amounts in fund on january 1, 1987.--For
purposes of this paragraph, all amounts in a
capital construction fund on January 1, 1987,
shall be treated as deposited in such fund on
such date.
(6) Nonqualified withdrawals taxed at highest
marginal rate.--
(A) In general.--In the case of any taxable
year for which there is a nonqualified
withdrawal (including any amount so treated
under paragraph (5)), the tax imposed by
chapter 1 of the Internal Revenue Code of 1986
shall be determined--
(i) by excluding such withdrawal from
gross income, and
(ii) by increasing the tax imposed by
chapter 1 of such Code by the product
of the amount of such withdrawal and
the highest rate of tax specified in
section 1 (section 11 in the case of a
corporation) of such Code. With respect
to the portion of any nonqualified
withdrawal made out of the capital gain
account during a taxable year to which
section 1(h) or 1201(a) of such Code
applies, the rate of tax taken into
account under the preceding sentence
shall not exceed 15 percent (34 percent
in the case of a corporation).
(B) Tax benefit rule.--If any portion of a
nonqualified withdrawal is properly
attributable to deposits (other than earnings
on deposits) made by the taxpayer in any
taxable year which did not reduce the
taxpayer's liability for tax under chapter 1
for any taxable year preceding the taxable year
in which such withdrawal occurs--
(i) such portion shall not be taken
into account under subparagraph (A),
and
(ii) an amount equal to such portion
shall be treated as allowed as a
deduction under section 172 of such
Code for the taxable year in which such
withdrawal occurs.
(i) Corporate Reorganizations and Partnership Changes.--Under
joint regulations--
(1) a transfer of a fund from one person to another
person in a transaction to which section 381 of the
Internal Revenue Code of 1954 applies may be treated as
if such transaction did not constitute a nonqualified
withdrawal, and
(2) a similar rule shall be applied in the case of a
continuation of a partnership (within the meaning of
subchapter K of such Code).
(j) Treatment of Existing Funds; Relation of Old to New
Fund.--
(1) Any person who was maintaining a fund or funds
(hereinafter in this subsection referred to as ``old
fund'') under this section (as in effect before the
enactment of this subsection) may elect to continue
such old fund but--
(A) may not hold moneys in the old fund
beyond the expiration date provided in the
agreement under which such old fund is
maintained (determined without regard to any
extension or renewal entered into after April
14, 1970),
(B) may not simultaneously maintain such old
fund and a new fund established under this
section, and
(C) if he enters into an agreement under this
section to establish a new fund, may agree to
the extension of such agreement to some or all
of the amounts in the old fund.
(2) In the case of any extension of an agreement
pursuant to paragraph (1)(C), each item in the old fund
to be transferred shall be transferred in a nontaxable
transaction to the appropriate account in the new fund
established under this section. For purposes of
subsection (h)(3)(C), the date of the deposit of any
item so transferred shall be July 1, 1971, or the date
of the deposit in the old fund, whichever is the later.
(k) Definitions.--For the purposes of this section--
(1) The term ``eligible vessel'' means any vessel--
(A) constructed in the United States and, if
reconstructed, reconstructed in the United
States,
(B) documented under the laws of the United
States, and
(C) operated in the foreign or domestic
commerce of the United States or in the
fisheries of the United States. Any vessel
which (i) was constructed outside of the United
States but documented under the laws of the
United States on April 15, 1970, or (ii)
constructed outside the United States for use
in the United States foreign trade pursuant to
a contract entered into before April 15, 1970,
shall be treated as satisfying the requirements
of subparagraph (A) of this paragraph and the
requirements of subparagraph (A) of paragraph
(2).
(2) The term ``qualified vessel'' means any vessel--
(A) constructed in the United States and, if
reconstructed, reconstructed in the United
States,
(B) documented under the laws of the United
States, and
(C) which the person maintaining the fund
agrees with the Secretary of Commerce will be
operated in the United States foreign, Great
Lakes, or noncontiguous domestic trade or in
the fisheries of the United States.
(3) The term ``agreement vessel'' means any eligible
vessel or qualified vessel which is subject to an
agreement entered into under this section.
(4) The term ``United States'', when used in a
geographical sense, means the continental United States
including Alaska, Hawaii, and Puerto Rico.
(5) The term ``United States foreign trade'' includes
(but is not limited to) those areas in domestic trade
in which a vessel built with construction-differential
subsidy is permitted to operate under the first
sentence of section 506 of this Act.
(6) The term ``joint regulations'' means regulations
prescribed under subsection (l).
(7) The term ``vessel'' includes cargo handling
equipment which the Secretary of Commerce determines is
intended for use primarily on the vessel. The term
``vessel'' also includes an ocean- going towing vessel
or an ocean-going barge or comparable towing vessel or
barge operated on the Great Lakes.
(8) The term ``noncontiguous trade'' means (i) trade
between the contiguous forty-eight States on the one
hand and Alaska, Hawaii, Puerto Rico and the insular
territories and possessions of the United States on the
other hand, and (ii) trade from any point in Alaska,
Hawaii, Puerto Rico, and such territories and
possessions to any other point in Alaska, Hawaii,
Puerto Rico, and such territories and possessions.
(9) The term ``Secretary'' means the Secretary of
Commerce with respect to eligible or qualified vessels
operated or to be operated in the fisheries of the
United States, and the Secretary of Transportation with
respect to all other vessels.
(l) Records; Reports; Rules and Regulations; Termination of
Agreement upon Changes in Regulations with Wubstantial Effect
on Rights or Obligations.--Each person maintaining a fund under
this section shall keep such records and shall make such
reports as the Secretary or the Secretary of the Treasury shall
require. The Secretary of the Treasury and the Secretary shall
jointly prescribe all rules and regulations, not inconsistent
with the foregoing provisions of this section, as may be
necessary or appropriate to the determination of tax liability
under this section. If, after an agreement has been entered
into under this section, a change is made either in the joint
regulations or in the regulations prescribed by the Secretary
under this section which could have a substantial effect on the
rights or obligations of any person maintaining a fund under
this section, such person may terminate such agreement.
(m) Departmental Reports and Certification.--
(1) In general.--For each calendar year, the
Secretaries shall each provide the Secretary of the
Treasury, within 120 days after the close of such
calendar year, a written report with respect to those
capital construction funds that are under their
jurisdiction.
(2) Contents of reports.--Each report shall set forth
the name and taxpayer identification number of each
person--
(A) establishing a capital construction fund
during such calendar year;
(B) maintaining a capital construction fund
as of the last day of such calendar year;
(C) terminating a capital construction fund
during such calendar year;
(D) making any withdrawal from or deposit
into (and the amounts thereof) a capital
construction fund during such calendar year; or
(E) with respect to which a determination has
been made during such calendar year that such
person has failed to fulfill a substantial
obligation under any capital construction fund
agreement to which such person is a party.
* * * * * * *
SEC. 1104A. ELIGIBILITY FOR GUARANTEE.
[46 U.S.C. App. 1274]
(a) Purpose of Obligations.--Pursuant to the authority
granted under section 1103(a), the Secretary upon such terms as
he shall prescribe, may guarantee or make a commitment to
guarantee, payment of the principal of and interest on an
obligation which aids in--
(1) financing, including reimbursement of an obligor
for expenditures previously made for, construction,
reconstruction, or reconditioning of a vessel
(including an eligible export vessel), which is
designed principally for research, or for commercial
use
(A) in the coastwise or intercoastal trade;
(B) on the Great Lakes, or on bays, sounds,
rivers, harbors, or inland lakes of the United
States;
(C) in foreign trade as defined in section
905 of this Act for purposes of title V of this
Act; or
(D) as an ocean thermal energy conversion
facility or plantship;
(E) with respect to floating drydocks in the
construction, reconstruction, reconditioning,
or repair of vessels; or
(F) with respect to an eligible export
vessel, in world-wide trade; Provided, however,
That no guarantee shall be entered into
pursuant to this paragraph (a)(1) later than
one year after delivery, or redelivery in the
case of reconstruction or reconditioning of any
such vessel unless the proceeds of the
obligation are used to finance the
construction, reconstruction, or reconditioning
of a vessel or vessels, or facilities or
equipment pertaining to marine operations;
(2) financing, including reimbursement of an obligor
for expenditures previously made for, construction,
reconstruction, reconditioning, or purchase of a vessel
or vessels owned by citizens or nationals of the United
States or citizens of the Northern Mariana Islands
which are designed principally for research, or for
commercial use in the fishing trade or industry;
(3) financing the purchase, reconstruction, or
reconditioning of vessels or fishery facilities for
which obligations were guaranteed under this title
that, under the provisions of section 1105:
(A) are vessels or fishery facilities for
which obligations were accelerated and paid;
(B) were acquired by the Fund; or
(C) were sold at foreclosure instituted by
the Secretary;
(4) financing, in whole or in part, the repayment to
the United States of any amount of construction-
differential subsidy paid with respect to a vessel
pursuant to title V of this Act, as amended;
(5) refinancing existing obligations issued for one
of the purposes specified in (1), (2), (3), or (4)
whether or not guaranteed under this title, including,
but not limited to, short-term obligations incurred for
the purpose of obtaining temporary funds with the view
to refinancing from time to time;
(6) financing or refinancing, including, but not
limited to, the reimbursement of obligors for
expenditures previously made for, the construction,
reconstruction, reconditioning, or purchase of fishery
facilities; or
[(7) financing or refinancing, including, but not
limited to, the reimbursement of obligors for
expenditures previously made, for the purchase of
individual fishing quotas in accordance with section
303(d)(4) of the Magnuson-Stevens Fishery Conservation
and Management Act (16 U.S.C. 1853(d)(4)).]
(7) financing or refinancing including,
(A) the reimbursement of obligors for
expenditures previously made, for the purchase
of individual fishing quotas in accordance with
section 303(d)(4) of the Magnuson-Stevens
Fishery Conservation and Management Act;
(B) activities that assist in the transition
to reduced fishing capacity; or
(C) technologies or upgrades designed to
improve collection and reporting of fishery-
dependent data, to reduce bycatch, to improve
selectivity or reduce adverse impacts of
fishing gear, or to improve safety.
Any obligation guaranteed under paragraphs (6) and (7) shall be
treated, for purposes of this title, in the same manner and to
the same extent as an obligation guaranteed under this title
which aids in the construction, reconstruction, reconditioning,
or purchase of a vessel; except with respect to provisions of
this title that by their nature can only be applied to
vessels.]
(b) Contents of Obligations.--Obligations guaranteed under
this title--
(1) shall have an obligor approved by the Secretary
as responsible and possessing the ability, experience,
financial resources, and other qualifications necessary
to the adequate operation and maintenance of the vessel
or vessels which serve as security for the guarantee of
the Secretary;
(2) subject to the provisions of subsection (c)(1)
and subsection (i), shall be in an aggregate principal
amount which does not exceed 75 per centum of the
actual cost or depreciated actual cost, as determined
by the Secretary, of the vessel which is used as
security for the guarantee of the Secretary: Provided,
however, That in the case of a vessel, the size and
speed of which are approved by the Secretary, and which
is or would have been eligible for mortgage aid for
construction under section 509 of this Act (or would
have been eligible for mortgage aid under section 509
of this Act except that the vessel was built with the
aid of construction-differential subsidy and said
subsidy has been repaid) and in respect of which the
minimum downpayment by the mortgagor required by that
section would be or would have been 12\1/2\ per centum
of the cost of such vessel, such obligations may be in
an amount which does not exceed 87\1/2\ per centum of
such actual cost or depreciated actual cost: Provided,
further, That the obligations which relate to a barge
which is constructed without the aid of construction-
differential subsidy, or, if so subsidized, on which
said subsidy has been repaid, may be in an aggregate
principal amount which does not exceed 87\1/2\ per
centum of the actual cost or depreciated actual cost
thereof: Provided further, That in the case of a
fishing vessel or fishery facility, the obligation
shall be in an aggregate principal amount not to exceed
80 percent of the actual cost or depreciated actual
cost of the fishing vessel or fishery facility, except
that no debt may be placed under this proviso through
the Federal Financing Bank: Provided further, That in
the case of an ocean thermal energy conversion facility
or plantship which is constructed without the aid of
construction-differential subsidy, such obligations may
be in an aggregate principal amount which does not
exceed 87\1/2\ percent of the actual cost or
depreciated actual cost of the facility or plantship:
Provided further, That in the case of an eligible
export vessel, such obligations may be in an aggregate
principal amount which does not exceed 87\1/2\ of the
actual cost or depreciated actual cost of the eligible
export vessel;
(3) shall have maturity dates satisfactory to the
Secretary but, subject to the provisions of paragraph
(2) of subsection (c) of this section, not to exceed
twenty-five years from the date of the delivery of the
vessel which serves as security for the guarantee of
the Secretary or, if the vessel has been reconstructed
or reconditioned, not to exceed the later of (i)
twenty-five years from the date of delivery of the
vessel and (ii) the remaining years of the useful life
of the vessel as determined by the Secretary;
(4) shall provide for payments by the obligor
satisfactory to the Secretary;
(5) shall bear interest (exclusive of charges for the
guarantee and service charges, if any) at rates not to
exceed such per centum per annum on the unpaid
principal as the Secretary determines to be reasonable,
taking into account the range of interest rates
prevailing in the private market for similar loans and
the risks assumed by the Secretary;
(6) shall provide, or a related agreement shall
provide, that if the vessel used as security for the
guarantee of the Secretary is a delivered vessel, the
vessel shall be in class A-1, American Bureau of
Shipping, or shall meet such other standards as may be
acceptable to the Secretary, with all required
certificates, including but not limited to, marine
inspection certificates of the United States Coast
Guard or, in the case of an eligible export vessel, of
the appropriate national flag authorities under a
treaty, convention, or other international agreement to
which the United States is a party, with all
outstanding requirements and recommendations necessary
for retention of class accomplished, unless the
Secretary permits a deferment of such repairs, and
shall be tight, stanch, strong, and well and
sufficiently tackled, appareled, furnished, and
equipped, and in every respect seaworthy and in good
running condition and repair, and in all respects fit
for service; and
(7) may provide, or a related agreement may provide,
if the vessel used as security for the guarantee of the
Secretary is a passenger vessel having the tonnage,
speed, passenger accommodations and other
characteristics set forth in title V of this Act, as
amended, and if the Secretary approves, that the sole
recourse against the obligor by the United States for
any payments under the guarantee shall be limited to
repossession of the vessel and the assignment of
insurance claims and that the liability of the obligor
for any payments of principal and interest under the
guarantee shall be satisfied and discharged by the
surrender of the vessel and all right, title, and
interest therein to the United States: Provided, That
the vessel upon surrender shall be--
(i) free and clear of all liens and
encumbrances whatsoever except the security
interest conveyed to the Secretary under this
title,
(ii) in class, and
(iii) in as good order and condition,
ordinary wear and tear excepted, as when
acquired by the obligor, except that any
deficiencies with respect to freedom from
encumbrances, condition and class may, to the
extent covered by valid policies of insurance,
be satisfied by the assignment to the Secretary
of claims of the obligor under such policies.
The Secretary may not establish, as a condition
of eligibility for guarantee under this title,
a minimum principal amount for an obligation
covering the reconstruction or reconditioning
of a fishing vessel or fishery facility. For
purposes of this title, the reconstruction or
reconditioning of a fishing vessel or fishery
facility does not include the routine minor
repair or maintenance of the vessel or
facility.
(c) Security.--(1) The security for the guarantee of an
obligation by the Secretary under this title may relate to more
than one vessel and may consist of any combination of types of
security. The aggregate principal amount of obligations which
have more than one vessel as security for the guarantee of the
Secretary under this title may equal, but not exceed, the sum
of the principal amount of obligations permissible with respect
to each vessel.
(2) If the security for the guarantee of an obligation by the
Secretary under this title relates to more than one vessel,
such obligation may have the latest maturity date permissible
under subsection (b) of this section with respect to any of
such vessels: Provided, That the Secretary may require such
payments of principal, prior to maturity, with respect to all
related obligations as he deems necessary in order to maintain
adequate security for his guarantee.
(d) Restrictions.--(1)(A) No commitment to guarantee, or
guarantee of, an obligation shall be made by the Secretary of
Transportation unless the Secretary finds that the property or
project with respect to which the obligation will be executed
will be economically sound. In making that determination, the
Secretary shall consider--
(i) the need in the particular segment of the
maritime industry for new or additional capacity,
including any impact on existing equipment for which a
guarantee under this title is in effect;
(ii) the market potential for the employment of the
vessel over the life of the guarantee;
(iii) projected revenues and expenses associated with
employment of the vessel;
(iv) any charters, contracts of affreightment,
transportation agreements, or similar agreements or
undertakings relevant to the employment of the vessel;
(v) other relevant criteria; and
(vi) for inland waterways, the need for technical
improvements, including but not limited to increased
fuel efficiency, or improved safety.
(B) No commitment to guarantee, or guarantee of, and
obligation shall be made by the Secretary of Commerce unless
the Secretary finds, at or prior to the time such commitment is
made or guarantee becomes effective, that the property or
project with respect to which the obligation will be executed
will be, in the Secretary's opinion, economically sound and in
the case of fishing vessels, that the purpose of the financing
or refinancing is consistent with the wise use of the fisheries
resources and with the development, advancement, management,
conservation, and protection of the fisheries resources, or
with the need for technical improvements including but not
limited to increased fuel efficiency or improved safety.
(2) No commitment to guarantee, or guarantee of an obligation
may be made by the Secretary under this title for the purchase
of a used fishing vessel or used fishery facility unless--
(A) the vessel or facility will be reconstructed or
reconditioned in the United States and will contribute
to the development of the United States fishing
industry; or
(B) the vessel or facility will be used in the
harvesting of fish from, or for a purpose described in
section 1101(k) with respect to, an underutilized
fishery.
(3) No commitment to guarantee, or guarantee of an
obligation may be made by the Secretary under this
title for the construction, reconstruction, or
reconditioning of an eligible export vessel unless--
(A) the Secretary finds that the
construction, reconstruction, or reconditioning
of that vessel will aid in the transition of
United States shipyards to commercial
activities or will preserve shipbuilding assets
that would be essential in time of war or
national emergency, and
(B) the owner of the vessel agrees with the
Secretary of Transportation that the vessel
shall not be transferred to any country
designated by the Secretary of Defense as a
country whose interests are hostile to the
interests of the United States.
(4) The Secretary shall promulgate regulations
concerning circumstances under which waivers of or
exceptions to otherwise applicable regulatory
requirements concerning financial condition can be
made. The regulations shall require that--
(A) the economic soundness requirements set
forth in paragraph (1)(A) of this subsection
are met after the waiver of the financial
condition requirement; and
(B) the waiver shall provide for the
imposition of other requirements on the obligor
designed to compensate for the increased risk
associated with the obligor's failure to meet
regulatory requirements applicable to financial
condition.
(e) Guarantee Fees.--
(1) Except as otherwise provided in this subsection,
the Secretary shall prescribe regulations to assess in
accordance with this subsection a fee for the guarantee
of an obligation under this title.
(2)(A) The amount of a fee under this subsection for
a guarantee is equal to the sum determined by adding
the amounts determined under subparagraph (B) for the
years in which the guarantee is in effect.
(B) The amount referred to in subparagraph (A) for a
year is the present value (determined by applying the
discount rate determined under subparagraph (F)) of the
amount determined by multiplying--
(i) the estimated average unpaid principal
amount of the obligation that will be
outstanding during the year (determined in
accordance with subparagraph (E)), by
(ii) the fee rate established under
subparagraph (C) for the obligation for each
year.
(C) The fee rate referred to in subparagraph (B)(ii)
for an obligation shall be--
(i) in the case of an obligation for a
delivered vessel or equipment, not less than
one-half of 1 percent and not more than 1
percent, determined by the Secretary for the
obligation under the formula established under
subparagraph (D); or
(ii) in the case of an obligation for a
vessel to be constructed, reconstructed, or
reconditioned, or of equipment to be delivered,
not less than one-quarter of 1 percent and not
more than one-half of 1 percent, determined by
the Secretary for the obligation under the
formula established under subparagraph (D).
(D) The Secretary shall establish a formula for
determining the fee rate for an obligation for purposes
of subparagraph (C), that--
(i) is a sliding scale based on the
creditworthiness of the obligor;
(ii) takes into account the security provided
for a guarantee under this title for the
obligation; and
(iii) uses--
(I) in the case of the most
creditworthy obligors, the lowest rate
authorized under subparagraph (C)(i) or
(ii), as applicable; and
(II) in the case of the least
creditworthy obligors, the highest rate
authorized under subparagraph (C)(i) or
(ii), as applicable.
(E) For purposes of subparagraph (B)(i), the
estimated average unpaid principal amount does not
include the average amount (except interest) on deposit
in a year in the escrow fund under section 1108.
(F) For purposes of determining present value under
subparagraph (B) for an obligation, the Secretary shall
apply a discount rate determined by the Secretary of
the Treasury taking into consideration current market
yields on outstanding obligations of the United States
having periods to maturity comparable to the period to
maturity for the obligation with respect to which the
determination of present value is made.
(3) A fee under this subsection shall be assessed and
collected not later than the date on which amounts are
first paid under an obligation with respect to which
the fee is assessed.
(4) A fee paid under this subsection is not
refundable. However, an obligor shall receive credit
for the amount paid for the remaining term of the
guaranteed obligation if the obligation is refinanced
and guaranteed under this title after such refinancing.
(5) A fee paid under subsection (e) shall be included
in the amount of the actual cost of the obligation
guaranteed under this title and is eligible to be
financed under this title.
(f) Investigation of Applications.--
(1) The Secretary shall charge and collect from the
obligor such amounts as he may deem reasonable for the
investigation of applications for a guarantee, for the
appraisal of properties offered as security for a
guarantee, for the issuance of commitments, for
services in connection with the escrow fund authorized
by section 1108 and for the inspection of such
properties during construction, reconstruction, or
reconditioning: Provided, That such charges shall not
aggregate more than one-half of 1 per centum of the
original principal amount of the obligations to be
guaranteed.
(2) The Secretary may make a determination that
aspects of an application under this title require
independent analysis to be conducted by third party
experts due to risk factors associated with markets,
technology, financial structures, or other risk factors
identified by the Secretary. Any independent analysis
conducted pursuant to this provision shall be performed
by a party chosen by the Secretary.
(3) Notwithstanding any other provision of this
title, the Secretary may make a determination that an
application under this title requires additional equity
because of increased risk factors associated with
markets, technology, financial structures, or other
risk factors identified by the Secretary.
(4) The Secretary may charge and collect fees to
cover the costs of independent analysis under paragraph
(2). Notwithstanding section 3302 of title 31, United
States Code, any fee collected under this paragraph
shall--
(A) be credit as an offsetting collection to
the account that finances the administration of
the loan guarantee program;
(B) shall be available for expenditure only
to pay the costs of activities and services for
which the fee is imposed; and
(C) shall remain available until expended.
(g) Disposition of Moneys.--All moneys received by the
Secretary under the provisions of sections 1101-1107 of this
title shall be deposited in the Fund.
(h) Additional Requirements.--Obligations guaranteed under
this title and agreements relating thereto shall contain such
other provisions with respect to the protection of the security
interests of the United States (including acceleration,
assumptions, and subrogation provisions and the issuance of
notes by the obligor to the Secretary), liens and releases of
liens, payments of taxes, and such other matters as the
Secretary may, in his discretion, prescribe.
(i) Limitation on Establishment of Percentage.--The Secretary
may not, with respect to--
(1) the general 75 percent or less limitation in
subsection (b)(2);
(2) the 87\1/2\ percent or less limitation in the
1st, 2nd, 4th, or 5th proviso to subsection (b)(2) or
section 1112(b); or
(3) the 80 percent or less limitation in the 3rd
proviso to such subsection; establish by rule,
regulation, or procedure any percentage within any such
limitation that is, or is intended to be, applied
uniformly to all guarantees or commitments to guarantee
made under this section that are subject to the
limitation.
(j) Procedure upon Receiving Loan Guarantee Application.--(1)
Upon receiving an application for a loan guarantee for an
eligible export vessel, the Secretary shall promptly provide to
the Secretary of Defense notice of the receipt of the
application. During the 30-day period beginning on the date on
which the Secretary of Defense receives such notice, the
Secretary of Defense may disapprove the loan guarantee based on
the assessment of the Secretary of the potential use of the
vessel in a manner that may cause harm to United States
national security interests. The Secretary of Defense may not
disapprove a loan guarantee under this section solely on the
basis of the type of vessel to be constructed with the loan
guarantee. The authority of the Secretary to disapprove a loan
guarantee under this section may not be delegated to any
official other than a civilian officer of the Department of
Defense appointed by the President, by and with the advice and
consent of the Senate.
(2) The Secretary of Transportation may not make a loan
guarantee disapproved by the Secretary of Defense under
paragraph (1).
(k) Monitoring.--The Secretary shall monitor the financial
conditions and operations of the obligor on a regular basis
during the term of the guarantee. The Secretary shall document
the results of the monitoring on an annual or quarterly basis
depending upon the condition of the obligor. If the Secretary
determines that the financial condition of the obligor warrants
additional protections to the Secretary, then the Secretary
shall take appropriate action under subsection (m) of this
section. If the Secretary determines that the financial
condition of the obligor jeopardizes its continued ability to
perform its responsibilities in connection with the guarantee
of obligations by the Secretary, the Secretary shall make an
immediate determination whether default should take place and
whether further measures described in subsection (m) should be
taken to protect the interests of the Secretary while insuring
that program objectives are met.
(l) Review of Applications.--No commitment to guarantee, or
guarantee of, an obligation shall be made by the Secretary
unless the Secretary certifies that a full and fair
consideration of all the regulatory requirements, including
economic soundness and financial requirements applicable to
obligors and related parties, and a thorough assessment of the
technical, economic, and financial aspects of the loan
application has been made.
(m) Agreement with Obligor.--The Secretary shall include
provisions in loan agreements with obligors that provide
additional authority to the Secretary to take action to limit
potential losses in connection with defaulted loans or loans
that are in jeopardy due to the deteriorating financial
condition of obligors. Provisions that the Secretary shall
include in loan agreements include requirements for additional
collateral or greater equity contributions that are effective
upon the occurrence of verifiable conditions relating to the
obligors financial condition or the status of the vessel or
shipyard project.
(n) Decision Period.--
(1) In general.--The Secretary of Transportation
shall approve or deny an application for a loan
guarantee under this title within 270 days after the
date on which the signed application is received by the
Secretary.
(2) Extension.--Upon request by an applicant, the
Secretary may extend the 270-day period in paragraph
(1) to a date not later than 2 years after the date on
which the signed application for the loan guarantee was
received by the Secretary.
[DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND
RELATED AGENCIES APPROPRIATIONS ACT, 2000
[Sec. 623. (a) Northern Fund and Southern Fund.--]
[16 U.S.C. 3645]
SEC. 16. NORTHERN AND SOUTHERN FUNDS; TREATY IMPLEMENTATION; ADDITIONAL
AUTHORIZATION OF APPROPRIATIONS.
(a) Northern Fund and Southern Fund.--
(1) As provided in the June 30, 1999, Agreement of
the United States and Canada on the Treaty Between the
Government of the United States and the Government of
Canada Concerning Pacific Salmon, 1985 (hereafter
referred to as the ``1999 Pacific Salmon Treaty
Agreement'') there are hereby established a Northern
Boundary and Transboundary Rivers Restoration and
Enhancement Fund (hereafter referred to as the
``Northern Fund'') and a Southern Boundary Restoration
and Enhancement Fund (hereafter referred to as the
``Southern Fund'') to be held by the Pacific Salmon
Commission. The Northern Fund and Southern Fund shall
be invested in interest bearing accounts, bonds,
securities, or other investments in order to achieve
the highest annual yield consistent with protecting the
principal of each Fund. Income from investments made
pursuant to this paragraph shall be available until
expended, without appropriation or fiscal year
limitation, for programs and activities relating to
salmon restoration and enhancement, salmon research,
the conservation of salmon habitat, and implementation
of the Pacific Salmon Treaty and related agreements.
Amounts provided by grants under this subsection may be
held in interest bearing accounts prior to the
disbursement of such funds for program purposes, and
any interest earned may be retained for program
purposes without further appropriation. The Northern
Fund and Southern Fund are subject to the laws
governing Federal appropriations and funds and to
unrestricted circulars of the Office of Management and
Budget. Recipients of amounts from either Fund shall
keep separate accounts and such records as are
reasonably necessary to disclose the use of the funds
as well as to facilitate effective audits.
(2) Fund management.--
(A) As provided in the 1999 Pacific Salmon
Treaty Agreement, amounts made available from
the Northern Fund pursuant to paragraph (1)
shall be administered by a Northern Fund
Committee, which shall be comprised of three
representatives of the Government of Canada,
and three representatives of the United States.
The three United States representatives shall
be the United States Commissioner and Alternate
Commissioner appointed (or designated) from a
list submitted by the Governor of Alaska for
appointment to the Pacific Salmon Commission
and the Regional Administrator of the National
Marine Fisheries Service for the Alaska Region.
Only programs and activities consistent with
the purposes in paragraph (1) which affect the
geographic area from Cape Caution, Canada to
Cape Suckling, Alaska may be approved for
funding by the Northern Fund Committee.
(B) As provided in the 1999 Pacific Salmon
Treaty Agreement, amounts made available from
the Southern Fund pursuant to paragraph (1)
shall be administered by a Southern Fund
Committee, which shall be comprised of three
representatives of Canada and three
representatives of the United States. The
United States representatives shall be
appointed by the Secretary of Commerce: one
shall be selected from a list of three
qualified individuals submitted by the
Governors of the States of Washington and
Oregon; one shall be selected from a list of
three qualified individuals submitted by the
treaty Indian tribes (as defined by the
Secretary of Commerce); and one shall be the
Regional Administrator of the National Marine
Fisheries Service for the Northwest Region.
Only programs and activities consistent with
the purposes in paragraph (1) which affect the
geographic area south of Cape Caution, Canada
may be approved for funding by the Southern
Fund Committee.
(b) Pacific Salmon Treaty Implementation.--(1) None of the
funds authorized by this section for implementation of the 1999
Pacific Salmon Treaty Agreement shall be made available until
each of the following conditions to the 1999 Pacific Salmon
Treaty Agreement has been fulfilled--
(A) stipulations are revised and court orders
requested as set forth in the letter of understanding
of the United States negotiators dated June 22, 1999.
If such orders are not requested by December 31, 1999,
this condition shall be considered unfulfilled; and
(B) a determination is made that--
(i) the entry by the United States into the
1999 Pacific Salmon Treaty Agreement;
(ii) the conduct of the Alaskan fisheries
pursuant to the 1999 Pacific Salmon Treaty
Agreement, without further clarification or
modification of the management regimes
contained therein; and
(iii) the decision by the North Pacific
Fisheries Management Council to continue to
defer its management authority over salmon to
the State of Alaska are not likely to cause
jeopardy to, or adversely modify designated
critical habitat of, any salmonid species
listed under Public Law 93-205, as amended, in
any fishery subject to the Pacific Salmon
Treaty.
(2) If the requests for orders in subparagraph (1)(A) are
withdrawn after December 31, 1999, or if such orders are not
entered by March 1, 2000, amounts in the Northern Fund and the
Southern Fund shall be transferred to the general fund of the
United States Treasury.
(3) During the term of the 1999 Pacific Salmon Treaty
Agreement, the Secretary of Commerce shall determine whether
Southern United States fisheries are likely to cause jeopardy
to, or adversely modify designated critical habitat of, any
salmonid species listed under Public Law 93-205, as amended,
before the Secretary of Commerce may initiate or reinitiate
consultation on Alaska fisheries under such Act.
(4) During the term of the 1999 Pacific Salmon Treaty
Agreement, the Secretary of Commerce may not initiate or
reinitiate consultation on Alaska fisheries under section 7 of
Public Law 93-205, as amended, until--
(A) the Pacific Salmon Commission has had a
reasonable opportunity to implement the provisions of
the 1999 Pacific Salmon Treaty Agreement, including the
harvest responses pursuant to paragraph 9, chapter 3 of
Annex IV to the Pacific Salmon Treaty; and
(B) he determines, in consultation with the United
States Section of the Pacific Salmon Commission, that
implementation actions under the 1999 Agreement will
not return escapements as expeditiously as possible to
maximum sustainable yield or other biologically-based
escapement objectives agreed to by the Pacific Salmon
Commission.
(5) The Secretary of Commerce shall notify the Committee on
Commerce, Science, and Transportation of the Senate and the
Committee on Resources of the House of Representatives of his
intent to initiate or reinitiate consultation on Alaska
fisheries.
(6)(A) For purposes of this section, ``Alaska fisheries''
means all directed Pacific salmon fisheries off the coast of
Alaska that are subject to the Pacific Salmon Treaty.
(B) For purposes of this section, ``Southern United States
fisheries'' means all directed Pacific salmon fisheries in
Washington, Oregon, and the Snake River basin of Idaho that are
subject to the Pacific Salmon Treaty.
(c) [Omitted. Subsection (c) amended section 3(g) of Public
Law 99-5.]
(d)(1) Pacific Salmon Treaty.--
(A) For capitalizing the Northern Fund there is
authorized to be appropriated in fiscal years 2000,
2001, 2002, and 2003 a total of $75,000,000.
(B) For capitalizing the Southern Fund there is
authorized to be appropriated in fiscal years 2000,
2001, 2002, and 2003 a total of $65,000,000.
(C) To provide economic adjustment assistance to
fishermen pursuant to the 1999 Pacific Salmon Treaty
Agreement, there is authorized to be appropriated in
fiscal years 2000, 2001, and 2002 a total of
$30,000,000.
(2) Pacific Coastal salmon recovery.--
(A) For salmon habitat restoration, salmon stock
enhancement, sustainable salmon fisheries, and salmon
research, including the construction of salmon research
and related facilities, there is authorized to be
appropriated for each of fiscal years 2005, 2006, 2007,
2008, and 2009, $90,000,000 to the States of Alaska,
Washington, Oregon, Idaho, and California. Amounts
appropriated pursuant to this subparagraph shall be
made available as direct payments. The State of Alaska
may allocate a portion of any funds it receives under
this subsection to eligible activities outside Alaska.
(B) For salmon habitat restoration, salmon stock
enhancement, salmon research, and supplementation
activities, there is authorized to be appropriated in
each of fiscal years 2000, 2001, 2002, and 2003,
$10,000,000 to be divided between the Pacific Coastal
tribes (as defined by the Secretary of Commerce) and
the Columbia River tribes (as defined by the Secretary
of Commerce).
Funds appropriated to the States under the authority of this
section shall be subject to a 25 percent non-Federal match
requirement. In addition, not more than 3 percent of such funds
shall be available for administrative expenses, with the
exception of funds used in the Washington State for the Forest
and Fish Agreement.