SECTIONAL ANALYSIS

The purposes of this bill are to reauthorize the Magnuson‑Stevens
Fishery Conservation and Management Act (the Act) for the period from FY
2006 to FY 2010, and to make needed improvements in five areas: (1)
fisheries ecosystems, (2) dedicated access privilege programs,

\(3\) Secretarial authorities and actions, (4) access to and use of
scientific information and other social-economic and permit data used
for management purposes, and (5) fisheries law enforcement. First, this
bill encourages ecosystem approaches to management, authorizes the
development of fishery ecosystem plans, and revises provisions relating
to habitat designations. Second, the bill authorizes dedicated access
privileges. Third, the bill specifies the roles of the Secretary of
Commerce in certain categories of fisheries management actions, in
particular determinations of cost-effectiveness, approval of plans and
regulations, and emergencies. Fourth, the bill strengthens fisheries
management though programs that will generate improved scientific advice
and observer data, more comprehensive social and economic information,
and permit databases. Fifth, the bill promotes the more effective
enforcement of, and therefore compliance with, fisheries laws and
regulations through a number of changes in enforcement provisions.

### SECTION 1. SHORT TITLE

This section states that the short title for the bill is the \"Fishery
Conservation and Management Amendments of 2005.

SECTION 2. AMENDMENT OF MAGNUSON‑STEVENS FISHERY CONSERVATION AND
MANAGEMENT ACT

This section notes that this bill amends the Magnuson-Stevens Fishery
Conservation and Management Act.

###### SECTION 3. DEFINITIONS

This section changes existing definitions and adds some new terms to
give more precision to the language that directs management actions.
There are 13 modified and new terms: "bycatch", "confidential
information", "Continental Shelf Fishery Resources", "depleted",
"ecosystem", "exclusive economic zone boundary", "foreign law", "habitat
area of particular concern", "import", "observer information",
"optimum", "overfishing" and "United States citizen".

This section modifies definitions of five terms that are already defined
in Section 3. The changes to the definition of "bycatch" are designed,
first, to extend the term \"bycatch\" to include incidentally taken
seabirds, in addition to fish, and, second, to specify that the
exemption applies to all fish caught and released alive by recreational
fishermen, not just those caught as part of a recreational catch and
release fishery management program. The modified definition of bycatch
will require amendments to fishery management plans submitted by the
Councils no later than 24 months after the enactment of this bill.
Changes to the term "Continental Shelf Fishery Resources" add five new
species to the existing list of 31 corals, crabs, lobsters, abalone,
clams, conches, and sponges that already have this designation. The
modified definition of \"exclusive economic zone boundary\" clarifies
how the boundary of the exclusive economic zone (EEZ) is determined
under the Act for U.S. commonwealths, territories, and possessions. The
changes to the Act's definition of "optimum" specify that scientific
uncertainty is an important consideration is setting the optimum yield.
The term "overfishing" has been revised to make clear that the
definition applies solely to "overfishing" and not, as under current
law, to "overfishing" and "overfished". As indicated below, the term
\"overfished\" has been replaced with a separate definition of
\"depleted\" to reflect the fact that factors other than fishing may
contribute to the depressed condition of a fishery.

This section adds eight new terms: "confidential information",
"depleted", "ecosystem", "foreign law", "habitat area of particular
concern", "import", "observer information", and "United States citizen".
The term "confidential information" is defined to facilitate
administration of information collection programs under section 402 of
the Act, and to protect legitimate business interests. The term
\"depleted\" replaces "overfished" (and, therefore, also requires the
change to the term "overfishing" discussed above). This new term is
needed because the existing term \"overfishing\" refers to a level of
fishing mortality, and not the status of the stock. In addition,
"depleted" is preferable to "overfished" because a fishery may be
depleted for reasons other than overfishing. For example, under the
current definitions, it is possible that a fishery be overfished without
being subjected to overfishing. Conversely, there may be overfishing in
a healthy fishery. Therefore, the new term "depleted" will create a
statutory distinction within the Act between the state of being depleted
and the act of overfishing. The term "ecosystem" is defined to give
formal status to the emphasis on ecosystem approaches to management that
informs several provisions of this bill and to stress that people are an
integral part of the ecosystem. The terms "foreign law" and "import" are
added to facilitate enforcement of violations of fishery laws and
regulations. The term "habitat area of particular concern" is added to
enable Councils and the Secretary to more effectively address habitat
issues in specific areas that are subsets of essential fish habitat.
"Observer information" is defined to formally encompass and identify a
broad range of information that is used for scientific assessment and
fisheries law enforcement purposes. The definition of "United States
citizen" will help in resolving the issue of corporate ownership of
shares in individual fishing quota and other dedicated access privilege
programs.

SECTION 4. FISHERIES ECOSYSTEMS

This section (1) modifies the Act in several places to facilitate,
encourage and promote ecosystem approaches to fisheries management, (2)
provides for the designation of habitat areas of particular concern "as
discrete subunits of essential fish habitat", and (3) authorizes the
Councils or Secretary to prepare fishery ecosystem plans. The major
purposes of these provisions are to encourage the Councils to take into
account ecosystem-related considerations in the management process; to
authorize, the preparation of fishery ecosystem plans; to allow for the
adoption of conservation and management measures specifically to protect
the ecosystem and to give the Councils added flexibility in targeting
habitat-related actions within essential fish habitat.

First, this section amends the Act's statement of findings, purposes and
policy to affirm the importance of ecosystems and ecosystem-related
objectives. Accordingly, this section notes that \"ecosystems associated
with fisheries are valuable natural resources, and calls for actions and
policies "to protect the ecosystems associated with those fishery
resources". In addition, one purpose of the Act is "to promote the
health and productivity of fishery ecosystems".

Second, a new term, "ecosystem", is added to the Act's list of
definitions \[See Section 3 of this bill\].

Third, a new provision is added to section 303(b) that authorizes
Councils, when preparing fishery management plans, to "incorporate
conservation and management measures necessary to protect and enhance
the health and productivity of marine ecosystems". Another addition to
the Section 303(b) discretionary provisions of fishery management plans
authorizes the identification of habitat areas of particular concern as
subunits of essential fish habitat.

Fourth, a new section 303(e) is added that directs the Secretary to
prepare guidance "concerning ecosystem considerations in fishery
conservation and management" and authorizes the Councils or the
Secretary, as appropriate, to prepare fishery ecosystem plans to assist
in implementing an ecosystem approach to managing fisheries. The new
section 303(e) also specifies that fishery ecosystem plans may include
(1) measures to avoid and minimize adverse effects of fishing on fish
habitat, (2) marine managed areas in the exclusive economic zone or on
the high seas and (3) management of fishing capacity. A new section
303(c) is also added allowing the Councils to recommend regulations to
the Secretary in order to implement a fishery ecosystem plan.

Fifth, section 303(a)(7) and 305(b)(4)(A) are modified so that priority
conservation measures can be focused on habitat areas of particular
concern.

######## SECTION 5. REBUILDING FISHERIES

This section amends several provisions of the Act, including the Section
2 Findings and Section 301 National Standards to conform to the
definitional changes discussed in Section 3. The most substantive
changes amend the rebuilding provisions in section 304 to: (1) place
greater emphasis on controls of fishing mortality and (2) re-state
fishery rebuilding requirements that more appropriately respond to the
scientific facts of the recovering fisheries. Finally, this section
replaces the annual report to Congress on the status of fisheries with a
more broadly available list of fisheries that are depleted, approaching
a condition of being depleted, or are subject to overfishing.

The major purpose of these changes is to modify the rebuilding
provisions so that mandatory actions better reflect the capabilities of
the Councils and the Secretary, and rebuilding goals and timetables
adequately take into account the unique features of different federally
managed fisheries. Thus, the modified section is focused on rebuilding
depleted fisheries regardless of the cause of depletion rather than just
rebuilding fisheries that have been depleted by overfishing. To signal
this shift in emphasis, section 304(e) of the Act is amended with a new
title, "Rebuilding Fisheries", instead of "Rebuilding Overfished
Fisheries".

Under the current statute, overfishing is allowed to continue on a
depleted fishery as long as the fishery can be rebuilt within the
rebuilding timeframes. This section amends the Act to require the
preparation of fishery management plans or amendments to eliminate
overfishing as soon as possible but no later than two years. This
provision will end overfishing at a time certain on a number of
chronically overfished stocks. The current law contains a complicated
formula for setting rebuilding timeframes. Rebuilding is to occur as
soon as possible taking into account a number of factors but not to
exceed 10 years unless the biology of the stock and certain other
factors would prevent rebuilding within 10 years. The modified section
would replace this complicated two-step formula with a single formula
based on the biology of the stock. In place of the 10-year requirement,
rebuilding plans shall "specify a timeframe for rebuilding depleted
\[rather than overfished\] stocks to a level that can sustain maximum
sustainable yield, not to exceed the expected time to rebuild absent any
fishing mortality under prevailing ecological and environmental
conditions, plus the generation time of the stock". This adjustment in
rebuilding time frames is consistent with the recently proposed revised
guidelines to implement National Standard 1.

SECTION 6. SCIENCE SUPPORT FOR FISHERIES CONSERVATION AND

MANAGEMENT

This section amends a number of the Act's provisions relating to the
collection and use of scientific, socio-economic and permitting
information that is used for fishery management purposes. With respect
to fisheries science, this section addresses concerns about the
Councils' use of scientific information by (1) requiring formalized peer
review of science used by the Councils; (2) creating a national data
collection program to ensure uniform standards and treatment of data;
and (3) broadening the incentives for qualified scientists to join
Scientific and Statistical Committees. The collection of information is
addressed through provisions relating to observer programs, commercial
permit and recreational registration programs, and the scope and range
of economic data used in fishery management plans. In addition, this
section modifies the provisions that apply to the sharing of certain
categories of information, including confidential information.

[Scientific Information]{.underline}: This section revises the Act to
require a formalized peer review process for scientific information used
by the Councils as a basis for fisheries management decisions. The Act
also would authorize the payment of stipends of members of the
Scientific and Statistical Committee, provided they are not employees of
the federal government or a state marine fisheries agency.

[National Data Collection System]{.underline}: The Act is amended to
direct the Secretary to establish a national data collection system to
\"assess and specify the nature and extent of scientific data, including
observer data, needed for effective implementation of fishery management
plans and fishery ecosystem plans". This provision will facilitate the
collection and disposition of certain types of information by the
Secretary for the purpose of improving the regulatory analyses in
support of fisheries management. Individual fishery management plans
must be consistent with the national data collection system although the
Councils are given the flexibility to request additional information
collections specific to the fisheries under their jurisdiction. The
national data collection system would replace the various
\"standardized\" bycatch reporting methodologies in the individual
fishery management plans with a national standardized bycatch reporting
methodology.

The Secretary is also authorized to collect from any person applying for
a commercial fishing permit \[See section 17: Fishery Permitting and
Registration\]: a single permit identifier (either a Social Security
number and date of birth or taxpayer identification number). This
provision will facilitate an accurate count of permit holders for
Congressional reports, testimony, budget initiatives, and for
cross-regional economic analyses, as well as strengthen the national
coordination of permit programs. This authority will also enable the
Secretary to verify the uniqueness of an individual or business entity
that is a permit owner or holder, which is particularly important in
dedicated access privilege and fishing capacity reduction programs. Due
to confidentiality concerns, the social security number, taxpayer
identification number, and date of birth will not be placed on the
permit.

[Sharing of Information]{.underline}: The Act currently precludes the
sharing of information submitted to the Secretary under the Act except
in specific circumstances. This amendment clarifies that Federal
employees involved in fishery management plan enforcement may have
access to this information. This amendment also places further
restrictions on sharing information with State or Marine Fisheries
Commission employees such that the information can only be shared if the
Secretary has determined that the disclosure is necessary to further the
Department\'s mission to conserve and manage fisheries. Recent efforts
to increase the role of the States in enforcing the Act and other
Federal fishery laws have been hindered by the existing law, which
limits the Secretary\'s authority to disclose confidential information
to State employees. This amendment authorizes the Secretary to disclose
that information to State employees who are responsible for fishery
management plan enforcement as long as they are employees of States that
have entered into a fishery enforcement agreement. The amendment
broadens the existing provision allowing disclosure to \"verify catch
under an individual fishing quota program\" to apply to all limited
access program determinations in order to improve the transparency of
the Secretary\'s decision in these matters. The amendment will also
allow for the disclosure to State, Council, or Marine Fisheries
Commission employees involved in catch verification under limited access
programs. Finally, this section authorizes the disclosure of information
in support of national and homeland security activities, including the
Coast Guard's homeland security missions. The provision provides
specific statutory reference (6 USC 468(a)(2)) to clarify the meaning of
the term "homeland security", which has not been previously defined in
the Act.

[Socio-Economic Information]{.underline}: This section also amends the
Act to expand the categories of economic data that may be required by
Councils in a fishery management plan, better enabling the Secretary and
the Councils to conduct regulatory assessments that comprehensively
evaluate the social and economic impacts of management measures.
Accordingly, a fishery management plan may include information on
harvest and processing revenues (by species), production costs, capital
expenditures, and other fishing or processing costs. Other amendments
increase the categories of information the Secretary may collect at the
Councils\' request. In particular, this amendment eliminates current
language in the Act that precludes the Secretary from collecting
commercial or financial information regarding fishing operations or fish
processing operations. This change will make it easier for the Secretary
and the Councils to prepare adequate analyses and regulatory assessments
of the impacts of conservation and management measures on all aspects of
fishing communities. Finally, the Act is amended to provide access to
processors' economic information, better enabling the Secretary and the
Councils to assess the shore-side economic impacts of management
measures.

SECTION 7. APPOINTMENTS OF REGIONAL FISHERY COUNCIL

MEMBERS

In conformity with the commitment in the Administration's December 2004
U.S. Ocean Action Plan, this section is designed to ensure that Council
voting members represent a balanced apportionment of marine interests in
their respective States. The qualifications for Council voting members
are amended to include "knowledge of the ecosystems that support
fisheries" and a "commitment to sustainable fisheries" in order to
broaden the pool of individuals qualified to be Council members. In
addition, this section of the Act is amended to require the Secretary,
in his efforts to ensure a fair and balanced apportionment, to appoint
Council members who represent "other individuals who are concerned with
the conservation and management of the fishery resources and marine
ecosystems in which the fisheries are conducted", in addition to active
participants (or their representatives) in the commercial and
recreational fisheries. To ensure a transparent selection process, this
section also directs the Governors to "publish a solicitation notice"
for nominees for the Councils. Finally, in the event that a Governor
submits unqualified candidates or a slate of nominees that do not
adequately represent "the breadth and diversity of fisheries and their
ecosystems within the State", this section authorizes the Secretary to
notify the appropriate Governor of that determination.

SECTION 8. COUNCIL COORDINATION COMMITTEE

This section establishes a Council Coordination Committee (of Chairs,
Vice Chairs, Executive Directors and Council staff) in order to allow
the Councils to coordinate on issues relevant to all Councils, including
those related to implementation of the Act. The Act currently provides
that the Federal Advisory Committee Act \"shall not apply\" to the
Councils. This section would make clear that the Council Coordination
Committee and joint efforts by Councils and Federal employees may also
hold meetings that are not subject to the provisions of the Federal
Advisory Committee Act.

**SECTION 9. MONITORING OF PACIFIC INSULAR AREA FISHERIES**

This section amends provisions of the Act that provide for observer
coverage of foreign fishing under a Pacific Insular Area fishery
agreement. The amendments to sections 201 and 204 provide that foreign
fishing under such an agreement may 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. The observer costs are passed on to the insular area
governments in reduced revenues from the agreements. The changes made
under this section recognize that automated vessel monitoring systems
have become a valuable tool that can effectively complement an observer
program, thus enabling the foreign fishing to be monitored successfully
at a lower cost.

####### SECTION 10. CARIBBEAN COUNCIL JURISDICTION

This section amends section 302(a) of the Act to expand the Caribbean
Fishery Management Council\'s jurisdiction. Current law gives the
Council jurisdiction over the fisheries seaward of the Virgin Islands
and Puerto Rico. The amendment under this section extends the Council\'s
jurisdiction to the other 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 now under its jurisdiction.

SECTION 11. NOTICE OF COUNCIL MEETINGS

This section amends the Act to give the Councils greater flexibility in
notifying the public of the times of regular and emergency meetings, and
in providing notice of closed meetings. The current law requires these
notices to be published in local newspapers in the major fishing ports
of the affected region. The amendments under this section relieve the
Councils of the burden of publishing notices in the local newspapers,
which is more expensive and less effective in reaching target audiences
than e‑mails, public service announcements, and notices included in
marine weather forecasts. These amendments will permit the Councils to
use any means of notification that will result in wide publicity.

SECTION 12. DEDICATED ACCESS PRIVILEGES

In conformity with the December 17, 2004 U.S. Ocean Action Plan, this
section promotes \"greater use of market-based systems for fisheries
management". This section addresses dedicated access privileges (DAP), a
term that includes programs such as: (1) individual fishing quotas, (2)
community quotas, (3) fishing cooperatives established pursuant to the
Fishermen\'s Collective Marketing Act of 1934, and (4) area-based
quotas. These DAP programs are designed to end the derby "race to fish",
reduce overcapacity, and improve the economic and environmental
performance of the DAP-managed fishery. The major purpose of this
section is to give the Councils as much flexibility as possible, within
reasonable constraints of national policy, to design DAP programs for
Secretarial approval that meet the diverse needs of the program
participants.

This section builds on the limited access program and individual fishing
quota provisions in the current Act in order to authorize DAP programs.
Standards and guidelines for DAP programs are specified with respect to
allocations and transfers, and cost recovery. Section 303(d) would be
amended to broaden its application to allow flexibility to design DAP
programs that will contribute to improved economic performance in the
fishery. The section would require fair and reasonable procedures for
the initial allocations of privileges in a DAP program and inclusion of
measures to assist entry-level and small-scale fishermen, captains and
crew to participate in the program. The section would require that the
DAP program prevent individual privilege holders from acquiring
excessive shares of privileges and provide for the transfer and tracking
of privileges. The section would also require that the program contain
measures to recover the cost of implementing the program to the Federal
government.

The section would also amend the fee provisions in Section 304(d) to
mandate the recovery of implementation, operation, and administrative
costs in all programs including DAP programs. For DAP programs
specifically, revenue will be generated to cover the costs by reserving
and auctioning a share of the privileges.

Community quota programs, under current law, exist only in western
Alaska and the western Pacific. This section would make community quota
programs available in all regions. These community sustainability
programs have to meet criteria developed by a Council and approved by
the Secretary, and must prepare and submit a Community Sustainability
Plan.

### SECTION 13. ACTION BY THE SECRETARY

This section amends Sections 303, 304, and 305 of the Act for several
purposes: (1) to require the cost effectiveness of management measures,
(2) to clarify the role of the Secretary in approving and implementing
management measures, including the review and implementation process for
fishery management plans and amendments, and their implementing
regulations, and (3) to authorize mechanisms to streamline the
regulatory process integrating various procedural requirements. The
underlying purpose of these amendments is to facilitate effective
Secretarial actions in the management process.

First, this section adds to the required provisions of fishery
management plans a new obligation that such plans contain conservation
and management measures that are "cost-effective" considering the
administrative cost of implementation and operation of the measure.

Second, this section revises the provisions governing the approval of
fishery management plans and plan amendments, and the implementing
regulations. The Secretary is required to make a preliminary evaluation
of the Council plan or amendment to determine whether it is (1)
sufficient in scope and substance to warrant a review and (2) consistent
with the national standards, the other provisions of the Act, and other
applicable law. If the preliminary evaluation is negative, the amendment
allows the Secretary to immediately return it to the Council with
guidance on what needs to be corrected. This provision will save
valuable time since current provisions require the Secretary to wait
until after the 60-day comment period to disapprove a proposed action.
If the preliminary evaluation is positive, the Secretary must publish a
notice of availability of the plan or amendment, and the proposed
implementing regulations, in the Federal Register within 15 days of the
preliminary evaluation of the plan or amendment. The comment period is
required to be 50 days.

Where a Council submits proposed regulations simultaneously with a plan
or amendment, the Secretary is required to promulgate the final
regulations within 45 days after the end of the comment period. However,
where the Council submits the proposed regulations after approval of the
plan or amendment, the comment period for those regulations is required
to be 15‑60 days. These changes are intended to ensure that the
Secretary is not required to make a decision on a Council\'s plan or
plan amendment before the end of the comment period for the implementing
regulations.

Third, the Act is amended to add the discretionary authority to "develop
alternative procedural mechanisms" in lieu of plan amendments for
implementing conservation and management measures. For over fifteen
years, Councils and the Secretary have used various mechanisms to allow
for the implementation of conservation and management measures without
going through the formal plan amendment process. This section would
formally allow the use of abbreviated procedures in such alternative
processes but only where the conservation and management measure under
consideration is within the scope of conservation and management
measures established in existing plans, where existing regulatory
processes are not sufficient to allow for the timely and efficient
implementation of the measure in response to new information and where
appropriate notice is provided.

In addition, this section extends by six additional days the length of
the second emergency regulation or interim measure that may be taken
under the Act to respond to an emergency or overfishing in a fishery.
This change means that the first 180‑day emergency period can be
extended with a second emergency period of 186 days, thus enabling
emergency management of a fishery over a full 12 months. The most common
situation where a full year of emergency management is needed is when a
fishery management plan has to be implemented by emergency regulations.
This section corrects an error in the existing law related to the early
termination under the Act of an interim measure. This section also
exempts emergency rules from the prior notice and public comment
requirements of the Administrative Procedure Act. Finally, this section
clarifies that the Secretary is authorized to issue regulations to
interpret and facilitate implementation of this Act.

SECTION 14. JUDICIAL REVIEW OF CERTAIN ACTIONS BY THE

SECRETARY

This section amends the Act to allow litigants to challenge all final
agency actions taken by the Secretary under this Act, including the
Secretary\'s decision to approve a fishery management plan or to deny a
dedicated access privilege, as long as that challenge is brought within
the existing statute of limitations under the Act. In addition, since
not all final agency actions are published in the Federal Register,
particularly those involving individual permit decisions, the section
provides that the statute of limitations will begin to run on the date
that the action is published in the Federal Register or otherwise
becomes a final agency action. Finally, this section also amends the Act
to authorize award of attorneys' fees to prevailing parties.

SECTION 15. EFFICIENT, EFFECTIVE ENVIRONMENTAL IMPACT ASSESSMENTS

This section directs the Secretary, in consultation with the Councils
and the Council on Environmental Quality, to revise and update agency
procedures for the assessment of impacts of proposed fishery management
actions pursuant to any applicable provisions of the National
Environmental Policy Act and applicable law regarding the environmental
effects abroad of major federal actions. Revised procedures shall be
proposed within 12 months of the enactment of this Act and promulgated
no later than 24 months from the date of enactment of this Act. The
major purposes of these revised and updated procedures are to provide
for timely, clear, and concise analysis that is useful decision maker
and the public, reduce extraneous paperwork, and effectively involve the
public.

SECTION 16. ENFORCEMENT IMPROVEMENTS

This section makes several discrete changes to the Act to improve and
make more effective the enforcement of fisheries regulations.

First, this section establishes, for purposes of this Act, the seaward
boundary of coastal states of the United States, the Commonwealth of
Puerto Rico, American Samoa, the United States Virgin Islands, and Guam.

Second, this section increases the maximum civil administrative penalty
for a violation of the Act to \$240,000. This section would also
authorize civil judicial penalties not to exceed \$300,000. This section
also increases the Act\'s criminal penalties for violations involving
obstruction of investigations to imprisonment for not more than five
years and fines of "not more than \$500,000 for individuals or
\$1,000,000 for an organization". An increase in the maximum penalty
available under the Act is justified to provide for an adequate response
to the most serious violations. A higher maximum is a necessary
enforcement tool to both punish and deter the egregious, large-scale and
repeat violators. The possibility of higher penalties will help to
ensure that individuals and entities do not view monetary penalties
imposed under the Act as merely a cost of doing business.

Third, this section amends section 308 to add a new provision allowing
for the imposition of civil judicial penalties. Although the criteria to
be used in determining an appropriate penalty amount (including the
nature, circumstances, extent and gravity of the violation; any history
of prior violations; and the ability of the violator to pay) will apply
whether an enforcement proceeding is brought in the civil administrative
or civil judicial context, the procedures for such a consideration will
differ according to the procedural and evidentiary rules of the form.
Any perceived discrepancy in the language used to describe penalty
determinations is due to the fact that NOAA's Civil Procedure rules, at
15 CFR Part 904, will be followed in all administrative proceedings and
the Federal Rules of Civil Procedure and Federal Rules of Evidence will
apply to any proceedings brought in district court.

Fourth, this section amends section 308(f) of the Act to allow the
Secretary to use subpoenas in the investigation of alleged violations of
the 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. This situation deprives the
Secretary of the ability to fully investigate alleged violations prior
to issuance of a Notice of Violation and Assessment (NOVA) and the
alleged violator\'s request for an administrative hearing. This
amendment will ensure that the Secretary has the tools needed to conduct
a thorough investigation before the decision to issue a NOVA or assess a
penalty.

Fifth, this section amends section 308 of the Act to provide that the
transfer of ownership of a permit or any interest in a permit does not
extinguish an applicable permit sanction. Current law provides that the
transfer of vessel ownership does not extinguish a permit sanction, but
does not address situations where permits are issued to persons instead
of vessels. This amendment eliminates a loophole in the law where
permits are issued to persons. The amendment also requires prior written
notice to prospective transferees of the permit or interest regarding
any permit sanction that will be in effect or pending at the time of
transfer. This section also amends section 304(g) of the Act to clarify
that a permit suspended for nonpayment of any amount in settlement of a
civil forfeiture must be reinstated upon payment of that amount,
together with interest.

Sixth, this section amends the Prohibited Acts provision of the Act
(Section 307) to add three new prohibitions. The section would make it
unlawful for any person to \"import, export, transport, sell, receive,
acquire, or purchase in interstate of foreign commerce any fish taken,
possessed, transported, or sold in violation of any treaty or foreign
law.\" The section would prohibit any type of fishing where the owner
had previously been compensated as part of a fishery capacity reduction
program under Section 312(b)(2).

This section also makes it clear that it is also a violation of the Act
to attempt to undertake one of the Prohibited Acts.

Finally, section 16(e) provides an exception to civil forfeiture of
fishing vessels violating the Act as a result of any act for which the
issuance of a Section 311(c) citation is sufficient sanction. However,
this exception would not preclude civil forfeiture of such vessels for
violations of the customs laws or applicable federal laws.

###### SECTION 17. FISHERY PERMITTING AND REGISTRATION

Drawing on the Administration's December 17, 2004 U.S. Ocean Action
Plan, this section establishes (1) a national permit program for
commercial fishermen and (2) a national registration program for
recreational fishermen. The common purpose of these two provisions is to
establish programs that will create a nationally coordinated database of
information on commercial and recreational resource users. These
proposals carry forward the work that Congress mandated in 1996 on the
Standardized Fishing Vessel Registration and Information Management
System.

First, this section directs the Secretary to establish a national
program for permitting in commercial fisheries, effectively moving the
authority for commercial fishing permits from section 303(b), where it
is currently a discretionary Council function, to section 304, where it
will be a Secretarial requirement. \[See Section 6 of this bill, which
authorizes the Secretary to collect permit identifier information from
applicants for commercial fishing permits.\]

Second, this section amends the Act to require the Secretary to
establish and implement a uniform national program for registration of
recreational fishermen, with exemptions allowed for recreational
fishermen already registered in a qualifying State program.

**SECTION 18. FISHING CAPACITY REDUCTION PROGRAM**

This section amends section 312(b)-(e) of the Act to improve the
effectiveness of fishing capacity reduction programs (buyback programs).
Buyback programs can help reduce harvesting capacity to biologically and
economically sustainable levels, at little taxpayer cost. They can also
help lay the foundation for other management measures, such as IFQs,
cooperatives, permit stacking, or other capacity-reducing devices. Under
the new provisions, a broad framework regulation would control aspects
that are common to all buyback programs; additional, program-specific
regulations would address the particular details of each fishery, as
necessary. If a particular buyback program were to be industry-funded, a
referendum of participants in the fishery would be required.

**SECTION 19. FUNDING FOR FISHERY OBSERVER PROGRAMS**

This section amends the Act to address the funding of observer programs
and is intended primarily to establish an observer funding program that
provides national guidelines but also incorporates sufficient
flexibility to meet the unique needs of different regions. Accordingly,
the Secretary may establish an observer funding mechanism to cover the
cost of an observer program. With a few exceptions, private contractual
arrangements between fishermen and non-government observers may not be
established. Existing private contracts shall be evaluated by an
independent peer review established by the Secretary to evaluate
accuracy, precision, and potential biases in the program. The details of
observer funding mechanisms should be tailored flexibly to the
circumstances of the fishery. Notably, monies deposited in the Fishery
Observer Fund must be used for that observer program.

# 

**SECTION 20. WESTERN PACIFIC FISHERY DEMONSTRATION PROJECTS**

This section makes a technical amendment to section 111 of the
Sustainable Fisheries Act to clarify that Western Pacific communities
with indigenous inhabitants are eligible for fishery demonstration
projects under that section, even if those communities have not
developed and submitted a community development program under section
305(i)(2)(B)(v) of the Act to provide fisheries access to indigenous
communities.

# SECTION 21. AMENDMENTS TO NORTHERN PACIFIC HALIBUT ACT

This section amends the Northern Pacific Halibut Act of 1982 to increase
the maximum civil penalty to \$200,000 and to authorize permit sanctions
under that Act. The new permit sanction authorization is modeled on the
permit sanction regime under section 308(g) of the Act. This section
also amends section 9 of that Act to increase the maximum fines to
\$200,000 for a fishing violation under that Act and to \$400,000 for
using a dangerous weapon in committing a fishing violation, engaging in
conduct that causes bodily injury to an enforcement officer, or placing
an enforcement officer in fear of imminent bodily harm.

SECTION 22. MAINE POCKET WATERS

This section corrects the coordinates in section 809 of the Atlantic
Coastal Fisheries Cooperative Management Act for the waters known as
\"Maine pocket waters.\" That Act was amended in 1996 to exempt Maine
commercial lobster permit holders from Federal permitting requirements
in Maine pocket waters.

####### SECTION 23. SPECIAL AREAS

This section eliminates the now redundant term \"special areas\" added
by section 301(b) of the Act entitled \"An Act to provide for the
designation of the Flower Garden Banks National Marine Sanctuary\",
approved March 9, 1992 (Public Law No. 102-251; 106 Stat. 62).

## SECTION 24. AUTHORIZATION APPROPRIATIONS 

This section provides authorized appropriations of \$328,004,000 for
fiscal year 2006, the President's request, and such sums as may be
necessary for fiscal years 2007-2010.