U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

89–010 

" ! SENATE 

111TH CONGRESS

2d Session 

REPORT

2010

111–194 

Calendar No. 402 

INTERNATIONAL FISHERIES AGREEMENT 

CLARIFICATION ACT OF 2009 

R E P O R T 

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION 

ON

S. 2856 

MAY 24, 2010.—Ordered to be printed 


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(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED ELEVENTH CONGRESS

SECOND SESSION

JOHN D. ROCKEFELLER IV, West Virginia, Chairman 

DANIEL K. INOUYE, Hawaii 

JOHN F. KERRY, Massachusetts 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

CLAIRE McCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

TOM UDALL, New Mexico 

MARK WARNER, Virginia 

MARK BEGICH, Alaska 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

JOHN ENSIGN, Nevada 

JIM DeMINT, South Carolina 

JOHN THUNE, South Dakota 

ROGER F. WICKER, Mississippi 

GEORGE S. LeMIEUX, Florida 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

SAM BROWNBACK, Kansas 

MIKE JOHANNS, Nebraska 

ELLEN DONESKI, Staff Director 

JAMES REID, Deputy Staff Director 

BRUCE ANDREWS, General Counsel 

ANN BEGEMAN, Republican Staff Director 

BRIAN HENDRICKS, Republican General Counsel 

TODD BERTOSON, Republican Senior Counsel 


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Calendar No. 402 

111TH CONGRESS REPORT " ! SENATE 2d Session 111–194 

INTERNATIONAL FISHERIES AGREEMENT CLARIFICATION 

ACT OF 2009 

MAY 24, 2010.—Ordered to be printed 

Mr. ROCKEFELLER, from the Committee on Commerce, Science, and 

Transportation, submitted the following 

R E P O R T 

[To accompany S. 2856] 

The Committee on Commerce, Science, and Transportation, to 

which was referred the bill (S. 2856) to allow the United StatesCanada Transboundary Resource Sharing Understanding to be considered an international agreement for the purposes of section 

304(e)(4) of the Magnuson-Stevens Fishery Conservation and Management Act, having considered the same, reports favorably thereon with an amendment (in the nature of a substitute) and recommends that the bill (as amended) do pass. 

PURPOSE OF THE BILL

S. 2856, the International Fisheries Agreement Clarification Act, 

would clarify that the United States-Canada Transboundary Resource Sharing Understanding, a written agreement between U.S. 

and Canadian fisheries conservation and management officials establishing a framework for sharing specific transboundary fisheries 

resources on Georges Bank in the Gulf of Maine, is an international agreement for the purposes of section 304(e)(4) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). 

BACKGROUND AND NEEDS

On October 14, 2008, the Subcommittee on Oceans, Atmosphere, 

Fisheries, and Coast Guard held a field hearing in Portland, 

Maine, on the sustainability of Maine’s groundfish industry. Witness testimony at that hearing included a number of recommended 

actions that Congress could take to improve the outlook for the 


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New England groundfish fishery and the communities that rely 

upon it. Among these was a recommendation for Congress to clarify 

that, when stocks are jointly managed by the U.S. and Canada, 

such an arrangement should be treated as an international agreement under the MSA—an allusion to the U.S.-Canada 

Transboundary Resource Sharing Understanding. 

In 1995, the U.S.-Canada Transboundary Steering Committee 

(Steering Committee) was established to promote a collaborative 

transboundary approach to fisheries resource management between 

Fisheries and Oceans Canada, Maritimes Region, and the National 

Oceanic and Atmospheric Administration’s (NOAA’s) National Marine Fisheries Service (NMFS), Northeast Region. These collaborative efforts resulted in a mutual understanding on a process for 

sharing specific transboundary fisheries resources on Georges Bank 

in the Gulf of Maine. Commonly referred to as the U.S.-Canada 

Transboundary Resource Sharing Understanding (Understanding), 

this management regime is explained at length in a document entitled ‘‘Development of a Sharing Allocation Proposal for 

Transboundary Resources of Cod, Haddock, and Yellowtail Flounder on Georges Bank’’ (January 2002). 

The Understanding establishes bilateral parameters for the management of three fish stocks—Georges Bank cod, Georges Bank 

haddock, and Georges Bank yellowtail flounder—within a specified 

area straddling the international boundary known as the Hague 

Line, which bisects Georges Bank in the Gulf of Maine. The Understanding further establishes a governance structure to carry out 

the joint conservation and management objectives of the U.S. and 

Canada with regard to these three stocks. The fundamental organizational components in this governance structure are the 

Transboundary Management Guidance Committee (TMGC), the 

Transboundary Resource Assessment Committee (TRAC), and the 

Steering Committee. The TMGC is a government-industry committee comprised of representatives from the U.S. and Canada that 

has a mandate to develop and propose guidance in the form of harvest strategies, resource sharing, and management processes for 

the stocks covered by the Understanding. The TRAC is a body comprised of U.S. and Canadian scientists and co-chaired by NMFS 

and Fisheries and Oceans Canada, which reviews stock assessments and projections related to the stocks managed under the Understanding. The TRAC provides scientific advice to the TMGC, 

primarily in the form of TRAC Status Reports, to inform the 

TMGC’s decisions and recommendations. The Steering Committee, 

which is the government-industry committee that produced the Understanding, provides guidance for the TRAC and TMGC processes. 

The NMFS has determined that Georges Bank cod and Georges 

Bank yellowtail flounder are overfished. Georges Bank haddock 

was removed from the overfished list in 2008. Section 304(e)(4) of 

the MSA requires that, in an overfished fishery, the fishery management plan must specify a time period for rebuilding the fishery 

which: (1) is as short as possible, taking into account, among other 

things, recommendations of international organizations in which 

the United States participates; and (2) does not exceed 10 years, 

except in cases where, among other things, management measures 

under an international agreement in which the United States participates dictate otherwise. Latitude is afforded by this rebuilding 


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provision in instances involving international organizations or 

international agreements in recognition of the fact that, in cases 

where fishing mortality is not exclusively under U.S. control, recognizing that some level of adaptability is reasonably necessary in 

order to harmonize fishery management under the MSA with management decisions under bilateral and multilateral management 

regimes. 

Although the Understanding appears to be an ‘‘international 

agreement’’ as that term is used in section 304(e)(4) of the MSA, 

NOAA and its NMFS Northeast Regional Office have looked to 

State Department implementing regulations for the Case-Zablocki 

Act (1 U.S.C. § § 112a and 112b) for interpretive guidance and have 

reached the opposite conclusion. The Case-Zablocki Act requires 

transmittal to Congress of certain ‘‘international agreements’’ within the meaning of that Act. The implementing regulations, which 

are codified at 22 C.F.R. § 181.2, set forth criteria to assist agencies 

in determining what agreements must be submitted to Congress 

under the Act. NOAA and NMFS read these criteria to define an 

‘‘international agreement’’ as an agreement of significance and 

specificity between two or more states, state agencies, or intergovernmental organizations that is intended to be legally binding and 

governed by international law. They have concluded that, because 

the Understanding expressly states that any recommendations 

made under it are subject to U.S. and Canadian domestic laws 

rather than international law, it is not an ‘‘international agreement’’ under the Case-Zablocki Act and, in turn, not an ‘‘international agreement’’ for purposes of section 304(e) of the MSA. 

In testimony before the Commerce Committee during the field 

hearing in Portland, Maine in October 2008, Jim Odlin, a fisherman and vessel owner, asserted that section 304(e)(4) should be applied in managing those portions of Georges Bank cod, haddock, 

and yellowtail flounder stocks addressed in the Understanding, because the terms ‘‘international organizations’’ and ‘‘international 

agreement’’ are not defined in the MSA. Generally accepted canons 

of statutory construction suggest that in the absence of statutory 

definitions, these terms should be given their plain meaning in the 

context of the provision and statute in which they appear. A plain 

meaning approach suggests that ‘‘international organizations’’ 

means an organized structure, entity, or framework that is formed 

among nations. The governance structure described in the Understanding, including the TRAC and the TMGC, appears to fall in 

this category. It is established by U.S. and Canadian government 

agencies, and its various components such as the TRAC and TMGC 

meet on a regular, ongoing basis to fulfill their prescribed mandates. Similarly, reading section 304(e)(4) for its plain meaning, it 

appears to strongly suggest that ‘‘international agreement’’ means 

any treaty, agreement, pact, or other arrangement which is agreed 

upon among nations. The Understanding is just such an arrangement. It is an agreed-upon plan, memorialized in writing, between 

U.S. and Canadian government agencies with regulatory authority 

for the conservation and management of fisheries for the sharing 

of specific transboundary fisheries resources on Georges Bank. 

The interpretation that NOAA and NMFS have used for ‘‘international agreement’’ has significant implications for U.S. management of fish stocks shared under the Understanding. Fish move 


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freely through international boundaries, and neighboring countries 

rarely impose identical or even complementary management structures on their domestic fisheries. For example, Canada does not require a 10-year rebuilding timeline for overfished fisheries, but 

rather requires overfishing to be ended immediately and progress 

to be made towards eventual rebuilding of the stock. Furthermore, 

the U.S. and Canada base their catch limits on different scientific 

data and analyses, which can result in widely variant stock status 

estimates. U.S. managers must deduct the amount of fish Canadians will catch from the domestic total allowable catch to remain 

in compliance with the MSA’s mandated rebuilding timeline. Without the latitude afforded under section 304(e) of the MSA for the 

management of stocks which are subject to international agreements, the result could be a Canadian catch that accounts for the 

entirety of the U.S. total allowable catch, leaving no fish at all for 

U.S. fishermen. 

Indeed, at the most recent meeting of the TRAC, the U.S. and 

Canada reached an impasse over the total allowable catch of 

Georges Bank yellowtail flounder. As a result, the Canadians will 

harvest the level of fish their regulators permit without regard for 

the U.S. mandates. Therefore, the U.S. harvest will have to be reduced by the amount domestic managers anticipate Canada will 

catch in the transboundary management area, leaving the U.S. industry just a fraction of what it would otherwise be able to land. 

This breakdown in negotiations, caused directly by the NMFS 

Northeast Region’s determination that the Understanding is not an 

international agreement for purposes of the MSA, will drastically 

impact both the northeast multispecies fishery (which includes 

yellowtail flounder, cod, haddock, and others) and the Atlantic scallop fishery, because yellowtail flounder is caught as bycatch in the 

scallop fishery. These fisheries combined to total nearly $400 million in landings value in 2008. 

The Committee heard concerns that this provision would impact 

the rebuilding timelines for Georges Bank cod as well as yellowtail 

flounder. Cod is an overfished species, and a commercial backbone 

of the multispecies fishery. This bill was specifically structured to 

only impact the portion of the fish stock occurring in the U.S./Canada shared area as defined in the Understanding. Because the 

range of the cod stock is significantly larger than the shared area, 

cod will still be subject to the MSA’s more stringent rebuilding 

timelines. Virtually the entire yellowtail flounder stock is contained 

within the shared area, so this bill would allow an extension of the 

Georges Bank yellowtail flounder’s rebuilding timeline. 

SUMMARY OF PROVISIONS

S. 2856 would amend the MSA to clarify that portions of fish 

stocks covered by the U.S.-Canada Transboundary Resource Sharing Understanding would be exempt from the 10-year rebuilding 

timeline requirement. Overfishing would still have to be ended immediately, and any agreed-upon catch limit would have to allow for 

rebuilding to continue. S. 2856 would further state that the provisions contained in the bill would apply for the fishing year beginning May 1, 2010. 


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LEGISLATIVE HISTORY

On October 14, 2008, the Subcommittee on Oceans, Atmosphere, 

Fisheries, and Coast Guard held a field hearing in Portland, 

Maine, on the sustainability of Maine’s groundfish industry. S. 

2856 was introduced in the Senate by Senator Snowe on December 

9, 2009, with Senator Kirk as an original cosponsor. The bill was 

referred to the Senate Committee on Commerce, Science, and 

Transportation. On December 17, 2009, the Committee considered 

a manager’s amendment to this bill in an open executive session. 

The Committee, without objection, ordered S. 2856 be reported favorably as amended. 

ESTIMATED COSTS

In accordance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and section 403 of the Congressional Budget 

Act of 1974, the Committee provides the following cost estimate, 

prepared by the Congressional Budget Office: 

JANUARY 21, 2010. 

Hon. JOHN D. ROCKEFELLER IV, 

Chairman, Committee on Commerce, Science, and Transportation, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 2856, the International 

Fisheries Agreement Clarification Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Jeff LaFave. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

S. 2856—International Fisheries Agreement Clarification Act 

S. 2856 would amend the Magnuson-Stevens Fishery Conservation and Management Act to recognize, as an international agreement under that act, an existing agreement between the United 

States and Canada to jointly manage a portion of the Georges Bank 

fishery (a 10,000-square-mile fishing area off the Atlantic coast of 

the United States stretching from Massachusetts to New Jersey). 

The bill also would amend that act to give the National Oceanic 

and Atmospheric Administration (NOAA) greater flexibility in establishing limits on the number of fish that could be caught within 

the fishery each year. Based on information from NOAA, CBO estimates that implementing the bill would have no significant impact 

on the federal budget. 

Under current law, if NOAA identifies a certain fish population 

as unsustainable, the agency must limit the number of those fish 

caught within the fishery in order to achieve a sustainable population within a 10-year period. The agency identifies a fish population as sustainable when the number of fish removed from the 

stock does not exceed the number supplied by growth and reproduction. Under the bill, NOAA would be required to establish catch 

limits that work towards sustainable populations within the 

Georges Bank fishery, but the agency would not be required to 

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formation from NOAA, CBO estimates that any costs associated 

with implementing the legislation would be negligible. 

S. 2856 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on state, local, or tribal governments. 

The CBO staff contact for this estimate is Jeff LaFave. The estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

REGULATORY IMPACT STATEMENT

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

The reported bill would clarify an ambiguity regarding the proper treatment of an existing international understanding under current law. It would not authorize any new regulations and therefore 

would not subject any individuals or businesses to new regulations. 

ECONOMIC IMPACT

S. 2856 would not authorize any funding. To the extent that it 

may increase U.S. fishermen’s access to certain fish populations, it 

would have a net positive impact on the Nation’s economy. 

PRIVACY

The reported bill would not have any adverse impact on the personal privacy of individuals. 

PAPERWORK

S. 2856 would not impose any new paperwork requirements on 

private citizens, businesses, or other entities that do not choose to 

participate in a regional coastal and ocean observation association; 

representatives of entities choosing to participate in these associations may be subject to some additional paperwork requirements. 

CONGRESSIONALLY DIRECTED SPENDING

In compliance with paragraph 4(b) of rule XLIV of the Standing 

Rules of the Senate, the Committee provides the following identification of congressionally directed spending items contained in the 

bill, as reported: 

SECTION-BY-SECTION ANALYSIS

Section 1. Short Title and Table of Contents. 

Section 1 would provide that the legislation may be cited as the 

International Fisheries Agreement Clarification Act. 

Section 2. International Fisheries Agreements. 

Section 2 would amend section 304(e)(1) of the MSA to require 

the Secretary of Commerce to take into account the Understanding 

and other related understandings, and decisions made under those 

understandings, for purposes of section 304(e)(4)(A)(i) of that Act. 

It would provide that section 304(e)(4)(A)(ii) of the Act shall not 


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apply to those portions of fish stocks covered by such understandings. It would further stipulate that fishing level recommendations from the New England Fishery Management Council Scientific and Statistical Committee may be exceeded as long as 

overfishing is ended immediately and the fishing mortality level allows for progress toward rebuilding affected fish stocks. 

Section 3. Effective date. 

Section 3 would provide that the amendments made by this bill 

would apply with respect to fishing years beginning after April 30, 

2010. 


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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): 

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 parVerDate Mar 15 2010 05:23 May 25, 2010 Jkt 089010 PO 00000 Frm 00010 Fmt 6604 Sfmt 6601 E:\HR\OC\SR194.XXX SR194

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tial 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. 


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(2) In preparing any plan or amendment under this subsection, the Secretary shall— 

(A) conduct public hearings, at appropriate times and locations in the geographical areas concerned, so as to allow 

interested persons an opportunity to be heard in the preparation and amendment of the plan and any regulations 

implementing the plan; and 

(B) consult with the Secretary of State with respect to 

foreign fishing and with the Secretary of the department 

in which the Coast Guard is operating with respect to enforcement at sea. 

(3) Notwithstanding paragraph (1) for a fishery under the 

authority of a Council, the Secretary may not include in any 

fishery management plan, or any amendment to any such plan, 

prepared by him, a provision establishing a limited access system, including any limited access privilege program, unless 

such system is first approved by a majority of the voting members, present and voting, of each appropriate Council. 

(4) Whenever the Secretary prepares a fishery management 

plan or plan amendment under this section, the Secretary shall 

immediately— 

(A) for a plan or amendment for a fishery under the authority of a Council, submit such plan or amendment to 

the appropriate Council for consideration and comment; 

and 

(B) publish in the Federal Register a notice stating that 

the plan or amendment is available and that written information, views, or comments of interested persons on the 

plan or amendment may be submitted to the Secretary 

during the 60-day period beginning on the date the notice 

is published. 

(5) Whenever a plan or amendment is submitted under paragraph (4)(A), the appropriate Council must submit its comments and recommendations, if any, regarding the plan or 

amendment to the Secretary before the close of the 60-day period referred to in paragraph (4)(B). After the close of such 60- 

day period, the Secretary, after taking into account any such 

comments and recommendations, as well as any views, information, or comments submitted under paragraph (4)(B), may 

adopt such plan or amendment. 

(6) The Secretary may propose regulations in the Federal 

Register to implement any plan or amendment prepared by the 

Secretary. In the case of a plan or amendment to which paragraph (4)(A) applies, such regulations shall be submitted to the 

Council with such plan or amendment. The comment period on 

proposed regulations shall be 60 days, except that the Secretary may shorten the comment period on minor revisions to 

existing regulations. 

(7) The Secretary shall promulgate final regulations within 

30 days after the end of the comment period under paragraph 

(6). The Secretary must publish in the Federal Register an explanation of any substantive differences between the proposed 

and final rules. All final regulations must be consistent with 


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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, data collection, and enforcement of any— 

(i) limited access privilege program; and 

(ii) community development quota program that allocates a percentage of the total allowable catch of a fishery 

to such program. 

(B) Such fee shall not exceed 3 percent of the ex-vessel value 

of fish harvested under any such program, and shall be collected at either the time of the landing, filing of a landing report, or sale of such fish during a fishing season or in the last 

quarter of the calendar year in which the fish is harvested. 

(C)(i) Fees collected under this paragraph shall be in addition to any other fees charged under this Act and shall be deposited in the Limited Access System Administration Fund established under section 305(h)(5)(B). 

(ii) Upon application by a State, the Secretary shall transfer 

to such State up to 33 percent of any fee collected pursuant to 

subparagraph (A) under a community development quota program and deposited in the Limited Access System Administration Fund in order to reimburse such State for actual costs directly incurred in the management and enforcement of such 

program. 

(e) REBUILDING OVERFISHED FISHERIES.— (1)(A) 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. 

(B) The United States–Canada Transboundary Resource 

Sharing Understanding and other related Understandings, and 

decisions made under those Understandings, shall be taken into 

account for purposes of paragraph (4)(A)(i). Paragraph (4)(A)(ii) 

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derstandings. Notwithstanding section 302(h)(6) of this title, 

fishing level recommendations regarding rebuilding in any 

given year for such stocks may be exceeded as long as the fishing mortality level allows for progress toward rebuilding affected fish stocks, and overfishing is ended immediately according to the procedures set forth in this subsection. 

(2) If the Secretary determines at any time that a fishery is 

overfished, the Secretary shall immediately notify the appropriate Council and request that action be taken to end overfishing in the fishery and to implement conservation and management measures to rebuild affected stocks of fish. The Secretary shall publish each notice under this paragraph in the 

Federal Register. 

(3) Within 2 years after an identification under paragraph 

(1) or notification under paragraphs (2) or (7), the appropriate 

Council (or the Secretary, for fisheries under section 302(a)(3)) 

shall prepare and implement a fishery management plan, plan 

amendment, or proposed regulations for the fishery to which 

the identification or notice applies— 

(A) to end overfishing immediately in the fishery and to 

rebuild affected stocks of fish; or 

(B) to prevent overfishing from occurring in the fishery 

whenever such fishery is identified as approaching an 

overfished condition. 

(4) For a fishery that is overfished, any fishery management 

plan, amendment, or proposed regulations prepared pursuant 

to paragraph (3) or paragraph (5) for such fishery shall— 

(A) specify a time period for rebuilding the fishery that 

shall— 

(i) be as short as possible, taking into account the 

status and biology of any overfished stocks of fish, the 

needs of fishing communities, recommendations by 

international organizations in which the United States 

participates, and the interaction of the overfished 

stock of fish within the marine ecosystem; and 

(ii) not exceed 10 years, except in cases where the 

biology of the stock of fish, other environmental conditions, or management measures under an international agreement in which the United States participates dictate otherwise; 

(B) allocate both overfishing restrictions and recovery 

benefits fairly and equitably among sectors of the fishery; 

and 

(C) for fisheries managed under an international agreement, reflect traditional participation in the fishery, relative to other nations, by fishermen of the United States. 

(5) If, within the 2-year period beginning on the date of identification or notification that a fishery is overfished, the Council does not submit to the Secretary a fishery management 

plan, plan amendment, or proposed regulations required by 

paragraph (3)(A), the Secretary shall prepare a fishery management plan or plan amendment and any accompanying regulations to stop overfishing and rebuild affected stocks of fish 

within 9 months under subsection (c). 


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(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. 

(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; 


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(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), 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.— 


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(1) PROCEDURES.—The Secretary shall, in consultation with 

the Councils and the Council on Environmental Quality, revise 

and update agency procedures for compliance with the National Environmental Policy Act (42 U.S.C. 4231 et seq.). The 

procedures shall— 

(A) conform to the time lines for review and approval of 

fishery management plans and plan amendments under 

this section; and 

(B) integrate applicable environmental analytical procedures, including the time frames for public input, with the 

procedure for the preparation and dissemination of fishery 

management plans, plan amendments, and other actions 

taken or approved pursuant to this Act in order to provide 

for timely, clear and concise analysis that is useful to decision makers and the public, reduce extraneous paperwork, 

and effectively involve the public. 

(2) USAGE.—The updated agency procedures promulgated in 

accordance with this section used by the Councils or the Secretary shall be the sole environmental impact assessment procedure for fishery management plans, amendments, regulations, or other actions taken or approved pursuant to this Act. 

(3) SCHEDULE FOR PROMULGATION OF FINAL PROCEDURES.— The Secretary shall— 

(A) propose revised procedures within 6 months after the 

date of enactment of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006; 

(B) provide 90 days for public review and comments; and 

(C) promulgate final procedures no later than 12 months 

after the date of enactment of that Act. 

(4) Public participation. The Secretary is authorized and directed, in cooperation with the Council on Environmental 

Quality and the Councils, to involve the affected public in the 

development of revised procedures, including workshops or 

other appropriate means of public involvement. 

[(j)](i) INTERNATIONAL OVERFISHING.—The provisions of this subsection shall apply in lieu of subsection (e) to a fishery that the 

Secretary determines is overfished or approaching a condition of 

being overfished due to excessive international fishing pressure, 

and for which there are no management measures to end overfishing under an international agreement to which the United 

States is a party. For such fisheries— 

(1) the Secretary, in cooperation with the Secretary of State, 

immediately take appropriate action at the international level 

to end the overfishing; and 

(2) within 1 year after the Secretary’s determination, the appropriate Council, or Secretary, for fisheries under section 

302(a)(3) shall— 

(A) develop recommendations for domestic regulations to 

address the relative impact of fishing vessels of the United 

States on the stock and, if developed by a Council, the 

Council shall submit such recommendations to the Secretary; and 

(B) develop and submit recommendations to the Secretary of State, and to the Congress, for international acVerDate Mar 15 2010 05:23 May 25, 2010 Jkt 089010 PO 00000 Frm 00017 Fmt 6604 Sfmt 6601 E:\HR\OC\SR194.XXX SR194

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tions 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. 

Æ 


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