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[Senate Report 111-194]
[From the U.S. Government Publishing Office]

111th Congress                                                   Report
                                 SENATE
 2d Session                                                     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
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                     one hundred eleventh congress
                             second session

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota        JOHN ENSIGN, Nevada
BARBARA BOXER, California            JIM DeMINT, South Carolina
BILL NELSON, Florida                 JOHN THUNE, South Dakota
MARIA CANTWELL, Washington           ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey      GEORGE S. LeMIEUX, Florida
MARK PRYOR, Arkansas                 JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri           DAVID VITTER, Louisiana
AMY KLOBUCHAR, Minnesota             SAM BROWNBACK, Kansas
TOM UDALL, New Mexico                MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
                     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

                                                       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

                                 REPORT

                         [To accompany S. 2856]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 2856) to allow the United 
States-Canada 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 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 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 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.

                          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 achieve those populations 
within a fixed time period. Based on information 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 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.

                        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 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 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, 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) shall not apply to those portions 
        of stocks covered by such Understandings. 
        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).
          (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;
                  (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.--
          (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 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.

                                  
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