" COMMITTEE PRINT NO. 107–E 107th Congress

1st Session

COMPILATION OF SELECTED ACTS

CONCERNING MARINE RESOURCES,

INCLUDING FISHERIES

WITH AMENDMENTS THROUGH THE

END OF THE 106th CONGRESS

PREPARED FOR THE USE OF THE

COMMITTEE ON

RESOURCES

OF THE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

NOVEMBER 2001

Printed for the use of the

House Committee on Resources
COMPILATION OF SELECTED ACTS CONCERNING

MARINE RESOURCES
U.S. GOVERNMENT PRINTING OFFICE

75–297 WASHINGTON : 

" COMMITTEE PRINT NO. 107–E 107th Congress

1st Session

2001

COMPILATION OF SELECTED ACTS

CONCERNING MARINE RESOURCES,

INCLUDING FISHERIES

WITH AMENDMENTS THROUGH THE

END OF THE 106th CONGRESS

PREPARED FOR THE USE OF THE

COMMITTEE ON

RESOURCES

OF THE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

NOVEMBER 2001

Printed for the use of the

House Committee on Resources

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250

Mail: Stop SSOP, Washington, DC 20402–0001
COMMITTEE ON RESOURCES

JAMES V. HANSEN, Utah, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

DON YOUNG, Alaska, Vice Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

SCOTT MCINNIS, Colorado

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

MAC THORNBERRY, Texas

CHRIS CANNON, Utah

JOHN E. PETERSON, Pennsylvania

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MARK E. SOUDER, Indiana

GREG WALDEN, Oregon

MICHAEL K. SIMPSON, Idaho

THOMAS G. TANCREDO, Colorado

C.L. ‘‘BUTCH’’ OTTER, Idaho

TOM OSBORNE, Nebraska

JEFF FLAKE, Arizona

DENNIS R. REHBERG, Montana

(VACANCY)

EDWARD J. MARKEY, Massachusetts

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

FRANK PALLONE, JR., NEW JERSEY

CALVIN M. DOOLEY, California

ROBERT A. UNDERWOOD, Guam

ADAM SMITH, Washington

DONNA M. CHRISTENSEN, Virgin Islands

RON KIND, Wisconsin

JAY INSLEE, Washington

GRACE F. NAPOLITANO, California

TOM UDALL, New Mexico

MARK UDALL, Colorado

RUSH D. HOLT, New Jersey

JAMES P. MCGOVERN, Massachusetts

ANI ́BAL ACEVEDO-VILA ́ , Puerto Rico

HILDA L. SOLIS, California

BRAD CARSON, Oklahoma

BETTY MCCOLLUM, Minnesota

(VACANCY)

ALLEN D. FREEMYER, Chief of Staff

LISA PITTMAN, Chief Counsel

MICHAEL TWINCHEK, Chief Clerk

JAMES H. ZOIA, Democrat Staff Director

Prepared by

HARRY A. (HANK) SAVAGE, Assistant Counsel

CRAIG A. STERKX, Publications Coordinator

OFFICE OF THE LEGISLATIVE COUNSEL, HOUSE OF REPRESENTATIVES

(II)
For changes after the closing date of this publication (December 31, 2000) to provisions of law in this publication, see the

United States Code Classification Tables published by the Office of

the Law Revision Counsel of the House of Representatives at

http://uscode.house.gov/uscct.htm.

(III)

v

C O N T E N T S

Page

1. Marine Protection, Research, and Sanctuaries Act .............. 1

2. Coastal Zone Management Act of 1972 ................................. 69

3. Section 6217 of P.L. 101-508 (coastal nonpoint pollution

control) ...................................................................................... 99

4. National Sea Grant College Program Act ............................. 107

5. Whaling Convention Act of 1949 ........................................... 121

6. Fur Seal Act of 1966 ............................................................... 131

7. Section 105 of Pribilof Islands Transition Act ...................... 147

8. Marine Mammal Protection Act of 1972 ............................... 153

9. Dolphin Protection Consumer Information Act .................... 245

10. Magnuson-Stevens Fishery Conservation and Management Act ................................................................................... 253

11. Mitchell Act ........................................................................... 353

12. Anadromous Fish Conservation Act .................................... 357

13. Selected provision of the Act of August 11, 1939

(Saltonstall-Kennedy Act) ....................................................... 363

14. Fishermen’s Protective Act of 1967 ..................................... 371

15. National Oceanic and Atmospheric Administration Marine Fisheries Program Authorization Act ............................ 385

16. Lacey Act Amendments of 1981 ........................................... 391

17. Fish and Wildlife Coordination Act ..................................... 403

18. High Seas Fishing Compliance Act of 1995 ........................ 411

19. Driftnet Impact Monitoring, Assessment and Control Act

of 1987 ...................................................................................... 425

20. High Seas Driftnet Fisheries Enforcement Act .................. 431

21. Interjurisdictional Fisheries Act of 1986 ............................ 439

22. Tuna Conventions Act of 1950 ............................................. 449

23. Atlantic Tunas Convention Act of 1975 .............................. 461

24. Atlantic Coastal Fisheries Cooperative Management Act . 477

25. Northwest Atlantic Fisheries Convention Act of 1995 ....... 487

26. Atlantic Salmon Convention Act of 1982 ............................ 497

27. Atlantic Striped Bass Conservation Act .............................. 503

28. Central, Western, and South Pacific Fisheries Development Act ................................................................................... 511

29. Northern Pacific Halibut Act of 1982 .................................. 515
Page

vi

30. North Pacific Anadromous Stocks Convention Act of

1992 .......................................................................................... 525

31. Pacific Salmon Treaty Act of 1985 ...................................... 537

32. South Pacific Tuna Act of 1988 ........................................... 551

33. Eastern Pacific Tuna Licensing Act of 1984 ....................... 565

34. American Fisheries Act ........................................................ 573

35. Yukon River Salmon Act of 1995 ......................................... 595

36. Central Bering Sea Fisheries Enforcement Act of 1995 .... 601

37. Great Lakes Fishery Act of 1956 ......................................... 607

38. Antarctic Marine Living Resources Convention Act of

1984 .......................................................................................... 613

39. National Aquaculture Act of 1980 ....................................... 625
1

MARINE PROTECTION, RESEARCH, AND SANCTUARIES

ACT OF 1972

3

MARINE PROTECTION, RESEARCH, AND SANCTUARIES

ACT OF 1972

[Public Law 92–532, Approved Oct. 23, 1972, 86 Stat. 1052]

[Amended through Public Law 106–562, Dec. 23, 2000]

AN ACT To regulate the transportation for dumping, and the dumping, of material

into ocean waters, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø33 U.S.C. 1401

nt¿ That this Act may be cited as the ‘‘Marine Protection, Research, and Sanctuaries Act of 1972’’.

FINDING, POLICY, AND PURPOSE

SEC. 2. ø33 U.S.C. 1401¿ (a) Unregulated dumping of material

into ocean waters endangers human health, welfare, and amenities,

and the marine environment, ecological systems, and economic

potentialities.

(b) The Congress declares that it is the policy of the United

States to regulate the dumping of all types of materials into ocean

waters and to prevent or strictly limit the dumping into ocean waters of any material which would adversely affect human health,

welfare, or amenities, or the marine environment, ecological systems, or economic potentialities.

(c) It is the purpose of this Act to regulate (1) the transportation by any person of material from the United States and, in the

case of United States vessels, aircraft, or agencies, the transportation of material from a location outside the United States, when

in either case the transportation is for the purpose of dumping the

material into ocean waters, and (2) the dumping of material transported by any person from a location outside the United States, if

the dumping occurs in the territorial sea or the contiguous zone of

the United States.

DEFINITIONS

SEC. 3. ø33 U.S.C. 1402¿ For the purposes of this Act the

term—

(a) ‘‘Administrator’’ means the Administrator of the Environmental Protection Agency.

(b) ‘‘Ocean waters’’ means those waters of the open seas lying

seaward of the base line from which the territorial sea is measured,

as provided for in the Convention on the Territorial Sea and the

Contiguous Zone (15 UST 1606; TIAS 5639).

(c) ‘‘Material’’ means matter of any kind or description, including, but not limited to, dredged material, solid waste, incinerator

residue, garbage, sewage, sewage sludge, munitions, radiological,

chemical, and biological warfare agents, radioactive materials,
Sec. 3 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 4

chemicals, biological and laboratory waste, wreck or discarded

equipment, rock, sand, excavation debris, and industrial, municipal, agricultural, and other waste; but such term does not mean

sewage from vessels within the meaning of section 312 of the Fed- eral Water Pollution Control Act, as amended 33 U.S.C. 1322). Oil

within the meaning of section 311 of the Federal Water Pollution

Control Act, as amended 33 U.S.C. 1321), shall be included only to

the extent that such oil is taken on board a vessel or aircraft for

the purpose of dumping.

(d) ‘‘United States’’ includes the several States, the District of

Columbia, the Commonwealth of Puerto Rico, the Canal Zone, the

territories and possessions of the United States, and the Trust Territory of the Pacific Islands.

(e) ‘‘Person’’ means any private person or entity, or any officer,

employee, agent, department, agency, or instrumentality of the

Federal Government, of any State or local unit of government, or

of any foreign government.

(f) ‘‘Dumping’’ means a disposition of material: Provided, That

it does not mean a disposition of any effluent from any outfall

structure to the extent that such disposition is regulated under the

provisions of the Federal Water Pollution Control Act, as amended

33 U.S.C. 1251–1376), under the provisions of section 13 of the Rivers and Harbors Act of 1899, as amended 33 U.S.C. 407), or under

the provisions of the Atomic Energy Act of 1954, as amended (42

U.S.C. 2011, et seq.), nor does it mean a routine discharge of effluent incidental to the propulsion of, or operation of motor-driven

equipment on, vessels: Provided further, That it does not mean the

construction of any fixed structure or artificial island nor the intentional placement of any device in ocean waters or on or in the submerged land benefit such waters, for a purpose other than disposal,

when such construction or such placement is otherwise regulated

by Federal or State law or occurs pursuant to an authorized Federal or State program: And provided further, That it does not include the deposit of oyster shells, or other materials when such deposit is made for the purpose of developing, maintaining, or harvesting fisheries resources and is otherwise regulated by Federal or

State law or occurs pursuant to an authorized Federal or State program.

(g) ‘‘District court of the United States’’ includes the District

Court of Guam, the District Court of the Virgin Islands, the Dis- trict Court of Puerto Rico, the District Court of the Canal Zone,

and in the case of American Samoa and the Trust Territory of the

Pacific Islands, the District Court of the United States for the District of Hawaii, which court shall have jurisdiction over actions

arising therein.

(h) ‘‘Secretary’’ means the Secretary of the Army.

(i) ‘‘Dredged material’’ means any material excavated or

dredged from the navigable waters of the United States.

(j) ‘‘High-level radioactive waste’’ means the aqueous waste resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated waste from subsequent

extraction cycles, or equivalent, in a facility for reprocessing irradiated reactor fuels, or irradiated fuel from nuclear power reactors.

(k) ‘‘Medical waste’’ means isolation wastes; infectious agents;

human blood and blood products; pathological wastes; sharps; body
5 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 102

1So in law. The period should be a comma.

parts; contaminated bedding; surgical wastes and potentially contaminated laboratory wastes; dialysis wastes; and such additional

medical items as the Administrator shall prescribe by regulation.

(l) ‘‘Transport’’ or ‘‘transportation’’ refers to the carriage and related handling of any material by a vessel, or by any other vehicle,

including aircraft.

(m) ‘‘Convention’’ means the Convention on the Prevention of

Marine Pollution by Dumping of Wastes and Other Matter.

TITLE I—OCEAN DUMPING

PROHIBITED ACTS

SEC. 101. ø33 U.S.C. 1411¿ (a) Except as may be authorized

by a permit issued pursuant to section 102 or section 103 of this

title, and subject to regulations issued pursuant to section 108 of

this title,

(1) no person shall transport from the United States, and

(2) in the case of a vessel or aircraft registered in the

United States or flying the United States flag or in the case

of a United States department, agency, or instrumentality, no

person shall transport from any location. 1

any material for the purpose of dumping it into ocean waters.

(b) Except as may be authorized by a permit issued pursuant

to section 102 of this title, and subject to regulations issued pursuant to section 108 of this title, no person shall dump any material

transported from a location outside the United States (1) into the

territorial sea of the United States, or (2) into zone contiguous to

the territorial sea of the United States, extending to a line twelve

nautical miles seaward from the base line from which the breadth

of the territorial sea is measured, to the extent that it may affect

the territorial sea or the territory of the United States.

ENVIRONMENTAL PROTECTION AGENCY PERMITS

SEC. 102. ø33 U.S.C. 1412¿ (a) Except in relation to dredged

material, as provided for in section 103 of this title, and in relation

to radiological, chemical, and biological warfare agents, high-level

radioactive waste, and medical waste, for which no permit may be

issued, the Administrator may issue permits, after notice and opportunity for public hearings, for the transportation from the

United States or, in the case of an agency or instrumentality of the

United States, or in the case of a vessel or aircraft registered in

the United States or flying the United States flag, for the transportation from a location outside the United States, of material for the

purpose of dumping it into ocean waters, or for the dumping of material into the waters described in section 101(b), where the Administrator determines that such dumping will not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities.

The Administrator shall establish and apply criteria for reviewing

and evaluating such permit applications, and, in establishing or revising such criteria, shall consider, but not be limited in his consideration to, the following:

(A) The need for the proposed dumping.
Sec. 102 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 6

(B) The effect of such dumping on human health and welfare, including economic, esthetic, and recreational values.

(C) The effect of such dumping on fisheries resources,

plankton, fish, shellfish, wildlife, shore lines and beaches.

(D) The effect of such dumping on marine ecosystems, particularly with respect to—

(i) the transfer, concentration, and dispersion of such

material and its byproducts through biological, physical,

and chemical processes,

(ii) potential changes in marine ecosystem diversity,

productivity, and stability, and

(iii) species and community population dynamics.

(E) The persistence and permanence of the effects of the

dumping.

(F) The effect of dumping particular volumes and concentrations of such materials.

(G) Appropriate locations and methods of disposal or recycling, including land-based alternatives and the probable impact of requiring use of such alternate locations or methods

upon considerations affecting the public interest.

(H) The effect on alternate uses of oceans, such as scientific study, fishing, and other living resource exploitation,

and nonliving resource exploitation.

(I) In designating recommended sites, the Administrator

shall utilize wherever feasible locations beyond the edge of the

Continental Shelf.

In establishing or revising such criteria, the Administrator shall

consult with Federal, State, and local officials, and interested members of the general public, as may appear appropriate to the Administrator. With respect to such criteria as may affect the civil

works program of the Department of the Army, the Administrator

shall also consult with the Secretary. In reviewing applications for

permits, the Administrator shall make such provision for consultation with interested Federal and State agencies as he deems useful

or necessary. No permit shall be issued for a dumping of material

which will violate applicable water quality standards. To the extent

that he may do so without relaxing the requirements of this title,

the Administrator, is establishing or revising such criteria, shall

apply the standards and criteria binding upon the United States

under the Convention, including its Annexes.

(b) The Administrator may establish and issue various categories of permits, including the general permits described in section 104(c).

(c) DESIGNATION OF SITES.—

(1) IN GENERAL.—The Administrator shall, in a manner

consistent with the criteria established pursuant to subsection

(a), designate sites or time periods for dumping. The Administrator shall designate sites or time periods for dumping that

will mitigate adverse impact on the environment to the greatest extent practicable.

(2) PROHIBITIONS REGARDING SITE OR TIME PERIOD.—In any

case where the Administrator determines that, with respect to

certain materials, it is necessary to prohibit dumping at a site

or during a time period, the Administrator shall prohibit the

dumping of such materials in such site or during such time pe-
7 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 102

riod. This prohibition shall apply to any dumping at the site

or during such time period. This prohibition shall apply to any

dumping at the site or during the time period, including any

dumping under section 103(e).

(3) DREDGED MATERIAL DISPOSAL SITES.—In the case of

dredged material disposal sites, the Administrator, in conjunction with the Secretary, shall develop a site management plan

for each site designated pursuant to this section. In developing

such plans, the Administrator and the Secretary shall provide

opportunity for public comment. Such plans shall include, but

not be limited to—

(A) a baseline assessment of conditions at the site;

(B) a program for monitoring the site;

(C) special management conditions or practices to be

implemented at each site that are necessary for protection

of the environment;

(D) consideration of the quantity of the material to be

disposed of at the site, and the presence, nature, and bioavailability of the contaminants in the material;

(E) consideration of the anticipated use of the site over

the long term, including the anticipated closure date for

the site, if applicable, and any need for management of the

site after the closure of the site; and

(F) a schedule for review and revision of the plan

(which shall not be reviewed and revised less frequently

than 10 years after adoption of the plan, and every 10

years thereafter).

(4) GENERAL SITE MANAGEMENT PLAN REQUIREMENT; PROHIBITIONS.—After January 1, 1995, no site shall receive a final

designation unless a management plan has been developed

pursuant to this section. Beginning on January 1, 1997, no permit for dumping pursuant to this Act or authorization for

dumping under section 103(e) of this Act shall be issued for a

site (other than the site located off the coast of Newport Beach,

California, which is known as ‘‘LA–3’’) unless such site has received a final designation pursuant to this subsection or an alternative site has been selected pursuant to section 103(b). Beginning January 1, 2003, no permit for dumping pursuant to

this Act or authorization for dumping under section 103(e)

shall be issued for the site located off the coast of Newport

Beach, California, which is known as ‘‘LA–3’’, unless such site

has received a final designation pursuant to this subsection or

an alternative site has been selected pursuant to section

103(b).

(5) MANAGEMENT PLANS FOR PREVIOUSLY DESIGNATED

SITES.—The Administrator shall develop a site management

plan for any site designated prior to January 1, 1995, as expeditiously as practicable, but not later than January 1, 1997,

giving priority consideration to management plans for designated sites that are considered to have the greatest impact

on the environment.

(d) No permit is required under this title for the transportation

for dumping or the dumping of fish wastes, except when deposited

in harbors or other protected or enclosed coastal waters, or where

the Administrator finds that such deposits could endanger health,
Sec. 103 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 8

the environment, or ecological systems in a specific location. Where

the Administrator makes such a finding, such material may be deposited only as authorized by a permit issued by the Administrator

under this section.

(e) In the case of transportation of material by an agency or

instrumentality of the United States or by a vessel or aircraft registered in the United States or flying the United States flag, from

a location in a foreign State Party to the Convention, a permit

issued pursuant to the authority of that foreign State Party, in accordance with Convention requirements, and which otherwise could

have been issued pursuant to subsection (a) hereof, shall be accepted, for the purposes of this title, as if it were issued by the Administrator under the authority of this section: Provided, That in the

case or an agency or instrumentality of the United States, no application shall be made for a permit to be issued pursuant to the authority of a foreign State Party to the Convention unless the Administrator concurs in the filing of such application.

CORPS OF ENGINEERS PERMITS

SEC. 103. ø33 U.S.C. 1413¿ (a) Subject to the provisions of subsections (b), (c), and (d) of this section, the Secretary may issue permits, after notice and opportunity for public hearings, for the transportation of dredged material for the purpose of dumping it into

ocean waters, where the Secretary determines that the dumping

will not unreasonably degrade or endanger human health, welfare,

or amenities, or the marine environment, ecological systems, or economic potentialities.

(b) In making the determination required by subsection (a), the

Secretary shall apply those criteria, established pursuant to section

102(a), relating to the effects of the dumping. Based upon an evaluation of the potential effect of a permit denial on navigation, economic and industrial development, and foreign and domestic commerce of the United States, the Secretary shall make an independent determination as to the need for the dumping. The Secretary shall also make an independent determination as to other

possible methods of disposal and as to appropriate locations for the

dumping. In considering appropriate locations, he shall, to the

maximum extent feasible, utilize the recommended sites designated

by the Administrator pursuant to section 102(c). In any case in

which the use of a designated site is not feasible, the Secretary

may, with the concurrence of the Administrator, select an alternative site. The criteria and factors established in section 102(a) relating to site selection shall be used in selecting the alternative site

in a manner consistent with the application of such factors and criteria pursuant to section 102(c). Disposal at or in the vicinity of an

alternative site shall be limited to a period of not greater than 5

years unless the site is subsequently designated pursuant to section 102(c); except that an alternative site may continue to be used

for an additional period of time that shall not exceed 5 years if—

(1) no feasible disposal site has been designated by the Administrator;

(2) the continued use of the alternative site is necessary to

maintain navigation and facilitate interstate or international

commerce; and
9 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 103

(3) the Administrator determines that the continued use of

the site does not pose an unacceptable risk to human health,

aquatic resources, or the environment.

(c) CONCURRENCE BY THE ADMINISTRATOR.— (1) NOTIFICATION.—Prior to issuing a permit to any person

under this section, the Secretary shall first notify the Administrator of the Secretary’s intention to do so and provide necessary and appropriate information concerning the permit to

the Administrator. Within 30 days of receiving such information, the Administrator shall review the information and request any additional information the Administrator deems necessary to evaluate the proposed permit.

(2) CONCURRENCE BY ADMINISTRATOR.—Within 45 days

after receiving from the Secretary all information the Administrator considers to be necessary to evaluate the proposed permit, the Administrator shall, in writing, concur with (either entirely or with conditions) or decline to concur with the determination of the Secretary as to compliance with the criteria,

conditions, and restrictions established pursuant to sections

102(a) and 102(c) relating to the environmental impact of the

permit. The Administrator may request one 45-day extension

in writing and the Secretary shall grant such request on receipt of the request.

(3) EFFECT OF CONCURRENCE.—In any case where the Administrator makes a determination to concur (with or without

conditions) or to decline to concur within the time period specified in paragraph (2) the determination shall prevail. If the Administrator declines to concur in the determination of the Secretary no permit shall be issued. If the Administrator concurs

with conditions the permit shall include such conditions. The

Administrator shall state in writing the reasons for declining

to concur or for the conditions of the concurrence.

(4) FAILURE TO ACT.—If no written documentation is made

by the Administrator within the time period provided for in

paragraph (2), the Secretary may issue the permit.

(5) COMPLIANCE WITH CRITERIA AND RESTRICTIONS.—Unless

the Administrator grants a waiver pursuant to subsection (d),

any permit issued by the Secretary shall require compliance

with such criteria and restrictions.

(d) If, in any case, the Secretary finds that, in the disposition

of dredged material, there is no economically feasible method or

site available other than a dumping site the utilization of which

would result in non-compliance with the criteria established pursuant to section 102(a) relating to the effects of dumping or with the

restrictions established pursuant to section 102(c) relating to critical areas, he shall so certify and request a waiver from the Administrator of the specific requirements involved. Within thirty days of

the receipt of the waiver request, unless the Administrator finds

that the dumping of the material will result in an unacceptably adverse impact on municipal water supplies, shell-fish beds, wildlife,

fisheries (including spawning and breeding areas), or recreational

areas, he shall grant the waiver.

(e) In connection with Federal projects involving dredged material, the Secretary may, in lieu of the permit procedure, issue regulations which will require the application to such projects of the
Sec. 104 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 10

same criteria, other factors to be evaluated, the same procedures,

and the same requirements which apply to the issuance of permits

under subsections (a), (b), (c), and (d) of this section and section

104(a) and (d).

PERMIT CONDITIONS

SEC. 104. ø33 U.S.C. 1414¿ (a) Permits issued under this title

shall designate and include (1) the type of material authorized to

be transported for dumping or to be dumped; (2) the amount of ma- terial authorized to be transported for dumping or to be dumped;

(3) the location where such transport for dumping will be terminated or where such dumping will occur; (4) such requirements,

limitations, or conditions as are necessary to assure consistency

with any site management plan approved pursuant to section

102(c); (5) any special provisions deemed necessary by the Administrator or the Secretary, as the case may be, after consultation with

the Secretary of the Department in which the Coast Guard is operating, for the monitoring and surveillance of the transportation or

dumping; and (6) such other matters as the Administrator or the

Secretary, as the case may be, deems appropriate. Permits issued

under this title shall be issued for a period of not to exceed 7 years.

(b) The Administrator or the Secretary, as the case may be,

may prescribe such processing fees for permits and such reporting

requirements for actions taken pursuant to permits issued by him

under this title as he deems appropriate.

(c) Consistent with the requirements of sections 102 and 103,

but in lieu of a requirement for specific permits in such case, the

Administrator or the Secretary, as the case may be, may issue general permits for the transportation for dumping, or dumping, or

both, of specified materials or classes of materials for which he may

issue permits, which he determines will have a minimal adverse

environmental impact. (d) Any permit issued under this title shall be reviewed periodically and, if appropriate, revised. The Administrator or the Secretary, as the case may be, may limit or deny the issuance of permits, or he may alter or revoke partially or entirely the terms of

permits issued by him under this title, for the transportation for

dumping, or for the dumping, or both, of specified materials or

classes of materials, where he finds, based upon monitoring data

from the dump site and surrounding area, that such materials cannot be dumped consistently with the criteria and other factors required to be applied in evaluating the permit application. No action

shall be taken under this subsection unless the affected person or

permittee shall have been given notice and opportunity for a hearing on such action as proposed.

(e) The Administrator or the Secretary, as the case may be,

shall require an applicant for a permit under this title to provide

such information as he may consider necessary to review and

evaluate such application.

(f) Information received by the Administrator or the Secretary,

as the case may be, as a part of any application or in connection

with any permit granted under this title shall be available to the

public as a matter of public record, at every stage of the proceeding. The final determination of the Administrator or the Secretary, as the case may be, shall be likewise available.
11 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 104

(g) A copy of any permit issued under this title shall be placed

in a conspicuous place in the vessel which will be used for the

transportation or dumping authorized by such permit, and an additional copy shall be furnished by the issuing official to the Secretary of the department in which the Coast Guard is operating, or its designee.

(h) Notwithstanding any provision of title I of the Marine Protection, Research, and Sanctuaries Act of 1972 to the contrary, during the two-year period beginning on the date of enactment of this

subsection, no permit may be issued under such title I that authorizes the dumping of any low-level radioactive waste unless the Administrator of the Environmental Protection Agency determines— (1) that the proposed dumping is necessary to conduct

research—

(A) on new technology related to ocean dumping, or

(B) to determine the degree to which the dumping of

such substance will degrade the marine environment;

(2) that the scale of the proposed dumping is limited to the

smallest amount of such material and the shortest duration of

time that is necessary to fulfill the purposes of the research,

such that the dumping will have minimal adverse impact upon

human health, welfare, and amenities, and the marine environment, ecological sysem, economic potentialities and other legitimate uses;

(3) after consultation with the Secretary of Commerce, that

the potential benefits of such research will outweigh any such

adverse impact; and

(4) that the proposed dumping will be preceded by appropriate baseline monitoring studies of the proposed dump site

and its surrounding environment.

Each permit issued pursuant to this subsection shall be subject to

such conditions and restrictions as the Administrator determines to

be necessary to minimize possible adverse impacts of such dump- ing.

(i)(1) Two years after the date of enactment of this subsection,

the Administrator may not issue a permit under this title for the

disposal of radioactive waste material until the applicant, in addition to complying with all other requirements of this title, prepares,

with respect to the site at which the disposal is proposed, a Radioactive Material Disposal Impact Assessment which shall include— (A) a listing of all radioactive materials in each container

to be disposed, the number of containers to be dumped, the

structural diagrams of each container, the number of curies of

each material in each container, and the exposure levels in

rems at the inside and outside of each container;

(B) an analysis of the environmental impact of the proposed action, at the site at which the applicant desires to dispose of the material, upon human health and welfare and marine life;

(C) any adverse environmental effects at the site which

cannot be avoided should the proposal be implemented;

(D) an analysis of the resulting environmental and economic conditions if the containers fail to contain the radioactive waste material when initially deposited at the specific

site;
Sec. 104 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 12

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

(E) a plan for the removal or containment of the disposed

nuclear material if the container leaks or decomposes;

(F) a determination by each affected State whether the

proposed action is consistent with its approved Coastal Zone

Management Program;

(G) an analysis of the economic impact upon other users of

marine resources;

(H) alternatives to the proposed action;

(I) comments and results of consultation with State officials and public hearings held in the coastal States that are

nearest to the affected areas;

(J) a comprehensive monitoring plan to be carried out by

the applicant to determine the full effect of the disposal on the

marine environment, living resources, or human health, which

plan shall include, but not be limited to, the monitoring of exterior container radiation samples, the taking of water and

sediment samples, and fish and benthic animal samples, adjacent to the containers, and the acquisition of such other information as the Administrator may require; and

(K) such other information which the Administrator may

require in order to determine the full effects of such disposal.

(2) The Administrator, shall include, in any permit to which

paragraph (1) applies, such terms and conditions as may be necessary to ensure that the monitoring plan required under paragraph (1)(J) is fully implemented, including the analysis by the Administrator of the samples required to be taken under the plan.

(3) The Administrator shall submit a copy of the assessment

prepared under paragraph (1) with respect to any permit to the

Committee on Merchant Marine and Fisheries 1 of the House of

Representatives and the Committee on Environment and Public

Works of the Senate.

(4)(A) Upon a determination by the Administrator that a permit to which the subsection applies should be issued, the Administrator shall transmit such a recommendation to the House of Representatives and the Senate.

(B) No permit may be issued by the Administrator under this

Act for the disposal of radioactive materials in the ocean unless the

Congress, by approval of a resolution described in paragraph (D)

within 90 days of continuous session of the Congress beginning on

the date after the date of receipt by the Senate and the House of

Representatives of such recommendation, authorizes the Administrator to grant a permit to dispose of radioactive material under

this Act.

(C) For purposes of this subsection—

(1) continuity of session of the Congress is broken only by

an adjournment since die;

(2) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of the 90 day calendar period.
13 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 104B

1So in law. Should be ‘‘the matter after the resolving clause’’.

(D) For the purposes of this subsection, the term ‘‘resolution’’

means a joint resolution, the resolving clause 1 of which is as follows: That the House of Representatives and the Senate approve

and authorize the Administrator of the Environmental Protection

Agency to grant a permit to ��������� under the Marine

Protection, Research, and Sanctuaries Act of 1972 to dispose of radioactive materials in the ocean as recommended by the Administrator to the Congress on ��������, 19���; the first

blank space therein to be filled with the appropriate applicant to

dispose of nuclear material and the second blank therein to be

filled with the date on which the Administrator submits the recommendation to the House of Representatives and the Senate.

SPECIAL PROVISIONS REGARDING CERTAIN DUMPING SITES

SEC. 104A. ø33 U.S.C. 1414a¿ (a) NEW YORK BIGHT APEX.—(1)

For purposes of this subsection:

(A) The term ‘‘Apex’’ means the New York Bight Apex consisting of the ocean waters of the Atlantic Ocean westward of

73 degrees 30 minutes west longitude and northward of 40 degrees 10 minutes north latitude.

(B) The term ‘‘Apex site’’ means that site within the Apex

at which the dumping of municipal sludge occurred before October 1, 1983.

(C) The term ‘‘eligible authority’’ means any sewerage authority or other unit of State or local government that on November 2, 1983, was authorized under court order to dump municipal sludge at the Apex site.

(2) No person may apply for a permit under this title in relation to the dumping of, or the transportation for purposes of dumping, municipal sludge within the Apex unless that person is an eligible authority.

(3) The Administrator may not issue, or renew, any permit

under this title that authorizes the dumping of, or the transportation for purposes of dumping, municipal sludge within the Apex

after the earlier of—

(A) December 15, 1987; or

(B) the day determined by the Administrator to be the first

day on which municipal sludge generated by eligible authorities can reasonably be dumped at a site designated under section 102 other than a site within the Apex.

(b) RESTRICTION ON USE OF THE 106-MILE SITE.—The Administrator may not issue or renew any permit under this title which authorizes any person, other than a person that is an eligible authority within the meaning of subsection (a)(1)(C), to dump, or to transport for the purposes of dumping, municipal sludge within the site

designated under section 102(c) by the Administrator and known as

the ‘‘106-Mile Ocean Waste Dump Site’’ (as described in 49 F.R. 19005).

SEC. 104B. ø33 U.S.C. 1414a¿ OCEAN DUMPING OF SEWAGE SLUDGE AND

INDUSTRIAL WASTE.

(a) TERMINATION OF DUMPING.— (1) PROHIBITIONS ON DUMPING.—Notwithstanding any

other provision of law—
Sec. 104B MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 14

(A) on and after the 270th day after the date of the

enactment of this section, no person (including a person

described in section 104A(a)(1)(C)) shall dump into ocean

waters, or transport for the purpose of dumping into ocean

waters, sewage sludge or industrial waste, unless such

person—

(i) has entered into a compliance agreement or enforcement agreement which meets the requirements of

subsection (c) (2) or (3), as applicable; and

(ii) has obtained a permit issued under section 102

which authorizes such transportation and dumping;

and

(B) after December 31, 1991, it shall be unlawful for

any person to dump into ocean waters, or to transport for

the purposes of dumping into ocean waters, sewage sludge

or industrial waste.

(2) PROHIBITION ON NEW ENTRANTS.—The Administrator

shall not issue any permit under this Act which authorizes a

person to dump into ocean waters, or to transport for the purposes of dumping into ocean waters, sewage sludge or industrial waste, unless that person was authorized by a permit

issued under section 102 or by a court order to dump into

ocean waters, or to transport for the purpose of dumping into

ocean waters, sewage sludge or industrial waste on September

1, 1988.

(b) SPECIAL DUMPING FEES.—

(1) IN GENERAL.—Subject to paragraph (4), any person who

dumps into ocean waters, or transports for the purpose of

dumping into ocean waters, sewage sludge or industrial waste

shall be liable for a fee equal to—

(A) $100 for each dry ton (or equivalent) of sewage

sludge or industrial waste transported or dumped by the

person on or after the 270th day after the date of the enactment of this section and before January 1, 1990;

(B) $150 for each dry ton (or equivalent) of sewage

sludge or industrial waste transported or dumped by the

person on or after January 1, 1990, and before January 1,

1991; and

(C) $200 for each dry ton (or equivalent) of sewage

sludge or industrial waste transported or dumped by the

person on or after January 1, 1991, and before January 1,

1992.

(2) PAYMENT OF FEES.—Of the amount of fees under paragraph (1) for which a person is liable, such person—

(A) shall pay into a trust account established by the

person in accordance with subsection (e) a sum equal to 85

percent of such amount;

(B) shall pay to the Administrator a sum equal to $15

per dry ton (or equivalent) of sewage sludge and industrial

waste transported or dumped by such person, for use for

agency activities as provided in subsection (f)(1);

(C) subject to paragraph (5), shall pay into the Clean

Oceans Fund established by the State in which the person

is located a sum equal to 50 percent of the balance of such
15 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 104B

amount after application of subparagraphs (A) and (B);

and

(D) subject to paragraph (5), shall pay to the State in

which the person is located a sum equal to the balance of

such amount after application of subparagraphs (A), (B),

and (C), for deposit into the water pollution control revolving fund established by the State under title VI of the Federal Water Pollution Control Act, as provided in subsection

(f)(2).

(3) SCHEDULE FOR PAYMENT.—Fees under this subsection

shall be paid on a quarterly basis.

(4) WAIVER OF FEES.—(A) The Administrator shall waive

all fees under this subsection, other than the portion of fees required to be paid to the Administrator under paragraph (2)(B)

for agency activities, for any person who has entered into a

compliance agreement which meets the requirements of subsection (c)(2).

(B) The Administrator shall reimpose fees under this subsection for a person for whom such fees are waived under subparagraph (A) if the Administrator determines that—

(i) the person has failed to comply with the terms of

a compliance agreement which the person entered into

under subsection (c)(2); and

(ii) such failure is likely to result in the person not

being able to terminate by December 31, 1991, dumping of

sewage sludge or industrial waste into ocean waters.

(C) The Administrator may waive fees reimposed for a person under subparagraph (B) if the Administrator determines

that the person has returned to compliance with a compliance

agreement which the person entered into under subsection

(c)(2).

(5) PAYMENTS PRIOR TO ESTABLISHMENT OF ACCOUNT.—(A)

In any case in which a State has not established a Clean

Oceans Fund or a water pollution control revolving fund under

title VI of the Federal Water Pollution Control Act, fees required to be paid by a person in that State under paragraph

(2) (C) or (D), as applicable, shall be paid to the Administrator.

(B) Amounts paid to the Administrator pursuant to this

paragraph shall be held by the Administrator in escrow until

the establishment of the fund into which such amounts are required to be paid under paragraph (2), or until the last day of

the 1-year period beginning on the date of such payment,

whichever is earlier, and thereafter—

(i) if such fund has been established, shall be paid by

the Administrator into the fund; or

(ii) if such fund has not been established, shall revert

to the general fund of the Treasury.

(c) COMPLIANCE AGREEMENTS AND ENFORCEMENT AGREEMENTS.—

(1) IN GENERAL.—As a condition of issuing a permit under

section 102 which authorizes a person to transport or dump

sewage sludge or industrial waste, the Administrator shall require that, before the issuance of such permit, the person and

the State in which the person is located enter into with the

Administrator—
Sec. 104B MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 16

(A) a compliance agreement which meets the requirements of paragraph (2); or

(B) an enforcement agreement which meets the requirements of paragraph (3).

(2) COMPLIANCE AGREEMENTS.—An agreement shall be a

compliance agreement for purposes of this section only if—

(A) it includes a plan negotiated by the person, the

State in which the person is located, and the Administrator that will, in the opinion of the Administrator, if adhered to by the person in good faith, result in the phasing

out and termination of ocean dumping, and transportation

for the purpose of ocean dumping, of sewage sludge and industrial waste by such person by not later than December

31, 1991, through the design, construction, and full implementation of an alternative system for the management of

sewage sludge and industrial waste transported or dumped

by the person;

(B) it includes a schedule which—

(i) in the opinion of the Administrator, specifies

reasonable dates by which the person shall complete

the various activities that are necessary for the timely

implementation of the alternative system referred to

in subparagraph (A); and

(ii) meets the requirements of paragraph (4);

(C) it requires the person to notify in a timely manner

the Administrator and the Governor of the State of any

problems the person has in complying with the schedule

referred to in subparagraph (B);

(D) it requires the Administrator and the Governor of

the State to evaluate on an ongoing basis the compliance

of the person with the schedule referred to in subparagraph (B);

(E) it requires the person to pay in accordance with

this section all fees and penalties the person is liable for

under this section; and

(F) it authorizes the person to use interim measures

before completion of the alternative system referred to in

subparagraph (A).

(3) ENFORCEMENT AGREEMENTS.—An agreement shall be

an enforcement agreement for purposes of this section only if—

(A) it includes a plan negotiated by the person, the

State in which the person is located, and the Administrator that will, in the opinion of the Administrator, if adhered to by the person in good faith, result in the phasing

out and termination of ocean dumping, and transportation

for the purpose of ocean dumping, of sewage sludge and industrial waste by such person through the design, construction, and full implementation of an alternative system

for the management of sewage sludge and industrial waste

transported or dumped by the person;

(B) it includes a schedule which—

(i) in the opinion of the Administrator, specifies

reasonable dates by which the person shall complete

the various activities that are necessary for the timely
17 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 104B

implementation of the alternative system referred to

in subparagraph (A); and

(ii) meets the requirements of paragraph (4);

(C) it requires the person to notify in a timely manner

the Administrator and the Governor of the State of any

problems the person has in complying with the schedule

referred to in subparagraph (B);

(D) it requires the Administrator and the Governor of

the State to evaluate on an ongoing basis the compliance

of the person with the schedule referred to in subparagraph (B);

(E) it requires the person to pay in accordance with

this section all fees and penalties the person is liable for

under this section; and

(F) it authorizes the person to use interim measures

before completion of the alternative system referred to in

subparagraph (A).

(4) SCHEDULES.—A schedule included in a compliance

agreement pursuant to paragraph (2)(B) or an enforcement

agreement pursuant to paragraph (3)(B) shall establish deadlines for—

(A) preparation of engineering designs and related

specifications for the alternative system referred to in

paragraph (2)(A) or paragraph (3)(A), as applicable;

(B) compliance with appropriate Federal, State, and

local statutes, regulations, and ordinances;

(C) site and equipment acquisitions for such alternative system;

(D) construction and testing of such alternative system;

(E) operation of such alternative system at full capacity; and

(F) any other activities, including interim measures,

that the Administrator considers necessary or appropriate.

(5) CLEAN OCEANS FUNDS.—(A) Each State that is a party

to a compliance agreement or an enforcement agreement under

this subsection shall establish an interest bearing account, to

be known as a Clean Oceans Fund, into which a person shall

pay fees and penalties in accordance with subsections (b)(2)(C)

and (d)(2)(C)(i), respectively.

(B) A State which establishes a Clean Oceans Fund pursuant to this paragraph shall allocate and pay from the fund

each year, to each person in the State which has entered into

a compliance agreement or enforcement agreement under this

subsection, a portion of amounts in the fund on the last day

of that year which is equal to the sum of—

(i) amounts paid by the person into the fund in that

year as fees pursuant to subsection (b)(2)(C) and as penalties pursuant to subsection (d)(2)(C)(i);

(ii) amounts paid by the Administrator into the fund

in that year as fees held in escrow for the person pursuant

to subsection (b)(5)(B); and

(iii) interest on such amounts.

(C) Amounts allocated and paid to a person pursuant to

subparagraph (B)—
Sec. 104B MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 18

(i) shall be used for the purposes described in subsection (e)(2)(B); and

(ii) may be used for matching Federal grants.

(D) A Clean Oceans Fund established by a State pursuant

to this paragraph shall be subject to such accounting, reporting, and other requirements as may be established by the Administrator to assure accountability of payments into and out

of the fund.

(6) PUBLIC PARTICIPATION.—The Administrator shall provide an opportunity for public comment regarding the establishment and implementation of compliance agreements and

enforcement agreements entered into pursuant to this section.

(d) PENALTIES.— (1) IN GENERAL.—In lieu of any other civil penalty under

this Act, any person who has entered into a compliance agreement or enforcement agreement under subsection (c) and who

dumps or transports sewage sludge or industrial waste in violation of subsection (a)(1)(B) shall be liable for a civil penalty,

to be assessed by the Administrator, as follows:

(A) For each dry ton (or equivalent) of sewage sludge

or industrial waste dumped or transported by the person

in violation of this subsection in calendar year 1992, $600.

(B) For each dry ton (or equivalent) of sewage sludge

or industrial waste dumped or transported by the person

in violation of this subsection in any year after calendar

year 1992, a sum equal to—

(i) the amount of penalty per dry ton (or equivalent) for a violation occurring in the preceding calendar year, plus

(ii) a percentage of such amount equal to 10 percent of such amount, plus an additional 1 percent of

such amount for each full calendar year since December 31, 1991.

(2) PAYMENT OF PENALTY.—Of the amount of penalties

under paragraph (1) for which a person is liable, such person—

(A) shall pay into a trust account established by the

person in accordance with subsection (e) a sum which is a

percentage of such amount equal to—

(i) 90 percent of such amount, reduced by

(ii) 5 percent of such amount for each full calendar

year since December 31, 1991;

(B) shall pay to the Administrator a sum equal to $15

per dry ton (or equivalent) of sewage sludge and industrial

waste transported or dumped by such person in that year,

for use for agency activities as provided in subsection

(f)(1);

(C) for violations in any year before calendar year

1995—

(i) subject to paragraph (4), shall pay into the

Clean Oceans Fund established by the State in which

the person is located a sum equal to 50 percent of the

balance of such amount; and

(ii) subject to paragraph (4), shall pay to the State

in which the person is located a sum equal to the portion of such amount which is not paid as provided in
19 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 104B

subparagraphs (A), (B), and (C), for deposit into the

water pollution control revolving fund established by

the State under title VI of the Federal Water Pollution

Control Act, as provided in subsection (f)(2); and

(D) for violations in any year after calendar year 1994,

shall pay to the State in which the person is located a sum

equal to the balance of such amount, for use by the State

for providing assistance under subsection (f)(3).

(3) SCHEDULE FOR PAYMENT.—Penalties under this subsection shall be paid on a quarterly basis.

(4) PAYMENTS PRIOR TO ESTABLISHMENT OF ACCOUNT.—In

any case in which a State has not established a Clean Oceans

Fund or a water pollution control revolving fund under title VI

of the Federal Water Pollution Control Act, penalties required

to be paid by a person in that State under paragraph (2)(C) (i)

or (ii), as applicable, shall be paid to the Administrator for

holding and payment or reversion, as applicable, in the same

manner as fees are held and paid or revert under subsection

(b)(5).

(e) TRUST ACCOUNT.— (1) IN GENERAL.—A person who enters into a compliance

agreement or an enforcement agreement under subsection (c)

shall establish a trust account for the payment and use of fees

and penalties under this section.

(2) TRUST ACCOUNT REQUIREMENTS.—An account shall be a

trust account for purposes of this subsection only if it meets,

to the satisfaction of the Administrator, the following requirements:

(A) Amounts in the account may be used only with the

concurrence of the person who establishes the account and

the Administrator; except that the person may use

amounts in the account for a purpose authorized by subparagraph (B) after 60 days after notification of the Administrator if the Administrator does not disapprove such

use before the end of such 60-day period.

(B) Amounts in the account may be used only for

projects which will identify, develop, and implement—

(i) an alternative system, and any interim measures, for the management of sewage sludge and industrial waste, including but not limited to any such system or measures utilizing resource recovery, recycling,

thermal reduction, or composting techniques; or

(ii) improvements in pretreatment, treatment, and

storage techniques for sewage sludge and industrial

waste to facilitate the implementation of such alternative system or interim measures.

(C) Upon a finding by the Administrator that a person

did not pay fees or penalties into an account as required

by this section, or did not use amounts in the account in

accordance with this subsection, the balance of the

amounts in the account shall be paid to the State in which

the person is located, for deposit into the water pollution

control revolving fund established by the State under title

VI of the Federal Water Pollution Control Act, as provided

in subsection (f)(2).
Sec. 104B MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 20

(3) USE OF UNEXPENDED AMOUNTS.—Upon a determination

by the Administrator that a person has terminated ocean

dumping of sewage sludge or industrial waste, the balance of

amounts in an account established by the person under this

subsection shall be paid to the person for use—

(A) for debts incurred by the person in complying with

this Act or the Federal Water Pollution Control Act;

(B) in meeting the requirements of the Federal Water

Pollution Control Act 33 U.S.C. 1251 et seq.) which apply

to the person, including operations and maintenance; and

(C) for matching Federal grants.

(4) USE FOR MATCHING FEDERAL GRANTS.—Amounts in a

trust account under this subsection may be used for matching

Federal grants.

(f) USE OF FEES AND PENALTIES.—

(1) AGENCY ACTIVITIES.—Of the total amount of fees and

penalties paid to the Administrator in a fiscal year pursuant

to subsections (b)(2)(B) and (d)(2)(B), respectively—

(A) not to exceed one-third of such total amount shall

be used by the Administrator for—

(i) costs incurred or expected to be incurred in undertaking activities directly associated with the

issuance under this Act of permits for the transportation or dumping of sewage sludge and industrial

waste, including the costs of any environmental assessment of the direct effects of dumping under the

permits;

(ii) preparation of reports under subsection (i);

and

(iii) such other research, studies, and projects the

Administrator considers necessary for, and consistent

with, the development and implementation of alternative systems for the management of sewage sludge

and industrial waste;

(B) not to exceed one-third of such total amount shall

be transferred to the Secretary of the department in which

the Coast Guard is operating for use for—

(i) Coast Guard surveillance of transportation and

dumping of sewage sludge and industrial waste subject to this Act; and

(ii) such enforcement activities conducted by the

Coast Guard with respect to such transportation and

dumping as may be necessary to ensure to the maximum extent practicable complete compliance with the

requirements of this Act; and

(C) not to exceed one-third of such total amount shall

be transferred to the Under Secretary of Commerce for

Oceans and Atmosphere for use for—

(i) monitoring, research, and related activities consistent with the program developed pursuant to subsection (j)(1); and

(ii) preparing annual reports to the Congress pursuant to subsection (j)(4) which describe the results of

such monitoring, research, and activities.
21 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 104B

(2) DEPOSITS INTO STATE WATER POLLUTION CONTROL RE- VOLVING FUND.—(A) Amounts paid to a State pursuant to subsection (b)(2)(D), (d)(2)(C)(ii), or (e)(2)(C) shall be deposited into

the water pollution control revolving fund established by the

State pursuant to title VI of the Federal Water Pollution Control Act.

(B) Amounts deposited into a State water pollution control

revolving fund pursuant to this paragraph—

(i) shall not be used by the State to provide assistance

to the person who paid such amounts for development or

implementation of any alternative system;

(ii) shall not be considered to be State matching

amounts under title VI of the Federal Water Pollution

Control Act; and

(iii) shall not be subject to State matching requirements under such title.

(3) PENALTY PAYMENTS TO STATES AFTER 1994.—(A)

Amounts paid to a State as penalties pursuant to subsection

(d)(2)(D) may be used by the State—

(i) for providing assistance to any person in the

State—

(I) for implementing a management program

under section 319 of the Federal Water Pollution Control Act;

(II) for developing and implementing a conservation and management plan under section 320 of such

Act; or

(III) for implementing technologies and management practices necessary for controlling pollutant inputs adversely affecting the New York Bight, as such

inputs are identified in the New York Bight Restoration Plan prepared under section 2301 of the Marine

Plastic Pollution Research and Control Act of 1987;

and

(ii) for providing assistance to any person in the State

who was not required to pay such penalties for construction of treatment works (as defined in section 212 of the

Federal Water Pollution Control Act) which are publicly

owned.

(B) Amounts paid to a State as penalties pursuant to subsection (d)(2)(D) which are not used in accordance with subparagraph (A) shall be deposited into the water pollution control revolving fund established by the State under title VI of

the Federal Water Pollution Control Act. Amounts deposited

into such a fund pursuant to this subparagraph—

(i) shall not be used by the State to provide assistance

to the person who paid such amounts;

(ii) shall not be considered to be State matching

amounts under title VI of the Federal Water Pollution

Control Act; and

(iii) shall not be subject to State matching requirements under such title.

(4) DEPOSITS INTO TREASURY AS OFFSETTING COLLECTIONS.—Amounts of fees and penalties paid to the Administrator pursuant to subsection (b)(2)(B) or (d)(2)(B) which are
Sec. 104B MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 22

used by an agency in accordance with paragraph (1) shall be

deposited into the Treasury as offsetting collections of the

agency.

(g) ENFORCEMENT.— (1) IN GENERAL.—Whenever, on the basis of any information available, the Administrator finds that a person is dumping or transporting sewage sludge or industrial waste in violation of subsection (a)(1), the Administrator shall issue an order

requiring such person to terminate such dumping or transporting (as applicable) until such person—

(A) enters into a compliance agreement or an enforcement agreement under subsection (c); and

(B) obtains a permit under section 102 which authorizes such dumping or transporting.

(2) REQUIREMENTS OF ORDER.—Any order issued by the

Administrator under this subsection—

(A) shall be delivered by personal service to the person

named in the order;

(B) shall state with reasonable specificity the nature of

the violation for which the order is issued; and

(C) shall require that the person named in the order,

as a condition of dumping into ocean waters, or transporting for the purpose of dumping into ocean waters, sewage sludge or industrial waste—

(i) shall enter into a compliance agreement or an

enforcement agreement under subsection (c); and

(ii) shall obtain a permit under section 102 which

authorizes such dumping or transporting.

(3) ACTIONS.—The Administrator may request the Attorney General to commence a civil action for appropriate relief,

including a temporary or permanent injunction and the imposition of civil penalties authorized by subsection (d)(1), for any

violation of subsection (a)(1) or of an order issued by the Administrator under this section. Such an action may be brought

in the district court of the United States for the district in

which the defendant is located, resides, or is doing business,

and such court shall have jurisdiction to restrain such violation

and require compliance with subsection (a)(1) and any such

order.

(h) STATE PROGRESS REPORTS.—

(1) IN GENERAL.—The Governor of each State that is a

party to a compliance agreement or an enforcement agreement

under subsection (c) shall submit to the Administrator on September 30 of 1989 and of every year thereafter until the Administrator determines that ocean dumping of sewage sludge

and industrial waste by persons located in that State has terminated, a report which describes—

(A) the efforts of each person located in the State to

comply with a compliance agreement or enforcement

agreement entered into by the person pursuant to subsection (c), including the extent to which such person has

complied with deadlines established by the schedule included in such agreement;

(B) activity of the State regarding permits for the construction and operation of each alternative system; and
23 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 104B

(C) an accounting of amounts paid into and withdrawn

from a Clean Oceans Fund established by the State.

(2) FAILURE TO SUBMIT REPORT.—If a State fails to submit

a report in accordance with this subsection, the Administrator

shall withhold funds reserved for such State under section

205(g) of the Federal Water Pollution Control Act (33 U.S.C.

1285(g)). Funds withheld pursuant to this paragraph may, at

the discretion of the Administrator, be restored to a State upon

compliance with this subsection.

(i) EPA PROGRESS REPORTS.— (1) IN GENERAL.—Not later than December 31 of 1989 and

of each year thereafter until the Administrator determines that

ocean dumping of sewage sludge and industrial waste has terminated, the Administrator shall prepare and submit to the

Congress a report on—

(A) progress being made by persons issued permits

under section 102 for transportation or dumping of sewage

sludge or industrial waste in developing alternative systems for managing sewage sludge and industrial waste;

(B) the efforts of each such person to comply with a

compliance agreement or enforcement agreement entered

into by the person pursuant to subsection (c), including the

extent to which such person has complied with deadlines

established by the schedule included in such agreement;

(C) progress being made by the Administrator and others in identifying and implementing alternative systems

for the management of sewage sludge and industrial

waste; and

(D) progress being made toward the termination of

ocean dumping of sewage sludge and industrial waste.

(2) REFERRAL TO CONGRESSIONAL COMMITTEES.—Each report submitted to the Congress under this subsection shall be

referred to each standing committee of the House of Representatives and of the Senate having jurisdiction over any part of

the subject matter of the report.

(j) ENVIRONMENTAL MONITORING.—

(1) IN GENERAL.—The Administrator, in cooperation with

the Under Secretary of Commerce for Oceans and Atmosphere,

shall design a program for monitoring environmental

conditions—

(A) at the Apex site (as that term is defined in section

104A);

(B) at the site designated by the Administrator under

section 102(c) and known as the ‘‘106-Mile Ocean Waste

Dump Site’’ (as described in 49 F.R. 19005);

(C) at the site at which industrial waste is dumped;

and

(D) within the potential area of influence of the sewage sludge and industrial waste dumped at those sites.

(2) PROGRAM REQUIREMENTS.—The program designed

under paragraph (1) shall include, but is not limited to—

(A) sampling of an appropriate number of fish and

shellfish species and other organisms to assess the effects

of environmental conditions on living marine organisms in

these areas; and
Sec. 104C MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 24

(B) use of satellite and other advanced technologies in

conducting the program.

(3) MONITORING ACTIVITIES.—The Administrator and the

Under Secretary of Commerce for Oceans and Atmosphere

shall each conduct monitoring activities consistent with the

program designed under paragraph (1).

(4) REPORTS.—(A) Not later than 1 year after the date of

the enactment of this section, the Administrator, in cooperation

with the Under Secretary of Commerce for Oceans and Atmosphere, shall submit to the Congress a report describing the

program designed pursuant to paragraph (1).

(B) Not later than December 31 of each year after the submission of a report under subparagraph (A), the Administrator

and the Under Secretary of Commerce for Oceans and Atmosphere shall report to the Congress the results of monitoring activities conducted during the previous year under the program

designed pursuant to paragraph (1).

(k) DEFINITIONS.—For purposes of this section—

(1) the term ‘‘alternative system’’ means any method for

the management of sewage sludge or industrial waste which

does not require a permit under this Act;

(2) the term ‘‘Clean Oceans Fund’’ means such a fund established by a State in accordance with subsection (c)(5);

(3) the term ‘‘excluded material’’ means—

(A) any dredged material discharged by the United

States Army Corps of Engineers or discharged pursuant to

a permit issued by the Secretary in accordance with section 103; and

(B) any waste from a tuna cannery operation located

in American Samoa or Puerto Rico discharged pursuant to

a permit issued by the Administrator under section 102;

(4) the term ‘‘industrial waste’’ means any solid, semisolid,

or liquid waste generated by a manufacturing or processing

plant, other than an excluded material;

(5) the term ‘‘interim measure’’ means any short-term

method for the management of sewage sludge or industrial

waste, which—

(A) is used before implementation of an alternative

system; and

(B) does not require a permit under this Act; and

(6) the term ‘‘sewage sludge’’ means any solid, semisolid,

or liquid waste generated by a wastewater treatment plant,

other than an excluded material.

SEC. 104C. ø33 U.S.C. 1414c¿ PROHIBITION ON DISPOSAL OF SEWAGE

SLUDGE AT LANDFILLS ON STATEN ISLAND.

(a) IN GENERAL.—No person shall dispose of sewage sludge at

any landfill located on Staten Island, New York.

(b) EXCLUSION FROM PENALTIES.—

(1) IN GENERAL.—Subject to paragraph (2), a person who

violates this section shall not be subject to any penalty under

this Act.

(2) INJUNCTION.—Paragraph (1) shall not prohibit the

bringing of an action for, or the granting of, an injunction

under section 105 with respect to a violation of this section.
25 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 105

(c) DEFINITION.—For purposes of this section, the term ‘‘sewage

sludge’’ has the meaning such term has in section 104B.

PENALTIES

SEC. 105. ø33 U.S.C. 1415¿ (a) Any person who violates any

provision of this title, or of the regulations promulgated under this

title, or a permit issued under this title shall be liable to a civil

penalty of not more than $50,000 for each violation to be assessed

by the Administrator. In addition, any person who violates this

title or any regulation issued under this title by engaging in activity involving the dumping of medical waste shall be liable for a

civil penalty of not more than $125,000 for each violation, to be assessed by the Administrator after written notice and an opportunity for a hearing. No penalty shall be assessed until the person

charged shall have been given notice and an opportunity for a

hearing of such violation. In determining the amount of the penalty, the gravity of the violation, prior violations, and the dem- onstrated good faith of the person charged in attempting to achieve

rapid compliance after notification of a violation shall be considered

by said Administrator. For good cause shown, the Administrator

may remit or mitigate such penalty. Upon failure of the offending

party to pay the penalty, the Administrator may request the Attorney General to commence an action in the appropriate district

court of the United States for such relief as may be appropriate.

(b) CRIMINAL PENALTIES.—In addition to any action that may

be brought under subsection (a)—

(1) any person who knowingly violates any provision of

this title, any regulation promulgated under this title, or a permit issued under this title, shall be fined under title 18, United

States Code, or imprisoned for not more than 5 years, or both;

and

(2) any person who is convicted of such a violation pursuant to paragraph (1) shall forfeit to the United States—

(A) any property constituting or derived from any proceeds that the person obtained, directly or indirectly, as a

result of such violation; and

(B) any of the property of the person which was used,

or intended to be used in any manner or part, to commit

or to facilitate the commission of the violation.

(c) For the purpose of imposing civil penalties and criminal

fines under this section, each day of a continuing violation shall

constitute a separate offense as shall the dumping from each of

several vessels, or other sources.

(d) The Attorney General or his delegate may bring actions for

equitable relief to enjoin an imminent or continuing violation of

this title, of regulations promulgated under this title, or of permits

issued under this title, and the district courts of the United States

shall have jurisdiction to grant such relief as the equities of the

case may require.

(e) A vessel, except a public vessel within the meaning of section 13 of the Federal Water Pollution Control Act, as amended (33

U.S.C. 1163), used in a violation, shall be liable in rem for any civil

penalty assessed or criminal fine imposed and may be proceeded

against in any district court of the United States having jurisdiction thereof; but no vessel shall be liable unless it shall appear that
Sec. 105 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 26

one or more of the owners, or bareboat charterers, was at the time

of the violation a consenting party or privy to such violation.

(f) If the provisions of any permit issued under section 102 or

103 are violated, the Administrator or the Secretary, as the case

may be, may revoke the permit or may suspend the permit for a

specified period of time. No permit shall be revoked or suspended

unless the permittee shall have been given notice and opportunity

for a hearing on such violation and proposed suspension or revocation.

(g)(1) Except as provided in paragraph (2) of this subsection

any person may commence a civil suit on his own behalf to enjoin

any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the

eleventh amendment to the Constitution), who is alleged to be in

violation of any prohibition, limitation, criterion, or permit established or issued by or under this title. The district courts shall have

jurisdiction, without regard to the amount in controversy or the

citizenship of the parties, to enforce such prohibition, limitation,

criterion, or permit, as the case may be.

(2) No action may be commenced—

(A) prior to sixty days after notice of the violation has been

given to the Administrator or to the Secretary, and to any alleged violator of the prohibition, limitation, criterion, or permit; or

(B) if the Attorney General has commenced and is diligently prosecuting a civil action in a court of the United States

to require compliance with the prohibition, limitation, criterion, or permit; or

(C) if the Administrator has commenced action to impose

a penalty pursuant to subsection (a) of this section, or if the

Administrator, or the Secretary, has initiated permit revocation or suspension proceedings under subsection (f) of this section; or

(D) if the United States has commenced and is diligently

prosecuting a criminal action in a court of the United States

or a State to redress a violation of this title.

(3)(A) Any suit under this subsection may be brought in the judicial district in which the violation occurs.

(B) In any such suit under this subsection in which the United

States is not a party, the Attorney General, at the request of the

Administrator or Secretary, may intervene on behalf of the United

States as a matter of right.

(4) The court, in issuing any final order in any suit brought

pursuant to paragraph (1) of this subsection may award costs of

litigation (including reasonable attorney and expert witness fees) to

any party, whenever the court determines such award is appropriate.

(5) The injunctive relief provided by this subsection shall not

restrict any right which any person (or class of persons) may have

under any statute or common law to seek enforcement of any

standard or limitation or to seek any other relief (including relief

against the Administrator, the Secretary, or a State agency).

(h) No person shall be subject to a civil penalty or to a criminal

fine or imprisonment for dumping materials from a vessel if such

materials are dumped in an emergency to safeguard life at sea.
27 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 106

Any such emergency dumping shall be reported to the Administrator under such conditions as he may prescribe.

(i) SEIZURE AND FORFEITURE.— (1) IN GENERAL.—Any vessel used to commit an act for

which a penalty is imposed under section 105(b) shall be subject to seizure and forfeiture to the United States under procedures established for seizure and forfeiture of conveyances

under sections 413 and 511 of the Controlled Substances Act

(21 U.S.C. 853, 881).

(2) LIMITATION ON APPLICATION.—This subsection does not

apply to an act committed substantially in accordance with a

compliance agreement or enforcement agreement entered into

by the Administrator under section 104B(c). (b)(1) In addition to any action which may be brought under

subsection (a) of this section, a person who knowingly violates this

title, regulations promulgated under this title, or a permit issued

under this title shall be fined not more than $50,000, or imprisoned

for not ore than one year, or both.

(2) In addition to any action which may be brought under subsection (a), any person— (A) who knowingly violates any provision of this title by

engaging in activity involving the dumping into ocean waters

of medical waste shall upon conviction be fined not more than

$250,000, or imprisoned for not more than 5 years, or both;

and

(B) convicted of a violation involving such activity shall

forfeit to the United States any property constituting or derived from any proceeds the person obtained, directly or indirectly, as a result of such violation, and any of the property of

the person which was used, or intended to be used in any manner or part, to commit or to facilitate the commission of the

violation.

RELATIONSHIP TO OTHER LAWS

SEC. 106. ø33 U.S.C. 1416¿ (a) After the effective date of this

title, all licenses, permits, and authorizations other than those

issued pursuant to this title shall be void and of no legal effect, to

the extent that they purport to authorize any activity regulated by

this title, and whether issued before or after the effective date of

this title.

(b) The provisions of subsection (a) shall not apply to actions

taken before the effective date of this title under the authority of

the Rivers and Harbors Act of 1899 (30 Stat. 1151), as amended

33 U.S.C. 401 et. seq.).

(c) Prior to issuing any permit under this title, if it appears to

the Administrator that the disposition of material, other than

dredged material, may adversely affect navigation in the territorial

sea of the United States, or in the approaches to any harbor of the

United States, or may create an artificial island on the Outer Continental Shelf, the Administrator shall consult with the Secretary

and no permit shall be issued if the Secretary determines that

navigation will be unreasonably impaired.

(d) STATE PROGRAMS.—

(1) STATE RIGHTS PRESERVED.—Except as expressly provided in this subsection, nothing in this title shall preclude or
Sec. 107 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 28

1The amendment made by section 203 of Pub. L. 101–596, which strikes all after ‘‘shall comply with’’ and inserts ‘‘the requirements of this title.’’ in ‘‘subsection 116(g) of the Marine Protection Research and Sanctuaries Act (33 U.S.C. 1416(g))’’, was executed in this subsection to reflect the probable intent of Congress.

deny the right of any State to adopt or enforce any requirements respecting dumping of materials into ocean waters within the jurisdiction of the State.

(2) FEDERAL PROJECTS.—In the case of a Federal project,

a State may not adopt or enforce a requirement that is more

stringent than a requirement under this title if the Administrator finds that such requirement—

(A) is not supported by relevant scientific evidence

showing the requirement to be protective of human health,

aquatic resources, or the environment;

(B) is arbitrary or capricious; or

(C) is not applicable or is not being applied to all

projects without regard to Federal, State, or private participation and the Secretary of the Army concurs in such

finding.

(3) EXEMPTION FROM STATE REQUIREMENTS.—The President may exempt a Federal project from any State requirement

respecting dumping of materials into ocean waters if it is in

the paramount interest of the United States to do so.

(4) CONSIDERATION OF SITE OF ORIGIN PROHIBITED.—Any

requirement respecting dumping of materials into ocean waters

applied by a State shall be applied without regard to the site

of origin of the material to be dumped.

(e) Nothing in this title shall be deemed to affect in any manner or to any extent any provision of the Fish and Wildlife Coordination Act as amended (16 U.S.C. 661–666c).

(f) In addition to other provisions of law and not withstanding

the specific exclusion relating to dredged material in the first sentence in section 102(a) of this Act, the dumping of dredged material

in Long Island Sound from any Federal project (or pursuant to Federal authorization) or from a dredging project by a non-Federal applicant exceeding 25,000 cubic yards shall comply with the requirements of this title. 1

(g) SAVINGS CLAUSE.—Nothing in this Act shall restrict, affect

or modify the rights of any person (1) to seek damages or enforcement of any standard or limitation under State law, including

State common law, or (2) to seek damages under other Federal law,

including maritime tort law, resulting from noncompliance with

any requirement of this Act or any permit under this Act.

ENFORCEMENT

SEC. 107. ø33 U.S.C. 1417¿ (a) The Administrator or the Secretary, as the case may be, may, whenever appropriate, utilize by

agreement, the personnel, services and facilities of other Federal

departments, agencies, and instrumentalities, or State agencies or

instrumentalities, whether on a reimbursable or a nonreimbursable

basis, in carrying out his responsibilities under this title.

(b) The Administrator or the Secretary may delegate responsibility and authority for reviewing and evaluating permit applications, including the decision as to whether a permit will be issued,

to an officer of his agency, or he may delegate, by agreement, such
29 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 112

responsibility and authority to the heads of other Federal departments or agencies, whether on a reimbursable or nonreimbursable

basis.

(c) The Secretary of the department in which the Coast Guard

is operating shall conduct surveillance and other appropriate enforcement activity to prevent unlawful transportation of material

for dumping, or unlawful dumping. Such enforcement activity shall

include, but not be limited to, enforcement of regulations issued by

him pursuant to section 108, relating to safe transportation, handling, carriage, storage, and stowage. The Secretary of the Department in which the Coast Guard is operating shall supply to the Administrator and to the Attorney General, as appropriate, such information of enforcement activities and such evidentiary material

assembled as they may require in carrying out their duties relative

to penalty assessments, criminal prosecutions, or other actions involving litigation pursuant to the provisions of this title.

REGULATIONS

SEC. 108. ø33 U.S.C. 1418¿ In carrying out the responsibilities

and authority conferred by this title, the Administrator, the Secretary, and the Secretary of the department in which the Coast

Guard is operating are authorized to issue such regulations as they

may deem appropriate.

INTERNATIONAL COOPERATION

SEC. 109. ø33 U.S.C. 1419¿ The Secretary of State, in consultation with the Administrator, shall seek effective international action and cooperation to insure protection of the marine environment, and may, for this purpose, formulate, present, or support

specific proposals in the United Nations and other competent international organizations for the development of appropriate international rules and regulations in support of the policy of this Act.

EFFECTIVE DATE AND SAVINGS PROVISIONS

SEC. 110. ø33 U.S.C. 1411 note¿ (a) This title shall take effect

six months after the date of the enactment of this Act.

(b) No legal action begun, or right of action accrued, prior to

the effective date of this title shall be affected by any provision of

this title.

AUTHORIZATION OF APPROPRIATIONS

SEC. 111. ø33 U.S.C. 1420¿ There are authorized to be appropriated, for purposes of carrying out this title, not to exceed

$12,000,000 for fiscal year 1993 and not to exceed $14,000,000 for

each of the fiscal years 1994, 1995, 1996, and 1997, to remain

available until expended.

SEC. 112. ø33 U.S.C. 1421¿ The Administrator shall on or before February 1 of each year report to the Congress on the administration of this title during the preceding fiscal year, including recommendations for additional legislation if deemed necessary. Such

report shall include a description of the number of permits issued

under this title (including the number of permits issued by the Secretary with the concurrence of the Administrator), any actions

taken under subsections (c) and (d) of section 103, and for each per-
Sec. 201 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 30

1So in law. Probably should be ‘‘; and’’.

mit, the site receiving the material, the volume and characteristics

of material dumped (including the extent and nature of pollutants

in such material), and the management practices implemented in

connection with each disposal activity.

TITLE II—COMPREHENSIVE RESEARCH ON OCEAN

DUMPING

SEC. 201. ø33 U.S.C. 1441¿ The Secretary of Commerce, in coordination with the Secretary of the Department in which the

Coast Guard is operating and with the Administrator shall, within

six months of the enactment of this Act, initiate a comprehensive

and continuing program of monitoring and research regarding the

effects of the dumping of material into ocean waters or other coastal waters where the tide ebbs and flows or into the Great Lakes

or their connecting waters.

SEC. 202. ø33 U.S.C. 1442¿ (a)(1) The Secretary of Commerce,

in close consultation with other appropriate Federal departments,

agencies, and instrumentalities shall, within six months of the enactment of this Act, initiate a comprehensive and continuing program of research with respect to the possible long-range effects of

pollution, overfishing, and man-induced changes of ocean ecosystems. These responsibilities shall include the scientific assessment of damages to the natural resources from spills of petroleum

or petroleum products. In carrying out such research, the Secretary

of Commerce shall take into account such factors as existing and

proposed international policies affecting oceanic problems, economic

considerations involved in both the protection and the use of the

oceans, possible alternatives to existing programs, and ways in

which the health of the oceans may best be preserved for the benefit of succeeding generations of mankind.

(2) The Secretary of Commerce shall ensure that the program

under this section complements, when appropriate, the activities

undertaken by other Federal agencies pursuant to title I and section 203. That program shall include but not be limited to—

(A) the development and assessment of scientific techniques to define and quantify the degradation of the marine

environment;

(B) the assessment of the capacity of the marine environment to receive materials without degradation;

(C) continuing monitoring programs to assess the health of

the marine environment, including but not limited to the monitoring of bottom oxygen concentrations, contaminant levels in

biota, sediments, and the water column, diseases in fish and

shellfish, and changes in types and abundance of indicator

species; 1

(D) the development of methodologies, techniques, and

equipment for disposal of waste materials to minimize degradation of the marine environment.

(3) The Secretary of Commerce shall ensure that the comprehensive and continuing research program conducted under this

subsection is consistent with the comprehensive plan for ocean pollution research and development and monitoring prepared under
31 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 203

section 4 of the National Ocean Pollution Planning Act of 1978 (33

U.S.C. 1703).

(b) In carrying out his responsibilities under this section, the

Secretary of Commerce, under the foreign policy guidance of the

President and pursuant to international agreements and treaties

made by the President with the advice and consent of the Senate,

may act alone or in conjunction with any other nation or group of

nations, and shall make known the results of his activities by such

channels of communication as may appear appropriate.

(c) Each department, agency, and independent instrumentality

of the Federal Government is authorized and directed to cooperate

with the Secretary of Commerce in carrying out the purposes of

this section and, to the extent permitted by law, to furnish such information as may be requested.

(d) The Secretary of Commerce, in carrying out his responsibilities under this section, shall, to the extent feasible utilize the personnel, services, and facilities of other Federal departments, agencies, and instrumentalities (including those of the Coast Guard for

monitoring purposes), and is authorized to enter into appropriate

inter-agency agreements to accomplish this action.

SEC. 203. ø33 U.S.C. 1443¿ (a) The Administrator of the Environmental Protection Agency shall—

(1) conduct research, investigations, experiments, training,

demonstrations, surveys, and studies for the purpose of—

(A) determining means of minimizing or ending, as

soon as possible after the date of the enactment of this section, the dumping into ocean waters, or waters described

in section 101(b), of material which may unreasonably degrade or endanger human health, welfare, or amenities, or

the marine environment, ecological systems, or economic

potentialities, and

(B) developing disposal methods as alternatives to the

dumping described in subparagraph (A); and

(2) encourage, cooperate with, promote the coordination of,

and render financial and other assistance to appropriate public

authorities, agencies, and institutions (whether Federal, State,

interstate, or local), and appropriate private agencies, institutions, and individuals in the conduct of research and other activities described in paragraph (1).

(b) Nothing in this section shall be construed to affect in any

way the December 31, 1981, termination date, established in section 4 of the Act of November 4, 1977 (Public Law 95–153; 33

U.S.C. 1412a), for the ocean dumping or sewage sludge.

(c) The Administrator, in cooperation with the Secretary, the

Secretary of Commerce, and other officials of appropriate Federal,

State, and local agencies, shall assess the feasibility in coastal

areas of regional management plans for the disposal of waste materials. Such plans should integrate where appropriate Federal,

State, regional, and local waste disposal activities into a comprehensive regional disposal strategy. These plans should address,

among other things—

(1) the sources, quantities, and types of materials that require and will require disposal;
Sec. 204 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 32

(2) the environmental, economic, social, and human health

factors (and the methods used to assess these factors) associated with disposal alternatives;

(3) the improvements in production processes, methods of

disposal, and recycling to reduce the adverse effects associated

with such disposal alternatives;

(4) the applicable laws and regulations governing waste

disposal; and

(5) improvements in permitting processes to reduce administrative burdens.

(d) The Administrator, in cooperation with the Secretary of

Commerce, shall submit to the Congress and the President, not

later than one year after the date of enactment of this provision,

a report on sewage sludge disposal in the New York City metropolitan region. The report shall—

(1) consider the factors listed in subsection (c) as they relate to landfilling, incineration, ocean dumping, or any other

feasible disposal or reuse/recycling option;

(2) include an assessment of the cost of these alternatives;

and

(3) recommend such regulatory or legislative changes as

may be necessary to reduce the adverse impacts associated

with sewage sludge disposal.

ANNUAL REPORT

SEC. 204. ø33 U.S.C. 1444¿ (a) In March of each year, the Secretary of Commerce shall report to the Congress on his activities

under this title during the previous fiscal year. The report shall

include—

(1) the Secretary’s findings made under section 201, including an evaluation of the short-term ecological effects and

the social and economic factors involved with the dumping;

(2) the results of activities undertaken pursuant to section

202;

(3) with the concurrence of the Administrator and after

consulting with officials of other appropriate Federal agencies,

an identification of the short- and long-term research requirements associated with activities under title I, and a description

of how Federal research under titles I and II will meet those

requirements; and

(4) activities of the Department of Commerce under section

5 of the Act of March 10, 1934 (48 Stat. 401; 16 U.S.C. 665).

(b) In March of each year, the Administrator shall report to the

Congress on his activities during the previous fiscal year under section 203.

(c) On October 31 of each year, the Under Secretary shall report to the Congress the specific programs that the National Oceanic and Atmospheric Administration and the Environmental Protection Agency carried out pursuant to this title in the previous fiscal year, specifically listing the amount of funds allocated to those

specific programs in the previous fiscal year.

SEC. 205. ø33 U.S.C. 1445¿ There are authorized to be appropriated for the first fiscal year after this Act is enacted and for the

next two fiscal years thereafter such sums as may be necessary to

carry out this title, but the sums appropriated for any such fiscal
33 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 301

1For short title of title III as ‘‘National Marine Sancturies Act’’, see section 317.

year may not exceed $6,000,000. There are authorized to be appropriated not to exceed $1,500,000 for the transition period (July 1

through September 30, 1976), not to exceed $5,600,000 for fiscal

year 1977, not to exceed $6,500,000 for fiscal year 1978, not to exceed $11,396,000 for fiscal year 1981, and not to exceed

$12,000,000 for fiscal year 1982, not to exceed $10,635,000 for fiscal year 1986, not to exceed $11,114,000 for fiscal year 1987, not

to exceed $13,500,000 for fiscal year 1989, and not to exceed

$14,500,000 for fiscal year 1990.

TITLE III—NATIONAL MARINE SANCTUARIES 1

SEC. 301. ø16 U.S.C. 1431¿ FINDINGS, PURPOSES, AND POLICIES; ESTABLISHMENT OF SYSTEM.

(a) FINDINGS.—The Congress finds that—

(1) this Nation historically has recognized the importance

of protecting special areas of its public domain, but these efforts have been directed almost exclusively to land areas above

the high-water mark;

(2) certain areas of the marine environment possess conservation, recreational, ecological, historical, scientific, educational, cultural, archeological, or esthetic qualities which give

them special national, and in some cases international, significance;

(3) while the need to control the effects of particular activities has led to enactment of resource-specific legislation, these

laws cannot in all cases provide a coordinated and comprehensive approach to the conservation and management of special

areas of the marine environment; and

(4) a Federal program which establishes areas of the marine environment which have special conservation, recreational, ecological, historical, cultural, archeological, scientific, educational, or esthetic qualities as national marine

sanctuaries managed as the National Marine Sanctuary System will—

(A) improve the conservation, understanding, management, and wise and sustainable use of marine resources;

(B) enhance public awareness, understanding, and appreciation of the marine environment; and

(C) maintain for future generations the habitat, and

ecological services, of the natural assemblage of living resources that inhabit these areas.

(b) PURPOSES AND POLICIES.—The purposes and policies of this

title are—

(1) to identify and designate as national marine sanctuaries areas of the marine environment which are of special

national significance and to manage these areas as the National Marine Sanctuary System;

(2) to provide authority for comprehensive and coordinated

conservation and management of these marine areas, and activities affecting them, in a manner which complements existing regulatory authorities;

(3) to maintain the natural biological communities in the

national marine sanctuaries, and to protect, and, where appro-
Sec. 302 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 34

priate, restore and enhance natural habitats, populations, and

ecological processes;

(4) to enhance public awareness, understanding, appreciation, and wise and sustainable use of the marine environment,

and the natural, historical, cultural, and archeological resources of the National Marine Sanctuary System;

(5) to support, promote, and coordinate scientific research

on, and long-term monitoring of, the resources of these marine

areas;

(6) to facilitate to the extent compatible with the primary

objective of resource protection, all public and private uses of

the resources of these marine areas not prohibited pursuant to

other authorities;

(7) to develop and implement coordinated plans for the

protection and management of these areas with appropriate

Federal agencies, State and local governments, Native American tribes and organizations, international organizations, and

other public and private interests concerned with the continuing health and resilience of these marine areas;

(8) to create models of, and incentives for, ways to conserve

and manage these areas, including the application of innovative management techniques; and

(9) to cooperate with global programs encouraging conservation of marine resources.

(c) ESTABLISHMENT OF SYSTEM.—There is established the National Marine Sanctuary System, which shall consist of national

marine sanctuaries designated by the Secretary in accordance with

this title.

SEC. 302. ø16 U.S.C. 1432¿ DEFINITIONS.

As used in this title, the term—

(1) ‘‘draft management plan’’ means the plan described in

section 304(a)(1)(C)(v);

(2) ‘‘Magnuson-Stevens Act’’ means the Magnuson-Stevens

Fishery Conservation and Management Act (16 U.S.C. 1801 et

seq.);

(3) ‘‘marine environment’’ means those areas of coastal and

ocean waters, the Great Lakes and their connecting waters,

and submerged lands over which the United States exercises

jurisdiction including the exclusive economic zone, consistent

with international law;

(4) ‘‘Secretary’’ means the Secretary of Commerce;

(5) ‘‘State’’ means each of the several States, the District

of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, American Samoa, the

Virgin Islands, Guam, and any other commonwealth, territory,

or possession of the United States;

(6) ‘‘damages’’ includes—

(A) compensation for—

(i)(I) the cost of replacing, restoring, or acquiring

the equivalent of a sanctuary resources; and

(II) the value of the lost use of a sanctuary resource pending its restoration or replacement or the

acquisition of an equivalent sanctuary resource; or
35 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 303

1So in law. Should be ‘‘resources;’’. The amendment in section 9(b)(1) of Public Law 104–283

(110 Stat. 3367) attempted to amend this subparagraph by striking ‘‘, and’’ and inserting a semicolon. This amendment could not be executed.

(ii) the value of a sanctuary resource if the sanctuary resource cannot be restored or replaced or if the

equivalent of such resource cannot be acquired;

(B) the cost of damage assessments under section

312(b)(2);

(C) the reasonable cost of monitoring appropriate to

the injured, restored, or replaced resources, 1

(D) the cost of curation and conservation of archeological, historical, and cultural sanctuary resources; and

(E) the cost of enforcement actions undertaken by the

Secretary in response to the destruction or loss of, or injury to, a sanctuary resource;

(7) ‘‘response costs’’ means the costs of actions taken or authorized by the Secretary to minimize destruction or loss of, or

injury to, sanctuary resources, or to minimize the imminent

risks of such destruction, loss, or injury, including costs related

to seizure, forfeiture, storage, or disposal arising from liability

under section 312;

(8) ‘‘sanctuary resource’’ means any living or nonliving resource of a national marine sanctuary that contributes to the

conservation, recreational, ecological, historical, educational,

cultural, archeological, scientific, or aesthetic value of the sanctuary;

(9) ‘‘exclusive economic zone’’ means the exclusive economic zone as defined in the Magnuson-Stevens Act; and

(10) ‘‘System’’ means the National Marine Sanctuary System established by section 301.

SEC. 303. ø16 U.S.C. 1433¿ SANCTUARY DESIGNATION STANDARDS.

(a) STANDARDS.—The Secretary may designate any discrete

area of the marine environment as a national marine sanctuary

and promulgate regulations implementing the designation if the

Secretary determines that—

(1) the designation will fulfill the purposes and policies of

this title;

(2) the area is of special national significance due to—

(A) its conservation, recreational, ecological, historical,

scientific, cultural, archaeological, educational, or esthetic

qualities;

(B) the communities of living marine resources it harbors; or

(C) its resource or human-use values;

(3) existing State and Federal authorities are inadequate

or should be supplemented to ensure coordinated and comprehensive conservation and management of the area, including resource protection, scientific research, and public education;

(4) designation of the area as a national marine sanctuary

will facilitate the objectives stated in paragraph (3); and

(5) the area is of a size and nature that will permit comprehensive and coordinated conservation and management.
Sec. 303 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 36

(b) FACTORS AND CONSULTATIONS REQUIRED IN MAKING DETERMINATIONS AND FINDINGS.—

(1) FACTORS.—For purposes of determining if an area of

the marine environment meets the standards set forth in subsection (a), the Secretary shall consider—

(A) the area’s natural resource and ecological qualities,

including its contribution to biological productivity, maintenance of ecosystem structure, maintenance of ecologically

or commercially important or threatened species or species

assemblages, maintenance of critical habitat of endangered

species, and the biogeographic representation of the site;

(B) the area’s historical, cultural, archaeological, or

paleontological significance;

(C) the present and potential uses of the area that depend on maintenance of the area’s resources, including

commercial and recreational fishing, subsistence uses,

other commercial and recreational activities, and research

and education;

(D) the present and potential activities that may adversely affect the factors identified in subparagraphs (A),

(B), and (C);

(E) the existing State and Federal regulatory and

management authorities applicable to the area and the

adequacy of those authorities to fulfill the purposes and

policies of this title;

(F) the manageability of the area, including such factors as its size, its ability to be identified as a discrete ecological unit with definable boundaries, its accessibility, and

its suitability for monitoring and enforcement activities;

(G) the public benefits to be derived from sanctuary

status, with emphasis on the benefits of long-term protection of nationally significant resources, vital habitats, and

resources which generate tourism;

(H) the negative impacts produced by management restrictions on income-generating activities such as living

and nonliving resources development;

(I) the socioeconomic effects of sanctuary designation;

(J) the area’s scientific value and value for monitoring

the resources and natural processes that occur there;

(K) the feasibility, where appropriate, of employing innovative management approaches to protect sanctuary resources or to manage compatible uses; and

(L) the value of the area as an addition to the System.

(2) CONSULTATION.—In making determinations and findings, the Secretary shall consult with—

(A) the Committee on Resources of the House of Representatives and the Committee on Commerce, Science,

and Transportation of the Senate;

(B) the Secretaries of State, Defense, Transportation,

and the Interior, the Administrator, and the heads of other

interested Federal agencies;

(C) the responsible officials or relevant agency heads

of the appropriate State and local government entities, including coastal zone management agencies, that will or are
37 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 304

likely to be affected by the establishment of the area as a

national marine sanctuary;

(D) the appropriate officials of any Regional Fishery

Management Council established by section 302 of the

Magnuson-Stevens Act (16 U.S.C. 1852) that may be affected by the proposed designation; and

(E) other interested persons.

SEC. 304. ø16 U.S.C. 1434¿ PROCEDURES FOR DESIGNATION AND

IMPLEMENTATION.

(a) SANCTUARY PROPOSAL.—

(1) NOTICE.—In proposing to designate a national marine

sanctuary, the Secretary shall—

(A) issue, in the Federal Register, a notice of the proposal, proposed regulations that may be necessary and reasonable to implement the proposal, and a summary of the

draft management plan;

(B) provide notice of the proposal in newspapers of

general circulation or electronic media in the communities

that may be affected by the proposal; and

(C) no later than the day on which the notice required

under subparagraph (A) is submitted to the Office of the

Federal Register, submit a copy of that notice and the

draft sanctuary designation documents prepared pursuant

to section 304(a)(2), including an executive summary, to

the Committee on Resources of the House of Representatives, the Committee on Commerce, Science, and Transportation of the Senate, and the Governor of each State in

which any part of the proposed sanctuary would be located.

(2) SANCTUARY DESIGNATION DOCUMENTS.—The Secretary

shall prepare and make available to the public sanctuary designation documents on the proposal that include the following:

(A) A draft environmental impact statement pursuant

to the National Environmental Policy Act of 1969 (42

U.S.C. 4321 et seq.).

(B) A resource assessment that documents—

(i) present and potential uses of the area, including commercial and recreational fishing, research and

education, minerals and energy development, subsistence uses, and other commercial, governmental, or recreational uses;

(ii) after consultation with the Secretary of the Interior, any commercial, governmental, or recreational

resource uses in the areas that are subject to the primary jurisdiction of the Department of the Interior;

and

(iii) information prepared in consultation with the

Secretary of Defense, the Secretary of Energy, and the

Administrator of the Environmental Protection Agency, on any past, present, or proposed future disposal or

discharge of materials in the vicinity of the proposed

sanctuary.

Public disclosure by the Secretary of such information

shall be consistent with national security regulations.
Sec. 304 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 38

(C) A draft management plan for the proposed national marine sanctuary that includes the following:

(i) The terms of the proposed designation.

(ii) Proposed mechanisms to coordinate existing

regulatory and management authorities within the

area.

(iii) The proposed goals and objectives, management responsibilities, resource studies, and appropriate strategies for managing sanctuary resources of

the proposed sanctuary, including interpretation and

education, innovative management strategies, research, monitoring and assessment, resource protection, restoration, enforcement, and surveillance activities.

(iv) An evaluation of the advantages of cooperative

State and Federal management if all or part of the

proposed sanctuary is within the territorial limits of

any State or is superjacent to the subsoil and seabed

within the seaward boundary of a State, as that

boundary is established under the Submerged Lands

Act (43 U.S.C. 1301 et seq.).

(v) An estimate of the annual cost to the Federal

Government of the proposed designation, including

costs of personnel, equipment and facilities, enforcement, research, and public education.

(vi) The proposed regulations referred to in paragraph (1)(A).

(D) Maps depicting the boundaries of the proposed

sanctuary.

(E) The basis for the determinations made under section 303(a) with respect to the area.

(F) An assessment of the considerations under section

303(b)(1).

(3) PUBLIC HEARING.—No sooner than thirty days after

issuing a notice under this subsection, the Secretary shall hold

at least one public hearing in the coastal area or areas that

will be most affected by the proposed designation of the area

as a national marine sanctuary for the purpose of receiving the

views of interested parties.

(4) TERMS OF DESIGNATION.—The terms of designation of a

sanctuary shall include the geographic area proposed to be included within the sanctuary, the characteristics of the area

that give it conservation, recreational, ecological, historical, research, educational, or esthetic value, and the types of activities that will be subject to regulation by the Secretary to protect those characteristics. The terms of designation may be

modified only by the same procedures by which the original

designation is made.

(5) FISHING REGULATIONS.—The Secretary shall provide

the appropriate Regional Fishery Management Council with

the opportunity to prepare draft regulations for fishing within

the Exclusive Economic Zone as the Council may deem necessary to implement the proposed designation. Draft regulations prepared by the Council, or a Council determination that

regulations are not necessary pursuant to this paragraph, shall
39 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 304

be accepted and issued as proposed regulations by the Secretary unless the Secretary finds that the Council’s action fails

to fulfill the purposes and policies of this title and the goals

and objectives of the proposed designation. In preparing the

draft regulations, a Regional Fishery Management Council

shall use as guidance the national standards of section 301(a)

of the Magnuson-Stevens Act (16 U.S.C. 1851) to the extent

that the standards are consistent and compatible with the

goals and objectives of the proposed designation. The Secretary

shall prepare the fishing regulations, if the Council declines to

make a determination with respect to the need for regulations,

makes a determination which is rejected by the Secretary, or

fails to prepare the draft regulations in a timely manner. Any

amendments to the fishing regulations shall be drafted, approved, and issued in the same manner as the original regulations. The Secretary shall also cooperate with other appropriate fishery management authorities with rights or responsibilities within a proposed sanctuary at the earliest practicable stage in drafting any sanctuary fishing regulations.

(6) COMMITTEE ACTION.—After receiving the documents

under subsection (a)(1)(C), the Committee on Resources of the

House of Representatives and the Committee on Commerce,

Science, and Transportation of the Senate may each hold hearings on the proposed designation and on the matters set forth

in the documents. If within the forty-five day period of continuous session of Congress beginning on the date of submission

of the documents, either Committee issues a report concerning

matters addressed in the documents, the Secretary shall consider this report before publishing a notice to designate the national marine sanctuary.

(b) TAKING EFFECT OF DESIGNATIONS.—

(1) NOTICE.—In designating a national marine sanctuary,

the Secretary shall publish in the Federal Register notice of

the designation together with final regulations to implement

the designation and any other matters required by law, and

submit such notice to the Congress. The Secretary shall advise

the public of the availability of the final management plan and

the final environmental impact statement with respect to such

sanctuary. The Secretary shall issue a notice of designation

with respect to a proposed national marine sanctuary site not

later than 30 months after the date a notice declaring the site

to be an active candidate for sanctuary designation is published in the Federal Register under regulations issued under

this Act, or shall publish not later than such date in the Federal Register findings regarding why such notice has not been

published. No notice of designation may occur until the expiration of the period for Committee action under subsection (a)(6).

The designation (and any of its terms not disapproved under

this subsection) and regulations shall take effect and become

final after the close of a review period of forty-five days of continuous session of Congress beginning on the day on which

such notice is published unless, in the case of a national marine sanctuary that is located partially or entirely within the

seaward boundary of any State, the Governor affected certifies

to the Secretary that the designation or any of its terms is un-
Sec. 304 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 40

acceptable, in which case the designation or the unacceptable

term shall not take effect in the area of the sanctuary lying

within the seaward boundary of the State.

(2) WITHDRAWAL OF DESIGNATION.—If the Secretary considers that actions taken under paragraph (1) will affect the

designation of a national marine sanctuary in a manner that

the goals and objectives of the sanctuary or System cannot be

fulfilled, the Secretary may withdraw the entire designation. If

the Secretary does not withdraw the designation, only those

terms of the designation not certified under paragraph (1) shall

take effect.

(3) PROCEDURES.—In computing the forty-five-day periods

of continuous session of Congress pursuant to subsection (a)(6)

and paragraph (1) of this subsection—

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

(B) the days on which either House of Congress is not

in session because of an adjournment of more than three

days to a day certain are excluded.

(c) ACCESS AND VALID RIGHTS.— (1) Nothing in this title shall be construed as terminating

or granting to the Secretary the right to terminate any valid

lease, permit, license, or right of subsistence use or of access

that is in existence on the date of designation of any national

marine sanctuary.

(2) The exercise of a lease, permit, license, or right is subject to regulation by the Secretary consistent with the purposes

for which the sanctuary is designated.

(d) INTERAGENCY COOPERATION.—

(1) REVIEW OF AGENCY ACTIONS.—

(A) IN GENERAL.—Federal agency actions internal or

external to a national marine sanctuary, including private

activities authorized by licenses, leases, or permits, that

are likely to destroy, cause the loss of, or injure any sanctuary resource are subject to consultation with the

Secretary.

(B) AGENCY STATEMENTS REQUIRED.—Subject to any

regulations the Secretary may establish each Federal

agency proposing an action described in subparagraph (A)

shall provide the Secretary with a written statement describing the action and its potential effects on sanctuary

resources at the earliest practicable time, but in no case

later than 45 days before the final approval of the action

unless such Federal agency and the Secretary agree to a

different schedule.

(2) SECRETARY’S RECOMMENDED ALTERNATIVES.—If the Secretary finds that a Federal agency action is likely to destroy,

cause the loss of, or injure a sanctuary resource, the Secretary

shall (within 45 days of receipt of complete information on the

proposed agency action) recommend reasonable and prudent alternatives, which may include conduct of the action elsewhere,

which can be taken by the Federal agency in implementing the

agency action that will protect sanctuary resources.

(3) RESPONSE TO RECOMMENDATIONS.—The agency head

who receives the Secretary’s recommended alternatives under
41 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 305

paragraph (2) shall promptly consult with the Secretary on the

alternatives. If the agency head decides not to follow the alternatives, the agency head shall provide the Secretary with a

written statement explaining the reasons for that decision.

(4) FAILURE TO FOLLOW ALTERNATIVE.—If the head of a

Federal agency takes an action other than an alternative recommended by the Secretary and such action results in the destruction of, loss of, or injury to a sanctuary resource, the head

of the agency shall promptly prevent and mitigate further

damage and restore or replace the sanctuary resource in a

manner approved by the Secretary.

(e) REVIEW OF MANAGEMENT PLANS.—Not more than five years

after the date of designation of any national marine sanctuary, and

thereafter at intervals not exceeding five years, the Secretary shall

evaluate the substantive progress toward implementing the management plan and goals for the sanctuary, especially the effectiveness of site-specific management techniques and strategies, and

shall revise the management plan and regulations as necessary to

fulfill the purposes and policies of this title. This review shall include a prioritization of management objectives.

(f) LIMITATION ON DESIGNATION OF NEW SANCTUARIES.— (1) FINDING REQUIRED.—The Secretary may not publish in

the Federal Register any sanctuary designation notice or regulations proposing to designate a new sanctuary, unless the Secretary has published a finding that—

(A) the addition of a new sanctuary will not have a

negative impact on the System; and

(B) sufficient resources were available in the fiscal

year in which the finding is made to—

(i) effectively implement sanctuary management

plans for each sanctuary in the System; and

(ii) complete site characterization studies and inventory known sanctuary resources, including cultural

resources, for each sanctuary in the System within 10

years after the date that the finding is made if the resources available for those activities are maintained at

the same level for each fiscal year in that 10 year period.

(2) DEADLINE.—If the Secretary does not submit the findings required by paragraph (1) before February 1, 2004, the

Secretary shall submit to the Congress before October 1, 2004,

a finding with respect to whether the requirements of subparagraphs (A) and (B) of paragraph (1) have been met by all existing sanctuaries.

(3) LIMITATION ON APPLICATION.—Paragraph (1) does not

apply to any sanctuary designation documents for—

(A) a Thunder Bay National Marine Sanctuary; or

(B) a Northwestern Hawaiian Islands National Marine

Sanctuary.

SEC. 305. ø16 U.S.C. 1435¿ APPLICATION OF REGULATIONS, INTERNATIONAL NEGOTIATIONS AND COOPERATION.

(a) REGULATIONS.—This title and the regulations issued under

section 304 shall be applied in accordance with generally recognized principles of international law, and in accordance with treaties, conventions, and other agreements to which the United States
Sec. 306 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 42

is a party. No regulation shall apply to or be enforced against a

person who is not a citizen, national, or resident alien of the

United States, unless in accordance with—

(1) generally recognized principles of international law;

(2) an agreement between the United States and the foreign state of which the person is a citizen; or

(3) an agreement between the United States and the flag

state of a foreign vessel, if the person is a crewmember of the

vessel.

(b) NEGOTIATIONS.—The Secretary of State, in consultation

with the Secretary, shall take appropriate action to enter into negotiations with other governments to make necessary arrangements

for the protection of any national marine sanctuary and to promote

the purposes for which the sanctuary is established.

(c) INTERNATIONAL COOPERATION.—The Secretary, in consultation with the Secretary of State and other appropriate Federal

agencies, shall cooperate with other governments and international

organizations in furtherance of the purposes and policies of this

title and consistent with applicable regional and mutilateral arrangements for the protection and management of special marine

areas.

SEC. 306. ø16 U.S.C. 1436¿ PROHIBITED ACTIVITIES.

It is unlawful for any person to—

(1) destroy, cause the loss of, or injure any sanctuary resource managed under law or regulations for that sanctuary;

(2) possess, sell, offer for sale, purchase, import, export, deliver, carry, transport, or ship by any means any sanctuary resource taken in violation of this section;

(3) interfere with the enforcement of this title by—

(A) refusing to permit any officer authorized to enforce

this title to board a vessel, other than a vessel operated by

the Department of Defense or United States Coast Guard,

subject to such person’s control for the purposes of conducting any search or inspection in connection with the enforcement of this title;

(B) resisting, opposing, impeding, intimidating,

harassing, bribing, interfering with, or forcibly assaulting

any person authorized by the Secretary to implement this

title or any such authorized officer in the conduct of any

search or inspection performed under this title; or

(C) knowingly and willfully submitting false information to the Secretary or any officer authorized to enforce

this title in connection with any search or inspection conducted under this title; or

(4) violate any provision of this title or any regulation or

permit issued pursuant to this title.

SEC. 307. ø16 U.S.C. 1437¿ ENFORCEMENT.

(a) IN GENERAL.—The Secretary shall conduct such enforcement activities as are necessary and reasonable to carry out this

title.

(b) POWERS OF AUTHORIZED OFFICERS.—Any person who is

authorized to enforce this title may—

(1) board, search, inspect, and seize any vessel suspected

of being used to violate this title or any regulation or permit
43 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 307

issued under this title and any equipment, stores, and cargo of

such vessel;

(2) seize wherever found any sanctuary resource taken or

retained in violation of this title or any regulation or permit

issued under this title;

(3) seize any evidence of a violation of this title or of any

regulation or permit issued under this title;

(4) execute any warrant or other process issued by any

court of competent jurisdiction;

(5) exercise any other lawful authority; and

(6) arrest any person, if there is reasonable cause to believe that such person has committed an act prohibited by section 306(3).

(c) CRIMINAL OFFENSES.— (1) OFFENSES.—A person is guilty of an offense under this

subsection if the person commits any act prohibited by section

306(3).

(2) PUNISHMENT.—Any person that is guilty of an offense

under this subsection— (A) except as provided in subparagraph (B), shall be

fined under title 18, United States Code, imprisoned for

not more than 6 months, or both; or

(B) in the case of a person who in the commission of

such an offense uses a dangerous weapon, engages in conduct that causes bodily injury to any person authorized to

enforce this title or any person authorized to implement

the provisions of this title, or places any such person in

fear of imminent bodily injury, shall be fined under title

18, United States Code, imprisoned for not more than 10

years, or both.

(d) CIVIL PENALTIES.—

(1) CIVIL PENALTY.—Any person subject to the jurisdiction

of the United States who violates this title or any regulation

or permit issued under this title shall be liable to the United

States for a civil penalty of not more than $100,000 for each

such violation, to be assessed by the Secretary. Each day of a

continuing violation shall constitute a separate violation.

(2) NOTICE.—No penalty shall be assessed under this subsection until after the person charged has been given notice

and an opportunity for a hearing.

(3) IN REM JURISDICTION.—A vessel used in violating this

title or any regulation or permit issued under this title shall

be liable in rem for any civil penalty assessed for such violation. Such penalty shall constitute a maritime lien on the vessel and may be recovered in an action in rem in the district

court of the United States having jurisdiction over the vessel.

(4) REVIEW OF CIVIL PENALTY.—Any person against whom

a civil penalty is assessed under this subsection may obtain review in the United States district court for the appropriate district by filing a complaint in such court not later than 30 days

after the date of such order.

(5) COLLECTION OF PENALTIES.—If any person fails to pay

an assessment of a civil penalty under this section after it has

become a final and unappealable order, or after the appropriate court has entered final judgment in favor of the Sec-
Sec. 307 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 44

retary, the Secretary shall refer the matter to the Attorney

General, who shall recover the amount assessed in any appropriate district court of the United States. In such action, the

validity and appropriateness of the final order imposing the

civil penalty shall not be subject to review.

(6) COMPROMISE OR OTHER ACTION BY SECRETARY.—The

Secretary may compromise, modify, or remit, with or without

conditions, any civil penalty which is or may be imposed under

this section.

(e) FORFEITURE.—

(1) IN GENERAL.—Any vessel (including the vessel’s equipment, stores, and cargo) and other item used, and any sanctuary resource taken or retained, in any manner, in connection

with or as a result of any violation of this title or of any regulation or permit issued under this title shall be subject to forfeiture to the United States pursuant to a civil proceeding

under this subsection. The proceeds from forfeiture actions

under this subsection shall constitute a separate recovery in

addition to any amounts recovered as civil penalties under this

section or as civil damages under section 312. None of those

proceeds shall be subject to set-off.

(2) APPLICATION OF THE CUSTOMS LAWS.—The Secretary

may exercise the authority of any United States official granted by any relevant customs law relating to the seizure, forfeiture, condemnation, disposition, remission, and mitigation of

property in enforcing this title.

(3) DISPOSAL OF SANCTUARY RESOURCES.—Any sanctuary

resource seized pursuant to this title may be disposed of pursuant to an order of the appropriate court, or, if perishable, in

a manner prescribed by regulations promulgated by the Secretary. Any proceeds from the sale of such sanctuary resource

shall for all purposes represent the sanctuary resource so disposed of in any subsequent legal proceedings.

(4) PRESUMPTION.—For the purposes of this section there

is a rebuttable presumption that all sanctuary resources found

on board a vessel that is used or seized in connection with a

violation of this title or of any regulation or permit issued

under this title were taken or retained in violation of this title

or of a regulation or permit issued under this title.

(f) PAYMENT OF STORAGE, CARE, AND OTHER COSTS.—

(1) EXPENDITURES.—

(A) Notwithstanding any other law, amounts received

by the United States as civil penalties, forfeitures of property, and costs imposed under paragraph (2) shall be retained by the Secretary in the manner provided for in section 107(f)(1) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980.

(B) Amounts received under this section for forfeitures

and costs imposed under paragraph (2) shall be used to

pay the reasonable and necessary costs incurred by the

Secretary to provide temporary storage, care, maintenance,

and disposal of any sanctuary resource or other property

seized in connection with a violation of this title or any

regulation or permit issued under this title.
45 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 307

(C) Amounts received under this section as civil penalties and any amounts remaining after the operation of

subparagraph (B) shall be used, in order of priority, to—

(i) manage and improve the national marine sanctuary with respect to which the violation occurred that

resulted in the penalty or forfeiture;

(ii) pay a reward to any person who furnishes information leading to an assessment of a civil penalty,

or to a forfeiture of property, for a violation of this

title or any regulation or permit issued under this

title; and

(iii) manage and improve any other national

marine sanctuary.

(2) LIABILITY FOR COSTS.—Any person assessed a civil penalty for a violation of this title or of any regulation or permit

issued under this title, and any claimant in a forfeiture action

brought for such a violation, shall be liable for the reasonable

costs incurred by the Secretary in storage, care, and maintenance of any sanctuary resource or other property seized in

connection with the violation.

(g) SUBPOENAS.—In the case of any hearing under this section

which is determined on the record in accordance with the procedures provided for under section 554 of title 5, United States Code,

the Secretary may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books,

electronic files, and documents, and may administer oaths.

(h) USE OF RESOURCES OF STATE AND OTHER FEDERAL AGENCIES.—The Secretary shall, whenever appropriate, use by agreement the personnel, services, and facilities of State and other Federal departments, agencies, and instrumentalities, on a reimbursable or nonreimbursable basis, to carry out the Secretary’s responsibilities under this section.

(i) COAST GUARD AUTHORITY NOT LIMITED.—Nothing in this

section shall be considered to limit the authority of the Coast

Guard to enforce this or any other Federal law under section 89 of

title 14, United States Code.

(j) INJUNCTIVE RELIEF.—If the Secretary determines that there

is an imminent risk of destruction or loss of or injury to a sanctuary resource, or that there has been actual destruction or loss of,

or injury to, a sanctuary resource which may give rise to liability

under section 312, the Attorney General, upon request of the Secretary, shall seek to obtain such relief as may be necessary to abate

such risk or actual destruction, loss, or injury, or to restore or replace the sanctuary resource, or both. The district courts of the

United States shall have jurisdiction in such a case to order such

relief as the public interest and the equities of the case may

require.

(k) AREA OF APPLICATION AND ENFORCEABILITY.—The area of

application and enforceability of this title includes the territorial

sea of the United States, as described in Presidential Proclamation

5928 of December 27, 1988, which is subject to the sovereignty of

the United States, and the United States exclusive economic zone,

consistent with international law.

(l) NATIONWIDE SERVICE OF PROCESS.—In any action by the

United States under this title, process may be served in any dis-
Sec. 308 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 46

trict where the defendant is found, resides, transacts business, or

has appointed an agent for the service of process.

SEC. 308. ø16 U.S.C. 1439¿ REGULATIONS.

The Secretary may issue such regulations as may be necessary

to carry out this title.

SEC. 309. ø16 U.S.C. 1440¿ RESEARCH, MONITORING, AND EDUCATION.

(a) IN GENERAL.—The Secretary shall conduct, support, or coordinate research, monitoring, evaluation, and education programs

consistent with subsections (b) and (c) and the purposes and policies of this title.

(b) RESEARCH AND MONITORING.—

(1) IN GENERAL.—The Secretary may—

(A) support, promote, and coordinate research on, and

long-term monitoring of, sanctuary resources and natural

processes that occur in national marine sanctuaries, including exploration, mapping, and environmental and socioeconomic assessment;

(B) develop and test methods to enhance degraded

habitats or restore damaged, injured, or lost sanctuary resources; and

(C) support, promote, and coordinate research on, and

the conservation, curation, and public display of, the cultural, archeological, and historical resources of national

marine sanctuaries.

(2) AVAILABILITY OF RESULTS.—The results of research and

monitoring conducted, supported, or permitted by the Secretary under this subsection shall be made available to the

public.

(c) EDUCATION.—

(1) IN GENERAL.—The Secretary may support, promote,

and coordinate efforts to enhance public awareness, understanding, and appreciation of national marine sanctuaries and

the System. Efforts supported, promoted, or coordinated under

this subsection must emphasize the conservation goals and

sustainable public uses of national marine sanctuaries and the

System.

(2) EDUCATIONAL ACTIVITIES.—Activities under this subsection may include education of the general public, teachers,

students, national marine sanctuary users, and ocean and

coastal resource managers.

(d) INTERPRETIVE FACILITIES.— (1) IN GENERAL.—The Secretary may develop interpretive

facilities near any national marine sanctuary.

(2) FACILITY REQUIREMENT.—Any facility developed under

this subsection must emphasize the conservation goals and

sustainable public uses of national marine sanctuaries by providing the public with information about the conservation, recreational, ecological, historical, cultural, archeological, scientific, educational, or esthetic qualities of the national marine

sanctuary.

(e) CONSULTATION AND COORDINATION.—In conducting, supporting, and coordinating research, monitoring, evaluation, and

education programs under subsection (a) and developing interpretive facilities under subsection (d), the Secretary may consult or co-
47 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 310

ordinate with Federal, interstate, or regional agencies, States or

local governments.

SEC. 310. ø16 U.S.C. 1441¿ SPECIAL USE PERMITS.

(a) ISSUANCE OF PERMITS.—The Secretary may issue special

use permits which authorize the conduct of specific activities in a

national marine sanctuary if the Secretary determines such authorization is necessary—

(1) to establish conditions of access to and use of any sanctuary resource; or

(2) to promote public use and understanding of a sanctuary

resource.

(b) PUBLIC NOTICE REQUIRED.—The Secretary shall provide appropriate public notice before identifying any category of activity

subject to a special use permit under subsection (a).

(c) PERMIT TERMS.—A permit issued under this section—

(1) shall authorize the conduct of an activity only if that

activity is compatible with the purposes for which the sanctuary is designated and with protection of sanctuary resources;

(2) shall not authorize the conduct of any activity for a period of more than 5 years unless renewed by the Secretary;

(3) shall require that activities carried out under the permit be conducted in a manner that does not destroy, cause the

loss of, or injure sanctuary resources; and

(4) shall require the permittee to purchase and maintain

comprehensive general liability insurance, or post an equivalent bond, against claims arising out of activities conducted

under the permit and to agree to hold the United States harmless against such claims.

(d) FEES.—

(1) ASSESSMENT AND COLLECTION.—The Secretary may assess and collect fees for the conduct of any activity under a

permit issued under this section.

(2) AMOUNT.—The amount of a fee under this subsection

shall be equal to the sum of—

(A) costs incurred, or expected to be incurred, by the

Secretary in issuing the permit;

(B) costs incurred, or expected to be incurred, by the

Secretary as a direct result of the conduct of the activity

for which the permit is issued, including costs of monitoring the conduct of the activity; and

(C) an amount which represents the fair market value

of the use of the sanctuary resource.

(3) USE OF FEES.—Amounts collected by the Secretary in

the form of fees under this section may be used by the

Secretary—

(A) for issuing and administering permits under this

section; and

(B) for expenses of managing national marine sanctuaries.

(4) WAIVER OR REDUCTION OF FEES.—The Secretary may

accept in-kind contributions in lieu of a fee under paragraph

(2)(C), or waive or reduce any fee assessed under this subsection for any activity that does not derive profit from the access to or use of sanctuary resources.
Sec. 311 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 48

(e) VIOLATIONS.—Upon violation of a term or condition of a permit issued under this section, the Secretary may—

(1) suspend or revoke the permit without compensation to

the permittee and without liability to the United States;

(2) assess a civil penalty in accordance with section 307; or

(3) both.

(f) REPORTS.—Each person issued a permit under this section

shall submit an annual report to the Secretary not later than December 31 of each year which describes activities conducted under

that permit and revenues derived from such activities during the

year.

(g) FISHING.—Nothing in this section shall be considered to require a person to obtain a permit under this section for the conduct

of any fishing activities in a national marine sanctuary.

SEC. 311. ø16 U.S.C. 1442¿ COOPERATIVE AGREEMENTS, DONATIONS,

AND ACQUISITIONS.

(a) AGREEMENTS AND GRANTS.—The Secretary may enter into

cooperative agreements, contracts, or other agreements with, or

make grants to, States, local governments, regional agencies, interstate agencies, or other persons to carry out the purposes and policies of this title.

(b) AUTHORIZATION TO SOLICIT DONATIONS.—The Secretary

may enter into such agreements with any nonprofit organization

authorizing the organization to solicit private donations to carry

out the purposes and policies of this title.

(c) DONATIONS.—The Secretary may accept donations of funds,

property, and services for use in designating and administering national marine sanctuaries under this title. Donations accepted

under this section shall be considered as a gift or bequest to or for

the use of the United States.

(d) ACQUISITIONS.—The Secretary may acquire by purchase,

lease, or exchange, any land, facilities, or other property necessary

and appropriate to carry out the purposes and policies of this title.

(e) USE OF RESOURCES OF OTHER GOVERNMENT AGENCIES.—

The Secretary may, whenever appropriate, enter into an agreement

with a State or other Federal agency to use the personnel, services,

or facilities of such agency on a reimbursable or nonreimbursable

basis, to assist in carrying out the purposes and policies of this

title.

(f) AUTHORITY TO OBTAIN GRANTS.—Notwithstanding any

other provision of law that prohibits a Federal agency from receiving assistance, the Secretary may apply for, accept, and use grants

from other Federal agencies, States, local governments, regional

agencies, interstate agencies, foundations, or other persons, to

carry out the purposes and policies of this title.

SEC. 312. ø16 U.S.C. 1443¿ DESTRUCTION OR LOSS OF, OR INJURY TO,

SANCTUARY RESOURCES.

(a) LIABILITY.—

(1) LIABILITY TO UNITED STATES.—Any person who destroys, causes the loss of, or injures any sanctuary resource is

liable to the United States for an amount equal to the sum of—

(A) the amount of response costs and damages resulting from the destruction, loss, or injury; and
49 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 312

(B) interest on that amount calculated in the manner

described under section 1005 of the Oil Pollution Act of

1990.

(2) LIABILITY IN REM.—Any vessel used to destroy, cause

the loss of, or injure any sanctuary resource shall be liable in

rem to the United States for response costs and damages resulting from such destruction, loss, or injury. The amount of

that liability shall constitute a maritime lien on the vessel and

may be recovered in an action in rem in any district court of

the United States that has jurisdiction over the vessel.

(3) DEFENSES.—A person is not liable under this subsection if that person establishes that—

(A) the destruction or loss of, or injury to, the sanctuary resource was caused solely by an act of God, an act

of war, or an act or omission of a third party, and the person acted with due care;

(B) the destruction, loss, or injury was caused by an

activity authorized by Federal or State law; or

(C) the destruction, loss, or injury was negligible.

(4) LIMITS TO LIABILITY.—Nothing in sections 4281–4289 of

the Revised Statutes of the United States or section 3 of the

Act of February 13, 1893, shall limit the liability of any person

under this title.

(b) RESPONSE ACTIONS AND DAMAGE ASSESSMENT.— (1) RESPONSE ACTIONS.—The Secretary may undertake or

authorize all necessary actions to prevent or minimize the destruction or loss of, or injury to, sanctuary resources, or to minimize the imminent risk of such destruction, loss, or injury.

(2) DAMAGE ASSESSMENT.—The Secretary shall assess damages to sanctuary resources in accordance with section 302(6).

(c) CIVIL ACTIONS FOR RESPONSE COSTS AND DAMAGES.—(1)

The Attorney General, upon request of the Secretary, may commence a civil action against any person or vessel who may be liable

under subsection (a) for response costs and damages. The Secretary, acting as trustee for sanctuary resources for the United

States, shall submit a request for such an action to the Attorney

General whenever a person may be liable for such costs or damages.

(2) An action under this subsection may be brought in the

United States district court for any district in which—

(A) the defendant is located, resides, or is doing business,

in the case of an action against a person;

(B) the vessel is located, in the case of an action against

a vessel; or

(C) the destruction of, loss of, or injury to a sanctuary resource occurred.

(d) USE OF RECOVERED AMOUNTS.—Response costs and damages recovered by the Secretary under this section shall be retained

by the Secretary in the manner provided for in section 107(f)(1) of

the Comprehensive Environmental Response, Compensation and

Liability Act (42 U.S.C. 9607(f)(1)), and used as follows:

(1) RESPONSE COSTS.—Amounts recovered by the United

States for costs of response actions and damage assessments

under this section shall be used, as the Secretary considers

appropriate—
Sec. 313 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 50

(A) to reimburse the Secretary or any other Federal or

State agency that conducted those activities; and

(B) after reimbursement of such costs, to restore, replace, or acquire the equivalent of any sanctuary resource.

(2) OTHER AMOUNTS.—All other amounts recovered shall

be used, in order of priority—

(A) to restore, replace, or acquire the equivalent of the

sanctuary resources that were the subject of the action, including for costs of monitoring and the costs of curation

and conservation of archeological, historical, and cultural

sanctuary resources;

(B) to restore degraded sanctuary resources of the national marine sanctuary that was the subject of the action,

giving priority to sanctuary resources and habitats that

are comparable to the sanctuary resources that were the

subject of the action; and

(C) to restore degraded sanctuary resources of other

national marine sanctuaries.

(3) FEDERAL-STATE COORDINATION.—Amounts recovered

under this section with respect to sanctuary resources lying

within the jurisdiction of a State shall be used under paragraphs (2) (A) and (B) in accordance with an agreement entered into by the Secretary and the Governor of that State.

(e) STATUTE OF LIMITATIONS.—An action for response costs or

damages under subsection (c) shall be barred unless the complaint

is filed within 3 years after the date on which the Secretary completes a damage assessment and restoration plan for the sanctuary

resources to which the action relates.

SEC. 313. ø16 U.S.C. 1444¿ AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the Secretary—

(1) to carry out this title—

(A) $32,000,000 for fiscal year 2001;

(B) $34,000,000 for fiscal year 2002;

(C) $36,000,000 for fiscal year 2003;

(D) $38,000,000 for fiscal year 2004;

(E) $40,000,000 for fiscal year 2005; and

(2) for construction projects at national marine sanctuaries, $6,000,000 for each of fiscal years 2001, 2002, 2003,

2004, and 2005.

SEC. 314. ø16 U.S.C. 1445¿ U.S.S. MONITOR ARTIFACTS AND MATERIALS.

(a) CONGRESSIONAL POLICY.—In recognition of the historical

significance of the wreck of the United States ship Monitor to

coastal North Carolina and to the area off the coast of North Carolina known as the Graveyard of the Atlantic, the Congress directs

that a suitable display of artifacts and materials from the United

States ship Monitor be maintained permanently at an appropriate

site in coastal North Carolina.

(b) DISCLAIMER.—This section shall not affect the following:

(1) RESPONSIBILITIES OF SECRETARY.—The responsibilities

of the Secretary to provide for the protection, conservation, and

display of artifacts and materials from the United States ship

Monitor.

(2) AUTHORITY OF SECRETARY.—The authority of the Secretary to designate the Mariner’s Museum, located at Newport
51 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 316

News, Virginia, as the principal museum for coordination of activities referred to in paragraph (1).

SEC. 315. ø16 U.S.C. 1445a¿ ADVISORY COUNCILS.

(a) ESTABLISHMENT.—The Secretary may establish one or more

advisory councils (in this section referred to as an ‘‘Advisory Council’’) to advise and make recommendations to the Secretary regarding the designation and management of national marine sanctuaries. The Advisory Councils shall be exempt from the Federal

Advisory Committee Act.

(b) MEMBERSHIP.—Members of the Advisory Councils may be

appointed from among—

(1) persons employed by Federal or State agencies with expertise in management of natural resources;

(2) members of relevant Regional Fishery Management

Councils established under section 302 of the Magnuson-Stevens Act; and

(3) representatives of local user groups, conservation and

other public interest organizations, scientific organizations,

educational organizations, or others interested in the protection and multiple use management of sanctuary resources.

(c) LIMITS ON MEMBERSHIP.—For sanctuaries designated after

the date of enactment of the National Marine Sanctuaries Program

Amendments Act of 1992, the membership of Advisory Councils

shall be limited to no more than 15 members.

(d) STAFFING AND ASSISTANCE.—The Secretary may make

available to an Advisory Council any staff, information, administrative services, or assistance the Secretary determines are reasonably

required to enable the Advisory Council to carry out its functions.

(e) PUBLIC PARTICIPATION AND PROCEDURAL MATTERS.—The

following guidelines apply with respect to the conduct of business

meetings of an Advisory Council:

(1) Each meeting shall be open to the public, and interested persons shall be permitted to present oral or written

statements on items on the agenda.

(2) Emergency meetings may be held at the call of the

chairman or presiding officer.

(3) Timely notice of each meeting, including the time,

place, and agenda of the meeting, shall be published locally

and in the Federal Register, except that in the case of a meeting of an Advisory Council established to provide assistance regarding any individual national marine sanctuary the notice is

not required to be published in the Federal Register.

(4) Minutes of each meeting shall be kept and contain a

summary of the attendees and matters discussed.

SEC. 316. ø16 U.S.C. 1445b¿ ENHANCING SUPPORT FOR NATIONAL MARINE SANCTUARIES.

(a) AUTHORITY.—The Secretary may establish a program consisting of—

(1) the creation, adoption, and publication in the Federal

Register by the Secretary of a symbol for the national marine

sanctuary program, or for individual national marine sanctuaries or the System;
Sec. 316 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 52

(2) the solicitation of persons to be designated as official

sponsors of the national marine sanctuary program or of individual national marine sanctuaries;

(3) the designation of persons by the Secretary as official

sponsors of the national marine sanctuary program or of individual sanctuaries;

(4) the authorization by the Secretary of the manufacture,

reproduction, or other use of any symbol published under paragraph (1), including the sale of items bearing such a symbol,

by official sponsors of the national marine sanctuary program

or of individual national marine sanctuaries;

(5) the creation, marketing, and selling of products to promote the national marine sanctuary program, and entering

into exclusive or nonexclusive agreements authorizing entities

to create, market or sell on the Secretary’s behalf;

(6) the solicitation and collection by the Secretary of monetary or in-kind contributions from official sponsors for the manufacture, reproduction or use of the symbols published under

paragraph (1);

(7) the retention of any monetary or in-kind contributions

collected under paragraphs (5) and (6) by the Secretary; and

(8) the expenditure and use of any monetary and in-kind

contributions, without appropriation, by the Secretary to designate and manage national marine sanctuaries.

Monetary and in-kind contributions raised through the sale, marketing, or use of symbols and products related to an individual national marine sanctuary shall be used to support that sanctuary.

(b) CONTRACT AUTHORITY.—The Secretary may contract with

any person for the creation of symbols or the solicitation of official

sponsors under subsection (a).

(c) RESTRICTIONS.—The Secretary may restrict the use of the

symbols published under subsection (a), and the designation of official sponsors of the national marine sanctuary program or of individual national marine sanctuaries to ensure compatibility with the

goals of the national marine sanctuary program.

(d) PROPERTY OF UNITED STATES.—Any symbol which is adopted by the Secretary and published in the Federal Register under

subsection (a) is deemed to be the property of the United States.

(e) PROHIBITED ACTIVITIES.—It is unlawful for any person—

(1) designated as an official sponsor to influence or seek to

influence any decision by the Secretary or any other Federal

official related to the designation or management of a national

marine sanctuary, except to the extent that a person who is

not so designated may do so;

(2) to represent himself or herself to be an official sponsor

absent a designation by the Secretary;

(3) to manufacture, reproduce, or otherwise use any symbol adopted by the Secretary under subsection (a)(1), including

to sell any item bearing such a symbol, unless authorized by

the Secretary under subsection (a)(4) or subsection (f); or

(4) to violate any regulation promulgated by the Secretary

under this section.

(f) COLLABORATIONS.—The Secretary may authorize the use of

a symbol adopted by the Secretary under subsection (a)(1) by any

person engaged in a collaborative effort with the Secretary to carry
53 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 318

out the purposes and policies of this title and to benefit a national

marine sanctuary or the System.

(g) AUTHORIZATION FOR NON-PROFIT PARTNER ORGANIZATION

TO SOLICIT SPONSORS.—

(1) IN GENERAL.—The Secretary may enter into an agreement with a non-profit partner organization authorizing it to

assist in the administration of the sponsorship program established under this section. Under an agreement entered into

under this paragraph, the Secretary may authorize the nonprofit partner organization to solicit persons to be official sponsors of the national marine sanctuary system or of individual

national marine sanctuaries, upon such terms as the Secretary

deems reasonable and will contribute to the successful administration of the sanctuary system. The Secretary may also authorize the non-profit partner organization to collect the statutory contribution from the sponsor, and, subject to paragraph

(2), transfer the contribution to the Secretary.

(2) REIMBURSEMENT FOR ADMINISTRATIVE COSTS.—Under

the agreement entered into under paragraph (1), the Secretary

may authorize the non-profit partner organization to retain not

more than 5 percent of the amount of monetary contributions

it receives from official sponsors under the agreement to offset

the administrative costs of the organization in soliciting sponsors.

(3) PARTNER ORGANIZATION DEFINED.—In this subsection,

the term ‘‘partner organization’’ means an organization that—

(A) draws its membership from individuals, private organizations, corporations, academic institutions, or State

and local governments; and

(B) is established to promote the understanding of,

education relating to, and the conservation of the resources

of a particular sanctuary or 2 or more related sanctuaries.

SEC. 317. ø16 U.S.C. 1445 nt¿ SHORT TITLE.

This title may be cited as the ‘‘National Marine Sanctuaries

Act’’.

SEC. 318. ø16 U.S.C. 1445c¿ DR. NANCY FOSTER SCHOLARSHIP PROGRAM.

(a) ESTABLISHMENT.—The Secretary shall establish and administer through the National Ocean Service the Dr. Nancy Foster

Scholarship Program. Under the program, the Secretary shall

award graduate education scholarships in oceanography, marine biology or maritime archeology, to be known as Dr. Nancy Foster

Scholarships.

(b) PURPOSES.—The purposes of the Dr. Nancy Foster Scholarship Program are—

(1) to recognize outstanding scholarship in oceanography,

marine biology, or maritime archeology, particularly by women

and members of minority groups; and

(2) to encourage independent graduate level research in

oceanography, marine biology, or maritime archeology.

(c) AWARD.—Each Dr. Nancy Foster Scholarship—

(1) shall be used to support graduate studies in oceanography, marine biology, or maritime archeology at a graduate

level institution of higher education; and
Sec. 401 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 54

(2) shall be awarded in accordance with guidelines issued

by the Secretary.

(d) DISTRIBUTION OF FUNDS.—The amount of each Dr. Nancy

Foster Scholarship shall be provided directly to a recipient selected

by the Secretary upon receipt of certification that the recipient will

adhere to a specific and detailed plan of study and research approved by a graduate level institution of higher education.

(e) FUNDING.—Of the amount available each fiscal year to

carry out this title, the Secretary shall award 1 percent as Dr.

Nancy Foster Scholarships.

(f) SCHOLARSHIP REPAYMENT REQUIREMENT.—The Secretary

shall require an individual receiving a scholarship under this section to repay the full amount of the scholarship to the Secretary

if the Secretary determines that the individual, in obtaining or

using the scholarship, engaged in fraudulent conduct or failed to

comply with any term or condition of the scholarship.

(g) MARITIME ARCHEOLOGY DEFINED.—In this section the term

‘‘maritime archeology’’ includes the curation, preservation, and display of maritime artifacts.

TITLE IV—REGIONAL MARINE RESEARCH PROGRAMS

PURPOSES

SEC. 401. ø16 U.S.C. 1447¿ The purpose of this title is to establish regional research programs, under effective Federal oversight, to—

(1) set priorities for regional marine and coastal research

in support of efforts to safeguard the water quality and ecosystem health of each region; and

(2) carry out such research through grants and improved

coordination.

DEFINITIONS

SEC. 402. ø16 U.S.C. 1447a¿ As used in this title, the term—

(1) ‘‘Board’’ means any Regional Marine Research board established pursuant to section 403(a);

(2) ‘‘Federal agency’’ means any department, agency, or

other instrumentality of the Federal Government, including

any independent agency or establishment of the Federal Government and any government corporation;

(3) ‘‘local government’’ means any city, town, borough,

county, parish, district, or other public body which is a political

subdivision of a State and which is created pursuant to State

law;

(4) ‘‘marine and coastal waters’’ means estuaries, waters of

the estuarine zone, including wetlands, any other waters seaward of the historic height of tidal influence, the territorial

seas, the contiguous zone, and the ocean;

(5) ‘‘nonprofit organization’’ means any organization, association, or institution described in section 501(c)(3) of the Internal Revenue Code of 1954 which is exempt from taxation pursuant to section 501(a) of such Code;

(6) ‘‘region’’ means 1 of the 9 regions described in section

403(a); and
55 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 403

(7) ‘‘State’’ means a State, the District of Columbia, the

Commonwealth of Puerto Rico, the Virgin Islands, Guam,

American Samoa, and the Commonwealth of the Northern

Mariana Islands.

REGIONAL MARINE RESEARCH BOARDS

SEC. 403. ø16 U.S.C. 1447b¿ (a) ESTABLISHMENT.—A Regional

Marine Research board shall be established for each of the following regions:

(1) the Gulf of Maine region, comprised of the marine and

coastal waters off the State of Maine, New Hampshire, and

Massachusetts (north of Cape Cod);

(2) the greater New York bight region, comprised of the

marine and coastal waters off the States of Massachusetts

(south of Cape Cod), Rhode Island, Connecticut, New York, and

New Jersey, from Cape Cod to Cape May;

(3) the mid-Atlantic region, comprised of the marine and

coastal waters off the States of New Jersey, Delaware, Maryland, Virginia, and North Carolina, from Cape May to Cape

Fear;

(4) the South Atlantic region, comprised of the marine and

coastal waters off the States of North Carolina, South Carolina, Georgia, and Florida, from Cape Fear to the Florida Keys,

including the marine and coastal waters off Puerto Rico and

the United States Virgin Islands;

(5) the Gulf of Mexico region, comprised of the marine and

coastal waters off the States of Florida, Alabama, Mississippi,

Louisiana, and Texas, along the Gulf coast from the Florida

Keys to the Mexican border;

(6) the California region, comprised of the marine and

coastal waters off the State of California, from Point Reyes to

the Mexican border;

(7) the North Pacific region, comprised of the marine and

coastal waters off the States of California, Oregon, and Washington, from Point Reyes to the Canadian border;

(8) the Alaska region, comprised of the marine and coastal

waters off the State of Alaska; and

(9) insular Pacific region, comprised of the marine and

coastal waters off the State of Hawaii, Guam, American

Samoa, and the Commonwealth of the Northern Mariana Islands.

The Great Lakes Research Office authorized under section 118(d)

of the Federal Water Pollution Control Act (33 U.S.C. 1268(d))

shall be responsible for research in the Great Lakes region and

shall be considered the Great Lakes counterpart to the research

program established pursuant to this title.

(b) MEMBERSHIP.—

(1) COMPOSITION.—Each Board shall be comprised of 11

members of which—

(A) 3 members shall be appointed by the Administrator of the National Oceanic and Atmospheric Administration, including 1 member who shall be a Sea Grant Program Director from a State within such region, who shall

serve as chairman of the board;
Sec. 403 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 56

(B) 2 members shall be appointed by the Administrator of the Environmental Protection Agency; and

(C) 6 members shall be appointed by Governors of

States located within the region.

(2) QUALIFICATIONS.—Each individual appointed as a

member of a Board shall possess expertise, pertinent to the region concerned, in scientific research, coastal zone management, fishery management, water quality management, State

and local government, or any other area which is directly relevant to the functions of the Board. A majority of the members

of each Board shall be trained in a field of marine or aquatic

science and shall be currently engaged in research or research

administration.

(3) TERMS.—Each appointed member of a Board shall

serve for a term of 4 years.

(4) VACANCIES.—In the event of a vacancy, a replacement

member shall be appointed in the same manner and in accordance with the same requirements as the member being replaced and shall serve the remainder of the term of the replaced member.

(5) REIMBURSEMENT OF EXPENSES.—Each appointed member of a Board may be paid actual travel expenses, and per

diem in lieu of subsistence expenses when away from the member’s usual place of residence, in accordance with section 5703

of title 5, United States Code, when engaged in the actual performance of Board duties.

(c) FUNCTIONS.—Each Board shall, in accordance with the provisions of this title—

(1) develop and submit to the Administrators of the National Oceanic and Atmospheric Administration and the Environmental Protection Agency a marine research plan, including

periodic amendments thereto, that meets the requirements of

section 404;

(2) provide a forum for coordinating research among research institutions and agencies;

(3) provide for review and comment on research plans by

affected users and interests, such as the commercial and recreational fishing industries, other marine industries, State and

local government entities, and environmental organizations;

(4) ensure that the highest quality of research projects will

be conducted to carry out the comprehensive plan; and

(5) prepare, for submission to Congress, a periodic report

on the marine environmental research issues and activities

within the region in accordance with section 406 of this title.

(d) POWERS.—Each Board shall be authorized to—

(1) cooperate with Federal agencies, with States and with

local government entities, interstate and regional agencies,

other public agencies and authorities, nonprofit institutions,

laboratories, and organizations, or other appropriate persons,

in the preparation and support of marine research in the region;

(2) enter into contracts, cooperative agreements or grants

to State and local governmental entities, other public agencies

or institutions, and non-profit institutions and organizations

for purposes of carrying out the provisions of this title;
57 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 404

(3) collect and make available through publications and

other appropriate means, the results of, and other information

pertaining to, the research conducted in the region;

(4) call conferences on regional marine research and assessment issues, giving opportunity for interested persons to be

heard and present papers at such conferences;

(5) develop and stimulate, in consultation with the Department of State, joint marine research projects with foreign

nations;

(6) utilize facilities and personnel of existing Federal agencies, including scientific laboratories and research facilities;

(7) accept, and for all general purposes of this Act, utilize

funds from other sources, including but not limited to State

and local funds, university funds, and donations; and

(8) acquire secret processes, inventions, patent applications, patents, licenses, and property rights, by purchase, license, lease, or donation.

(e) ADMINISTRATION.—

(1) PRACTICES AND PROCEDURES.—Each Board shall determine its organization, and prescribe its practices and procedures for carrying out its functions under this title. Each

Board should use existing research administrative capability to

the extent practicable.

(2) COMMITTEES AND SUBCOMMITTEES.—Each Board shall

establish such committees and subcommittees as are appropriate in the performance of its functions.

(3) STAFF AND SUPPORT.—Each Board is authorized to hire

such staff as are necessary to carry out the functions of the

Board.

(f) TERMINATION.—Each Board shall cease to exist on October

1, 1999, unless extended by Congress.

REGIONAL RESEARCH PLANS

SEC. 404. ø16 U.S.C. 1447c¿ (a) DEVELOPMENT AND AMENDMENT OF REGIONAL PLANS.—

(1) IN GENERAL.—Each Board shall develop a comprehensive 4-year marine research plan for the region for which the

Board is responsible, and shall amend the plan at such times

as the Board considers necessary to reflect changing conditions, but no less frequently than once every 4 years.

(2) REVIEW AND CONSIDERATION OF NATIONAL PLAN.—In

the development and amendment of its research plan, the

Board shall consider findings and recommendations of the national plan developed pursuant to the National Ocean Pollution

Planning Act of 1978 (33 U.S.C. 1701 et seq.).

(b) CONTENTS OF PLAN.—Such marine research plan shall

include—

(1) an overview of the environmental quality conditions in

the coastal and marine waters of the region and expected

trends in these conditions;

(2) a comprehensive inventory and description of all marine research related to water quality and ecosystem health expected to be conducted in the region during the 4-year term of

the research plan;
Sec. 405 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 58

(3) a statement and explanation of the marine research

needs and priorities applicable to the marine and coastal waters of the region over the upcoming 10-year period with emphasis on the upcoming 3-to-5 year period;

(4) an assessment of how the plan will incorporate existing

marine, coastal, and estuarine research and management in

the region, including activities pursuant to section 320 of the

Federal Water Pollution Control Act (33 U.S.C. 1330) and section 315 of the Coastal Zone Management Act of 1972 (16

U.S.C. 1461); and

(5) a general description of marine research and monitoring objectives and timetables for achievement through the

funding of projects under this title during the 4-year period

covered by the plan so as to meet the priorities specified in the

plan in accordance with paragraph (3).

(c) PLAN REVIEW AND APPROVAL.—

(1) IN GENERAL.—When a Board has developed a marine

research plan, including amendments thereto, the Board shall

submit the plan to the Administrator of the National Oceanic

and Atmospheric Administration and the Administration of the

Environmental Protection Agency, who shall jointly determine

whether the plan meets the requirements of subsection (b).

(2) TIME FOR APPROVAL OR DISAPPROVAL.—The Administrator of the National Oceanic and Atmospheric Administration

and the Administrator of the Environmental Protection Agency, shall jointly approve or disapprove such research plan within 120 days after receiving the plan.

(3) ACTION AFTER DISAPPROVAL.—In the case of disapproval

of such research plan, the Administrator of the National Oceanic and Atmospheric Administration and the Administrator of

the Environmental Protection Agency shall jointly notify the

appropriate Board in writing, stating in detail the revisions

necessary to obtain approval of the plan. Such Administrators

shall approve or disapprove the revised plan within 90 days

after receiving the revised plan from the Board.

RESEARCH GRANT PROGRAM

SEC. 405. ø16 U.S.C. 1447d¿ (a) PROGRAM ADMINISTRATION.—

The Administrator of the National Oceanic and Atmospheric Administration shall administer a grant program to support the administrative functions of each Board.

(b) RESEARCH GRANTS.—(1) Each Board may annually submit

a grant application to the Administrator of the National Oceanic

and Atmospheric Administration to fund projects aimed at achieving the research priorities set forth in each research plan, including

amendments thereto, developed and approved pursuant to section

404.

(2) Projects eligible for funding under this section shall include

research, investigations, studies, surveys, or demonstrations with

respect to—

(A) baseline assessment of marine environmental quality,

including chemical, physical, and biological indicators of environmental quality;
59 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 405

(B) effects or potential effects of contaminants, including

nutrients, toxic chemicals and heavy metals, on the environment, including marine and aquatic organisms;

(C) effects of modification of habitats, including coastal

wetlands, seagrass beds and reefs, on the environment, including marine organisms;

(D) assessment of impacts of pollutant sources and pollutant discharges into the coastal environment;

(E) transport, dispersion, transformation, and fate and effect of contaminants in the marine environment;

(F) marine and estuarine habitat assessment and restoration;

(G) methods and techniques for modeling environmental

quality conditions and trends;

(H) methods and techniques for sampling of water, sediment, marine and aquatic organisms, and demonstration of

such methods and techniques;

(I) the effects on human health and the environment of

contaminants or combinations of contaminants at various levels, whether natural or anthropogenic, that are found in the

marine environment;

(J) environmental assessment of potential effects of major

coastal and offshore development projects in the region;

(K) assessment of the effects of climate change on marine

resources in the region; and

(L) analysis and interpretation of research data for the

benefit of State and local environmental protection and resource management agencies in the region.

(3) Grant applications submitted pursuant to this subsection

shall include—

(A) a description of the specific research projects to be conducted;

(B) identification of the organization responsible for each

project and the principal investigator directing the project;

(C) a budget statement for each project;

(D) a schedule of milestones and interim products for each

research project;

(E) a description of the relationship of the proposed project

to the goals, objectives, and priorities of the research plan for

the region and to other research projects; and

(F) any other information which may be required by the

Administrator.

(c) REVIEW AND APPROVAL OF PROJECT PROPOSALS.—(1) The

Administrator of the National Oceanic and Atmospheric Administration shall review the annual grant application and, with the concurrence of the Administrator of the Environmental Protection

Agency, approve such grant application with such conditions as are

determined to be appropriate based on peer reviews conducted pursuant to paragraph (2).

(2) The Administrator of the National Oceanic and Atmospheric Administration shall develop a system of peer review of

grant applications which shall ensure that only the highest quality

research is approved for funding and that each project is reviewed

by research scientists outside the region concerned.
Sec. 406 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 60

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

(d) REPORTING.—Any recipient of a grant under this section

shall report to the appropriate Board, not later than 18 months

after award of the grant, on the activities of such recipient conducted pursuant to this subsection. Such report shall include narrative summaries and technical data in such form as the Administrator of the National Oceanic and Atmospheric Administration

may require.

REPORT ON RESEARCH PROGRAM

SEC. 406. ø16 U.S.C. 1447e¿ (a) PREPARATION AND SUBMISSION

OF REPORT.—Each Board receiving a grant under section 405 shall,

not later than 2 years after the approval of its comprehensive plan

under section 405 and at 2-year intervals thereafter, prepare and

submit to the Administrator of the National Oceanic and Atmospheric Administration and the Administrator of the Environmental

Protection Agency a report describing—

(1) the findings and conclusions of research projects conducted in the region;

(2) recommendations for improvements in the design or

implementation of programs for the protection of the marine

environment; and

(3) available data and information concerning ecosystem

health within the region.

(b) TRANSMITTAL TO CONGRESS.—Upon receipt of a report prepared by a Board under subsection (a), the Administrator of the

National Oceanic and Atmospheric Administration and the Administrator of the Environmental Protection Agency shall transmit a

copy of such report to the Committees on Commerce, Science, and

Transportation and on Environment and Public Works of the Senate and to the Committee on Merchant Marine and Fisheries 1 of

the House of Representatives.

AUTHORIZATION OF APPROPRIATIONS

SEC. 407. ø16 U.S.C. 1447f¿ (a) IN GENERAL.—For purposes of

carrying out the provisions of this title, there are authorized to be

appropriated $18,000,000 for each of the fiscal years 1992 through

1996.

(b) ALLOCATION.—(1) Of funds appropriated in any fiscal year,

not more than $500,000 shall be reserved for administration of this

title by the National Oceanic and Atmospheric Administration and

the Environmental Protection Agency.

(2) Funds appropriated in a fiscal year which are available

after allocation pursuant to paragraph (1), shall be used to support

the administrative costs of Boards established pursuant to subsection 403(a), provided that such funding does not exceed

$300,000 for each research Board in each fiscal year.

(3) Seventy-five percent of funds appropriated in a fiscal year

available after allocation pursuant to paragraphs (1) and (2), shall

be allocated equally among Boards located in regions submitting

research project grant applications pursuant to section 405(b).
61 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 502

(4) Twenty-five percent of funds appropriated in a fiscal year

available after allocation pursuant to paragraphs (1) and (2), shall

be allocated among Boards located in regions submitting research

project grant applications pursuant to section 405(b) which, in the

judgment of the Administrator of the National Oceanic and Atmospheric Administration, in consultation with the Administrator of

the Environmental Protection Agency, propose the most needed

and highest quality research.

TITLE V—NATIONAL COASTAL MONITORING ACT

SEC. 501. ø33 U.S.C. 2801¿ PURPOSES.

The purposes of this title are to—

(1) establish a comprehensive national program for consistent monitoring of the Nation’s coastal ecosystems;

(2) establish long-term water quality assessment and monitoring programs for high priority coastal waters that will enhance the ability of Federal, State, and local authorities to develop and implement effective remedial programs for those waters;

(3) establish a system for reviewing and evaluating the scientific, analytical, and technological means that are available

for monitoring the environmental quality of coastal ecosystems;

(4) establish methods for identifying uniform indicators of

coastal ecosystem quality;

(5) provide for periodic, comprehensive reports to Congress

concerning the quality of the Nation’s coastal ecosystems;

(6) establish a coastal environment information program to

distribute coastal monitoring information;

(7) provide state programs authorized under the Coastal

Zone Management Act of 1972 (16 U.S.C. 1451 et seq.) with information necessary to design land use plans and coastal zone

regulations that will contribute to the protection of coastal ecosystems; and

(8) provide certain water pollution control programs authorized under the Federal Water Pollution Control Act (33

U.S.C. 1251 et seq.) with information necessary to design and

implement effective coastal water pollution controls.

SEC. 502. ø33 U.S.C. 2802¿ DEFINITIONS.

For the purposes of this title, the term—

(1) ‘‘Administrator’’ means the Administrator of the Environmental Protection Agency;

(2) ‘‘coastal ecosystem’’ means a system of interacting biological, chemical, and physical components throughout the

water column, water surface, and benthic environment of

coastal waters;

(3) ‘‘coastal water quality’’ means the physical, chemical

and biological parameters that relate to the health and integrity of coastal ecosystems;

(4) ‘‘coastal water quality monitoring’’ means a continuing

program of measurement, analysis, and synthesis to identify

and quantify coastal water quality conditions and trends to

provide a technical basis for decisionmaking;

(5) ‘‘coastal waters’’ means waters of the Great Lakes, including their connecting waters and those portions of rivers,
Sec. 503 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 62

streams, and other bodies of water having unimpaired connection with the open sea up to the head of tidal influence, including wetlands, intertidal areas, bays, harbors, and lagoons, including waters of the territorial sea of the United States and

the contiguous zone; and

(6) ‘‘Under Secretary’’ means Under Secretary of Commerce for Oceans and Atmosphere.

SEC. 503. ø33 U.S.C. 2803¿ COMPREHENSIVE COASTAL WATER QUALITY

MONITORING PROGRAM.

(a) AUTHORITY; JOINT IMPLEMENTATION.—(1) The Administrator and the Under Secretary, in conjunction with other Federal,

State, and local authorities, shall jointly develop and implement a

program for the long-term collection, assimilation, and analysis of

scientific data designed to measure the environmental quality of

the Nation’s coastal ecosystems pursuant to this section. Monitoring conducted pursuant to this section shall be coordinated with

relevant monitoring programs conducted by the Administrator,

Under Secretary, and other Federal, State, and local authorities.

(2) Primary leadership for the monitoring program activities

conducted by the Environmental Protection Agency pursuant to

this section shall be located at the Environmental Research Laboratory in Narragansett, Rhode Island.

(b) PROGRAM ELEMENTS.—The Comprehensive Coastal Water

Quality Monitoring Program shall include, but not be limited to— (1) identification and analysis of the status of environmental quality in the Nation’s coastal ecosystems, including

but not limited to, assessment of—

(A) ambient water quality, including contaminant levels in relation to criteria and standards issued pursuant to

title III or the Federal Water Pollution Control Act (33

U.S.C. 1311 et seq.);

(B) benthic environmental quality, including analysis

of contaminant levels in sediments in relation to criteria

and standards issued pursuant to title III of the Federal

Water Pollution Control Act (33 U.S.C. 1311 et seq.); and

(C) health and quality of living resources.

(2) identification of sources of environmental degradation

affecting the Nation’s coastal ecosystems;

(3) assessment of the impact of governmental programs

and management strategies and measures designed to abate or

prevent the environmental degradation of the Nation’s coastal

ecosystems;

(4) assessment of the accumulation of floatables along

coastal shorelines;

(5) analysis of expected short-term and long-term trends in

the environmental quality of the Nation’s coastal ecosystems;

and

(6) the development and implementation of intensive coastal water quality monitoring programs in accordance with subsection (d).

(c) MONITORING GUIDELINES AND PROTOCOLS.—

(1) GUIDELINES.—Not later than 18 months after the date

of the enactment of this title, the Administrator and the Under

Secretary shall jointly issue coastal water quality monitoring

guidelines to assist in the development and implementation of
63 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 503

coastal water quality monitoring programs. The guidelines

shall—

(A) provide an appropriate degree of uniformity among

the coastal water quality monitoring methods and data

while preserving the flexibility of monitoring programs to

address specific needs;

(B) establish scientifically valid monitoring methods

that will—

(i) provide simplified methods to survey and assess the water quality and ecological health of coastal

waters;

(ii) identify and quantify through more intensive

efforts the severity of existing or anticipated problems

in selected coastal waters;

(iii) identify and quantify sources of pollution that

cause or contribute to those problems, including point

and nonpoint sources; and

(iv) evaluate over time the effectiveness of efforts

to reduce or eliminate pollution from those sources;

(C) provide for data compatibility to enable data to be

efficiently stored and shared by various users; and

(D) identify appropriate physical, chemical, and biological indicators of the health and quality of coastal ecosystems.

(2) TECHNICAL PROTOCOLS.—Guidelines issued under paragraph (1) shall include protocols for—

(A) designing statistically valid coastal water quality

monitoring networks and monitoring surveys, including assessment of the accumulation of floatables.

(B) sampling and analysis, including appropriate physical and chemical parameters, living resource parameters,

and sediment analysis techniques; and

(C) quality control, quality assessment, and data consistency and management.

(3) PERIODIC REVIEW.—The Administrator and the Under

Secretary shall periodically review the guidelines and protocols

issued under this subsection to evaluate their effectiveness, the

degree to which they continue to answer program objectives

and provide an appropriate degree of uniformity while taking

local conditions into account, and any need to modify or supplement them with new guidelines and protocols, as needed.

(4) DISCHARGE PERMIT DATA.—The Administrator or a

State permitting authority shall ensure that compliance monitoring conducted pursuant to section 402(a)(2) of the Federal

Water Pollution Control Act (33 U.S.C. 1342(a)(2)) for permits

for discharges to coastal waters is consistent with the guidelines issued under this subsection. Any modifications of discharge permits necessary to implement this subsection shall be

deemed to be minor modifications of such permit. Nothing in

this subsection requires dischargers to conduct monitoring

other than compliance monitoring pursuant to permits under

section 402(a)(2) of the Federal Water Pollution Control Act (33

U.S.C. 1342(a)(2)).

(d) INTENSIVE COASTAL WATER QUALITY MONITORING

PROGRAMS.—
Sec. 503 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 64

(1) IN GENERAL.—The Comprehensive Coastal Water Qual- ity Monitoring Program established pursuant to this section

shall include intensive coastal water quality monitoring programs developed under this subsection.

(2) DESIGNATION OF INTENSIVE MONITORING AREAS.—Not

later than 24 months after the date of enactment of this title

and periodically thereafter, the Administrator and the Under

Secretary shall, based on recommendations by the National Research Council, jointly designate coastal areas to be intensively

monitored.

(3) IDENTIFICATION OF SUITABLE COASTAL AREAS.—(A) The

Administrator and the Under Secretary shall contract with the

National Research Council to conduct a study to identify coastal areas suitable for the establishment of intensive coastal

monitoring programs. In identifying these coastal areas, the

National Research Council shall consider areas that—

(i) are representatives of coastal ecosystems throughout the United States;

(ii) will provide information to assess the status and

trends of coastal water quality nation-wide; and

(iii) would benefit from intensive water quality monitoring because of local management needs.

(B) In making recommendations under this paragraph, the

National Research Council shall consult with Regional Research Boards established pursuant to title IV of this Act.

(C) The National Research Council shall, within 18 months

of the date of enactment of this title, submit a report to the

Administrator and the Under Secretary listing areas suitable

for intensive monitoring.

(D) The Administrator and the Under Secretary, in conjunction with other Federal, State, and local authorities, shall

develop and implement multi-year programs of intensive monitoring for Massachusetts and Cape Cod Bays, the Gulf of

Maine, the Chesapeake Bay, the Hudson-Raritan Estuary, and

each area jointly designated by the Administrator and the

Under Secretary pursuant to paragraph (2). (4) INTENSIVE COASTAL WATER QUALITY MONITORING PROGRAMS.—Each intensive coastal water quality monitoring program developed pursuant to this subsection shall—

(A) identify water quality conditions and problems and

provide information to assist in improving coastal water

quality;

(B) clearly state the goals and objectives of the monitoring program and their relationship to the water quality

objectives for coastal waters covered by the program;

(C) identify the water quality and biological parameters of the monitoring program and their relationship to

these goals and objectives;

(D) describe the types of monitoring networks, surveys

and other activities to be used to achieve these goals and

objectives, using where appropriate the guidelines issued

under subsection (c);

(E) survey existing Federal, State, and local coastal

monitoring activities and private compliance monitoring

activities in or on the coastal waters covered by the pro-
65 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 503

1So in law. Should be ‘‘Memorandum’’. 2Margin so in law.

gram, describe the relationship of the program to those

other monitoring activities, and integrate them, as appropriate, into the intensive monitoring program;

(F) describe the data management and quality control

components of the program;

(G) specify the implementation requirements for the

program, including—

(i) the lead Federal, State, or regional authority

that will administer the program;

(ii) the public and private parties that will implement the program;

(iii) a detailed schedule for program implementation;

(iv) all Federal and State responsibilities for implementing the program; and

(v) the changes in Federal, State, and local monitoring programs necessary to implement the program;

(H) estimate the costs to Federal and State governments, and other participants, of implementing the monitoring program; and

(I) describe the methods to assess periodically the success of the monitoring program in meeting its goals and

objectives, and the manner in which the program may be

modified from time-to-time.

(5) CRITERIA FOR MONITORING MASSACHUSETTS AND CAPE

COD BAYS.—In addition to the criteria listed in paragraph (4),

the intensive monitoring program for Massachusetts and Cape

Cod Bays shall establish baseline data on environmental phenomena (such as quantity of bacteria and quality of indigenous

species, and swimmability) and determine the ecological impacts resulting from major point source discharges.

(6) MEMORANDUM OF UNDERSTANDING.—Prior to implementing any intensive coastal water quality monitoring program under this subsection, the Administrator and the Under

Secretary shall enter into a Memorandum of Understanding to

implement the intensive coastal water quality monitoring programs and may extend the memorandum 1 of Understanding to

include other appropriate Federal agencies. The Memorandum

of Understanding shall identify the monitoring and reporting

responsibilities of each agency and shall encourage the coordination of monitoring activities.

(7) IMPLEMENTATION.—(A) The Administrator, the Under

Secretary, and the Governor of each State having waters subject to an intensive coastal water quality monitoring program

developed pursuant to this subsection shall ensure compliance

with that program.

(B) 2 The Administrator and the Under Secretary are

authorized to enter into cooperative agreements to provide

financial assistance to non-Federal agencies and institutions to support implementation of intensive monitoring

programs under this subsection. Federal financial assistance may only be provided on the condition that not less
Sec. 504 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT 66

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives. 2So in law. Should be ‘‘environmental’’.

than fifty percent of the costs of the monitoring to be conducted by a non-Federal agency or institution is provided

from non-Federal funds.

(e) COMPREHENSIVE IMPLEMENTATION STRATEGY.—

(1) IN GENERAL.—Within 1 year after the date of enactment of this title, the Administrator and the Under Secretary

shall jointly submit to Congress a Comprehensive Implementation Strategy identifying the current and planned activities to

implement the Comprehensive Coastal Monitoring Program

pursuant to this section.

(2) CONSULTATION.—The Administrator and the Under

Secretary shall consult with the National Academy of Sciences,

the Director of the United States Fish and Wildlife Service, the

Director of the Minerals Management Service, the Commandant of the Coast Guard, the Secretary of the Navy, the

Secretary of Agriculture, the heads of any other relevant Federal or regional agencies, and the Governors of coastal States

in developing the Strategy.

(3) PUBLIC COMMENT.—Not less than 3 months before submitting the Strategy to Congress, the Administrator and the

Under Secretary shall jointly publish a draft version of the

Strategy in the Federal Register and shall solicit public comments regarding the Strategy.

(4) MEMORANDUM OF UNDERSTANDING.—Within 1 year

after submission of the Strategy under paragraph (1), the Administrator and the Under Secretary shall enter into a Memorandum of Understanding with appropriate Federal agencies

necessary to effect the coordination of Federal coastal monitoring programs. The Memorandum of Understanding shall

identify the monitoring and reporting responsibilities of each

agency and shall encourage the coordination of monitoring activities where possible.

SEC. 504. ø33 U.S.C. 2804¿ REPORT TO CONGRESS.

On September 30 of each other year beginning in 1993, the Administrator and the Under Secretary shall jointly submit to the

Committee on Commerce, Science, and Transportation and the

Committee on Environment and Public Works of the Senate and

the Committee on Merchant Marine and Fisheries 1 and the Committee on Public Works and Transportation of the House of Representatives a report describing the condition of the Nation’s coastal ecosystems, including the following:

(1) an assessment of the status and health of the Nation’s

coastal ecosystems;

(2) an evaluation of environmental trends in coastal ecosystems;

(3) identification of sources of enironmental 2 degradation

affecting coastal ecosystems;
67 MARINE PROTECTION, RESEARCH, & SANCTUARIES ACT Sec. 505

1So in law. Should be a semicolon. 2So in law. Should be ‘‘section’’.

(4) an assessment of the extent to which floatables degrade

coastal ecosystems, including trends in the accumulation of

floatables and the threat posed by floatables to aquatic life;

(5) an assessment of the impact of government programs

designed to abate the degradation of coastal ecosystems: 1

(6) an evaluation of the adequacy of monitoring programs

and identification of any additional program elements which

may be needed; and

(7) a summary of monitoring results in areas monitored

under subsection 2 503(d).

SEC. 505. ø33 U.S.C. 2805¿ AUTHORIZATION OF APPROPRIATIONS.

(a) NOAA AUTHORIZATION.—For development and implementation of programs under this title, including financial assistance to

non-Federal agencies and institutions to support implementation of

intensive monitoring programs under section 503(d), there is authorized to be appropriated to the Under Secretary amounts not to

exceed $5,000,000 for fiscal year 1993, $8,000,000 for fiscal year

1994, $10,000,000 for fiscal year 1995, and $12,000,000 for fiscal

year 1996.

(b) EPA AUTHORIZATION.—For development and implementation of programs under this title, including financial assistance to

non-Federal agencies and institutions to support implementation of

intensive monitoring programs under section 503(d), there is authorized to be appropriated to the Administrator amounts not to

exceed $5,000,000 for fiscal year 1993, $8,000,000 for fiscal year

1994, and $10,000,000 for fiscal year 1995, and $12,000,000 for fiscal year 1996.

69

COASTAL ZONE MANAGEMENT ACT OF 1972

71

COASTAL ZONE MANAGEMENT ACT OF 1972

[Public Law 92–583, Approved Oct. 27, 1972, 86 Stat. 1280]

(Amended through Public Law 104–150, June 3, 1996)

AN ACT To establish a national policy and develop a national program for the management, beneficial use, protection, and development of the land and water resources of the Nation’s coastal zones, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, * * *

TITLE III—MANAGEMENT OF THE COASTAL ZONE

SHORT TITLE

SEC. 301. ø16 U.S.C. 1451 note¿ This title may be cited as the

‘‘Coastal Zone Management Act of 1972’’.

CONGRESSIONAL FINDINGS

SEC. 302. ø16 U.S.C. 1451¿ The Congress finds that—

(a) There is a national interest in the effective management,

beneficial use, protection, and development of the coastal zone.

(b) The coastal zone is rich in a variety of natural, commercial,

recreational, ecological, industrial, and esthetic resources of immediate and potential value to the present and future well-being of

the Nation.

(c) The increasing and competing demands upon the lands and

waters of our coastal zone occasioned by population growth and

economic development, including requirements for industry, commerce, residential development, recreation, extraction of mineral

resources and fossil fuels, transportation and navigation, waste disposal, and harvesting of fish, shellfish, and other living marine resources, have resulted in the loss of living marine resources, wildlife, nutrient-rich areas, permanent and adverse changes to ecological systems, decreasing open space for public use, and shoreline

erosion.

(d) The habitat areas of the coastal zone, and the fish, shellfish, other living marine resources, and wildlife therein, are ecologically fragile and consequently extremely vulnerable to destruction by man’s alterations.

(e) Important ecological, cultural, historic, and esthetic values

in the coastal zone which are essential to the well-being of all citizens are being irretrievably damaged or lost. (f) New and expanding demands for food, energy, minerals, defense needs, recreation, waste disposal, transportation, and industrial activities in the Great Lakes, territorial sea, exclusive economic zone, and Outer Continental Shelf are placing stress on

these areas and are creating the need for resolution of serious con-
Sec. 303 COASTAL ZONE MANAGEMENT ACT OF 1972 72

1So in law. Probably should be a period.

flicts among important and competing uses and values in coastal

and ocean waters; 1

(g) Special natural and scenic characteristics are being damaged by ill-planned development that threatens these values.

(h) In light of competing demands and the urgent need to protect and to give high priority to natural systems in the coastal

zone, present state and local institutional arrangements for planning and regulating land and water uses in such areas are inadequate.

(i) The key to more effective protection and use of the land and

water resources of the coastal zone is to encourage the states to exercise their full authority over the lands and waters in the coastal

zone by assisting the states, in cooperation with Federal and local

governments and other vitally affected interests, in developing land

and water use programs for the coastal zone, including unified policies, criteria, standards, methods, and processes for dealing with

land and water use decisions of more than local significance.

(j) The national objective of attaining a greater degree of energy self-sufficiency would be advanced by providing Federal financial assistance to meet state and local needs resulting from new or

expanded energy activity in or affecting the coastal zone.

(k) Land uses in the coastal zone, and the uses of adjacent

lands which drain into the coastal zone, may significantly affect the

quality of coastal waters and habitats, and efforts to control coastal

water pollution from land use activities must be improved.

(l) Because global warming may result in a substantial sea

level rise with serious adverse effects in the coastal zone, coastal

states must anticipate and plan for such an occurrence.

(m) Because of their proximity to and reliance upon the ocean

and its resources, the coastal states have substantial and significant interests in the protection, management, and development of

the resources of the exclusive economic zone that can only be

served by the active participation of coastal states in all Federal

programs affecting such resources and, wherever appropriate, by

the development of state ocean resource plans as part of their federally approved coastal zone management programs.

CONGRESSIONAL DECLARATION OF POLICY

SEC. 303. ø16 U.S.C. 1452¿ The Congress finds and declares

that it is the national policy—

(1) to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for

this and succeeding generations;

(2) to encourage and assist the states to exercise effectively

their responsibilities in the coastal zone through the development and implementation of management programs to achieve

wise use of the land and water resources of the coastal zone,

giving full consideration to ecological, cultural, historic, and esthetic values as well as the needs for compatible economic development, which programs should at least provide for—

(A) the protection of natural resources, including wetlands, floodplains, estuaries, beaches, dunes, barrier is-
73 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 303

1So in original. The period probably should be a comma.

lands, coral reefs, and fish and wildlife and their habitat,

within the coastal zone,

(B) the management of coastal development to minimize the loss of life and property caused by improper development in flood-prone, storm surge, geological hazard,

and erosion-prone areas and in areas likely to be affected

by or vulnerable to sea level rise, land subsidence, and

saltwater intrusion, and by the destruction of natural protective features such as beaches, dunes, wetlands, and barrier islands. 1

(C) the management of coastal development to improve, safeguard, and restore the quality of coastal waters,

and to protect natural resources and existing uses of those

waters,

(D) priority consideration being given to coastal-dependent uses and orderly processes for siting major facilities related to national defense, energy, fisheries development, recreation, ports and transportation, and the location, to the maximum extent practicable, of new commercial and industrial developments in or adjacent to areas

where such development already exists,

(E) public access to the coasts for recreation purposes,

(F) assistance in the redevelopment of deteriorating

urban waterfronts and ports, and sensitive preservation

and restoration of historic, cultural, and esthetic coastal

features,

(G) the coordination and simplification of procedures

in order to ensure expedited governmental decisionmaking

for the management of coastal resources,

(H) continued consultation and coordination with, and

the giving of adequate consideration to the views of, affected Federal agencies,

(I) the giving of timely and effective notification of,

and opportunities for public and local government participation in, coastal management decisionmaking,

(J) assistance to support comprehensive planning, conservation, and management for living marine resources,

including planning for the siting of pollution control and

aquaculture facilities within the coastal zone, and improved coordination between State and Federal coastal

zone management agencies and State and wildlife agencies, and

(K) the study and development, in any case in which

the Secretary considers it to be appropriate, of plans for

addressing the adverse effects upon the coastal zone of

land subsidence and of sea level rise; and

(3) to encourage the preparation of special area management plans which provide for increased specificity in protecting

significant natural resources, reasonable coastal-dependent

economic growth, improved protection of life and property in

hazardous areas, including those areas likely to be affected by

land subsidence, sea level rise, or fluctuating water levels of
Sec. 304 COASTAL ZONE MANAGEMENT ACT OF 1972 74

the Great Lakes, and improved predictability in governmental

decisionmaking;

(4) to encourage the participation and cooperation of the

public, state and local governments, and interstate and other

regional agencies, as well as the Federal agencies having programs affecting the coastal zone, in carrying out the purposes

of this title;

(5) to encourage coordination and cooperation with and

among the appropriate Federal, State, and local agencies, and

international organizations where appropriate, in collection,

analysis, synthesis, and dissemination of coastal management

information, research results, and technical assistance, to support State and Federal regulation of land use practices affecting the coastal and ocean resources of the United States; and

(6) to respond to changing circumstances affecting the

coastal environment and coastal resource management by encouraging States to consider such issues as ocean uses potentially affecting the coastal zone.

DEFINITIONS

SEC. 304. ø16 U.S.C. 1453¿ For the purposes of this title—

(1) The term ‘‘coastal zone’’ means the coastal waters (including the lands therein and thereunder) and the adjacent shorelands

(including the waters therein and thereunder), strongly influenced

by each other and in proximity to the shorelines of the several

coastal states, and includes, islands, transitional and intertidal

areas, salt marshes, wetlands, and beaches. The zone extends, in

Great Lakes waters, to the international boundary between the

United States and Canada and, in other areas, seaward to the

outer limit of State title and ownership under the Submerged

Lands Act (43 U.S.C. 1301 et seq.), the Act of March 2, 1917 (48

U.S.C. 749), the Covenant to Establish a Commonwealth of the

Northern Mariana Islands in Political Union with the United

States of America, as approved by the Act of March 24, 1976 (48

U.S.C. 1681 note), or section 1 of the Act of November 20, 1963 (48

U.S.C. 1705), as applicable. The zone extends inland from the

shorelines only to the extent necessary to control shorelands, the

uses of which have a direct and significant impact on the coastal

waters, and to control those geographical areas which are likely to

be affected by or vulnerable to sea level rise. Excluded from the

coastal zone are lands the use of which is by law subject solely to

the discretion of or which is held in trust by the Federal Government, its officers or agents.

(2) The term ‘‘coastal resource of national significance’’ means

any coastal wetland, beach, dune, barrier island, reef, estuary, or

fish and wildlife habitat, if any such area is determined by a coastal state to be of substantial biological or natural storm protective

value.

(3) The term ‘‘coastal waters’’ means (A) in the Great Lakes

area, the waters within the territorial jurisdiction of the United

States consisting of the Great Lakes, their connecting waters, harbors, roadsteads, and estuary-type areas such as bays, shallows,

and marshes and (B) in other areas, those waters, adjacent to the

shorelines, which contain a measurable quantity or percentage of
75 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 304

1So in original. Probably should be a colon. 2So in original. Probably should be ‘‘(6)(a)’’, and paragraph indent is wrong. (This footnote was

in the Pub. L.)

sea water, including, but not limited to, sounds, bays, lagoons, bayous, ponds, and estuaries.

(4) The term ‘‘coastal state’’ means a state of the United States

in, or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf

of Mexico, Long Island Sound, or one or more of the Great Lakes.

For the purposes of this title, the term also includes Puerto Rico,

the Virgin Islands, Guam, the Commonwealth of the Northern

Mariana Islands, and the Trust Territories of the Pacific Islands,

and American Samoa.

(5) The term ‘‘coastal energy activity’’ means any of the following activities if, and to the extent that (A) the conduct, support,

or facilitation of such activity requires and involves the siting, construction, expansion, or operation of any equipment or facility; and

(B) any technical requirement exists which, in the determination of

the Secretary, necessitates that the siting, construction, expansion,

or operation of such equipment or facility be carried out in, or in

close proximity to, the coastal zone of any coastal state; 1

(i) Any outer Continental Shelf energy activity.

(ii) Any transportation, conversion, treatment, transfer, or

storage of liquefied natural gas.

(iii) Any transportation, transfer, or storage of oil, natural

gas, or coal (including, but not limited to, by means of any

deepwater port, as defined in section 3(10) of the Deepwater

Port Act of 1974 (33 U.S.C. 1502(10))).

For purposes of this paragraph, the siting, construction, expansion,

or operation of any equipment or facility shall be ‘‘in close proximity to’’ the coastal zone of any coastal state if such siting, construction, expansion, or operation has, or is likely to have, a significant effect on such coastal zone.

(6) The term ‘‘energy facilities’’ means any equipment or facility which is or will be used primarily—

(A) in the exploration for, or the development, production,

conversion, storage, transfer, processing, or transportation of,

any energy resource; or

(B) for the manufacture, production, or assembly of equipment, machinery, products, or devices which are involved in

any activity described in subparagraph (A).

The term includes, but is not limited to (i) electric generating

plants; (ii) petroleum refineries and associated facilities; (iii) gasification plants; (iv) facilities used for the transportation, conversion,

treatment, transfer, or storage of liquefied natural gas; (v) uranium

enrichment or nuclear fuel processing facilities; (vi) oil and gas facilities, including platforms, assembly plants, storage depots, tank

farms, crew and supply bases, and refining complexes; (vii) facilities including deepwater ports, for the transfer of petroleum; (viii)

pipelines and transmission facilities; and (ix) terminals which are

associated with any of the foregoing.

(6a) 2 The term ‘‘enforceable policy’’ means State policies

which are legally binding through constitutional provisions,

laws, regulations, land use plans, ordinances, or judicial or administrative decisions, by which a State exerts control over pri-
Sec. 304 COASTAL ZONE MANAGEMENT ACT OF 1972 76

vate and public land and water uses and natural resources in

the coastal zone.

(7) The term ‘‘estuary’’ means that part of a river or stream or

other body of water having unimpaired connection with the open

sea, where the sea water is measurably diluted with fresh water

derived from land drainage. The term includes estuary-type areas

of the Great Lakes.

(8) The term ‘‘estuarine sanctuary’’ means a research area

which may include any part or all of an estuary and any island,

transitional area, and upland in, or adjacent to such estuary, and

which constitutes to the extent feasible a natural unit, set aside to

provide scientists and students the opportunity to examine over a

period of time the ecological relationships within the area.

(9) The term ‘‘Fund’’ means the Coastal Zone Management

Fund established under section 308(b).

(10) The term ‘‘land use’’ means activities which are conducted

in, or on the shorelands within, the coastal zone, subject to the requirements outlined in section 307(g).

(11) The term ‘‘local government’’ means any political subdivision of, or any special entity created by, any coastal state which (in

whole or part) is located in, or has authority over, such state’s

coastal zone and which (A) has authority to levy taxes, or to establish and collect user fees, or (B) provides any public facility or public service which is financed in whole or part by taxes or user fees.

The term includes but is not limited to, any school district, fire district, transportation authority, and any other special purpose district or authority.

(12) The term ‘‘management program’’ includes, but is not limited to, a comprehensive statement in words, maps, illustrations, or

other media of communication, prepared and adopted by the state

in accordance with the provisions of this title, setting forth objectives, policies, and standards to guide public and private uses of

lands and waters in the coastal zone.

(13) The term ‘‘outer Continental Shelf energy activity’’ means

any exploration for, or any development or production of, oil or natural gas from the outer Continental Shelf (as defined in section

2(a) of the Outer Continental Shelf Lands Act (43 U.S.C. 1331(a))),

or the siting, construction, expansion, or operation of any new or

expanded energy facilities directly required by such exploration, development, or production.

(14) The term ‘‘person’’ means any individual; any corporation,

partnership, association, or other entity organized or existing under

the laws of any state; the Federal Government; any state, regional,

or local government; or any entity of any such Federal, state, regional, or local government.

(15) The term ‘‘public facilities and public services’’ means facilities or services which are financed, in whole or in part, by any

state or political subdivision thereof, including, but not limited to,

highways and secondary roads, parking, mass transit, docks, navigation aids, fire and police protection, water supply, waste collection and treatment (including drainage), schools and education, and

hospitals and health care. Such term may also include any other

facility or service so financed which the Secretary finds will support increased population.

(16) The term ‘‘Secretary’’ means the Secretary of Commerce.
77 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 306

(17) The term ‘‘special area management plan’’ means a comprehensive plan providing for natural resource protection and reasonable coastal-dependent economic growth containing a detailed

and comprehensive statement of policies; standards and criteria to

guide public and private uses of lands and waters; and mechanisms

for timely implementation in specific geographic areas within the

coastal zone.

(18) The term ‘‘water use’’ means a use, activity, or project conducted in or on waters within the coastal zone.

SUBMITTAL OF STATE PROGRAM FOR APPROVAL

SEC. 305. ø16 U.S.C. 1454¿ Any coastal state which has completed the development of its management program shall submit

such program to the Secretary for review and approval pursuant to

section 306.

ADMINISTRATIVE GRANTS

SEC. 306. ø16 U.S.C. 1455¿ (a) The Secretary may make grants

to any coastal state for the purpose of administering that State’s

management program, if the State matches any such grant according to the following ratios of Federal-to-State contributions for the

applicable fiscal year:

(1) For those States for which programs were approved

prior to enactment of the Coastal Zone Act Reauthorization

Amendments of 1990, 1 to 1 for any fiscal year.

(2) For programs approved after enactment of the Coastal

Zone Act Reauthorization Amendments of 1990, 4 to 1 for the

first fiscal year, 2.3 to 1 for the second fiscal year, 1.5 to 1 for

the third fiscal year, and 1 to 1 for each fiscal year thereafter.

(b) The Secretary may make a grant to a coastal state under

subsection (a) only if the Secretary finds that the management program of the coastal state meets all applicable requirements of this

title and has been approved in accordance with subsection (d).

(c) Grants under this section shall be allocated to coastal states

with approved programs based on rules and regulations promulgated by the Secretary which shall take into account the extent

and nature of the shoreline and area covered by the program, population of the area, and other relevant factors. The Secretary shall

establish, after consulting with the coastal states, maximum and

minimum grants for any fiscal year to promote equity between

coastal states and effective coastal management.

(d) Before approving a management program submitted by a

coastal state, the Secretary shall find the following:

(1) The State has developed and adopted a management

program for its coastal zone in accordance with rules and regulations promulgated by the Secretary, after notice, and with

the opportunity of full participation by relevant Federal agencies, State agencies, local governments, regional organizations,

port authorities, and other interested parties and individuals,

public and private, which is adequate to carry out the purposes

of this title and is consistent with the policy declared in section

303.

(2) The management program includes each of the following required program elements:
Sec. 306 COASTAL ZONE MANAGEMENT ACT OF 1972 78

(A) An identification of the boundaries of the coastal

zone subject to the management program.

(B) A definition of what shall constitute permissible

land uses and water uses within the coastal zone which

have a direct and significant impact on the coastal waters.

(C) An inventory and designation of areas of particular

concern within the coastal zone.

(D) An identification of the means by which the State

proposes to exert control over the land uses and water uses

referred to in subparagraph (B), including a list of relevant

State constitutional provisions, laws, regulations, and judicial decisions.

(E) Broad guidelines on priorities of uses in particular

areas, including specifically those uses of lowest priority.

(F) A description of the organizational structure proposed to implement such management program, including

the responsibilities and interrelationships of local,

areawide, State, regional, and interstate agencies in the

management process.

(G) A definition of the term ‘‘beach’’ and a planning

process for the protection of, and access to, public beaches

and other public coastal areas of environmental, recreational, historical, esthetic, ecological, or cultural value.

(H) A planning process for energy facilities likely to be

located in, or which may significantly affect, the coastal

zone, including a process for anticipating the management

of the impacts resulting from such facilities.

(I) A planning process for assessing the effects of, and

studying and evaluating ways to control, or lessen the impact of, shoreline erosion, and to restore areas adversely

affected by such erosion.

(3) The State has—

(A) coordinated its program with local, areawide, and

interstate plans applicable to areas within the coastal

zone—

(i) existing on January 1 of the year in which the

State’s management program is submitted to the Secretary; and

(ii) which have been developed by a local government, an areawide agency, a regional agency, or an

interstate agency; and

(B) established an effective mechanism for continuing

consultation and coordination between the management

agency designated pursuant to paragraph (6) and with

local governments, interstate agencies, regional agencies,

and areawide agencies within the coastal zone to assure

the full participation of those local governments and agencies in carrying out the purposes of this title; except that

the Secretary shall not find any mechanism to be effective

for purposes of this subparagraph unless it requires that—

(i) the management agency, before implementing

any management program decision which would conflict with any local zoning ordinance, decision, or other

action, shall send a notice of the management program
79 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 306

1So in original. Probably should be followed by a comma.

decision to any local government whose zoning authority is affected;

(ii) within the 30-day period commencing on the

date of receipt of that notice, the local government

may submit to the management agency written comments on the management program decision, and any

recommendation for alternatives; and

(iii) the management agency, if any comments are

submitted to it within the 30-day period by any local

government—

(I) shall consider the comments;

(II) may, in its discretion, hold a public hearing on the comments; and

(III) may not take any action within the 30-

day period to implement the management program decision.

(4) The State has held public hearings in the development

of the management program.

(5) The management program and any changes thereto

have been reviewed and approved by the Governor of the State.

(6) The Governor of the State has designated a single

State agency to receive and administer grants for implementing the management program.

(7) The State is organized to implement the management

program.

(8) The management program provides for adequate consideration of the national interest involved in planning for, and

managing the coastal zone, including the siting of facilities

such as energy facilities which are of greater than local significance. In the case of energy facilities, the Secretary shall find

that the State has given consideration to any applicable national or interstate energy plan or program.

(9) The management program includes procedures whereby

specific areas may be designated for the purpose of preserving

or restoring them for their conservation, recreational, ecological, historical, or esthetic values.

(10) The State, acting through its chosen agency or agencies (including local governments, areawide agencies, regional

agencies, or interstate agencies) has authority for the management of the coastal zone in accordance with the management

program. Such authority shall include power—

(A) to administer land use and water use regulations

to control development 1 to ensure compliance with the

management program, and to resolve conflicts among competing uses; and

(B) to acquire fee simple and less than fee simple interests in land, waters, and other property through condemnation or other means when necessary to achieve conformance with the management program.

(11) The management program provides for any one or a

combination of the following general techniques for control of

land uses and water uses within the coastal zone:
Sec. 306 COASTAL ZONE MANAGEMENT ACT OF 1972 80

(A) State establishment of criteria and standards for

local implementation, subject to administrative review and

enforcement.

(B) Direct State land and water use planning and regulation.

(C) State administrative review for consistency with

the management program of all development plans,

projects, or land and water use regulations, including exceptions and variances thereto, proposed by any State or

local authority or private developer, with power to approve

or disapprove after public notice and an opportunity for

hearings.

(12) The management program contains a method of assuring that local land use and water use regulations within the

coastal zone do not unreasonably restrict or exclude land uses

and water uses of regional benefit.

(13) The management program provides for—

(A) the inventory and designation of areas that contain one or more coastal resources of national significance;

and

(B) specific and enforceable standards to protect such

resources.

(14) The management program provides for public participation in permitting processes, consistency determinations, and

other similar decisions.

(15) The management program provides a mechanism to

ensure that all State agencies will adhere to the program.

(16) The management program contains enforceable policies and mechanisms to implement the applicable requirements of the Coastal Nonpoint Pollution Control Program of

the State required by section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990.

(e) A coastal state may amend or modify a management program which it has submitted and which has been approved by the

Secretary under this section, subject to the following conditions:

(1) The State shall promptly notify the Secretary of any

proposed amendment, modification, or other program change

and submit it for the Secretary’s approval. The Secretary may

suspend all or part of any grant made under this section pending State submission of the proposed amendments, modification, or other program change.

(2) Within 30 days after the date the Secretary receives

any proposed amendment, the Secretary shall notify the State

whether the Secretary approves or disapproves the amendment, or whether the Secretary finds it is necessary to extend

the review of the proposed amendment for a period not to exceed 120 days after the date the Secretary received the proposed amendment. The Secretary may extend this period only

as necessary to meet the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). If the

Secretary does not notify the coastal state that the Secretary

approves or disapproves the amendment within that period,

then the amendment shall be conclusively presumed as

approved.
81 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 306A

(3)(A) Except as provided in subparagraph (B), a coastal

state may not implement any amendment, modification, or

other change as part of its approved management program unless the amendment, modification, or other change is approved

by the Secretary under this subsection.

(B) The Secretary, after determining on a preliminary

basis, that an amendment, modification, or other change which

has been submitted for approval under this subsection is likely

to meet the program approval standards in this section, may

permit the State to expend funds awarded under this section

to begin implementing the proposed amendment, modification,

or change. This preliminary approval shall not extend for more

than 6 months and may not be renewed. A proposed amendment, modification, or change which has been given preliminary approval and is not finally approved under this paragraph shall not be considered an enforceable policy for purposes of section 307.

RESOURCE MANAGEMENT IMPROVEMENT GRANTS

SEC. 306A. ø16 U.S.C. 1455a¿ (a) For purposes of this

section—

(1) The term ‘‘eligible coastal state’’ means a coastal state

that for any fiscal year for which a grant is applied for under

this section—

(A) has a management program approved under section 306; and

(B) in the judgment of the Secretary, is making satisfactory progress in activities designed to result in significant improvement in achieving the coastal management

objectives specified in section 303(2)(A) through (K).

(2) The term ‘‘urban waterfront and port’’ means any developed area that is densely populated and is being used for,

or has been used for, urban residential recreational, commercial, shipping or industrial purposes.

(b) The Secretary may make grants to any eligible coastal state

to assist that state in meeting one or more of the following objectives:

(1) The preservation or restoration of specific areas of the

state that (A) are designated under the management program

procedures required by section 306(d)(9) because of their conservation recreational, ecological, or esthetic values, or (B) contain one or more coastal resources of national significance, or

for the purpose of restoring and enhancing shellfish production

by the purchase and distribution of clutch material on publicly

owned reef tracts.

(2) The redevelopment of deteriorating and underutilized

urban waterfronts and ports that are designated in the state’s

management program pursuant to section 306(d)(2)(C) as areas

of particular concern.

(3) The provision of access to public beaches and other

public coastal areas and to coastal waters in accordance with

the planning process required under section 306(d)(2)(G).

(4) The development of a coordinated process among State

agencies to regulate and issue permits for aquaculture facilities

in the coastal zone.
Sec. 306A COASTAL ZONE MANAGEMENT ACT OF 1972 82

(c)(1) Each grant made by the Secretary under this section

shall be subject to such terms and conditions as may be appropriate to ensure that the grant is used for purposes consistent with

this section.

(2) Grants made under this section may be used for—

(A) the acquisition of fee simple and other interests in

land;

(B) low-cost construction projects determined by the Secretary to be consistent with the purposes of this section, including but not limited to, paths, walkways, fences, parks, and

the rehabilitation of historic buildings and structures; except

that not more than 50 per centum of any grant made under

this section may be used for such construction projects;

(C) in the case of grants made for objectives described in

subsection (b)(2)—

(i) the rehabilitation or acquisition of piers to provide

increased public use, including compatible commercial activity,

(ii) the establishment of shoreline stabilization measures including the installation or rehabilitation of bulkheads for the purpose of public safety or increasing public

access and use, and

(iii) the removal or replacement of pilings where such

action will provide increased recreational use of urban waterfront areas,

but activities provided for under this paragraph shall not be

treated as construction projects subject to the limitations in

paragraph (B);

(D) engineering designs, specifications, and other appropriate reports; and

(E) educational, interpretive, and management costs and

such other related costs as the Secretary determines to be consistent with the purposes of this section.

(d)(1) The Secretary may make grants to any coastal state for

the purpose of carrying out the project or purpose for which such

grants are awarded, if the state matches any such grant according

to the following ratios of Federal to state contributions for the applicable fiscal year: 4 to 1 for fiscal year 1986; 2.3 to 1 for fiscal

year 1987; 1.5 to 1 for fiscal year 1988; and 1 to 1 for each fiscal

year after fiscal year 1988.

(2) Grants provided under this section may be used to pay a

coastal state’s share of costs required under any other Federal program that is consistent with the purposes of this section.

(3) The total amount of grants made under this section to any

eligible coastal state for any fiscal year may not exceed an amount

equal to 10 per centum of the total amount appropriated to carry

out this section for such fiscal year.

(e) With the approval of the Secretary, an eligible coastal state

may allocate to a local government, an areawide agency designated

under section 204 of the Demonstration Cities and Metropolitan

Development Act of 1966, a regional agency, or an interstate agency, a portion of any grant made under this section for the purpose

of carrying out this section; except that such an allocation shall not

relieve that state of the responsibility for ensuring that any funds
83 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 307

so allocated are applied in furtherance of the state’s approved management program.

(f) In addition to providing grants under this section, the Secretary shall assist eligible coastal states and their local governments in identifying and obtaining other sources of available Federal technical and financial assistance regarding the objectives of

this section.

COORDINATION AND COOPERATION

SEC. 307. ø16 U.S.C. 1456¿ (a) In carrying out his functions

and responsibilities under this title, the Secretary shall consult

with, cooperate with, and, to the maximum extent practicable, coordinate his activities with other interested Federal agencies.

(b) The Secretary shall not approve the management program

submitted by a state pursuant to section 306 unless the views of

Federal agencies principally affected by such program have been

adequately considered. (c)(1)(A) Each Federal agency activity within or outside the

coastal zone that affects any land or water use or natural resource

of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable

policies of approved State management programs. A Federal agency activity shall be subject to this paragraph unless it is subject to

paragraph (2) or (3).

(B) After any final judgment, decree, or order of any Federal

court that is appealable under section 1291 or 1292 of title 28,

United States Code, or under any other applicable provision of Federal law, that a specific Federal agency activity is not in compliance with subparagraph (A), and certification by the Secretary that

mediation under subsection (h) is not likely to result in such compliance, the President may, upon written request from the Secretary, exempt from compliance those elements of the Federal

agency activity that are found by the Federal court to be inconsistent with an approved State program, if the President determines that the activity is in the paramount interest of the United

States. No such exemption shall be granted on the basis of a lack

of appropriations unless the President has specifically requested

such appropriations as part of the budgetary process, and the Congress has failed to make available the requested appropriations.

(C) Each Federal agency carrying out an activity subject to

paragraph (1) shall provide a consistency determination to the relevant State agency designated under section 306(d)(6) at the earliest practicable time, but in no case later than 90 days before final

approval of the Federal activity unless both the Federal agency and

the State agency agree to a different schedule.

(2) Any Federal agency which shall undertake any development project in the coastal zone of a state shall insure that the

project is, to the maximum extent practicable, consistent with the

enforceable policies of approved state management programs.

(3)(A) After final approval by the Secretary of a state’s management program, any applicant for a required Federal license or

permit to conduct an activity, inside or outside the coastal zone, affecting any land or water use or natural resource of the coastal

zone of that state shall provide in the applicant to the licensing or

permitting agency a certification that the proposed activity com-
Sec. 307 COASTAL ZONE MANAGEMENT ACT OF 1972 84

plies with the enforceable policies of the state’s approved program

and that such activity will be conducted in a manner consistent

with the program. At the same time, the applicant shall furnish to

the state or its designated agency a copy of the certification, with

all necessary information and data. Each coastal state shall establish procedures for public notice in the case of all such certifications

and, to the extent it deems appropriate, procedures for public hearings in connection therewith. At the earliest practicable time, the

state or its designated agency shall notify the Federal agency concerned that the state concurs with or objects to the applicant’s certification. If the state or its designated agency fails to furnish the

required notification within six months after receipt of its copy of

the applicant’s certification, the state’s concurrence with the certification shall be conclusively presumed. No license or permit shall be

granted by the Federal agency until the state or its designated

agency has concurred with the applicant’s certification or until, by

the state’s failure to act, the concurrence is conclusively presumed,

unless the Secretary, on his own initiative or upon appeal by the

applicant, finds, after providing a reasonable opportunity for detailed comments from the Federal agency involved and from the

state, that the activity is consistent with the objectives of this title

or is otherwise necessary in the interest of national security.

(B) After the management program of any coastal state has

been approved by the Secretary under section 306, any person who

submits to the Secretary of the Interior any plan for the exploration or development of, or production from, any area which has

been leased under the Outer Continental Shelf Lands Act (43

U.S.C. 1331 et seq.) and regulations under such Act shall, with respect to any exploration, development, or production described in

such plan and affecting any land or water use or natural resource

of the coastal zone of such state, attach to such plan a certification

that each activity which is described in detail in such plan complies

with the enforceable policies of such state’s approved management

program and will be carried out in a manner consistent with such

program. No Federal official or agency shall grant such person any

license or permit for any activity described in detail in such plan

until such state or its designated agency receives a copy of such

certification and plan, together with any other necessary data and

information, and until—

(i) such state or its designated agency, in accordance with

the procedures required to be established by such state pursuant to subparagraph (A), concurs with such person’s certification and notifies the Secretary and the Secretary of the Interior of such concurrence;

(ii) concurrence by such state with such certification is conclusively presumed as provided for in subparagraph (A), except

if such state fails to concur with or object to such certification

within three months after receipt of its copy of such certification and supporting information, such state shall provide the

Secretary, the appropriate federal agency, and such person

with a written statement describing the status of review and

the basis for further delay in issuing a final decision, and if

such statement is not so provided, concurrence by such state

with such certification shall be conclusively presumed; or
85 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 307

1So in law. Probably should be ‘‘; or’’.

(iii) the Secretary finds, pursuant to subparagraph (A),

that each activity which is described in detail in such plan is

consistent with the objectives of this title or is otherwise necessary in the interest of national security.

If a state concurs or is conclusively presumed to concur, or if the

Secretary makes such a finding, the provisions of subparagraph (A)

are not applicable with respect to such person, such state, and any

Federal license or permit which is required to conduct any activity

affecting land uses or water uses in the coastal zone of such state

which is described in detail in the plan to which such concurrence

or finding applies. If such state objects to such certification and if

th Secretary fails to make a finding under clause (iii) with respect

to such certification, or if such person fails substantially to comply

with such plan as submitted, such person shall submit an amendment to such plan, or a new plan, to the Secretary of the Interior.

With respect to any amendment or new plan submitted to the Secretary of the Interior pursuant to the preceding sentence, the applicable time period for purposes of concurrence by conclusive presumption under subparagraph (A) is 3 months.

(d) State and local governments submitting applications for

Federal assistance under other Federal programs, in or outside of

the coastal zone, affecting any land or water use of natural resource of the coastal zone shall indicate the views of the appropriate state or local agency as to the relationship of such activities

to the approved management program for the coastal zone. Such

applications shall be submitted and coordinated in accordance with

the provisions of title IV of the Intergovernmental Coordination Act

of 1968 (82 Stat. 1098). Federal agencies shall not approve proposed projects that are inconsistent with the enforceable policies of

a coastal state’s management program, except upon a finding by

the Secretary that such project is consistent with the purposes of

this title or necessary in the interest of national security.

(e) Nothing in this title shall be construed—

(1) to diminish either Federal or state jurisdiction, responsibility, or rights in the field of planning, development, or control of water resources, submerged lands, or navigable waters;

nor to displace, supersede, limit, or modify any interstate compact or the jurisdiction or responsibility of any legally established joint or common agency of two or more states or of two

or more states and the Federal Government; nor to limit the

authority of Congress to authorize and fund projects; 1

(2) as superseding, modifying, or repealing existing laws

applicable to the various Federal agencies; nor to affect the jurisdiction, powers, or prerogatives of the International Joint

Commission, United States and Canada, the Permanent Engineering Board, and the United States operating entity or entities established pursuant to the Columbia River Basin Treaty,

signed at Washington, January 17, 1961, or the International

Boundary and Water Commission, United States and Mexico.

(f) Notwithstanding any other provision of this title, nothing in

this title shall in any way affect any requirement (1) established

by the Federal Water Pollution Control Act, as amended, or the

Clean Air Act, as amended, or (2) established by the Federal Gov-
Sec. 308 COASTAL ZONE MANAGEMENT ACT OF 1972 86

1Margins so in law.

ernment or by any state or local government pursuant to such Acts.

Such requirements shall be incorporated in any program developed

pursuant to this title and shall be the water pollution control and

air pollution control requirements applicable to such program.

(g) When any state’s coastal zone management program, submitted for approval or proposed for modification pursuant to section 306 of this title, includes requirements as to shorelands which

also would be subject to any Federally supported national land use

program which may be hereafter enacted, the Secretary, prior to

approving such program, shall obtain the concurrence of the Secretary of the Interior, or such other Federal official as may be designated to administer the national land use program, with respect

to that portion of the coastal zone management program affecting

such inland areas.

(h) In case of serious disagreement between any Federal agency and a coastal state— (1) in the development or the initial implementation of a

management program under section 305; or

(2) in the administration of a management program approved under section 306;

the Secretary, with the cooperation of the Executive Office of the

President, shall seek to mediate the differences involved in such

disagreement. The process of such mediation shall, with respect to

any disagreement described in paragraph (2), include public hearings which shall be conducted in the local area concerned.

(i)(1) With respect to appeals under subsections (c)(3) and (d)

which are submitted after the date of the enactment of the Coastal

Zone Act Reauthorization Amendments of 1990, the Secretary shall

collect an application fee of not less than $200 for minor appeals

and not less than $500 for major appeals, unless the Secretary,

upon consideration of an applicant’s request for a fee waiver, determines that the applicant is unable to pay the fee.

(2)(A) 1 The Secretary shall collect such other fees as are

necessary to recover the full costs of administering and processing such appeals under subsection (c).

(B) 1 If the Secretary waives the application fee under

paragraph (1) for an applicant, the Secretary shall waive all

other fees under this subsection for the applicant.

(3) 1 Fees collected under this subsection shall be deposited

into the Coastal Zone Management Fund established under

section 308.

COASTAL ZONE MANAGEMENT FUND

SEC. 308. ø16 U.S.C. 1456a¿ (a)(1) The obligations of any coastal state or unit of general purpose local government to repay loans

made pursuant to this section as in effect before the date of the enactment of the Coastal Zone Act Reauthorization Amendments of

1990, and any repayment schedule established pursuant to this

title as in effect before that date of enactment, are not altered by

any provision of this title. Such loans shall be repaid under authority of this subsection and the Secretary may issue regulations governing such repayment. If the Secretary finds that any coastal

state or unit of local government is unable to meet its obligations
87 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 309

pursuant to this subsection because the actual increases in employment and related population resulting from coastal energy activity

and the facilities associated with such activity do not provide adequate revenues to enable such State or unit to meet such obligations in accordance with the appropriate repayment schedule, the

Secretary shall, after review of the information submitted by such

State or unit, take any of the following actions:

(A) Modify the terms and conditions of such loan.

(B) Refinance the loan.

(C) Recommend to the Congress that legislation be enacted

to forgive the loan.

(2) Loan repayments made pursuant to this subsection shall be

retained by the Secretary as offsetting collections, and shall be deposited into the Coastal Zone Management Fund established under

subsection (b).

(b)(1) The Secretary shall establish and maintain a fund, to be

known as the ‘‘Coastal Zone Management Fund’’ which shall consist of amounts retained and deposited into the Fund under subsection (a) and fees deposited into the Fund under section 307(i)(3).

(2) Subject to amounts provided in appropriation Acts,

amounts in the Fund shall be available to the Secretary for use for

the following:

(A) Expenses incident to the administration of this title, in

an amount not to exceed for each of fiscal years 1997, 1998,

and 1999 the higher of—

(i) $4,000,000; or

(ii) 8 percent of the total amount appropriated under

this title for the fiscal year.

(B) After use under subparagraph (A)—

(i) projects to address management issues which are

regional in scope, including interstate projects;

(ii) demonstration projects which have high potential

for improving coastal zone management, especially at the

local level;

(iii) emergency grants to State coastal zone management agencies to address unforeseen or disaster-related

circumstances;

(iv) appropriate awards recognizing excellence in

coastal zone management as provided in section 314; and

(v) to provide financial support to coastal states for

use for investigating and applying the public trust doctrine

to implement State management programs approved under

section 306.

(3) On December 1 of each year, the Secretary shall transmit

to the Congress an annual report on the Fund, including the balance of the Fund and an itemization of all deposits into and disbursements from the Fund in the preceding fiscal year.

COASTAL ZONE ENHANCEMENT GRANTS

SEC. 309. ø16 U.S.C. 1456b¿ (a) For purposes of this section,

the term ‘‘coastal zone enhancement objective’’ means any of the

following objectives:

(1) Protection, restoration, or enhancement of the existing

coastal wetlands base, or creation of new coastal wetlands.
Sec. 309 COASTAL ZONE MANAGEMENT ACT OF 1972 88

(2) Preventing or significantly reducing threats to life and

destruction of property by eliminating development and redevelopment in high-hazard areas, managing development in

other hazard areas, and anticipating and managing the effects

of potential sea level rise and Great Lakes level rise.

(3) Attaining increased opportunities for public access, taking into account current and future public access needs, to

coastal areas of recreational, historical, aesthetic, ecological, or

cultural value.

(4) Reducing marine debris entering the Nation’s coastal

and ocean environment by managing uses and activities that

contribute to the entry of such debris.

(5) Development and adoption of procedures to assess, consider, and control cumulative and secondary impacts of coastal

growth and development, including the collective effect on various individual uses or activities on coastal resources, such as

coastal wetlands and fishery resources.

(6) Preparing and implementing special area management

plans for important coastal areas.

(7) Planning for the use of ocean resources.

(8) Adoption of procedures and enforceable policies to help

facilitate the siting of energy facilities and Government facilities and energy-related activities and Government activities

which may be of greater than local significance.

(9) Adoption of procedures and policies to evaluate and facilitate the siting of public and private aquaculture facilities in

the coastal zone, which will enable States to formulate, administer, and implement strategic plans for marine aquaculture.

(b)(1) Subject to the limitations and goals established in this

section, the Secretary may make grants to coastal states to provide

funding for development and submission for Federal approval of

program changes that support attainment of one or more coastal

zone enhancement objectives.

(2)(A) In addition to any amounts provided under section 306,

and subject to the availability of appropriations, the Secretary may

make grants under this subsection to States for implementing program changes approved by the Secretary in accordance with section

306(e).

(B) Grants under this paragraph to implement a program

change may not be made in any fiscal year after the second fiscal

year that begins after the approval of that change by the Secretary.

(c) The Secretary shall evaluate and rank State proposals for

funding under this section, and make funding awards based on

those proposals, taking into account the criteria established by the

Secretary under subsection (d). The Secretary shall ensure that

funding decisions under this section take into consideration the fiscal and technical needs of proposing States and the overall merit

of each proposal in terms of benefits to the public.

(d) Within 12 months following the date of enactment of this

section, and consistent with the notice and participation require- ments established in section 317, the Secretary shall promulgate

regulations concerning coastal zone enhancement grants that establish—

(1) specific and detailed criteria that must be addressed by

a coastal state (including the State’s priority needs for im-
89 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 310

provement as identified by the Secretary after careful consultation with the State) as part of the State’s development and implementation of coastal zone enhancement objectives;

(2) administrative or procedural rules or requirements as

necessary to facilitate the development and implementation of

such objectives by coastal states; and

(3) other funding award criteria as are necessary or appropriate to ensure that evaluations of proposals, and decisions to

award funding, under this section are based on objective standards applied fairly and equitably to those proposals.

(e) A State shall not be required to contribute any portion of

the cost of any proposal for which funding is awarded under this

section.

(f) Beginning in fiscal year 1991, not less than 10 percent and

not more than 20 percent of the amounts appropriated to implement sections 306 and 306A of this title shall be retained by the

Secretary for use in implementing this section, up to a maximum

of $10,000,000 annually.

(g) If the Secretary finds that the State is not undertaking the

actions committed to under the terms of the grant, the Secretary

shall suspend the State’s eligibility for further funding under this

section for at least one year.

TECHNICAL ASSISTANCE

SEC. 310. ø16 U.S.C. 1456c¿ (a) The Secretary shall conduct a

program of technical assistance and management-oriented research

necessary to support the development and implementation of State

coastal management program amendments under section 309, and

appropriate to the furtherance of international cooperative efforts

and technical assistance in coastal zone management. Each department, agency, and instrumentality of the executive branch of the

Federal Government may assist the Secretary, on a reimbursable

basis or otherwise, in carrying out the purposes of this section, including the furnishing of information to the extent permitted by

law, the transfer of personnel with their consent and without prejudice to their position and rating, and the performance of any research, study, and technical assistance which does not interfere

with the performance of the primary duties of such department,

agency, or instrumentality. The Secretary may enter into contracts

or other arrangements with any qualified person for the purposes

of carrying out this subsection.

(b)(1) The Secretary shall provide for the coordination of technical assistance, studies, and research activities under this section

with any other such activities that are conducted by or subject to

the authority of the Secretary.

(2) The Secretary shall make the results of research and studies conducted pursuant to this section available to coastal States in

the form of technical assistance publications, workshops, or other

means appropriate.

(3) The Secretary shall consult with coastal States on a regular

basis regarding the development and implementation of the program established by this section.
Sec. 311 COASTAL ZONE MANAGEMENT ACT OF 1972 90

PUBLIC HEARINGS

SEC. 311. ø16 U.S.C. 1457¿ All public hearings required under

this title must be announced at least thirty days prior to the hearing date. At the time of the announcement, all agency materials

pertinent to the hearings, including documents, studies, and other

data, must be made available to the public for review and study.

As similar materials are subsequently developed, they shall be

made available to the public as they become available to the agency.

REVIEW OF PERFORMANCE

SEC. 312. ø16 U.S.C. 1458¿ (a) The Secretary shall conduct a

continuing review of the performance of coastal states with respect

to coastal management. Each review shall include a written evaluation with an assessment and detailed findings concerning the extent to which the state has implemented and enforced the program

approved by the Secretary, addressed the coastal management

needs identified in section 303(2)(A) and (K), and adhered to the

terms of any grant, loan, or cooperative agreement funded under

this title.

(b) In evaluating a coastal state’s performance, the Secretary

shall conduct the evaluation in an open and public manner, and

provide full opportunity for public participation, including holding

public meetings in the State being evaluated and providing opportunities for the submission of written and oral comments by the

public. The Secretary shall provide the public with at least 45 days’

notice of such public meetings by placing a notice in the Federal

Register, by publication of timely notices in newspapers of general

circulation within the State being evaluated, and by communications with persons and organizations known to be interested in the

evaluation. Each evaluation shall be prepared in report form and

shall include written responses to the written comments received

during the evaluation process. The final report of the evaluation

shall be completed within 120 days after the last public meeting

held in the State being evaluated. Copies of the evaluation shall be

immediately provided to all persons and organizations participating

in the evaluation process.

(c)(1) The Secretary may suspend payment of any portion of financial assistance extended to any coastal state under this title,

and may withdraw any unexpended portion of such assistance, if

the Secretary determines that the coastal state is failing to adhere

to (A) the management program or a State plan developed to manage a national estuarine reserve established under section 315 of

this title, or a portion of the program or plan approved by the Secretary, or (B) the terms of any grant or cooperative agreement

funded under this title.

(2) Financial assistance may not be suspended under paragraph (1) unless the Secretary provides the Governor of the coastal

state with—

(A) written specifications and a schedule for the actions

that should be taken by the State in order that such suspension of financial assistance may be withdrawn; and
91 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 313

(B) written specifications stating how those funds from the

suspended financial assistance shall be expended by the coastal state to take the actions referred to in subparagraph (A).

(3) The suspension of financial assistance may not last for less

than 6 months or more than 36 months after the date of suspension.

(d) The Secretary shall withdraw approval of the management

program of any coastal State and shall withdraw financial assistance available to that State under this title as well as any unexpended portion of such assistance, if the Secretary determines that

the coastal State has failed to take the actions referred to in subsection (c)(2)(A).

(e) Management program approval and financial assistance

may not be withdrawn under subsection (d), unless the Secretary

gives the coastal state notice of the proposed withdrawal and an

opportunity for a public hearing on the proposed action. Upon the

withdrawal of management program approval under this subsection (d), the Secretary shall provide the coastal state with written specifications of the actions that should be taken, or not engaged in, by the state in order that such withdrawal may be canceled by the Secretary.

RECORDS AND AUDIT

SEC. 313. ø16 U.S.C. 1459¿ (a) Each recipient of a grant under

this title or of financial assistance under section 308, as in effect

before the date of the enactment of the Coastal Zone Act Reauthorization Amendments of 1990, shall keep such records as the Secretary shall prescribe, including records which fully disclose the

amount and disposition of the funds received under the grant and

the proceeds of such assistance, the total cost of the project or undertaking supplied by other sources, and such other records as will

facilitate an effective audit.

(b) The Secretary and the Comptroller General of the United

States, or any of their duly authorized representatives, shall—

(1) after any grant is made under this title or any financial

assistance is provided under section 308, as in effect before the

date of the enactment of the Coastal Zone Act Reauthorization

Amendments of 1990; and

(2) until the expiration of 3 years after—

(A) completion of the project, program, or other undertaking for which such grant was made or used, or

(B) repayment of the loan or guaranteed indebtedness

for which such financial assistance was provided,

have access for purposes of audit and examination to any record,

book, document, and paper which belongs to or is used or controlled

by, any recipient of the grant funds or any person who entered into

any transaction relating to such financial assistance and which is

pertinent for purposes of determining if the grant funds or the proceeds of such financial assistance are being, or were, used in accordance with the provisions of this title.
Sec. 314 COASTAL ZONE MANAGEMENT ACT OF 1972 92

WALTER B. JONES EXCELLENCE IN COASTAL ZONE MANAGEMENT

AWARDS

SEC. 314. ø16 U.S.C. 1460¿ (a) The Secretary shall, using sums

in the Coastal Zone Management Fund established under section

308 and other amounts available to carry out this title (other than

amounts appropriated to carry out sections 305, 306, 306A, 309,

310, and 315), implement a program to promote excellence in coastal zone management by identifying and acknowledging outstanding

accomplishments in the field.

(b) The Secretary shall elect annually—

(1) one individual, other than an employee or officer of the

Federal Government, whose contribution to the field of coastal

zone management has been the most significant;

(2) 5 local governments which have made the most

progress in developing and implementing the coastal zone

management principles embodied in this title; and

(3) up to 10 graduate students whose academic study

promises to contribute materially to development of new or improved approaches to coastal zone management.

(c) In making selections under subsection (b)(2) the Secretary

shall solicit nominations from the coastal states, and shall consult

with experts in local government planning and land use.

(d) In making selections under subsection (b)(3) the Secretary

shall solicit nominations from coastal states and the National Sea

Grant College Program.

(e) Using sums in the Coastal Zone Management Fund established under section 308 and other amounts available to carry out

this title (other than amounts appropriated to carry out sections

305, 306, 306A, 309, 310, and 315), the Secretary shall establish

and execute appropriate awards, to be known as the ‘‘Walter B.

Jones Awards’’, including—

(1) cash awards in an amount not to exceed $5,000 each;

(2) research grants; and

(3) public ceremonies to acknowledge such awards.

NATIONAL ESTUARINE RESEARCH RESERVE SYSTEM

SEC. 315. ø16 U.S.C. 1461¿ (a) ESTABLISHMENT OF THE SYSTEM.—There is established the National Estuarine Research Reserve System (hereinafter referred to in this section as the ‘‘System’’) that consists of—

(1) each estuarine sanctuary designated under this section

as in effect before the date of the enactment of the Coastal

Zone Management Reauthorization Act of 1985; and

(2) each estuarine area designated as a national estuarine

reserve under subsection (b).

Each estuarine sanctuary referred to in paragraph (1) is hereby

designated as a national estuarine reserve.

(b) DESIGNATION OF NATIONAL ESTUARINE RESERVES.—After

the date of the enactment of the Coastal Zone Management Reauthorization Act of 1985, the Secretary may designate an estuarine

area as a national estuarine reserve if—

(1) the Government of the coastal state in which the area

is located nominates the area for that designation; and

(2) the Secretary finds that—
93 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 315

(A) the area is a representative estuarine ecosystem

that is suitable for long-term research and contributes to

the biogeographical and typological balance of the System;

(B) the law of the coastal state provides long-term protection for reserve resources to ensure a stable environment for research;

(C) designation of the area as a reserve will serve to

enhance public awareness and understanding of estuarine

areas, and provide suitable opportunities for public education and interpretation; and

(D) the coastal state in which the area is located has

complied with the requirements of any regulations issued

by the Secretary to implement this section.

(c) ESTUARINE RESEARCH GUIDELINES.—The Secretary shall develop guidelines for the conduct of research within the System that

shall include—

(1) a mechanism for identifying, and establishing priorities

among, the coastal management issues that should be addressed through coordinated research within the System;

(2) the establishment of common research principles and

objectives to guide the development of research programs within the Systems;

(3) the identification of uniform research methodologies

which will ensure comparability of data, the broadest application of research results, and the maximum use of the System

for research purposes;

(4) the establishment of performance standards upon

which the effectiveness of the research efforts and the value of

reserves within the System in addressing the coastal management issues identified in paragraph (1) may be measured; and

(5) the consideration of additional sources of funds for estuarine research than the funds authorized under this Act, and

strategies for encouraging the use of such funds within the

System, with particular emphasis on mechanisms established

under subsection (d).

In developing the guidelines under this section, the Secretary shall

consult with prominent members of the estuarine research community.

(d) PROMOTION AND COORDINATION OF ESTUARINE RESEARCH.—

The Secretary shall take such action as is necessary to promote

and coordinate the use of the System for research purposes

including—

(1) requiring that the National Oceanic and Atmospheric

Administration, in conducting or supporting estuarine research, give priority consideration to research that uses the

System; and

(2) consulting with other Federal and State agencies to

promote use of one or more reserves within the System by such

agencies when conducting estuarine research.

(e) FINANCIAL ASSISTANCE.—(1) The Secretary may, in accordance with such rules and regulations as the Secretary shall promulgate, make grants—

(A) to a coastal state—

(i) for purposes of acquiring such lands and waters,

and any property interests therein, as are necessary to en-
Sec. 315 COASTAL ZONE MANAGEMENT ACT OF 1972 94

sure the appropriate long-term management of an area as

a national estuarine reserve,

(ii) for purposes of operating or managing a national

estuarine reserve and constructing appropriate reserve facilities, or

(iii) for purposes of conducting educational or interpretive activities; and

(B) to any coastal state or public or private person for purposes of supporting research and monitoring within a national

estuarine reserve that are consistent with the research guidelines developed under subsection (c).

(2) Financial assistance provided under paragraph (1) shall be

subject to such terms and conditions as the Secretary considers

necessary or appropriate to protect the interests of the United

States, including requiring coastal states to execute suitable title

documents setting forth the property interest or interests of the

United States in any lands and waters acquired in whole or part

with such financial assistance.

(3)(A) The amount of the financial assistance provided under

paragraph (1)(A)(i) with respect to the acquisition of lands and waters, or interests therein, for any one national estuarine reserve

may not exceed an amount equal to 50 percent of the costs of the

lands, waters, and interests therein or $5,000,000, whichever

amount is less.

(B) The amount of the financial assistance provided under

paragraph (1)(A) (ii) and (iii) and paragraph (1)(B) may not exceed

70 percent of the costs incurred to achieve the purposes described

in those paragraphs with respect to a reserve, except that the

amount of the financial assistance provided under paragraph

(1)(A)(iii) may be up to 100 percent of any costs for activities that

benefit the entire System.

(C) Notwithstanding subparagraphs (A) and (B), financial assistance under this subsection provided from amounts recovered as

a result of damage to natural resources located in the coastal zone

may be used to pay 100 percent of the costs of activities carried out

with the assistance.

(f) EVALUATION OF SYSTEM PERFORMANCE.—(1) The Secretary

shall periodically evaluate the operation and management of each

national estuarine reserve, including education and interpretive activities, and the research being conducted within the reserve.

(2) If evaluation under paragraph (1) reveals that the operation

and management of the reserve is deficient, or that the research

being conducted within the reserve is not consistent with the research guidelines developed under subsection (c), the Secretary

may suspend the eligibility of that reserve for financial assistance

under subsection (e) until the deficiency or inconsistency is remedied.

(3) The Secretary may withdraw the designation of an estuarine areas a national estuarine reserve if evaluation under paragraph (1) reveals that—

(A) the basis for any one or more of the findings made

under subsection (b)(2) regarding that area no longer exists; or

(B) a substantial portion of the research conducted within

the area, over a period of years, has not been consistent with

the research guidelines developed under subsection (c).
95 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 316

(g) REPORT.—The Secretary shall include in the report required

under section 316 information regarding—

(1) new designations of national estuarine reserves;

(2) any expansion of existing national estuarine reserves;

(3) the status of the research program being conducted

within the System; and

(4) a summary of the evaluations made under subsection

(f).

COASTAL ZONE MANAGEMENT REPORT

SEC. 316. ø16 U.S.C. 1462¿ (a) The Secretary shall consult

with the Congress on a regular basis concerning the administration

of this title and shall prepare and submit to the President for

transmittal to the Congress a report summarizing the administration of this title during each period of two consecutive fiscal years.

Each report, which shall be transmitted to the Congress not later

than April 1 of the year following the close of the biennial period

to which it pertains, shall include, but not be restricted to (1) an

identification of the state programs approved pursuant to this title

during the preceding Federal fiscal year and a description of those

programs; (2) a listing of the states participating in the provisions

of this title and a description of the status of each state’s programs

and its accomplishments during the preceding Federal fiscal year;

(3) an itemization of the allocation of funds to the various coastal

states and a breakdown of the major projects and areas on which

these funds were expended; (4) an identification of any state programs which have been reviewed and disapproved, and a statement

of the reasons for such action; (5) a summary of evaluation findings

prepared in accordance with subsection (a) of section 312, and a description of any sanctions imposed under subsections (c) and (d) of

section 312; (6) a listing of all activities and projects which, pursuant to the provisions of subsection (c) or subsection (d) of section

307, are not consistent with an applicable approved state manage- ment program; (7) a summary of the regulations issued by the Secretary or in effect during the preceding Federal fiscal year; (8) a

summary of a coordinated national strategy and program for the

Nation’s coastal zone including identification and discussion of Federal, regional, state, and local responsibilities and functions therein; (9) a summary of outstanding problems arising in the administration of this title in order of priority; (10) a description of the economic, environmental, and social consequences of energy activity

affecting the coastal zone and an evaluation of the effectiveness of

financial assistance under section 308 in dealing with such consequences; (11) a description and evaluation of applicable interstate

and regional planning and coordination mechanisms developed by

the coastal states; (12) a summary and evaluation of the research,

studies, and training conducted in support of coastal zone management; and (13) such other information as may be appropriate.

(b) The report required by subsection (a) shall contain such recommendations for additional legislation as the Secretary deems

necessary to achieve the objectives of this title and enhance its effective operation.

(c)(1) The Secretary shall conduct a systematic review of Federal programs, other than this title, that affect coastal resources for

purposes of identifying conflicts between the objectives and admin-
Sec. 317 COASTAL ZONE MANAGEMENT ACT OF 1972 96

istration of such programs and the purposes and policies of this

title. Not later than 1 year after the date of the enactment of this

subsection, the Secretary shall notify each Federal agency having

appropriate jurisdiction of any conflict between its program and the

purposes and policies of this title identified as a result of such review.

(2) The Secretary shall promptly submit a report to the Congress consisting of the information required under paragraph (1) of

this subsection. Such report shall include recommendations for

changes necessary to resolve existing conflicts among Federal laws

and programs that affect the uses of coastal resources.

RULES AND REGULATIONS

SEC. 317. ø16 U.S.C. 1463¿ The Secretary shall develop and

promulgate, pursuant to section 553 of title 5, United States Code,

after notice and opportunity for full participation by relevant Federal agencies, state agencies, local governments, regional organizations, port authorities, and other interested parties, both public and

private, such rules and regulations as may be necessary to carry

out the provisions of this title.

AUTHORIZATION OF APPROPRIATIONS

SEC. 318. ø16 U.S.C. 1464¿ (a) There are authorized to be appropriated to the Secretary, to remain available until expended—

(1) for grants under sections 306, 306A, and 309—

(A) $47,600,000 for fiscal year 1997;

(B) $49,000,000 for fiscal year 1998; and

(C) $50,500,000 for fiscal year 1999; and

(2) for grants under section 315—

(A) $4,400,000 for fiscal year 1997;

(B) $4,500,000 for fiscal year 1998; and

(C) $4,600,000 for fiscal year 1999.

(b) Federal funds received from other sources shall not be used

to pay a coastal state’s share of costs under section 306 or 309.

(c) The amount of any grant, or portion of a grant, made to a

State under any section of this Act which is not obligated by such

State during the fiscal year, or during the second fiscal year after

the fiscal year, for which it was first authorized to be obligated by

such State shall revert to the Secretary. The Secretary shall add

such reverted amount to those funds available for grants under the

section for such reverted amount was originally made available.

APPEALS TO THE SECRETARY

SEC. 319. ø16 U.S.C. 1465¿ (a) NOTICE.—The Secretary shall

publish in the Federal Register a notice indicating when the decision record has been closed on any appeal to the Secretary taken

from a consistency determination under section 307(c) or (d). No

later than 90 days after the date of publication of this notice, the

Secretary shall—

(1) issue a final decision in the appeal; or

(2) publish a notice in the Federal Register detailing why

a decision cannot be issued within the 90-day period.

(b) DEADLINE.—In the case where the Secretary publishes a notice under subsection (a)(2), the Secretary shall issue a decision in
97 COASTAL ZONE MANAGEMENT ACT OF 1972 Sec. 319

any appeal filed under section 307 no later than 45 days after the

date of the publication of the notice.

(c) APPLICATION.—This section applies to appeals initiated by

the Secretary and appeals filed by an applicant.

99

PROVISIONS RELATING TO COASTAL NONPOINT

POLLUTION CONTROL

101

PROVISIONS RELATING TO COASTAL NONPOINT

POLLUTION CONTROL

[Public Law 101–508, Approved Nov. 5, 1990, 104 Stat. 1388–314]

(Amended through Public Law 102–587, Nov. 4, 1992)

AN ACT To provide for reconciliation pursuant to section 4 of the concurrent

resolution on the budget for fiscal year 1991.

* * * * * * *

Subtitle C—Amendments to Coastal Zone

Management Act of 1972

SEC. 6201. ø16 U.S.C. 1451 note¿ SHORT TITLE.

This subtitle may be cited as the ‘‘Coastal Zone Act Reauthorization Amendments of 1990’’.

* * * * * * *

SEC. 6217. ø16 U.S.C. 1455b¿ PROTECTING COASTAL WATERS.

(a) IN GENERAL.—

(1) PROGRAM DEVELOPMENT.—Not later than 30 months after

the date of the publication of final guidance under subsection

(g), each State for which a management program has been approved pursuant to section 306 of the Coastal Zone Management Act of 1972 shall prepare and submit to the Secretary

and the Administrator a Coastal Nonpoint Pollution Control

Program for approval pursuant to this section. The purpose of

the program shall be to develop and implement management

measures for nonpoint source pollution to restore and protect

coastal waters, working in close conjunction with other State

and local authorities.

(2) PROGRAM COORDINATION.—A State program under this

section shall be coordinated closely with State and local water

quality plans and programs devel-oped pursuant to sections

208, 303, 319, and 320 of the Federal Water Pollution Control

Act (33 U.S.C. 1288, 1313, 1329, and 1330) and with State

plans developed pursuant to the Coastal Zone Management Act

of 1972, as amended by this Act. The program shall serve as

an update and expansion of the State nonpoint source management program developed under section 319 of the Federal

Water Pollution Control Act, as the program under that section

relates to land and water uses affecting coastal waters.

(b) PROGRAM CONTENTS.—Each State program under this section

shall provide for the implementation, at a minimum, of management measures in conformity with the guidance published under
Sec. 6217 COASTAL NONPOINT POLLUTION CONTROL 102

subsection (g), to protect coastal waters generally, and shall also

contain the following:

(1) IDENTIFYING LAND USES.—The identification of, and a

continuing process for identifying, land uses which, individually or cumulatively, may cause or contribute significantly to

a degradation of—

(A) those coastal waters where there is a failure to attain or maintain applicable water quality standards or protect designated uses, as determined by the State pursuant

to its water quality planning processes; or

(B) those coastal waters that are threatened by reasonably foreseeable increases in pollution loadings from new

or expanding sources.

(2) IDENTIFYING CRITICAL COASTAL AREAS.—The identification

of, and a continuing process for identifying, critical coastal

areas adjacent to coastal waters referred to in paragraph (1)(A)

and (B), within which any new land uses or substantial expansion of existing land uses shall be subject to management

measures in addition to those provided for in subsection (g).

(3) MANAGEMENT MEASURES.—The implementation and continuing revision from time to time of additional management

measures applicable to the land uses and areas identified pursuant to paragraphs (1) and (2) that are necessary to achieve

and maintain applicable water quality standards under section

303 of the Federal Water Pollution Control Act (33 U.S.C.

1313) and protect designated uses.

(4) TECHNICAL ASSISTANCE.—The provision of technical and

other assistance to local governments and the public for implementing the measures referred to in paragraph (3), which may

include assistance in developing ordinances and regulations,

technical guidance, and modeling to predict and assess the effectiveness of such measures, training, financial incentives,

demonstration projects, and other innovations to protect coastal water quality and designated uses.

(5) PUBLIC PARTICIPATION.—Opportunities for public participation in all aspects of the program, including the use of public

notices and opportunities for comment, nomination procedures,

public hearings, technical and financial assistance, public

education, and other means.

(6) ADMINISTRATIVE COORDINATION.—The establishment of

mechanisms to improve coordination among State agencies and

between State and local officials responsible for land use programs and permitting, water quality permitting and enforcement, habitat protection, and public health and safety, through

the use of joint project review, memoranda of agreement, or

other mechanisms.

(7) STATE COASTAL ZONE BOUNDARY MODIFICATION.—A proposal to modify the boundaries of the State coastal zone as the

coastal management agency of the State determines is necessary to implement the recommendations made pursuant to

subsection (e). If the coastal management agency does not have

the authority to modify such boundaries, the program shall include recommendations for such modifications to the appropriate State authority.

(c) PROGRAM SUBMISSION, APPROVAL, AND IMPLEMETATION.—
103 COASTAL NONPOINT POLLUTION CONTROL Sec. 6217

(1) REVIEW AND APPROVAL.—Within 6 months after the date

of submission by a State of a program pursuant to this section,

the Secretary and the Administrator shall jointly review the

program. The program shall be approved if—

(A) the Secretary determines that the portions of the

program under the authority of the Secretary meet the requirements of this section and the Administrator concurs

with that determination; and

(B) the Administrator determines that the portions of

the program under the authority of the Administrator

meet the requirements of this section and the Secretary

concurs with that determination.

(2) IMPLEMENTATION OF APPROVED PROGRAM.—If the program

of a State is approved in accordance with paragraph (1), the

State shall implement the program, including the management

measures included in the program pursuant to subsection (b),

through—

(A) changes to the State plan for control of nonpoint

source pollution approved under section 319 of the Federal

Water Pollution Control Act; and

(B) changes to the State coastal zone management program developed under section 306 of the Coastal Zone

Management Act of 1972, as amended by this Act.

(3) WITHHOLDING COASTAL MANAGEMENT ASSISTANCE.—If the

Secretary finds that a coastal State has failed to submit an approvable program as required by this section, the Secretary

shall withhold for each fiscal year until such a program is submitted a portion of grants otherwise available to the State for

the fiscal year under section 306 of the Coastal Zone Management Act of 1972, as follows:

(A) 10 percent for fiscal year 1996.

(B) 15 percent for fiscal year 1997.

(C) 20 percent for fiscal year 1998.

(D) 30 percent for fiscal year 1999 and each fiscal year

thereafter.

The Secretary shall make amounts withheld under this paragraph available to coastal States having programs approved

under this section.

(4) WITHHOLDING WATER POLLUTION CONTROL ASSISTANCE.—

If the Administrator finds that a coastal State has failed to

submit an approvable program as required by this section, the

Administrator shall withhold from grants available to the

State under section 319 of the Federal Water Pollution Control

Act, for each fiscal year until such a program is submitted, an

amount equal to a percentage of the grants awarded to the

State for the preceding fiscal year under that section, as follows:

(A) For fiscal year 1996, 10 percent of the amount

awarded for fiscal year 1995.

(B) For fiscal year 1997, 15 percent of the amount

awarded for fiscal year 1996.

(C) For fiscal year 1998, 20 percent of the amount

awarded for fiscal year 1997.
Sec. 6217 COASTAL NONPOINT POLLUTION CONTROL 104

(D) For fiscal year 1999 and each fiscal year thereafter,

30 percent of the amount awarded for fiscal year 1998 or

other preceding fiscal year.

The Administrator shall make amounts withheld under this

paragraph available to States having programs approved pursuant to this subsection.

(d) TECHNICAL ASSISTANCE.—The Secretary and the Administrator shall provide technical assistance to coastal States and local

governments in developing and implementing programs under this

section. Such assistance shall include—

(1) methods for assessing water quality impacts associated

with coastal land uses;

(2) methods for assessing the cumulative water quality effects of coastal development;

(3) maintaining and from time to time revising an inventory

of model ordinances, and providing other assistance to coastal

States and local governments in identifying, developing, and

implementing pollution control measures; and

(4) methods to predict and assess the effects of coastal land

use management measures on coastal water quality and designated uses.

(e) INLAND COASTAL ZONE BOUNDARIES.— (1) REVIEW.—The Secretary, in consultation with the Administrator of the Environmental Protection Agency, shall, within

18 months after the effective date of this title, review the inland coastal zone boundary of each coastal State program

which has been approved or is proposed for approval under section 306 of the Coastal Zone Management Act of 1972, and

evaluate whether the State’s coastal zone boundary extends inland to the extent necessary to control the land and water uses

that have a significant impact on coastal waters of the State.

(2) RECOMMENDATION.—If the Secretary, in consultation with

the Administrator, finds that modifications to the inland

boundaries of a State’s coastal zone are necessary for that

State to more effectively manage land and water uses to protect coastal waters, the Secretary, in consultation with the Administrator, shall recommend appropriate modifications in

writing to the affected State.

(f) FINANCIAL ASSISTANCE.—

(1) IN GENERAL.—Upon request of a State having a program

approved under section 306 of the Coastal Zone Management

Act of 1972, the Secretary, in consultation with the Administrator, may provide grants to the State for use for developing

a State program under this section.

(2) AMOUNT.—The total amount of grants to a State under

this subsection shall not exceed 50 percent of the total cost to

the State of developing a program under this section.

(3) STATE SHARE.—The State share of the cost of an activity

carried out with a grant under this subsection shall be paid

from amounts from non-Federal sources.

(4) ALLOCATION.—Amounts available for grants under this

subsection shall be allocated among States in accordance with

regulations issued pursuant to section 306(c) of the Coastal

Zone Management Act of 1972, except that the Secretary may

use not more than 25 percent of amounts available for such
105 COASTAL NONPOINT POLLUTION CONTROL Sec. 6217

grants to assist States which the Secretary, in consultation

with the Administrator, determines are making exemplary

progress in preparing a State program under this section or

have extreme needs with respect to coastal water quality.

(g) GUIDANCE FOR COASTAL NONPOINT SOURCE POLLUTION CON- TROL.—

(1) IN GENERAL.—The Administrator, in consultation with

the Secretary and the Director of the United States Fish and

Wildlife Service and other Federal agencies, shall publish (and

periodically revise thereafter) guidance for specifying management measures for sources of nonpoint pollution in coastal waters.

(2) CONTENT.—Guidance under this subsection shall include,

at a minimum—

(A) a description of a range of methods, measures, or

practices, including structural and nonstructural controls

and operation and maintenance procedures, that constitute

each measure;

(B) a description of the categories and subcategories of

activities and locations for which each measure may be

suitable;

(C) an identification of the individual pollutants or categories or classes of pollutants that may be controlled by

the measures and the water quality effects of the measures;

(D) quantitative estimates of the pollution reduction effects and costs of the measures;

(E) a description of the factors which should be taken

into account in adapting the measures to specific sites or

locations; and

(F) any necessary monitoring techniques to accompany

the measures to assess over time the success of the measures in reducing pollution loads and improving water

quality.

(3) PUBLICATION.—The Administrator, in consultation with

the Secretary, shall publish—

(A) proposed guidance pursuant to this subsection not

later than 6 months after the date of the enactment of this

Act; and

(B) final guidance pursuant to this subsection not later

than 18 months after such effective date.

(4) NOTICE AND COMMENT.—The Administrator shall provide

to coastal States and other interested persons an opportunity

to provide written comments on proposed guidance under this

subsection.

(5) MANAGEMENT MEASURES.—For purposes of this subsection, the term ‘‘management measures’’ means economically

achievable measures for the control of the addition of pollutants from existing and new categories and classes of nonpoint

sources of pollution, which reflect the greatest degree of pollutant reduction achievable through the application of the best

available nonpoint pollution control practices, technologies,

processes, siting criteria, operating methods, or other alternatives.

(h) AUTHORIZATIONS OF APPROPRIATIONS.—
Sec. 6217 COASTAL NONPOINT POLLUTION CONTROL 106

(1) ADMINISTRATOR.—There is authorized to be appropriated

to the Administrator for use for carrying out this section not

more than $1,000,000 for each of fiscal years 1992, 1993, and

1994.

(2) SECRETARY.—(A) Of amounts appropriated to the Secretary for a fiscal year under section 318(a)(4) of the Coastal

Zone Management Act of 1972, as amended by this Act, not

more than $1,000,000 shall be available for use by the Secretary for carrying out this section for that fiscal year, other

than for providing in the form of grants under subsection (f).

(B) There is authorized to be appropriated to the Secretary

for use for providing in the form of grants under subsection (f)

not more than—

(i) $6,000,000 for fiscal year 1992;

(ii) $12,000,000 for fiscal year 1993;

(iii) $12,000,000 for fiscal year 1994; and

(iv) $12,000,000 for fiscal year 1995.

(i) DEFINITIONS.—In this section—

(1) the term ‘‘Administrator’’ means the Administrator of the

Environmental Protection Agency;

(2) the term ‘‘coastal State’’ has the meaning given the term

‘‘coastal state’’ under section 304 of the Coastal Zone Management Act of 1972 (16 U.S.C. 1453);

(3) each of the terms ‘‘coastal waters’’ and ‘‘coastal zone’’ has

the meaning that term has in the Coastal Zone Management

Act of 1972;

(4) the term ‘‘coastal management agency’’ means a State

agency designated pursuant to section 306(d)(6) of the Coastal

Zone Management Act of 1972;

(5) the term ‘‘land use’’ includes a use of waters adjacent to

coastal waters; and

(6) the term ‘‘Secretary’’ means the Secretary of Commerce.
107

NATIONAL SEA GRANT COLLEGE PROGRAM ACT

109

NATIONAL SEA GRANT COLLEGE PROGRAM ACT

[Public Law 89–688, Approved Oct. 15, 1966, 80 Stat. 998]

[Amended through Public Law 105–174, May 1, 1998]

AN ACT To amend the Marine Resources and Engineering Development Act of 1966

to authorize the establishment and operation of sea grant colleges and programs

by initiating and supporting programs of education and research in the various

fields relating to the development of maritime resources, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, * * *

TITLE II—NATIONAL SEA GRANT COLLEGE PROGRAM

SEC. 201. ø33 U.S.C. 1121 note¿ SHORT TITLE.

This title may be cited as the ‘‘National Sea Grant College

Program Act’’.

SEC. 202. ø33 U.S.C. 1121¿ DECLARATION OF POLICY.

(a) FINDINGS.—The Congress finds and declares the following:

(1) The national interest requires a strategy to—

(A) provide for the understanding and wise use of

ocean, coastal, and Great Lakes resources and the environment;

(B) foster economic competitiveness;

(C) promote public stewardship and wise economic development of the coastal ocean and its margins, the Great

Lakes, and the exclusive economic zone;

(D) encourage the development of forecast and analysis systems for coastal hazards;

(E) understand global environmental processes; and

(F) promote domestic and international cooperative solutions to ocean, coastal, and Great Lakes issues.

(2) Investment in a strong program of research, education,

training, technology transfer, and public service is essential for

this strategy.

(3) The expanding use and development of ocean, coastal,

and Great Lakes resources resulting from growing coastal area

populations and the increasing pressures on the coastal and

Great Lakes environment challenge the ability of the United

States to manage such resources wisely.

(4) The vitality of the Nation and the quality of life of its

citizens depend increasingly on the understanding, assessment,

development, utilization, and conservation of ocean, coastal,

and Great Lakes resources. These resources supply food, energy, and minerals and contribute to human health, the quality

of the environment, national security, and the enhancement of

commerce.
Sec. 203 NATIONAL SEA GRANT COLLEGE PROGRAM ACT 110

1So in law. Should be ‘‘Director of the National Sea Grant College Program’’. 2So in original. Probably should be ‘‘The’’.

(5) The understanding, assessment, development, utilization, and conservation of such resources require a broad commitment and an intense involvement on the part of the Federal

Government in continuing partnership with State and local

governments, private industry, universities, organizations, and

individuals concerned with or affected by ocean, coastal, and

Great Lakes resources.

(6) The National Oceanic and Atmospheric Administration,

through the national sea grant college program, offers the most

suitable locus and means for such commitment and involvement through the promotion of activities that will result in

greater such understanding, assessment, development, utilization, and conservation. The most cost-effective way to promote

such activities is through continued and increased Federal support of the establishment, development, and operation of programs and projects by sea grant colleges, sea grant institutes,

and other institutions.

(b) OBJECTIVE.—The objective of this title is to increase the understanding, assessment, development, utilization, and conservation of the Nation’s ocean, coastal, and Great Lakes resources by

providing assistance to promote a strong educational base, responsive research and training activities, broad and prompt dissemination of knowledge and techniques, and multidisciplinary approaches to environmental problems.

(c) PURPOSE.—It is the purpose of the Congress to achieve the

objective of this title by extending and strengthening the national

sea grant program, initially established in 1966, to promote research, education, training, and advisory service activities in fields

related to ocean, coastal, and Great Lakes resources.

SEC. 203. ø33 U.S.C. 1122¿ DEFINITIONS.

As used in this title—

(1) The term ‘‘Administration’’ means the National Oceanic

and Atmospheric Administration.

(2) The term ‘‘Director’’ means the Director of the national

sea grant college program, 1 appointed pursuant to section

204(b).

(3) the 2 term ‘‘director of a sea grant college’’ means a person designated by his or her institution to direct a sea grant

college or sea grant institute.

(4) The term ‘‘field related to ocean, coastal, and Great

Lakes resources’’ means any discipline or field, including marine affairs, resource management, technology, education, or

science, which is concerned with or likely to improve the understanding, assessment, development, utilization, or conservation of ocean, coastal, or Great Lakes resources.

(5) The term ‘‘institution’’ means any public or private institution of higher education, institute, laboratory, or State or

local agency.

(6) The term ‘‘includes’’ and variants thereof should be

read as if the phrase ‘‘but is not limited to’’ were also set forth.
111 NATIONAL SEA GRANT COLLEGE PROGRAM ACT Sec. 203

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, with authority to prescribe implementing regulations effective March 9,

1992, but with no such regulation to be effective until the date on which the Agreement enters

into force for the United States, section 307(a) of the Flower Garden National Marine Sanctuary

(P.L. 102–251; 106 Stat. 66) amends paragraph (6) (which was redesignated as paragraph (8)

by Public Law 104–297 and redesignated as paragraph (7) by Public Law 105–174 and redesignated subparagraphs (C) through (F) as subparagraphs (D) through (G) and added a new subparagraph (C)), by striking ‘‘and’’ at the end of subparagraph (E), redesignating subparagraph

(F) as subparagraph (G), and adding after subparagraph (E) the following:

‘‘(F) the areas referred to as eastern special areas in Article 3(1) of the Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990; in particular, those areas east of the maritime boundary, as defined in that Agreement, that lie within 200 nautical miles of the baselines from

which the breadth of the territorial sea of Russia is measured but beyond 200 nautical miles

of the baselines from which the breadth of the territorial sea of the United States is meas- ured; and’’

(7) The term ‘‘ocean, coastal, and Great Lakes resources’’

means the resources that are located in, derived from, or traceable to, the seabed, subsoil, and waters of—

(A) the coastal zone, as defined in section 304(1) of the

Coastal Zone Management Act (16 U.S.C. 1453(1));

(B) the Great Lakes;

(C) Lake Champlain (to the extent that such resources

have hydrological, biological, physical, or geological characteristics and problems similar or related to those of the

Great Lakes);

(D) the territorial sea;

(E) the exclusive economic zone;

(F) the Outer Continental Shelf; and

(G) the high seas. 1

(8) The term ‘‘resource’’ means—

(A) living resources (including natural and cultured

plant life, fish, shellfish, marine mammals, and wildlife);

(B) nonliving resources (including energy sources, minerals, and chemical substances);

(C) the habitat of a living resource, the coastal space,

the ecosystems, the nutrient-rich areas, and the other components of the marine environment that contribute to or

provide (or which are capable of contributing to or providing) recreational, scenic, esthetic, biological,

habitational, commercial, economic, or conservation values;

and

(D) man-made, tangible, intangible, actual, or potential resources.

(9) The term ‘‘panel’’ means the sea grant review panel established under section 209.

(10) The term ‘‘person’’ means any individual; any public

or private corporation, partnership, or other association or entity (including any sea grant college, sea grant institute or other

institution); or any State, political subdivision of a State, or

agency or officer thereof.

(11) The term ‘‘project’’ means any individually described

activity in a field related to ocean, coastal, and Great Lakes resources involving research, education, training, or advisory

services administered by a person with expertise in such a

field.
Sec. 204 NATIONAL SEA GRANT COLLEGE PROGRAM ACT 112

1So in law. The United States Code cite should be deleted.

(12) The term ‘‘sea grant college’’ means any institution, or

any association or alliance of two or more such institutions,

designated as such by the Secretary under section 207 (33

U.S.C. 1126) 1 of this Act.

(13) The term ‘‘sea grant institute’’ means any institution,

or any association or alliance of two or more such institutions,

designated as such by the Secretary under section 207 (33

U.S.C. 1126) 1 of this Act.

(14) The term ‘‘sea grant program’’ means a program of research and outreach which is administered by one or more sea

grant colleges or sea grant institutes.

(15) The term ‘‘Secretary’’ means the Secretary of Commerce, acting through the Under Secretary of Commerce for

Oceans and Atmosphere.

(16) The term ‘‘State’’ means any State of the United

States, the District of Columbia, the Commonwealth of Puerto

Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Mariana Islands, or any other territory or

possession of the United States.

SEC. 204. ø33 U.S.C. 1123¿ NATIONAL SEA GRANT COLLEGE PROGRAM.

(a) PROGRAM MAINTENANCE.—The Secretary shall maintain

within the Administration a program to be known as the national

sea grant college program. The national sea grant college program

shall be administered by a national sea grant office within the Administration.

(b) PROGRAM ELEMENTS.—The national sea grant college program shall consist of the financial assistance and other activities

authorized in this title, and shall provide support for the following

elements—

(1) sea grant programs which comprise a national sea

grant college program network, including international projects

conducted within such programs;

(2) administration of the national sea grant college program and this title by the national sea grant office, the Administration, and the panel;

(3) the fellowship program under section 208; and

(4) any national strategic investments in fields relating to

ocean, coastal, and Great Lakes resources developed with the

approval of the panel, the sea grant colleges, and the sea grant

institutes.

(c) RESPONSIBILITIES OF THE SECRETARY.— (1) The Secretary, in consultation with the panel, sea

grant colleges, and sea grant institutes, shall develop a longrange strategic plan which establishes priorities for the national sea grant college program and which provides an appropriately balanced response to local, regional, and national

needs.

(2) Within 6 months of the date of enactment of the National Sea Grant College Program Reauthorization Act of 1998,

the Secretary, in consultation with the panel, sea grant colleges, and sea grant institutes, shall establish guidelines related to the activities and responsibilities of sea grant colleges

and sea grant institutes. Such guidelines shall include require-
113 NATIONAL SEA GRANT COLLEGE PROGRAM ACT Sec. 204

ments for the conduct of merit review by the sea grant colleges

and sea grant institutes of proposals for grants and contracts

to be awarded under section 205, providing, at a minimum, for

standardized documentation of such proposals and peer review

of all research projects.

(3) The Secretary shall by regulation prescribe the qualifications required for designation of sea grant colleges and sea

grant institutes under section 207.

(4) To carry out the provisions of this title, the Secretary

may—

(A) appoint, assign the duties, transfer, and fix the

compensation of such personnel as may be necessary, in

accordance with civil service laws;

(B) make appointments with respect to temporary and

intermittent services to the extent authorized by section

3109 of title 5, United States Code;

(C) publish or arrange for the publication of, and otherwise disseminate, in cooperation with other offices and

programs in the Administration and without regard to section 501 of title 44, United States Code, any information

of research, educational, training or other value in fields

related to ocean, coastal, or Great Lakes resources;

(D) enter into contracts, cooperative agreements, and

other transactions without regard to section 5 of title 41,

United States Code;

(E) notwithstanding section 1342 of title 31, United

States Code, accept donations and voluntary and uncompensated services;

(F) accept funds from other Federal departments and

agencies, including agencies within the Administration, to

pay for and add to grants made and contracts entered into

by the Secretary; and

(G) promulgate such rules and regulations as may be

necessary and appropriate.

(d) DIRECTOR OF THE NATIONAL SEA GRANT COLLEGE PROGRAM.—

(1) The Secretary shall appoint, as the Director of the National Sea Grant College Program, a qualified individual who

has appropriate administrative experience and knowledge or

expertise in fields related to ocean, coastal, and Great Lakes

resources. The Director shall be appointed and compensated,

without regard to the provisions of title 5, United States Code,

governing appointments in the competitive service, at a rate

payable under section 5376 of title 5, United States Code.

(2) Subject to the supervision of the Secretary, the Director

shall administer the national sea grant college program and

oversee the operation of the national sea grant office. In addition to any other duty prescribed by law or assigned by the

Secretary, the Director shall—

(A) facilitate and coordinate the development of a longrange strategic plan under subsection (c)(1);

(B) advise the Secretary with respect to the expertise

and capabilities which are available within or through the

national sea grant college program and encourage the use

of such expertise and capabilities, on a cooperative or other
Sec. 205 NATIONAL SEA GRANT COLLEGE PROGRAM ACT 114

basis, by other offices and activities within the Administration, and other Federal departments and agencies;

(C) advise the Secretary on the designation of sea

grant colleges and sea grant institutes, and, if appropriate,

on the termination or suspension of any such designation;

and

(D) encourage the establishment and growth of sea

grant programs, and cooperation and coordination with

other Federal activities in fields related to ocean, coastal,

and Great Lakes resources.

(3) With respect to sea grant colleges and sea grant institutes, the Director shall—

(A) evaluate the programs of sea grant colleges and

sea grant institutes, using the priorities, guidelines, and

qualifications established by the Secretary;

(B) subject to the availability of appropriations, allocate funding among sea grant colleges and sea grant institutes so as to—

(i) promote healthy competition among sea grant

colleges and institutes;

(ii) encourage successful implementation of sea

grant programs; and

(iii) to the maximum extent consistent with other

provisions of this Act, provide a stable base of funding

for sea grant colleges and institutes; and

(C) ensure compliance with the guidelines for merit review under subsection (c)(2).

SEC. 205. ø33 U.S.C. 1124¿ CONTRACTS AND GRANTS.

(a) IN GENERAL.—The Secretary may make grants and enter

into contracts under this subsection to assist any sea grant program or project if the Secretary finds that such program or project

will—

(1) implement the objective set forth in section 202(b); and

(2) be responsive to the needs or problems of individual

States or regions.

The total amount paid pursuant to any such grant or contract may

equal 662⁄3 percent, or any lesser percent, of the total cost of the

sea grant program or project involved; except that this limitation

shall not apply in the case of grants or contracts paid for with

funds accepted by the Secretary under section 204(d)(6).

(b) SPECIAL GRANTS.—The Secretary may make special grants

under this subsection to implement the objective set forth in section 202(b). The amount of any such grant may equal 100 percent,

or any lesser percent, of the total cost of the project involved. No

grant may be made under this subsection unless the Secretary

finds that—

(1) no reasonable means is available through which the applicant can meet the matching requirement for a grant under

subsection (a);

(2) the probable benefit of such project outweighs the public interest in such matching requirement; and
115 NATIONAL SEA GRANT COLLEGE PROGRAM ACT Sec. 205

1Section 4(b)(1)(B) of Public Law 102–186 attempted to amend section 205(b)(3) by striking

‘‘or section 206 of this title’’. The words ‘‘of this title’’ probably should not have appeared. The

amendment was executed according to the probable intent of Congress.

(3) the same or equivalent benefit cannot be obtained

through the award of a contract or grant under subsection (a). 1

The total amount which may be provided for grants under this subsection during any fiscal year shall not exceed an amount equal to

1 percent of the total funds appropriated for such year pursuant to

section 212.

(c) ELEGIBILITY AND PROCEDURE.—Any person may apply to

the Secretary for a grant or contract under this section. Application

shall be made in such form and manner, and with such content and

other submissions, as the Secretary shall by regulation prescribe.

The Secretary shall act upon each such application within 6

months after the date on which all required information is received.

(d) TERMS AND CONDITIONS.—(1) Any grant made, or contract

entered into, under this section shall be subject to the limitations

and provisions set forth in paragraphs (2), (3), and (4) and to such

other terms, conditions, and requirements as the Secretary deems

necessary or appropriate. Terms, conditions, and requirements imposed by the Secretary under this paragraph shall minimize any

requirement of prior Federal approval.

(2) No payment under any grant or contract under this section

may be applied to—

(A) the purchase or rental of any land; or

(B) the purchase, rental, construction, preservation, or repair of any building, dock, or vessel;

except that payment under any such grant or contract may be applied to the short-term rental of buildings or facilities for meetings

which are in direct support of any sea grant program or project and

may, if approved by the Secretary, be applied to the purchase, rental, construction, preservation, or repair of non-self-propelled habitats, buoys, platforms, and other similar devices or structures, or

to the rental of any research vessel which is used in direct support

of activities under any sea grant program or project.

(3) The total amount which may be obligated for payment pursuant to grants made to, and contracts entered into with, persons

under this section within any one State in any fiscal year shall not

exceed an amount equal to 15 percent of the total funds appropriated for such year pursuant to section 212.

(4) Any person who receives or utilizes any proceeds of any

grant or contract under this section shall keep such records as the

Secretary shall by regulation prescribe as being necessary and appropriate to facilitate effective audit and evaluation, including

records which fully disclose the amount and disposition by such recipient of such proceeds, the total cost of the program or project in

connection with which such proceeds were used, and the amount,

if any, of such cost which was provided through other sources. Such

records shall be maintained for 3 years after the completion of such

a program or project. The Secretary and the Comptroller General

of the United States, or any of their duly authorized representatives, shall have access, for the purpose of audit and evaluation, to

any books, documents, papers, and records of receipts which, in the
Sec. 207 NATIONAL SEA GRANT COLLEGE PROGRAM ACT 116

opinion of the Secretary or of the Comptroller General, may be related or pertinent to such grants and contracts.

[Section 206 was repealed by section 4(a) of Public Law 102–186]

SEC. 207. ø33 U.S.C. 1126¿ SEA GRANT COLLEGES AND SEA GRANT INSTITUTES.

(a) DESIGNATION.— (1) A sea grant college or sea grant institute shall meet the

following qualifications—

(A) have an existing broad base of competence in fields

related to ocean, coastal, and Great Lakes resources;

(B) make a long-term commitment to the objective in

section 202(b), as determined by the Secretary;

(C) cooperate with other sea grant colleges and institutes and other persons to solve problems or meet needs

relating to ocean, coastal, and Great Lakes resources;

(D) have received financial assistance under section

205 of this title (33 U.S.C. 1124);

(E) be recognized for excellence in fields related to

ocean, coastal, and Great Lakes resources (including marine resources management and science), as determined by

the Secretary; and

(F) meet such other qualifications as the Secretary, in

consultation with the panel, considers necessary or appropriate.

(2) The Secretary may designate an institution, or an association or alliance of two or more such institutions, as a sea

grant college if the institution, association, or alliance—

(A) meets the qualifications in paragraph (1); and

(B) maintains a program of research, advisory services, training, and education in fields related to ocean,

coastal, and Great Lakes resources.

(3) The Secretary may designate an institution, or an association or alliance of two or more such institutions, as a sea

grant institute if the institution, association, or alliance—

(A) meets the qualifications in paragraph (1); and

(B) maintains a program which includes, at a minimum, research and advisory services.

(b) EXISTING DESIGNEES.—Any institution, or association or alliance of two or more such institutions, designated as a sea grant

college or awarded institutional program status by the Director

prior to the date of enactment of the National Sea Grant College

Program Reauthorization Act of 1998, shall not have to reapply for

designation as a sea grant college or sea grant institute, respectively, after the date of enactment of the National Sea Grant College Program Reauthorization Act of 1998, if the Director determines that the institution, or association or alliance of institutions,

meets the qualifications in subsection (a).

(c) SUSPENSION OR TERMINATION OF DESIGNATION.—The Secretary may, for cause and after an opportunity for hearing, suspend

or terminate any designation under subsection (a).

(d) DUTIES.—Subject to any regulations prescribed or guidelines established by the Secretary, it shall be the responsibility of

each sea grant college and sea grant institute—
117 NATIONAL SEA GRANT COLLEGE PROGRAM ACT Sec. 209

1Section 8(b)(2) of the National Sea Grant College Program Reauthorization Act of 1998 (P.L.

105–160; 112 Stat. 26) amended this paragraph by striking ‘‘and section 3 of the Sea Grant College Program Improvement Act of 1976’’. The word ‘‘College’’ probably should not have appeared.

The amendment was executed according to the probable intent of Congress.

(1) to develop and implement, in consultation with the Secretary and the panel, a program that is consistent with the

guidelines and priorities established under section 204(c); and

(2) to conduct a merit review of all proposals for grants

and contracts to be awarded under section 205.

SEC. 208. ø33 U.S.C. 1127¿ FELLOWSHIPS.

(a) IN GENERAL.—To carry out the educational and training objectives of this Act, the Secretary shall support a program of fellowships for qualified individuals at the graduate and post-graduate

level. The fellowships shall be related to ocean, coastal, and Great

Lakes resources and awarded pursuant to guidelines established by

the Secretary.

(b) DEAN JOHN A. KNAUSS MARINE POLICY FELLOWSHIP.—The

Secretary may award marine policy fellowships to support the

placement of individuals at the graduate level of education in fields

related to ocean, coastal and Great Lakes resources in positions

with the executive and legislative branches of the United States

Government. A fellowship awarded under this subsection shall be

for a period of not more than 1 year.

(c) POSTDOCTORAL FELLOWSHIPS.—The Secretary shall establish and administer a program of postdoctoral fellowships to accelerate research in critical subject areas. The fellowship awards—

(1) shall be for 2 years;

(2) may be renewed once for not more than 2 years;

(3) shall be awarded on a nationally competitive basis;

(4) may be used at any institution of post-secondary education involved in the national sea grant college program;

(5) shall be for up to 100 percent of the total cost of the

fellowship; and

(6) may be made to recipients of terminal professional degrees, as well as doctoral degree recipients.

SEC. 209. ø33 U.S.C. 1128¿ SEA GRANT REVIEW PANEL.

(a) ESTABLISHMENT.—There shall be established an independent committee to be known as the sea grant review panel.

(b) DUTIES.—The Panel shall advise the Secretary and the Director concerning—

(1) applications or proposals for, and performance under,

grants and contracts awarded under section 205 1;

(2) the sea grant fellowship program;

(3) the designation and operation of sea grant colleges and

sea grant institutes, and the operation of sea grant programs;

(4) the formulation and application of the planning guidelines and priorities under section 204(a) and (c)(1); and

(5) such other matters as the Secretary refers to the panel

for review and advice.

The Secretary shall make available to the panel such information,

personnel, and administrative services and assistance as it may

reasonably require to carry out its duties.

(c) MEMBERSHIP, TERMS, AND POWERS.—(1) The panel shall

consist of 15 voting members who shall be appointed by the Sec-
Sec. 210 NATIONAL SEA GRANT COLLEGE PROGRAM ACT 118

1Margin so in law.

retary. The Director and a director of a sea grant program who is

elected by the various directors of sea grant programs shall serve

as nonvoting members of the panel. Not less than 8 of the voting

members of the panel shall be individuals who, by reason of knowledge, experience, or training, are especially qualified in one or more

of the disciplines and fields included in marine science. The other

voting members shall be individuals who, by reason of knowledge,

experience, or training, are especially qualified in, or representative of, education, marine affairs and resource management, extension services, State government, industry, economics, planning, or

any other activity which is appropriate to, and important for, any

effort to enhance the understanding, assessment, development, utilization, or conservation of ocean, coastal, and Great Lakes resources. No individual is eligible to be a voting member of the

panel if the individual is (A) the director of a sea grant college or

sea grant institute; (B) an applicant for, or beneficiary (as determined by the Secretary) of, any grant or contract under section

205; or (C) a full-time officer of employee of the United States.

(2) The term of office of a voting member of the panel shall be

3 years, except that of the original appointees, five shall be appointed for a term of 1 year, five shall be appointed for a term of

2 years, and five shall be appointed for a term of 3 years. At least

once each year, the Secretary shall publish a notice in the Federal

Register soliciting nominations for membership on the panel.

(3) Any individual appointed to a partial or full term may be

reappointed for one addition full term. A voting member may serve

after the date of the expiration of the term of office for which appointed until his or her successor has taken office.

(4) The panel shall select one voting member to serve as the

Chairman and another voting member to serve as the Vice Chairman. The Vice Chairman shall act as Chairman in the absence or

incapacity of the Chairman.

(5) Voting members of the panel shall—

(A) 1 receive compensation at a rate established by the

Secretary, not to exceed the maximum daily rate payable

under section 5376 of title 5, United States Code, when actually engaged in the performance of duties for such panel;

and

(B) be reimbursed for actual and reasonable expenses incurred in the performance of such duties.

(6) The panel shall meet on a biannual basis and, at any other

time, at the call of the Chairman or upon the request of a majority

of the voting members or of the Director.

(7) The panel may exercise such powers as are reasonably necessary in order to carry out its duties under subsection (b).

SEC. 210. ø33 U.S.C. 1129¿ INTERAGENCY COOPERATION.

Each department, agency, or other instrumentality of the Federal Government which is engaged in or concerned with, or which

has authority over, matters relating to ocean, coastal, and Great

Lakes resources—

(1) may, upon a written request from the Secretary, make

available, on a reimbursable basis or otherwise any personnel

(with their consent and without prejudice to their position and
119 NATIONAL SEA GRANT COLLEGE PROGRAM ACT Sec. 212

1Margin so in law.

rating), service, or facility which the Secretary deems necessary to carry out any provision of this title;

(2) shall, upon a written request from the Secretary, furnish any available data or other information which the Secretary deems necessary to carry out any provision of this title;

and

(3) shall cooperate with the Administration and duly authorized officials thereof.

[Section 211 was repealed by section 5(a) of Public Law 102–186]

SEC. 212. ø33 U.S.C. 1131¿ AUTHORIZATION OF APPROPRIATIONS.

(a) AUTHORIZATION.— (1) IN GENERAL.—There is authorized to be appropriated to

carry out this Act— (A) $56,000,000 for fiscal year 1999; (B) $57,000,000 for fiscal year 2000; (C) $58,000,000 for fiscal year 2001; (D) $59,000,000 for fiscal year 2002; and (E) $60,000,000 for fiscal year 2003.

(2) ZEBRA MUSSEL AND OYSTER RESEARCH.—In addition to

the amount authorized for each fiscal year under paragraph

(1)—

(A) up to $2,800,000 may be made available as provided in section 1301(b)(4)(A) of the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C.

4741(b)(4)(A)) for competitive grants for university research on the zebra mussel;

(B) up to $3,000,000 may be made available for competitive grants for university research on oyster diseases

and oyster-related human health risks; and

(C) up to $3,000,000 may be made available for competitive grants for university research on Pfiesteria

piscicida and other harmful algal blooms.

(b) PROGRAM ELEMENTS.—

(1) LIMITATION.—No more than 5 percent of the lesser of—

(A) the amount authorized to be appropriated; or

(B) the amount appropriated,

for each fiscal year under subsection (a) may be used to fund

the program element contained in section 204(b)(2).

(2) 1 Sums appropriated under the authority of subsections (a)

and (c) shall not be available for administration of this Act by the

National Sea Grant Office, or for Administration program or administrative expenses. (c) In addition to sums authorized under subsection (a), there

is authorized to be appropriated for priority oyster disease research

under section 205 of this Act, an amount—

(1) for fiscal year 1992, not to exceed $1,400,000;

(2) for fiscal year 1993, not to exceed $3,000,000;

(3) for fiscal year 1994, not to exceed $3,000,000; and

(4) for fiscal year 1995, not to exceed $3,000,000.

(d) AVAILABILITY OF SUMS.—Sums appropriated pursuant to

this section shall remain available until expended.
Sec. 212 NATIONAL SEA GRANT COLLEGE PROGRAM ACT 120

(e) REVERSION OF UNOBLIGATED AMOUNTS.—The amount of

any grant, or portion of a grant, made to a person under any section of this Act that is not obligated by that person during the first

fiscal year for which it was authorized to be obligated or during the

next fiscal year thereafter shall revert to the Secretary. The Secretary shall add that reverted amount to the funds available for

grants under the section for which the reverted amount was

originally made available.
121

WHALING CONVENTION ACT OF 1949

123

WHALING CONVENTION ACT OF 1949

[Chapter 653, Approved Aug. 9, 1950, 64 Stat. 421]

[Amended through chapter 653, Aug. 9, 1950]

AN ACT To authorize the regulation of whaling and to give effect to the International Convention for the Regulation of Whaling signed at Washington under

date of December 2, 1946, by the United States of America and certain other governments, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

SECTION 1. ø16 U.S.C. 916 note¿ That this Act may be cited

as the ‘‘Whaling Convention Act of 1949’’.

SEC. 2. ø16 U.S.C. 916¿ When used in this Act—

(a) Convention: The word ‘‘convention’’ means the International

Convention for the Regulation of Whaling signed at Washington

under date of December 2, 1946, by the United States of America

and certain other governments.

(b) Commission: The word ‘‘Commission’’ means the International Whaling Commission established by article III of the convention.

(c) United States Commissioner: The words ‘‘United States

Commissioner’’ mean the member of the International Whaling

Commission representing the United States of America appointed

pursuant to article III of the convention and section 3 of this Act.

(d) Person: The word ‘‘person’’ denotes every individual, partnership, corporation, and association subject to the jurisdiction of

the United States.

(e) Vessel: The word ‘‘vessel’’ denotes every kind, type, or description of water craft or contrivance subject to the jurisdiction of

the United States used, or capable of being used, as a means of

transportation.

(f) Factory ship: The words ‘‘factory ship’’ mean a vessel in

which or on which whales are treated or processed, whether wholly

or in part.

(g) Land station: The words ‘‘land station’’ mean a factory on

the land at which whales are treated or processed, whether wholly

or in part.

(h) Whale catcher: The words ‘‘whale catcher’’ mean a vessel

used for the purpose of hunting, killing, taking, towing, holding

onto, or scouting for whales.

(i) Whale products: The words ‘‘whale products’’ mean any unprocessed part of whale and blubber, meat, bones, whale oil, sperm

oil, spermaceti, meal, and baleen.

(j) Whaling: The word ‘‘whaling’’ means the scouting for, hunting, killing, taking, towing, holding onto, and flensing of whales,

and the possession, treatment, or processing of whales or of whale

products.
Sec. 3 WHALING CONVENTION ACT OF 1949 124

1For transfer of functions of the Secretary of the Interior under this Act to the Secretary of

Commerce, see Reorganization Plan No. 4 of 1970 (5 U.S.C. App.). 2So in law. Probably should be ‘‘; or (3)’’.

(k) Regulations of the Commission: The words ‘‘regulations of

the Commission’’ mean the whaling regulations in the schedule annexed to and constituting a part of the convention in their original

form or as modified, revised, or amended by the Commission from

time to time, in pursuance of article V of the convention.

(l) Regulations of the Secretary of the Interior 1: The words

‘‘regulations of the Secretary of the Interior 1’’ mean such regulations as may be issued by the Secretary of the Interior 1, from time

to time, in accordance with sections 11 and 12 of this Act.

SEC. 3. ø16 U.S.C. 916a¿ (a) The United States Commissioner

shall be appointed by the President, on the concurrent recommendations of the Secretary of State and the Secretary of the

Interior 1, and shall serve at the pleasure of the President.

(b) The President may appoint a Deputy United States Commissioner, on the concurrent recommendations of the Secretary of

State and the Secretary of the Interior 1. The Deputy United States

Commissioner shall serve at the pleasure of the President and

shall be the principal technical adviser to the United States Commissioner, and shall be empowered to perform the duties of the

Commissioner in case of the death, resignation, absence, or illness

of the Commissioner.

(c) The United States Commissioner and Deputy Commissioner, although officers of the United States Government, shall receive no compensation for their services.

SEC. 4. ø16 U.S.C. 916b¿ The Secretary of State is authorized,

with the concurrence of the Secretary of the Interior 1, to present

or withdraw any objections on behalf of the United States Government to such regulations or amendments of the schedule to the

convention as are adopted by the Commission and submitted to the

United States Government in accordance with article V of the convention. The Secretary of State is further authorized to receive on

behalf of the United States Government reports, requests, recommendations, and other communications of the Commission, and

to act thereon either directly or by reference to the appropriate authority.

SEC. 5. ø16 U.S.C. 916c¿ (a) It shall be unlawful for any person

subject to the jurisdiction of the United States (1) to engage in

whaling in violation of the convention or of any regulation of the

Commission, or of this Act, or of any regulation of the Secretary of

the Interior 1; (2) to ship, transport, purchase, sell, offer for sale,

import, export, or have in possession any whale or whale products

taken or processed in violation of the convention, or of any regulation of the Commission, or of this Act, or of any regulation of the

Secretary of the Interior 1; 2 (3) to fail to make, keep, submit, or furnish any record or report required of him by the convention, or by

any regulation of the Commission, or by any regulation of the Secretary of the Interior 1, or to refuse to permit any officer authorized

to enforce the convention, the regulations of the Commission, this

Act, and the regulations of the Secretary of the Interior 1, to inspect

such record or report at any reasonable time.

(b) It shall be unlawful for any person or vessel subject to the

jurisdiction of the United States to do any act prohibited or to fail
125 WHALING CONVENTION ACT OF 1949 Sec. 7

1See footnote 1 to section 2(l).

to do any act required by the convention, or by this Act, or by any

regulation adopted by the Commission, or by any regulation of the

Secretary of the Interior 1. SEC. 6. ø16 U.S.C. 916d¿ (a) No person shall engage in whaling

without first having obtained an appropriate license or scientific

permit. Such licenses shall be issued by the Secretary of the Interior 1 or such officer of the Department of the Interior as may be

designated by him: Provided, That the Secretary, in his discretion

and by appropriate regulation, may waive the payment of any license fee or the requirement that a license first be obtained, in connection with the salvage of any ‘‘Dauhval’’ or unclaimed dead whale

found floating or stranded.

(b) The following licenses and fees shall be required for each

calendar year or any fraction thereof and shall be nontransferable

except under such conditions as may be prescribed by the Secretary:

(1) Land-station license for primary processing of whales, $250.

(2) Land-station license for secondary processing of parts of

whales delivered to it by a land station licensed as a primary processor, $100.

(3) Factory-ship license for primary processing of whales delivered by whale catchers, $250.

(4) License for any vessel used exclusively for transporting

whale products from a factory ship to a port during the whaling season, $100.

(5) Whale-catcher license, $100.

(c) All moneys derived from the issuance of whaling licenses

shall be covered into the Treasury of the United States, and no license fee shall be refunded by reason of the failure of any person

to whom a license has been issued to utilize the facility in whaling

for which such license was issued.

(d) Any person, in making application for a license to operate

a whale catcher, must furnish evidence or affidavit satisfactory to

the Secretary of the Interior 1 that, in addition to conforming to

other applicable laws and regulations, (1) the whale catcher is adequately equipped and competently manned to engage in whaling in

accordance with the provisions of the convention, the regulations of

the Commission, and the regulations of the Secretary of the Interior 1; (2) gunners and crews will be compensated on some basis

that does not depend primarily on the number of whales taken; and

(3) no bonus or other partial remuneration with relation to the

number of whales taken shall be paid to gunners and crews in respect of the taking of any whales, the taking of which is prohibited.

(e) Any person, in making application for a license to operate

a land station or a factory ship must furnish evidence or affidavits

to the satisfaction of the Secretary of the Interior 1 that, in addition

to conforming to other applicable laws and regulations, such land

station or factory ship is adequately equipped to comply with provisions of the convention, of the regulations of the Commission, and

of the regulations of the Secretary of the Interior 1 with respect to

the processing of whales or the manufacture of whale products.

SEC. 7. ø16 U.S.C. 916e¿ Any person who fails to make, keep,

or furnish any catch return, statistical record, or any report that
Sec. 8 WHALING CONVENTION ACT OF 1949 126

1See footnote 1 to section 2(l).

may be required by the convention, or by any regulation of the

Commission, or by this Act, or by a regulation of the Secretary of

the Interior 1, or any person who furnishes a false return, record,

or report, upon conviction, shall be subject to such fine as may be

imposed by the court not to exceed $500, and shall in addition be

prohibited from whaling, processing, or possessing whales and

whale products from the date of conviction until such time as any

delinquent return, record, or report shall have been submitted or

any false return, record, or report shall have been replaced by a

duly certified correct and true return, record, or report to the satisfaction of the court. The penalties imposed by section 8 of this Act

shall not be invoked for failure to comply with requirements respecting returns, records, and reports.

SEC. 8. ø16 U.S.C. 916f¿ Except as to violations defined in

clause 3 of subsection (a) of section (5) of this Act, any person violating any provision of the convention, or of any regulation of the

Commission, or of this Act, or of any regulation of the Secretary of

the Interior 1 upon conviction, shall be fined not more than $10,000

or be imprisoned not more than one year, or both. In addition the

court may prohibit such person from whaling for such period of

time as it may determine, and may order forfeited, in whole or in

part, the whales taken by such person in whaling during the season, or the whale products derived therefrom or the monetary value

thereof. Such forfeited whales or whale products shall be disposed

of in accordance with the direction of the court.

SEC. 9. ø16 U.S.C. 916g¿ (a) Any duly authorized enforcement

officer or employee of the Fish and Wildlife Service of the Department of the Interior; any Coast Guard officer; any United States

marshal or deputy United States marshal; any customs officer; and

any other person authorized to enforce the provisions of the convention, the regulations of the Commission, this Act, and the regulations of the Secretary of the Interior 1, shall have power, without

warrant or other process but subject to the provisions of the convention, to arrest any person subject to the jurisdiction of the

United States committing in his presence or view a violation of the

convention or of this Act, or of the regulations of the Commission,

or of the regulations of the Secretary of the Interior 1 and to take

such person immediately for examination before a justice or judge

or any other official designated in section 3041 of title 18 of the

United States Code; and shall have power, without warrant or

other process, to search any vessel subject to the jurisdiction of the

United States or land station when he has reasonable cause to believe that such vessel or land station is engaged in whaling in violation of the provisions of the convention of this Act, or the regulations of the Commission, or the regulations of the Secretary of the

Interior 1. Any person authorized to enforce the provisions of the

convention, this Act, the regulations of the Commission, or the regulations of the Secretary of the Interior 1 shall have power to execute any warrant or process issued by an officer or court of com- petent jurisdiction for the enforcement of this Act, and shall have

power with a search warrant to search any vessel, person, or place

at any time. The judges of the United States district courts and the

United States commissioners may, within their respective jurisdic-
127 WHALING CONVENTION ACT OF 1949 Sec. 12

1See footnote 1 to section 2(l).

tions, upon proper oath or affirmation showing probable cause,

issue warrants in all such cases. Subject to the provisions of the

convention, any person authorized to enforce the convention, this

Act, the regulations of the Commission, and the regulations of the

Secretary of the Interior 1 may seize, whenever and wherever lawfully found, all whales or whale products taken, processed, or possessed contrary to the provisions of the convention, of this Act, of

the regulations of the Commission, or of the regulations of the Secretary of the Interior 1. Any property so seized shall not be disposed of except pursuant

to the order of a court of competent jurisdiction or the provisions

of subsection (b) of this section, or, if perishable, in the manner

prescribed by regulations of the Secretary of the Interior 1. (b) Notwithstanding the provisions of section 2464 of title 28

of the United States Code, when a warrant of arrest or other process in rem is issued in any cause under this section, the marshal

or other officer shall stay the execution of such process, or discharge any property seized if the process has been levied, on receiving from the claimant of the property a bond or stipulation for double the value of the property with sufficient surety to be approved

by a judge of the district court having jurisdiction, conditioned to

deliver the property seized, if condemned, without impairment in

value or, in the discretion of the court, to pay its equivalent value

in money or otherwise to answer the decree of the court in such

cause. Such bond or stipulation shall be returned to the court and

judgment thereon against both the principal and sureties may be

recovered in event of any breach of the conditions thereof as determined by the court.

SEC. 10. ø16 U.S.C. 916h¿ (a) In order to avoid duplication in

scientific and other programs, the Secretary of State, with the concurrence of the agency, institution, or organization concerned, may

direct the United States Commissioner to arrange for the cooperation of agencies of the United States Government, and of State and

private institutions and organizations in carrying out the provisions of article IV of the convention.

(b) All agencies of the Federal Government are authorized, on

request of the Commission, to cooperate in the conduct of scientific

and other programs, or to furnish facilities and personnel for the

purpose of assisting the Commission in the performance of its duties as prescribed by the convention.

SEC. 11. ø16 U.S.C. 916i¿ Nothing contained in this Act shall

prevent the taking of whales and the conducting of biological experiments at any time for purposes of scientific investigation in accordance with scientific permits and regulations issued by the Secretary of the Interior 1 or shall prevent the Commission from discharging its duties as prescribed by the convention.

SEC. 12. ø16 U.S.C. 916j¿ (a) The Secretary of the Interior 1 is

authorized and directed to administer and enforce all of the provisions of this Act and regulations issued pursuant thereto and all

of the provisions of the convention and of the regulations of the

Commission, except to the extent otherwise provided for in this

Act, in the convention, or in the regulations of the Commission. In

carrying out such functions he is authorized to adopt such regula-
Sec. 13 WHALING CONVENTION ACT OF 1949 128

1See footnote 1 to section 2(l).

tions as may be necessary to carry out the purposes and objectives

of the convention, the regulations of the Commission, this Act, and

with the concurrence of the Secretary of State, to cooperate with

the duly authorized officials of the government of any party to the

convention.

(b) Enforcement activities under the provisions of this Act relating to vessels engaged in whaling and subject to the jurisdiction

of the United States primarily shall be the responsibility of the

Secretary of the Treasury in cooperation with the Secretary of the

Interior 1.

(c) The Secretary of the Interior 1 may authorize officers and

employees of the coastal States of the United States to enforce the

provisions of the convention, or of the regulations of the Commission, or of this Act, or of the regulations of the Secretary of the Interior 1. When so authorized such officers and employees may function as Federal law-enforcement officers for the purposes of this

Act.

SEC. 13. ø16 U.S.C. 916k¿ Regulations of the Commission approved and effective in accordance with section 4 of this Act and

article V of the convention shall be submitted for appropriate action or publication in the Federal Register by the Secretary of the

Interior 1 and shall become effective with respect to all persons and

vessels subject to the jurisdiction of the United States in accordance with the terms of such regulations and the provisions of article V of the convention.

SEC. 14. ø16 U.S.C. 916l¿ There is hereby authorized to be appropriated from time to time, out of any moneys in the Treasury

not otherwise appropriated, such sums as may be necessary to

carry out the provisions of the convention and of this Act, including

(1) contributions to the Commission for the United States share of

any joint expenses of the Commission agreed by the United States

and any of the other contracting governments, and (2) the expenses

of the United States Commissioner and his staff, including (a) personal services in the District of Columbia and elsewhere, without

regard to the civil-service laws and the Classification Act of 1923,

as amended; (b) travel expenses without regard to the Travel Expense Act of 1949 and section 10 of the Act of March 3, 1933

(U.S.C., title 5, sec. 73b); (c) transportation of things, communication services; (d) rent of offices; (e) printing and binding without regard to section 11 of the Act of March 1, 1919 (U.S.C., title 44, sec.

111), and section 3709 of the Revised Statutes (U.S.C., title 41, sec.

5); (f) stenographic and other services by contract, if deemed necessary, without regard to section 3709 of the Revised Statutes

(U.S.C., title 41, sec. 5); (g) supplies and materials; (h) equipment;

(i) purchase, hire, operation, maintenance, and repair of aircraft,

motor vehicles (including passenger-carrying vehicles), boats, and

research vessels.

SEC. 15. ø16 U.S.C. 916m¿ If any provision of this Act or the

application of such provision to any circumstances or persons shall

be held invalid, the validity of the remainder of the Act and the

applicability of such provision to other circumstances or persons

shall not be affected thereby.
129 WHALING CONVENTION ACT OF 1949 Sec. 16

1See footnote 1 to section 2(l).

SEC. 16. ø16 U.S.C. 916n¿ The Whaling Treaty Act of May 1,

1936 (49 Stat. 1246; 16 U.S.C. 901–915), is hereby repealed and the

Secretary of the Interior 1 is authorized to refund any part of a license fee paid under said Act that is in excess of the license fee

required under this Act.

131

FUR SEAL ACT OF 1966

133

1Similar provisions relating to the Pribilof Islands, including amendments made to this Act,

were enacted by section 144(e) of the Miscellaneous Appropriations Act, 2001 (P.L. 106–554; approved Dec. 21, 2000; 114 Stat. 2763A–244) and the Pribilof Islands Transition Act (P.L. 106–

652; approved Dec. 23, 2000; 114 Stat. 2794). 2 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 303 of Public Law 102–251 amends section 101 by redesignating

subsections (f)–(m) as subsections (g)–(n) and inserts a new subsection (f) as follows:

Continued

FUR SEAL ACT OF 1966 1

[Public Law 89–702, Approved Nov. 2, 1966, 80 Stat. 1091]

[Amended through Public Law 106–562, Dec. 23, 2000]

AN ACT To protect and conserve the North Pacific fur seals, to provide for the

administration of the Pribilof Islands, to conserve the fur seals and other wildlife

on the Pribilof Islands, and to protect sea otters on the high seas.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

SECTION 1. ø16 U.S.C. 1151 note¿ This Act may be cited as the

‘‘Fur Seal Act of 1966’’.

TITLE I—FUR SEAL MANAGEMENT

SEC. 101. ø16 U.S.C. 1151¿ (a) ‘‘Commission’’ means the North

Pacific Fur Seal Commission established pursuant to article V of

the Convention.

(b) ‘‘Convention’’ means the Interim Convention on the Conservation of North Pacific Fur Seals signed at Washington on February 9, 1957, as amended by the protocol signed in Washington

on October 8, 1963; by the exchange of notes among the party governments which became effective on September 3, 1969; by the protocol signed in Washington on May 7, 1976; and by the protocol

signed in Washington on October 14, 1980, by the parties.

(c) ‘‘Cure’’ or ‘‘curing’’ means the performance of those post-harvest activities traditionally performed on the Pribilof Islands, including cooling, washing, removal of blubber, soaking in brine,

draining, treating with salt or boric acid, and packing in containers

for shipment of fur seal skins.

(d) ‘‘Fur Seal’’ means the North Pacific Fur Seal, Callorhinus

Ursinus.

(e) ‘‘Import’’ means to land on, bring into, or introduce into, or

attempt to land on, bring into, or introduce into, any place subject

to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the

meaning of the customs laws of the United States.

(f) 2 ‘‘Natives of the Pribilof Islands’’ means any Aleuts who are

permanent residents of the Pribilof Islands, or any organization or

entity representing such natives.
Sec. 102 FUR SEAL ACT OF 1966 134

‘‘(f) ‘Jurisdiction of the United States’ includes jurisdiction over the areas referred to as eastern special areas in Article 3(1) of the Agreement between the United States of America and

the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990; in particular, those areas east of the maritime boundary, as defined in that Agreement, that lie within

200 nautical miles of the baselines from which the breadth of the territorial sea of Russia is

measured but beyond 200 nautical miles of the baselines from which the breadth of the territorial sea of the United States is measured.’’.

(g) ‘‘North Pacific Ocean’’ means the waters of the Pacific

Ocean north of the thirtieth parallel of north latitude, including the

Bering, Okhotsk, and Japan Seas.

(h) ‘‘Party’’ or ‘‘parties’’ means the United States of America,

Canada, Japan, and Russia (except that as used in subsection (b)

of this section, ‘‘party’’ and ‘‘parties’’ refer to the Union of Soviet

Socialist Republics).

(i) ‘‘Person’’ means any individual, partnership, corporation,

trust, association or any other private entity, or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State or political subdivision thereof, or of any foreign government.

(j) ‘‘Pribilof Islands’’ means the islands of Saint Paul and Saint

George, Walrus and Otter Islands, and Sea Lion Rock.

(k) ‘‘Sealing’’ means the taking of fur seals.

(l) ‘‘Secretary’’ means the Secretary of Commerce.

(m) ‘‘Take’’ or ‘‘taking’’ means to harass, hunt, capture, or kill,

or attempt to harass, hunt, capture, or kill.

SEC. 102. ø16 U.S.C. 1152¿ It is unlawful, except as provided

in this Act or by regulation of the Secretary, for any person or vessel subject to the jurisdiction of the United States to engage in the

taking of fur seals in the North Pacific Ocean or on lands or waters

under the jurisdiction of the United States, or to use any port or

harbor or other place under the jurisdiction of the United States

for any purpose connected in any way with such taking, or for any

person to transport, import, offer for sale, or possess at any port

or place or on any vessel, subject to the jurisdiction of the United

States, fur seals or the parts thereof, including, but not limited to,

raw, dressed, or dyed fur seal skins, taken contrary to the provisions of this Act or the Convention, or for any person subject to the

jurisdiction of the United States to refuse to permit, except within

the Exclusive Economic Zone of the United States, a duly authorized official of Canada, Japan, or Russia to board and search any

vessel which is outfitted for the harvesting of living marine resources and which is subject to the jurisdiction of the United States

to determine whether such vessel is engaged in sealing contrary to

the provisions of said Convention.

SEC. 103. ø16 U.S.C. 1153¿ (a) Indians, Aleuts, and Eskimos

who dwell on the coasts of the North Pacific Ocean are permitted

to take fur seals and dispose of their skins after the skins have

been officially marked and certified by a person authorized by the

Secretary: Provided, That the seals are taken for subsistence uses

as defined in section 109(f)(2) of the Marine Mammal Protection

Act of 1972, as amended (16 U.S.C. 1379), and only in canoes not

transported by or used in connection with other vessels, and propelled entirely by oars, paddles, or sails, and manned by not more

than five persons each, in the way hitherto practiced and without

the use of firearms. This authority shall not apply to Indians,

Aleuts, and Eskimos while they are employed by any person for the
135 FUR SEAL ACT OF 1966 Sec. 106

purpose of taking fur seals or are under contract to deliver the

skins to any person.

(b) Indians, Aleuts, and Eskimos who live on the Pribilof Islands are authorized to take fur seals for subsistence purposes as

defined in section 109(f)(2) of the Marine Mammal Protection Act

of 1972, as amended (16 U.S.C. 1379), under such conditions as recommended by the Commission and accepted by the Secretary of

State pursuant to regulations promulgated by the Secretary.

SEC. 104. ø16 U.S.C. 1154¿ The Secretary shall (1) conduct

such scientific research and investigations on the fur seal resources

of the North Pacific Ocean as he deems necessary to carry out the

obligations of the United States under the Convention, and (2) permit, subject to such terms and conditions as he deems desirable,

the taking, transportation, importation, exportation, or possession

of fur seals or their parts for educational, scientific, or exhibition

purposes.

SEC. 105. ø16 U.S.C. 1155¿ (a) The Secretary shall prescribe

such regulations with respect to the taking of fur seals on the

Pribilof Islands and on lands subject to the jurisdiction of the

United States as he deems necessary and appropriate for the con- servation, management, and protection of the fur seal population,

and to dispose of any fur seals seized or forfeited pursuant to this

Act, and to carry out the provisions of the Convention, and shall

deliver to authorized agents of the parties such fur seal skins as

the parties are entitled to under the Convention.

(b) The Secretary is authorized to enter into agreements with

any public or private agency or person for the purpose of carrying

out the provisions of the Convention and of this title, including but

not limited to the taking of fur seals on the Pribilof Islands, and

the curing and marketing of the sealskins and other seal parts, and

may retain the proceeds therefrom.

(c) The Secretary shall give preference to the village corporations of Saint Paul and Saint George Islands established pursuant

to section 8 of the Alaska Native Claims Settlement Act (Public

Law 92–203) for the taking of fur seals on the village corporations’

respective islands, and the curing and marketing of the sealskins

and other seal parts, and may retain the proceeds therefrom. Any

proceeds therefrom will be deposited in a separate fund in the

Treasury and will be available to the Secretary, subject to appropriations, for the purpose of this section. All seal harvests will be

financed, to the extent possible, from proceeds collected in preceding years or unsold assets retained from harvests conducted in

preceding years. In the event that such assets and proceeds are insufficient, as determined by the Secretary, to finance the seal harvest in accordance with the requirements of the Convention, there

are authorized to be appropriated to the Secretary for fiscal year

1984, and for fiscal year 1985 and beyond if the Convention is extended by protocol signed by the parties and made effective as to

the United States, such sums as may be necessary to carry out the

harvest and curing on the Pribilof Islands. Such amounts as are determined by the Secretary to exceed amounts required to carry out

this section shall be transferred to the General Fund of the Treasury.

SEC. 106. ø16 U.S.C. 1156¿ (a) Any person authorized to enforce the provisions of this Act who has reasonable cause to believe
Sec. 107 FUR SEAL ACT OF 1966 136

1So in law. Probably should be ‘‘travel’’.

that any vessel outfitted for the harvesting of living marine resources and subject to the jurisdiction of any of the parties to the

Convention is violating the provisions of article III of the Convention may, except within the areas in which another State exercises

fisheries jurisdiction, board and search such vessel. Such person

shall carry a special certificate of identification issued by the Secretary or Secretary of the department in which the Coast Guard is

operating which shall be in English, Japanese, and Russian and

which shall be exhibited to the master of the vessel upon request.

(b) If, after boarding and searching such vessel, such person

continues to have reasonable cause to believe that such vessel, or

any person onboard, is violating said article, he may seize such vessel or arrest such person, or both. The Secretary of State shall, as

soon as practicable, notify the party having jurisdiction over the

vessel or person of such seizure or arrest.

The Secretary or the Secretary of the department in which the

Coast Guard is operating, upon request of the Secretary of State,

shall deliver the seized vessel or arrested person, or both, as

promptly as practicable to the authorized officials of said party:

Provided, That whenever said party cannot immediately accept

such delivery, the Secretary or the Secretary of the department in

which the Coast Guard is operating may, upon the request of the

Secretary of State, keep the vessel or person in custody within the

United States.

(c) At the request of said party, the Secretary or the Secretary

of the department in which the Coast Guard is operating, shall direct the person authorized to enforce the provisions of this Act to

attend the trial as a witness in any case arising under said article

or give testimony by deposition, and shall produce such records and

files or copies thereof as may be necessary to establish the offense.

SEC. 107. ø16 U.S.C. 1157¿ The President shall appoint to the

Commission a United States Commissioner who shall serve at the

pleasure of the President. The President may appoint one Native

from each of the two inhabited Pribilof Islands to serve as Advisors

to the Commissioner and as liaisons between the Commissioner

and the Natives of the Pribilof Islands. The President may also appoint other interested parties as Advisors to the Commissioner.

Such Advisors shall serve at the pleasure of the President. The

President may also appoint a Deputy United States Commissioner

who shall serve at the pleasure of the President. The Deputy Commissioner shall be the principal adviser of the Commissioner, and

shall perform the duties of the Commissioner in the case of his

death, resignation, absence, or illness. The Commissioner, the Deputy Commissioner, and the Advisors shall receive no compensation

for their services. The Commissioners may be paid traval 1 expenses and per diem in lieu of subsistence at the rates authorized

by section 5 of the Administrative Expense Act of 1946 when engaged in the performance of their duties.

SEC. 108. ø16 U.S.C. 1158¿ The Secretary of State, with the

concurrence of the Secretary, is authorized to accept or reject, on

behalf of the United States, recommendations made by the Commission pursuant to article V of the Convention.
137 FUR SEAL ACT OF 1966 Sec. 204

SEC. 109. ø16 U.S.C. 1159¿ The head of any Federal agency is

authorized to consult with and provide technical assistance to the

Secretary or the Commission whenever such assistance is needed

and reasonably can be furnished in carrying out the provisions of

this title. Any Federal agency furnishing assistance hereunder may

expend its own funds for such purposes, with or without reimbursement.

TITLE II—ADMINISTRATION OF THE PRIBILOF ISLANDS

SEC. 201. ø16 U.S.C. 1161¿ The Secretary shall administer the

fur seal rookeries and other Federal real and personal property on

the Pribilof Islands, with the exception of lands purchased by the

U.S. Fish and Wildlife Service under section 1417 of the Alaska

National Interest Lands Conservation Act (Public Law 96–487) or

acquired or purchased by any other authority after enactment of

the Fur Seal Act Amendments of 1983 and, in consultation with

the Secretary of the Interior, shall ensure that activities on such

property are consistent with the purposes of conserving, managing,

and protecting the North Pacific fur seals and other wildlife and for

other purposes consistent with that primary purpose.

SEC. 202. ø16 U.S.C. 1162¿ In carrying out the provisions of

this title, the Secretary is authorized—

(1) to operate, maintain, and repair such Governmentowned property, both real and personal, and other facilities

held by the Secretary on the Pribilof Islands as may be necessary; and

(2) to provide the employees of the Department of Commerce and other Federal agencies and their dependents, at reasonable rates to be determined by the Secretary, with such facilities, services, and equipment as he deems necessary, including, but not limited to, food, fuel, shelter, and transportation.

SEC. 203. ø16 U.S.C. 1163¿ The State of Alaska will be responsible for meeting the educational needs of the citizens of the

Pribilof Islands.

SEC. 204. ø16 U.S.C. 1164¿ The Secretary of Health and

Human Services shall provide medical and dental care to the Natives of the Pribilof Islands with or without reimbursement, as provided by other law. He is authorized to provide such care to Federal employees and their dependents and tourists and other persons in the Pribilof Islands at reasonable rates to be determined by

him. He may purchase, lease, construct, operate, and maintain

such facilities, supplies, and equipment as he deems necessary to

carry out the provisions of this section; and the costs of such items,

including medical and dental care, shall be charged to the budget

of the Secretary of Health and Human Services. Nothing in this

Act shall be construed as superseding or limiting the authority and

responsibility of the Secretary of Health and Human Services

under the Act of August 5, 1954, as amended, or any other law

with respect to medical and dental care of natives or other persons

in the Pribilof Islands.
Sec. 205 FUR SEAL ACT OF 1966 138

1Section 144(e)(5)(C) of the Miscellaneous Appropriations Act, 2001 (114 Stat. 2763A–247)

provides as follows:

(C) Effective on the date on which the Secretary of Commerce makes the certification described in subparagraph (b)(2), the following provisions are repealed:

(i) Section 205 of the Fur Seal Act of 1966 (16 U.S.C. 1165).

(ii) Section 3 of Public Law 104–91 (16 U.S.C. 1165 note).

The reference to ‘‘subparagraph (b)(2)’’ probably was intended to be to ‘‘subparagraph (B)(ii)’’.

Compare to section 105(c) of Public Law 106–562 (114 Stat. 2798).

SEC. 205. 1 ø16 U.S.C. 1165¿ (a) Any provision of law relating

to the transfer and disposal of Federal property to the contrary notwithstanding, the Secretary, after consultation with the Secretary

of the department in which the Coast Guard is operating, is authorized to bargain, grant, sell or otherwise convey, on such terms

as he deems to be in the best interests of the United States and

in furtherance of the purposes of this Act, any and all right, title,

and interest of the United States in and to the property, both real

and personal, held by the Secretary on the Pribilof Islands: Provided, That such property is specified in a document entitled

‘‘Transfer of Property on the Pribilof Islands: Descriptions, Terms

and Conditions,’’ which is submitted to the Congress on or before

October 31, 1983.

(b) The property transfer document described in subsection (a)

shall include, but need not be limited to—

(1) a description of each conveyance;

(2) the terms to be imposed on each conveyance;

(3) designation of the recipient of each conveyance;

(4) a statement noting acceptance of each conveyance, including the terms, if any, under which it is accepted; and

(5) an identification of all Federal property to be retained

by the Federal Government on the Pribilof Islands to meet its

responsibilities as described in this Act and under the Convention.

(c) Not later than 3 months after the date of the enactment of

the Pribilof Islands Transition Act, the Secretary shall submit to

the Committee on Commerce, Science, and Transportation of the

Senate and the Committee on Resources of the House of Representatives a report that includes—

(1) a description of all property specified in the document

referred to in subsection (a) that has been conveyed under that

subsection;

(2) a description of all Federal property specified in the

document referred to in subsection (a) that is going to be conveyed under that subsection; and

(3) an identification of all Federal property on the Pribilof

Islands that will be retained by the Federal Government to

meet its responsibilities under this Act, the Convention, and

any other applicable law.

(d) A Memorandum of Understanding shall be entered into by

the Secretary, a representative of the local governmental authority

on each Island, the trustee or trustees, and the appropriate officer

of the State of Alaska setting forth the respective responsibilities

of the Federal Government, the Trust, and the State regarding—

(1) application of Federal retirement benefits, severance

pay, and insurance benefits with respect to Natives of the

Pribilof Islands;
139 FUR SEAL ACT OF 1966 Sec. 206

(2) funding to be allocated by the State of Alaska for the

construction of boat harbors on St. Paul and St. George Islands;

(3) assumption of the State of Alaska of traditional State

responsibilities for facilities and services on such islands in accordance with applicable laws and regulations;

(4) preservation of wildlife resources within the Secretary’s

jurisdiction;

(5) continued activities relating to the implementation of

the Convention;

(6) oversight of the operation of the Trust, established by

section 206(a) to further progress toward creation of a stable,

diversified, and enduring economy not dependent on commercial fur sealing;

(7) the cooperation of government agencies, rendered

through existing programs, in assisting with an orderly transition from Federal management and the creation of a private

enterprise economy on the Pribilof Islands as described in this

Act; and

(8) such other matters as may be necessary and appropriate for carrying out the purposes of the Act, including the

assumption of responsibilities to ensure an orderly transition

from Federal management of the Pribilof Islands.

The Memorandum shall be submitted to Congress on or before October 31, 1983.

(e) The grant, sale, transfer or conveyance of any real or personal property pursuant to this section shall not be subject to any

form of Federal, State or local taxation. The basis for computing

gain or loss on subsequent sale or disposition of such real or personal property for purposes of any Federal, State, or local tax imposed on, or measured by revenue shall be the fair market value

of such real or personal property at the time of receipt.

(f) In carrying out the purposes of this Act, the Secretary is authorized to enter into agreements, including but not limited to land

exchange agreements with other Departments and Agencies of both

the State and Federal Governments, and with third parties, notwithstanding any provision of law relating to the transfer and disposal of Federal property to the contrary; except that the authority

of the Secretary of the Interior regarding exchanges involving lands

in the National Wildlife Refuge System on the date of enactment

of the Fur Seal Act Amendments of 1983 is not affected by this section.

SEC. 206. ø16 U.S.C. 1166¿ (a)(1) Subject to the availability of

appropriations, the Secretary shall provide financial assistance to

any city government, village corporation, or tribal council of St.

George, Alaska, or St. Paul, Alaska.

(2) Notwithstanding any other provision of law relating to

matching funds, funds provided by the Secretary as assistance

under this subsection may be used by the entity as non-Federal

matching funds under any Federal program that requires such

matching funds.

(3) The Secretary may not use financial assistance authorized

by this Act—

(A) to settle any debt owed to the United States;

(B) for administrative or overhead expenses; or
Sec. 206 FUR SEAL ACT OF 1966 140

(C) for contributions sought or required from any person

for costs or fees to clean up any matter that was caused or contributed to by such person on or after March 15, 2000.

(4) In providing assistance under this subsection the Secretary

shall transfer any funds appropriated to carry out this section to

the Secretary of the Interior, who shall obligate such funds through

instruments and procedures that are equivalent to the instruments

and procedures required to be used by the Bureau of Indian Affairs

pursuant to title IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.).

(5) In any fiscal year for which less than all of the funds authorized under subsection (c)(1) are appropriated, such funds shall

be distributed under this subsection on a pro rata basis among the

entities referred to in subsection (c)(1) in the same proportions in

which amounts are authorized by that subsection for grants to

those entities.

(b)(1) Subject to the availability of appropriations, the Secretary shall provide assistance to the State of Alaska for designing,

locating, constructing, redeveloping, permitting, or certifying solid

waste management facilities on the Pribilof Islands to be operated

under permits issued to the City of St. George and the City of St.

Paul, Alaska, by the State of Alaska under section 46.03.100 of the

Alaska Statutes.

(2) The Secretary shall transfer any appropriations received

under paragraph (1) to the State of Alaska for the benefit of rural

and Native villages in Alaska for obligation under section 303 of

Public Law 104–182, except that subsection (b) of that section shall

not apply to those funds.

(3) In order to be eligible to receive financial assistance under

this subsection, not later than 180 days after the date of enactment

of this paragraph, each of the Cities of St. Paul and St. George

shall enter into a written agreement with the State of Alaska

under which such City shall identify by its legal boundaries the

tract or tracts of land that such City has selected as the site for

its solid waste management facility and any supporting infrastructure.

(c) There are authorized to be appropriated to the Secretary for

fiscal years 2001, 2002, 2003, 2004, and 2005—

(1) for assistance under subsection (a) a total not to

exceed—

(A) $9,000,000, for grants to the City of St. Paul;

(B) $6,300,000, for grants to the Tanadgusix Corporation;

(C) $1,500,000, for grants to the St. Paul Tribal Council;

(D) $6,000,000, for grants to the City of St. George;

(E) $4,200,000, for grants to the St. George Tanaq

Corporation; and

(F) $1,000,000, for grants to the St. George Tribal

Council; and

(2) for assistance under subsection (b), for fiscal years

2001, 2002, 2003, 2004, and 2005 a total not to exceed—

(A) $6,500,000 for the City of St. Paul; and

(B) $3,500,000 for the City of St. George.
141 FUR SEAL ACT OF 1966 Sec. 208

(d) None of the funds authorized by this section may be available for any activity a purpose of which is to influence legislation

pending before the Congress, except that this subsection shall not

prevent officers or employees of the United States or of its departments, agencies, or commissions from communicating to Members

of Congress, through proper channels, requests for legislation or

appropriations that they consider necessary for the efficient conduct of public business.

(e) Neither the United States nor any of its agencies, officers,

or employees shall have any liability under this Act or any other

law associated with or resulting from the designing, locating, contracting for, redeveloping, permitting, certifying, operating, or

maintaining any solid waste management facility on the Pribilof Islands as a consequence of—

(1) having provided assistance to the State of Alaska under

subsection (b); or

(2) providing funds for, or planning, constructing, or operating, any interim solid waste management facilities that may

be required by the State of Alaska before permanent solid

waste management facilities constructed with assistance provided under subsection (b) are complete and operational.

In addition, there are authorized to be appropriated to the Secretary $3,200,000 for fiscal year 1989 and $1,800,000 for fiscal year

1990 to be used for the purpose of funding the Saint Paul Island

Trust, as established pursuant to subsection (a)(1) of this section,

and $3,700,000 for fiscal year 1990 to be used for the purpose of

funding the Saint George Trust, as established pursuant to subsection (a)(1).

(f ) Each entity which receives assistance authorized under subsection (c) shall submit an audited statement listing the expenditure of that assistance to the Committee on Appropriations and the

Committee on Resources of the House of Representatives and the

Committee on Appropriations and the Committee on Commerce,

Science, and Transportation of the Senate, on the last day of fiscal

years 2002, 2004, and 2006.

(g) Amounts authorized under subsection (c) are intended by

Congress to be provided in addition to the base funding appropriated to the National Oceanic and Atmospheric Administration in

fiscal year 2000.

SEC. 207. ø16 U.S.C. 1167¿ The Secretary is authorized to

enter into agreements or contracts or leases with, or to issue permits to, any public or private agency or person for carrying out the

provisions of the Convention or this Act.

SEC. 208. ø16 U.S.C. 1168¿ (a) Service by natives of the

Pribilof Islands engaged in the taking and curing of fur seal skins

and other activities in connection with the administration of such

islands prior to January 1, 1950, as determined by the Secretary

based on records available to him, shall be considered for purposes

of credit under the Civil Service Retirement Act, as amended, as

civilian service performed by an employee, as defined in said Act.

(b) The annuity of any person or the annuity of the survivor

of any person who shall have performed service described in subsection (a) of this section, and who, prior to November 2, 1966, died

or shall have been retired on annuity payable from the civil service

retirement and disability fund, shall, upon application filed by the
Sec. 211 FUR SEAL ACT OF 1966 142

1So in law. Probably should be ‘‘Government’’. 2So in law. This section was enacted without enacting a subsection (b). 3The second section 212 resulted from the amendment made by section 144(e)(6)(A)(ii) of the

Miscellaneous Appropriations Act, 2001 (114 Stat. 2763A–248). 4So in law. There is no subsection (a).

annuitant within one year after November 2, 1966, be adjusted, effective as of the first day of the month immediately following November 2, 1966, so that the amount of the annuity shall be the

same as if such subsection had been in effect at the time of such

person’s retirement or death.

(c) In no case shall credit for the service described in subsection (a) of this section entitle a person to the benefits of section

11(h) of the Civil Service Retirement Act.

(d) Notwithstanding any other provisions of this Act or any

other law, benefits under the Civil Service Retirement Act made

available by reason of the provisions of this section shall be paid

from the civil service retirement and disability fund subject to reimbursement to such fund from the Operations, Research, and Facilities Account of the National Oceanic and Atmospheric Administration in the Department of Commerce, for the purpose of compensating said retirement fund for the cost, as determined by the Civil

Service Commission during each fiscal year, of benefits provided by

this section.

øSEC. 209. Made amendments to chapter 83 of title 5, United

States Code.¿

øSEC. 210. (a) Made an amendment to section 105(e) of Public

Law 93–638.¿

(b) ø25 U.S.C. 450i note¿ Notwithstanding any other provision

of Law, any Native of the Pribilof Islands employed by the Federal

government 1 on October 28, 1983, shall be deemed to have been

covered under chapters 81, 83, 85 and 87 of title 5, United States

Code, on such date for the purposes of determining eligibility for

continuity of benefits under section 105(e) of the Act of January 4,

1975 (Public Law 93–638), known as the Indian Self-Determination

and Education Assistance Act.

SEC. 211. ø16 U.S.C. 1169¿ The Secretary is authorized to prescribe such regulations as he deems necessary to carry out the provisions of this title.

SEC. 212. ø16 U.S.C. 1169a¿ (a)(1) 2 An annuity or survivor annuity based on the service of an employee or Member who performed service described in the second paragraph (13) of subsection

(b) or subsection (l)(1)(C) of section 8332 of title 5, United States

Code, as added by subsections (b) and (e), respectively, of section

209 of this Act, shall, upon application to the Office of Personnel

Management, be recomputed in accordance with the second paragraph (13) of subsection (b) and subsection (l), respectively, of such

section 8332, regardless of whether the employee or Member retires

before, on, or after the effective date of this paragraph.

(2) Any recomputation of annuity under paragraph (1) of this

subsection shall apply with respect to months beginning more than

30 days after the date on which application for such recomputation

is received by the Office.

SEC. 212.3 ø16 U.S.C. 1169b¿ Notwithstanding any other law

to the contrary, the Secretary of Commerce shall, to the maximum

extent practicable, carry out activities under subsection (a) 4 and
143 FUR SEAL ACT OF 1966 Sec. 302

1So in law. Should include ‘‘and’’ after the semicolon.

fulfill other obligations under Federal and State law relating to the

Pribilof Islands, through grants or other agreements with local entities and residents of the Pribilof Islands, unless specialized skills

are needed for an activity, and the Secretary specifies in writing

that such skills are not available through local entities and residents of the Pribilof Islands.

TITLE III—ENFORCEMENT

SEC. 301. ø16 U.S.C. 1171¿ (a) Every vessel subject to the jurisdiction of the United States that is employed in any manner in

connection with a violation of the provision of this Act, including

its tackle, apparel, furniture, appurtenances, cargo, and stores

shall be subject to forfeiture; and all fur seals, or parts thereof,

taken or retained in violation of this Act, or the monetary value

thereof, shall be forfeited.

(b) All provisions of law relating to the seizure, summary and

judicial forfeiture, and condemnation of a vessel, including its tack- le, apparel, furniture, appurtenances, cargo, and stores for violation

of the customs laws, the disposition of such vessel, including its

tackle, apparel, furniture, appurtenances, cargo, and stores or the

proceeds from the sale thereof, and the remission or mitigation of

such forfeitures shall apply to seizures and forfeitures incurred, or

alleged to have been incurred, under the provisions of this Act, insofar as such provisions of law are applicable and not inconsistent

with the provisions of this Act.

SEC. 302. ø16 U.S.C. 1172¿ (a) Enforcement of the provisions

of this Act is the joint responsibility of the Secretary, the Secretary

of the Treasury, and the Secretary of the department in which the

Coast Guard is operating. In addition, the Secretary may designate

officers and employees of the States of the United States to enforce

the provisions of this Act which relate to persons or vessels subject

to the jurisdiction of the United States. When so designated, such

officers and employees are authorized to function as Federal law

enforcement agents for these purposes; but they shall not be held

and considered as employees of the United States for the purpose

of any laws administered by the Office of Personnel Management.

(b) The judges of the United States district courts and United

States magistrates may, within their respective jurisdictions, upon

proper oath or affirmation showing probable cause, issue such warrants or other process, including warrants or other process issued

in admiralty proceedings in Federal district courts, as may be required for enforcement of this Act and any regulations issued

thereunder.

(c) Any person authorized to carry out enforcement activities

hereunder shall have the power to execute any warrant or process

issued by any officer or court of competent jurisdiction for the enforcement of this Act.

(d) Such person so authorized shall have the power—

(1) with or without a warrant or other process, to arrest

any person committing in his presence or view a violation of

this Act or the regulations issued thereunder; 1

(2) with a warrant or other process or without a warrant,

if he has reasonable cause to believe that a vessel subject to
Sec. 303 FUR SEAL ACT OF 1966 144

the jurisdiction of the United States or any person onboard is

in violation of any provision of this Act or the regulations

issued thereunder, to search such vessel and to arrest such

person.

(e) Such person so authorized may seize any vessel subject to

the jurisdiction of the United States, together with its tackle, apparel, furniture, appurtenances, cargo, and stores, used or employed contrary to the provisions of this Act or the regulations

issued hereunder or which it reasonably appears has been used or

employed contrary to the provisions of this Act or the regulations

issued hereunder.

(f) Such person so authorized may seize, whenever and wherever lawfully found, all fur seals taken or retained in violation of

this Act or the regulations issued thereunder. Any fur seals so

seized or forfeited to the United States pursuant to this Act shall

be disposed of in accordance with the provisions of section 105 of

this Act.

SEC. 303. ø16 U.S.C. 1173¿ The Secretary is authorized to prescribe such regulations as he deems necessary and appropriate to

carry out the provisions of this title.

SEC. 304. ø16 U.S.C. 1174¿ (a) Any person who knowingly violates any provision of this Act or of any permit or regulation issued

thereunder shall, upon conviction, be fined not more than $20,000

for such violation, or imprisoned for not more than one year, or

both.

(b) Any person who violates any provision of this Act or any

regulation or permit issued hereunder may be assessed a civil penalty by the Secretary of not more than $10,000 for each such violation. No penalty shall be assessed unless such person is given notice and opportunity for a hearing with respect to such violation.

Hearings held during proceedings for the assessment of civil penalties authorized by this subsection shall be conducted in accordance with section 554 of title 5. The Secretary may issue subpoenas

for the attendance and testimony of witnesses and the production

of relevant papers, books and documents, and administer oaths.

Witnesses summoned shall be paid the same fees and mileage that

are paid to witnesses in the courts of the United States. In case

of contumacy or refusal to obey a subpoena served upon any person

pursuant to this paragraph, the district court of the United States

for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Secretary

or to appear and produce documents before the Secretary, or both,

and any failure to obey such order of the court may be punished

by such court as a contempt thereof. Any civil penalty assessed

may be remitted or mitigated by the Secretary for good cause

shown. Upon any failure to pay a penalty assessed under this subsection, the Secretary may request the Attorney General to institute civil action in a district court of the United States for any district in which such person is found, resides, or transacts business

to collect the penalty, and such court shall have jurisdiction to hear

and decide any such action.

SEC. 305. ø16 U.S.C. 1175¿ (a) There are authorized to be appropriated to the operations, research, and facilities account of the
145 FUR SEAL ACT OF 1966 Sec. 305

National Oceanic and Atmospheric Administration in the Department of Commerce, such sums as may be necessary, up to

$2,000,000, for fiscal year 1984 for the purpose of upgrading Federal property to be transferred pursuant to section 205 of this Act,

$736,000 for fiscal year 1984 for the purposes of sections 104 and

208 of this Act and such sums as may be necessary for each fiscal

year thereafter for the purposes of sections 104 and 208 of this Act.

(b) The contract authority of the Secretary under this Act is effective for any fiscal year only to the extent that appropriations are

available for such purposes.

147

SECTION 105 OF THE PRIBILOF ISLANDS TRANSITION

ACT

149

SECTION 105 OF THE PRIBILOF ISLANDS TRANSITION

ACT

[Public Law 106–562, Approved Dec. 23, 2000, 114 Stat. 2794]

AN ACT To To complete the orderly withdrawal of the NOAA from the civil administration of the Pribilof Islands, Alaska, and to assist in the conservation of coral

reefs, and for other purposes.

SEC. 105. ø16 U.S.C. 1161 note¿ TERMINATION OF RESPONSIBILITIES.

(a) FUTURE OBLIGATION.—

(1) IN GENERAL.—The Secretary of Commerce shall not be

considered to have any obligation to promote or otherwise provide for the development of any form of an economy not dependent on sealing on the Pribilof Islands, Alaska, including

any obligation under section 206 of the Fur Seal Act of 1966

(16 U.S.C. 1166) or section 3(c)(1)(A) of Public Law 104–91 (16

U.S.C. 1165 note).

(2) SAVINGS.—This subsection shall not affect any cause of

action under section 206 of the Fur Seal Act of 1966 (16 U.S.C.

1166) or section 3(c)(1)(A) of Public Law 104–91 (16 U.S.C.

1165 note)—

(A) that arose before the date of the enactment of this

title; and

(B) for which a judicial action is filed before the expiration of the 5-year period beginning on the date of the enactment of this title.

(3) RULE OF CONSTRUCTION.—Nothing in this title shall be

construed to imply that—

(A) any obligation to promote or otherwise provide for

the development in the Pribilof Islands of any form of an

economy not dependent on sealing was or was not established by section 206 of the Fur Seal Act of 1966 (16

U.S.C. 1166), section 3(c)(1)(A) of Public Law 104–91 (16

U.S.C. 1165 note), or any other provision of law; or

(B) any cause of action could or could not arise with

respect to such an obligation.

(4) CONFORMING AMENDMENT.—Section 3(c)(1) of Public

Law 104–91 (16 U.S.C. 1165 note) is amended by striking subparagraph (A) and redesignating subparagraphs (B) through

(D) in order as subparagraphs (A) through (C).

(b) PROPERTY CONVEYANCE AND CLEANUP.—

(1) IN GENERAL.—Subject to paragraph (2), there are terminated all obligations of the Secretary of Commerce and the

United States to—

(A) convey property under section 205 of the Fur Seal

Act of 1966 (16 U.S.C. 1165); and

(B) carry out cleanup activities, including assessment,

response, remediation, and monitoring, except for
Sec. 105 SEC. 105, PRIBILOF ISLANDS TRANSITION ACT 150

postremedial measures such as monitoring and operation

and maintenance activities, related to National Oceanic

and Atmospheric Administration administration of the

Pribilof Islands, Alaska, under section 3 of Public Law

104–91 (16 U.S.C. 1165 note) and the Pribilof Islands Environmental Restoration Agreement between the National

Oceanic and Atmospheric Administration and the State of

Alaska, signed January 26, 1996.

(2) APPLICATION.—Paragraph (1) shall apply on and after

the date on which the Secretary of Commerce certifies that—

(A) the State of Alaska has provided written confirmation that no further corrective action is required at the

sites and operable units covered by the Pribilof Islands Environmental Restoration Agreement between the National

Oceanic and Atmospheric Administration and the State of

Alaska, signed January 26, 1996, with the exception of

postremedial measures, such as monitoring and operation

and maintenance activities;

(B) the cleanup required under section 3(a) of Public

Law 104–91 (16 U.S.C. 1165 note) is complete;

(C) the properties specified in the document referred

to in subsection (a) of section 205 of the Fur Seal Act of

1966 (16 U.S.C. 1165(a)) can be unconditionally offered for

conveyance under that section; and

(D) all amounts appropriated under section 206(c)(1) of

the Fur Seal Act of 1966, as amended by this title, have

been obligated.

(3) FINANCIAL CONTRIBUTIONS FOR CLEANUP COSTS.—(A)

On and after the date on which section 3(b)(5) of Public Law

104–91 (16 U.S.C. 1165 note) is repealed pursuant to subsection (c), the Secretary of Commerce may not seek or require

financial contribution by or from any local governmental entity

of the Pribilof Islands, any official of such an entity, or the

owner of land on the Pribilof Islands, for cleanup costs incurred pursuant to section 3(a) of Public Law 104–91 (as in effect before such repeal), except as provided in subparagraph

(B).

(B) Subparagraph (A) shall not limit the authority of the

Secretary of Commerce to seek or require financial contribution from any person for costs or fees to clean up any matter

that was caused or contributed to by such person on or after

March 15, 2000.

(4) CERTAIN RESERVED RIGHTS NOT CONDITIONS.—For purposes of paragraph (2)(C), the following requirements shall not

be considered to be conditions on conveyance of property:

(A) Any requirement that a potential transferee must

allow the National Oceanic and Atmospheric Administration continued access to the property to conduct environmental monitoring following remediation activities.

(B) Any requirement that a potential transferee must

allow the National Oceanic and Atmospheric Administration access to the property to continue the operation, and

eventual closure, of treatment facilities.

(C) Any requirement that a potential transferee must

comply with institutional controls to ensure that an envi-
151 SEC. 105, PRIBILOF ISLANDS TRANSITION ACT Sec. 105

ronmental cleanup remains protective of human health or

the environment that do not unreasonably affect the use of

the property.

(D) Valid existing rights in the property, including

rights granted by contract, permit, right-of-way, or easement.

(E) The terms of the documents described in subsection (d)(2).

(c) REPEALS.—Effective on the date on which the Secretary of

Commerce makes the certification described in subsection (b)(2),

the following provisions are repealed:

(1) Section 205 of the Fur Seal Act of 1966 (16 U.S.C.

1165).

(2) Section 3 of Public Law 104–91 (16 U.S.C. 1165 note).

(d) SAVINGS.—

(1) IN GENERAL.—Nothing in this title shall affect any obligation of the Secretary of Commerce, or of any Federal department or agency, under or with respect to any document described in paragraph (2) or with respect to any lands subject

to such a document.

(2) DOCUMENTS DESCRIBED.—The documents referred to in

paragraph (1) are the following:

(A) The Transfer of Property on the Pribilof Islands:

Description, Terms, and Conditions, dated February 10,

1984, between the Secretary of Commerce and various

Pribilof Island entities.

(B) The Settlement Agreement between Tanadgusix

Corporation and the City of St. Paul, dated January 11,

1988, and approved by the Secretary of Commerce on February 23, 1988.

(C) The Memorandum of Understanding between

Tanadgusix Corporation, Tanaq Corporation, and the Secretary of Commerce, dated December 22, 1976.

(e) DEFINITIONS.—

(1) IN GENERAL.—Except as provided in paragraph (2), the

definitions set forth in section 101 of the Fur Seal Act of 1966

(16 U.S.C. 1151) shall apply to this section.

(2) NATIVES OF THE PRIBILOF ISLANDS.—For purposes of

this section, the term ‘‘Natives of the Pribilof Islands’’ includes

the Tanadgusix Corporation, the St. George Tanaq Corporation, and the city governments and tribal councils of St. Paul

and St. George, Alaska.

153

MARINE MAMMAL PROTECTION ACT OF 1972

155

MARINE MAMMAL PROTECTION ACT OF 1972

[Public Law 92–522, Approved Oct. 21, 1972, 86 Stat. 1027]

[Amended through Public Law 106–555, Dec. 21, 2000]

AN ACT To protect marine mammals; to establish a Marine Mammal Commission;

for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That this Act,

with the following table of contents, may be cited as the ‘‘Marine

Mammal Protection Act of 1972’’.

TABLE OF CONTENTS

Sec. 2. Findings and declaration of policy.

Sec. 3. Definitions.

Sec. 4. Effective date.

TITLE I—CONSERVATION AND PROTECTION OF MARINE MAMMALS

Sec. 101. Moratorium and exceptions.

Sec. 102. Prohibitions.

Sec. 103. Regulations on taking of marine mammals.

Sec. 104. Permits.

Sec. 105. Penalties.

Sec. 106. Vessel fine, cargo forfeiture, and rewards.

Sec. 107. Enforcement.

Sec. 108. International program.

Sec. 109. Federal cooperation with States.

Sec. 110. Marine mammal research grants.

Sec. 111. Commercial fisheries gear development.

Sec. 112. Regulations and administration.

Sec. 113. Application to other treaties and conventions.

Sec. 114. Interim exemption for commercial fisheries.

Sec. 115. Status review; conservation plans.

Sec. 116. Authorization of appropriations.

Sec. 117. Stock assessments.

Sec. 118. Taking of marine mammals incidental to commercial fishing operations.

Sec. 119. Marine mammal cooperative agreements in Alaska.

Sec. 120. Pacific Coast Task Force; Gulf of Maine.

TITLE II—MARINE MAMMAL COMMISSION

Sec. 201. Establishment of Commission.

Sec. 202. Duties of Commission.

Sec. 203. Committee of Scientific Advisors on Marine Mammals.

Sec. 204. Commission reports.

Sec. 205. Coordination with other Federal agencies.

Sec. 206. Administration of Commission.

Sec. 207. Authorization of appropriations.

TITLE III—INTERNATIONAL DOLPHIN CONSERVATION PROGRAM

Sec. 301. Findings and policy.

Sec. 302. International Dolphin Conservation Program.

Sec. 303. Regulatory authority of the Secretary.

Sec. 304. Research.

Sec. 305. Reports by the Secretary.
Sec. 2 MARINE MAMMAL PROTECTION ACT OF 1972 156

Sec. 306. Permits.

Sec. 307. Prohibitions.

TITLE IV—MARINE MAMMAL HEALTH AND STRANDING RESPONSE

Sec. 401. Establishment of program.

Sec. 402. Determination; data collection and dissemination.

Sec. 403. Stranding response agreements.

Sec. 404. Unusual mortality event response.

Sec. 405. Unusual mortality event activity funding.

Sec. 406. Liability.

Sec. 407. National Marine Mammal Tissue Bank and tissue analysis.

Sec. 408. John H. Prescott Marine Mammal Rescue Assistance Grant Program.

Sec. 409. Authorization of appropriations.

Sec. 410. Definitions.

FINDINGS AND DECLARATION OF POLICY

SEC. 2. ø16 U.S.C. 1361¿ The Congress finds that—

(1) certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a

result of man’s activities;

(2) such species and population stocks should not be permitted to diminish beyond the point at which they cease to be

a significant functioning element in the ecosystem of which

they are a part, and, consistent with this major objective, they

should not be permitted to diminish below their optimum sustainable population. Further measures should be immediately

taken to replenish any species or population stock which has

already diminished below that population. In particular, efforts

should be made to protect essential habitats, including the

rookeries, mating grounds, and areas of similar significance for

each species of marine mammal from the adverse effect of

man’s actions;

(3) there is inadequate knowledge of the ecology and population dynamics of such marine mammals and of the factors

which bear upon their ability to reproduce themselves successfully;

(4) negotiations should be undertaken immediately to encourage the development of international arrangements for research on, and conservation of, all marine mammals;

(5) marine mammals and marine mammal products

either—

(A) move in interstate commerce, or

(B) affect the balance of marine ecosystems in a manner which is important to other animals and animal products which move in interstate commerce,

and that the protection and conservation of marine mammals

and their habitats is therefore necessary to insure the continuing availability of those products which move in interstate

commerce; and

(6) marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop

to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of

their management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this
157 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 3

primary objective, it should be the goal to obtain an optimum

sustainable population keeping in mind the carrying capacity

of the habitat.

DEFINITIONS

SEC. 3. ø16 U.S.C. 1362¿ For the purposes of this Act—

(1) The term ‘‘depletion’’ or ‘‘depleted’’ means any case in

which—

(A) the Secretary, after consultation with the Marine

Mammal Commission and the Committee of Scientific Advisors on Marine Mammals established under title II of

this Act, determines that a species or population stock is

below its optimum sustainable population;

(B) a State, to which authority for the conservation

and management of a species or population stock is transferred under section 109, determines that such species or

stock is below its optimum sustainable population; or

(C) a species or population stock is listed as an endangered species or a threatened species under the Endangered Species Act of 1973.

(2) The terms ‘‘conservation’’ and ‘‘management’’ mean the

collection and application of biological information for the purposes of increasing and maintaining the number of animals

within species and populations of marine mammals at their optimum sustainable population. Such terms include the entire

scope of activities that constitute a modern scientific resource

program, including, but not limited to, research, census, law

enforcement, and habitat acquisition and improvement. Also

included within these terms, when and where appropriate, is

the periodic or total protection of species or populations as well

as regulated taking.

(3) The term ‘‘district court of the United States’’ includes

the District Court of Guam, District Court of the Virgin Islands, District Court of Puerto Rico, District Court of the Canal

Zone, and, in the case of American Samoa and the Trust Territory of the Pacific Islands, the District Court of the United

States for the District of Hawaii.

(4) The term ‘‘humane’’ in the context of the taking of a

marine mammal means that method of taking which involves

the least possible degree of pain and suffering practicable to

the mammal involved.

(5) The term ‘‘intermediary nation’’ means a nation that

exports yellowfin tuna or yellowfin tuna products to the United

States and that imports yellowfin tuna or yellowfin tuna products that are subject to a direct ban on importation into the

United States pursuant to section 101(a)(2)(B).

(6) The term ‘‘marine mammal’’ means any mammal which

(A) is morphologically adapted to the marine environment (including sea otters and members of the orders Sirenia,

Pinnipedia and Cetacea), or (B) primarily inhabits the marine

environment (such as the polar bear); and, for the purposes of

this Act, includes any part of any such marine mammal, including its raw, dressed, or dyed fur or skin.
Sec. 3 MARINE MAMMAL PROTECTION ACT OF 1972 158

1So in law. Should be ‘‘In’’.

(7) The term ‘‘marine mammal product’’ means any item of

merchandise which consists, or is composed in whole or in part,

of any marine mammal.

(8) The term ‘‘moratorium’’ means a complete cessation of

the taking of marine mammals and a complete ban on the importation into the United States of marine mammals and marine mammal products, except as provided in this Act.

(9) The term ‘‘optimum sustainable population’’ means,

with respect to any population stock, the number of animals

which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of

the habitat and the health of the ecosystem of which they form

a constituent element. (10) The term ‘‘person’’ includes (A) any private person or

entity, and (B) any officer, employee, agent, department, or instrumentality of the Federal Government, of any State or political subdivision thereof, or of any foreign government.

(11) The term ‘‘population stock’’ or ‘‘stock’’ means a group

of marine mammals of the same species or smaller taxa in a

common spatial arrangement, that interbreed when mature.

(12)(A) Except as provided in subparagraph (B), the term

‘‘Secretary’’ means—

(i) The Secretary of the department in which the National Oceanic and Atmospheric Administration is operating, as to all responsibility, authority, funding, and duties under this Act with respect to members of the order

Cetacea and members, other than walruses, of the order

Pinnipedia, and

(ii) The Secretary of the Interior as to all responsibility, authority, funding, and duties under this Act with

respect to all other marine mammals covered by this Act.

(B) in 1 section 118 and title IV (other than section 408)

the term ‘‘Secretary’’ means the Secretary of Commerce.

(13) The term ‘‘take’’ means to harass, hunt, capture, or

kill, or attempt to harass, hunt, capture, or kill any marine

mammal.

(14) The term ‘‘United States’’ includes the several States,

the District of Columbia, the Commonwealth of Puerto Rico,

the Virgin Islands of the United States, American Samoa,

Guam, and Northern Mariana Islands.

(15) The term ‘‘waters under the jurisdiction of the United

States’’ means—

(A) the territorial sea of the United States;

(B) the waters included within a zone, contiguous to

the territorial sea of the United States, of which the inner

boundary is a line coterminous with the seaward boundary

of each coastal State, and the other boundary is a line

drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea

is measured; and

(C) the areas referred to as eastern special areas in

Article 3(1) of the Agreement between the United States of

America and the Union of Soviet Socialist Republics on the
159 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 3

Maritime Boundary, signed June 1, 1990; in particular,

those areas east of the maritime boundary, as defined in

that Agreement, that lie within 200 nautical miles of the

baselines from which the breadth of the territorial sea of

Russia is measured but beyond 200 nautical miles of the

baselines from which the breadth of the territorial sea of

the United States is measured, except that this subparagraph shall not apply before the date on which the Agreement between the United States and the Union of Soviet

Socialist Republics on the Maritime Boundary, signed

June 1, 1990, enters into force for the United States.

(16) The term ‘‘fishery’’ means—

(A) one or more stocks of fish which can be treated as

a unit for purposes of conservation and management and

which are identified on the basis of geographical, scientific,

technical, recreational, and economic characteristics; and

(B) any fishing for such stocks.

(17) The term ‘‘competent regional organization’’—

(A) for the tuna fishery in the eastern tropical Pacific

Ocean, means the Inter-American Tropical Tuna Commission; and

(B) in any other case, means an organization consisting of those nations participating in a tuna fishery, the

purpose of which is the conservation and management of

that fishery and the management of issues relating to that

fishery.

(18)(A) The term ‘‘harassment’’ means any act of pursuit,

torment, or annoyance which—

(i) has the potential to injure a marine mammal or

marine mammal stock in the wild; or

(ii) has the potential to disturb a marine mammal or

marine mammal stock in the wild by causing disruption of

behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.

(B) The term ‘‘Level A harassment’’ means harassment described in subparagraph (A)(i).

(C) The term ‘‘Level B harassment’’ means harassment described in subparagraph (A)(ii).

(19) The term ‘‘strategic stock’’ means a marine mammal

stock—

(A) for which the level of direct human-caused mortality exceeds the potential biological removal level;

(B) which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act of 1973

within the foreseeable future; or

(C) which is listed as a threatened species or endangered species under the Endangered Species Act of 1973

(16 U.S.C. 1531 et seq.), or is designated as depleted under

this Act.

(20) The term ‘‘potential biological removal level’’ means

the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock

while allowing that stock to reach or maintain its optimum
Sec. 4 MARINE MAMMAL PROTECTION ACT OF 1972 160

sustainable population. The potential biological removal level

is the product of the following factors:

(A) The minimum population estimate of the stock.

(B) One-half the maximum theoretical or estimated

net productivity rate of the stock at a small population

size.

(C) A recovery factor of between 0.1 and 1.0. (21) The term ‘‘Regional Fishery Management Council’’

means a Regional Fishery Management Council established

under section 302 of the Magnuson Fishery Conservation and

Management Act.

(22) The term ‘‘bona fide research’’ means scientific research on marine mammals, the results of which—

(A) likely would be accepted for publication in a referred scientific journal;

(B) are likely to contribute to the basic knowledge of

marine mammal biology or ecology; or

(C) are likely to identify, evaluate, or resolve conservation problems.

(23) The term ‘‘Alaska Native organization’’ means a group

designated by law or formally chartered which represents or

consists of Indians, Aleuts, or Eskimos residing in Alaska.

(24) The term ‘‘take reduction plan’’ means a plan developed under section 118.

(25) The term ‘‘take reduction team’’ means a team established under section 118.

(26) The term ‘‘net productivity rate’’ means the annual

per capita rate of increase in a stock resulting from additions

due to reproduction, less losses due to mortality.

(27) The term ‘‘minimum population estimate’’ means an

estimate of the number of animals in a stock that—

(A) is based on the best available scientific information

on abundance, incorporating the precision and variability

associated with such information; and

(B) provides reasonable assurance that the stock size

is equal to or greater than the estimate.

(28) The term ‘‘International Dolphin Conservation Program’’ means the international program established by the

agreement signed in LaJolla, California, in June, 1992, as formalized, modified, and enhanced in accordance with the Declaration of Panama.

(29) The term ‘‘Declaration of Panama’’ means the declaration signed in Panama City, Republic of Panama, on October

4, 1995.

EFFECTIVE DATE

SEC. 4. The provisions of this Act shall take effect upon the expiration of the sixty-day period following the date of its enactment.

TITLE I—CONSERVATION AND PROTECTION OF MARINE

MAMMALS

MORATORIUM AND EXCEPTIONS

SEC. 101. ø16 U.S.C. 1371¿ (a) There shall be a moratorium on

the taking and importation of marine mammals and marine mam-
161 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 101

mal products, commencing on the effective date of this Act, during

which time no permit may be issued for the taking of any marine

mammal and no marine mammal or marine mammal product may

be imported into the United States except in the following cases:

(1) Consistent with the provisions of section 104, permits

may be issued by the Secretary for taking, and importation for

purposes of scientific research, public display, photography for

educational or commercial purposes, or enhancing the survival

or recovery of a species or stock, or for importation of polar

bear parts (other than internal organs) taken in sport hunts in

Canada. Such permits, except permits issued under section

104(c)(5), may be issued if the taking or importation proposed

to be made is first reviewed by the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals established under title II. The Commission and Committee shall recommend any proposed taking or importation,

other than importation under section 104(c)(5), which is consistent with the purposes and policies of section 2 of this Act.

If the Secretary issues such a permit for importation, the Secretary shall issue to the importer concerned a certificate to

that effect in such form as the Secretary of the Treasury prescribes, and such importation may be made upon presentation

of the certificate to the customs officer concerned.

(2) Marine mammals may be taken incidentally in the

course of commercial fishing operations and permits may be

issued therefor under section 104 subject to regulations prescribed by the Secretary in accordance with section 103, or in

lieu of such permits, authorizations may be granted therefor

under section 118, subject to regulations prescribed under that

section by the Secretary without regard to section 103. Such

authorizations may be granted under title III with respect to

purse seine fishing for yellowfin tuna in the eastern tropical

Pacific Ocean, subject to regulations prescribed under that title

by the Secretary without regard to section 103. In any event

it shall be the immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the

course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury

rate. The Secretary of the Treasury shall ban the importation

of commercial fish or products from fish which have been

caught with commercial fishing technology which results in the

incidental kill or incidental serious injury of ocean mammals

in excess of United States standards. For purposes of applying

the preceding sentence, the Secretary—

(A) shall insist on reasonable proof from the government of any nation from which fish or fish products will

be exported to the United States of the effects on ocean

mammals of the commercial fishing technology in use for

such fish or fish products exported from such nation to the

United States;

(B) in the case of yellowfin tuna harvested with purse

seine nets in the eastern tropical Pacific Ocean, and products therefrom, to be exported to the United States, shall

require that the government of the exporting nation provide documentary evidence that—
Sec. 101 MARINE MAMMAL PROTECTION ACT OF 1972 162

(i)(I) the tuna or products therefrom were not

banned from importation under this paragraph before

the effective date of section 4 of the International Dolphin Conservation Program Act; or

(II) the tuna or products therefrom were

harvested after the effective date of section 4 of the

International Dolphin Conservation Program Act by

vessels of a nation which participates in the International Dolphin Conservation Program, and such

harvesting nation is either a member of the InterAmerican Tropical Tuna Commission or has initiated

(and within 6 months thereafter completed) all steps

required of applicant nations, in accordance with article V, paragraph 3 of the Convention establishing the

Inter-American Tropical Tuna Commission, to become

a member of that organization;

(ii) such nation is meeting the obligations of the

International Dolphin Conservation Program and the

obligations of membership in the Inter-American Tropical Tuna Commission, including all financial obligations; and

(iii) the total dolphin mortality limits, and perstock per-year dolphin mortality limits permitted for

that nation’s vessels under the International Dolphin

Conservation Program do not exceed the limits determined for 1997, or for any year thereafter, consistent

with the objective of progressively reducing dolphin

mortality to a level approaching zero through the setting of annual limits and the goal of eliminating dolphin mortality, and requirements of the International

Dolphin Conservation Program;

(C) shall not accept such documentary evidence if—

(i) the government of the harvesting nation does

not provide directly or authorize the Inter-American

Tropical Tuna Commission to release complete and accurate information to the Secretary in a timely

manner—

(I) to allow determination of compliance with

the International Dolphin Conservation Program;

and

(II) for the purposes of tracking and verifying

compliance with the minimum requirements established by the Secretary in regulations promulgated under subsection (f) of the Dolphin Protection Consumer Information Act (16 U.S.C.

1385(f)); or

(ii) after taking into consideration such information, findings of the Inter-American Tropical Tuna

Commission, and any other relevant information, including information that a nation is consistently failing to take enforcement actions on violations which diminish the effectiveness of the International Dolphin

Conservation Program, the Secretary, in consultation

with the Secretary of State, finds that the harvesting
163 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 101

nation is not in compliance with the International Dolphin Conservation Program.

(D) shall require the government of any intermediary

nation to certify and provide reasonable proof to the Secretary that it has not imported, within the preceding six

months, any yellowfin tuna or yellowfin tuna products that

are subject to a direct ban on importation to the United

States under subparagraph (B);

(E) shall, six months after importation of yellowfin

tuna or tuna products has been banned under this section,

certify such fact to the President, which certification shall

be deemed to be a certification for the purposes of section

8(a) of the Fishermen’s Protective Act of 1967 (22 U.S.C.

1978(a)) for as long as such ban is in effect; and

(F)(i) except as provided in clause (ii), in the case of

fish or products containing fish harvested by a nation

whose fishing vessels engage in high seas driftnet fishing,

shall require that the government of the exporting nation

provide documentary evidence that the fish or fish product

was not harvested with a large-scale driftnet in the South

Pacific Ocean after July 1, 1991, or in any other water of

the high seas after January 1, 1993, and

(ii) in the case of tuna or a product containing tuna

harvested by a nation whose fishing vessels engage in high

seas driftnet fishing, shall require that the government of

the exporting nation provide documentary evidence that

the tuna or tuna product was not harvested with a largescale driftnet anywhere on the high seas after July 1,

1991.

For purposes of subparagraph (F), the term ‘‘driftnet’’ has the

meaning given such term in section 4003 of the Driftnet Impact Monitoring, Assessment, and Control Act of 1987 (16

U.S.C. 1822 note), except that, until January 1, 1994, the term

‘‘driftnet’’ does not include the use in the northeast Atlantic

Ocean of gillnets with a total length not to exceed five kilometers if the use is in accordance with regulations adopted by

the European Community pursuant to the October 28, 1991,

decision by the Council of Fisheries Ministers of the Community.

(3)(A) The Secretary, on the basis of the best scientific evidence available and in consultation with the Marine Mammal

Commission, is authorized and directed, from time to time,

having due regard to the distribution, abundance, breeding

habits, and times and lines of migratory movements of such

marine mammals, to determine when, to what extent, if at all,

and by what means, it is compatible with this Act to waive the

requirements of this section so as to allow taking, or importing

of any marine mammal, or any marine mammal product, and

to adopt suitable regulations, issue permits, and make determinations in accordance with sections 102, 103, 104, and 111

of this title permitting and governing such taking and importing, in accordance with such determinations: Provided, however, That the Secretary, in making such determinations, must

be assured that the taking of such marine mammal is in accord

with sound principles of resource protection and conservation
Sec. 101 MARINE MAMMAL PROTECTION ACT OF 1972 164

as provided in the purposes and policies of this Act: Provided

further, however, That no marine mammal or no marine mammal product may be imported into the United States unless the

Secretary certifies that the program for taking marine mammals in the country of origin is consistent with the provisions

and policies of this Act. Products of nations not so certified

may not be imported into the United States for any purpose,

including processing for exportation.

(B) Except for scientific research purposes, photography for

educational or commercial purposes, or enhancing the survival

or recovery of a species or stock as provided for in paragraph

(1) of this subsection, or as provided for under paragraph (5)

of this subsection, during the moratorium no permit may be

issued for the taking of any marine mammal which has been

designated by the Secretary as depleted, and no importation

may be made of any such mammal.

(4)(A) Except as provided in subparagraphs (B) and (C),

the provisions of this Act shall not apply to the use of

measures—

(i) by the owner of fishing gear or catch, or an employee or agent of such owner, to deter a marine mammal

from damaging the gear or catch;

(ii) by the owner of other private property, or an

agent, bailee, or employee of such owner, to deter a marine

mammal from damaging private property;

(iii) by any person, to deter a marine mammal from

endangering personal safety; or

(iv) by a government employee, to deter a marine

mammal from damaging public property,

so long as such measures do not result in the death or serious

injury of a marine mammal.

(B) The Secretary shall, through consultation with appropriate experts, and after notice and opportunity for public comment, publish in the Federal Register a list of guidelines for

use in safely deterring marine mammals. In the case of marine

mammals listed as endangered species or threatened species

under the Endangered Species Act of 1973, the Secretary shall

recommend specific measures which may be used to nonlethally deter marine mammals. Actions to deter marine mammals consistent with such guidelines or specific measures shall

not be a violation of this Act.

(C) If the Secretary determines, using the best scientific

information available, that certain forms of deterrence have a

significant adverse effect on marine mammals, the Secretary

may prohibit such deterrent methods, after notice and opportunity for public comment, through regulation under this Act.

(D) The authority to deter marine mammals pursuant to

subparagraph (A) applies to all marine mammals, including all

stocks designated as depleted under this Act.

(5)(A) Upon request therefor by citizens of the United

States who engage in a specified activity (other than commercial fishing) within a specified geographical region, the Secretary shall allow, during periods of not more than five consecutive years each, the incidental, but not intentional, taking

by citizens while engaging in that activity within that region
165 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 101

of small numbers of marine mammals of a species or population stock if the Secretary, after notice (in the Federal Register and in newspapers of general circulation, and through appropriate electronic media, in the coastal areas that may be affected by such activity) and opportunity for public comment—

(i) finds that the total of such taking during each fiveyear (or less) period concerned will have a negligible impact on such species or stock and will not have an

unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses pursuant to

subsection (b) or section 109(f) or, in the case of a cooperative agreement under both this Act and the Whaling Convention Act of 1949, pursuant to section 112(c); and

(ii) prescribes regulations setting forth

(I) permissible methods of taking pursuant to such

activity, and other means of effecting the least practicable adverse impact on such species or stock and its

habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on

the availability of such species or stock for subsistence

uses; and

(II) requirements pertaining to the monitoring and

reporting of such taking.

(B) The Secretary shall withdraw, or suspend for a time

certain (either on an individual or class basis, as appropriate)

the permission to take marine mammals under subparagraph

(A) pursuant to a specified activity within a specified geographical region if the Secretary finds, after notice and opportunity for public comment (as required under subparagraph (A)

unless subparagraph (C)(i) applies), that—

(i) the regulations prescribed under subparagraph (A)

regarding methods of taking, monitoring, or reporting are

not being substantially complied with by a person engaging in such activity; or

(ii) the taking allowed under subparagraph (A) pursuant to one or more activities within one or more regions is

having, or may have, more than a negligible impact on the

species or stock concerned.

(C)(i) The requirement for notice and opportunity for public comment in subparagraph (B) shall not apply in the case of

a suspension of permission to take if the Secretary determines

that an emergency exists which poses a significant risk to the

well-being of the species or stock concerned. (ii) Sections 103 and 104 shall not apply to the taking of

marine mammals under the authority of this paragraph.

(D)(i) Upon request therefor by citizens of the United

States who engage in a specified activity (other than commercial fishing) within a specific geographic region, the Secretary

shall authorize, for periods of not more than 1 year, subject to

such conditions as the Secretary may specify, the incidental,

but not intentional, taking by harassment of small numbers of

marine mammals of a species or population stock by such citizens while engaging in that activity within that region if the

Secretary finds that such harassment during each period

concerned—
Sec. 101 MARINE MAMMAL PROTECTION ACT OF 1972 166

1So in law. Probably should be ‘‘clause’’. See section 4(a)(5) of the Marine Mammal Protection

Act Amendments of 1994 (P.L. 103–238; 108 Stat. 534).

(I) will have a negligible impact on such species or

stock, and

(II) will not have an unmitigable adverse impact on

the availability of such species or stock for taking for subsistence uses pursuant to subsection (b), or section 109(f)

or pursuant to a cooperative agreement under section 119.

(ii) The authorization for such activity shall prescribe,

where applicable—

(I) permissible methods of taking by harassment pursuant to such activity, and other means of effecting the

least practicable impact on such species or stock and its

habitat, paying particular attention to rookeries, mating

grounds, and areas of similar significance, and on the

availability of such species or stock for taking for subsistence uses pursuant to subsection (b) or section 109(f) or

pursuant to a cooperative agreement under section 119,

(II) the measures that the Secretary determines are

necessary to ensure no unmitigable adverse impact on the

availability of the species or stock for taking for subsistence uses pursuant to subsection (b) or section 109(f) or

pursuant to a cooperative agreement under section 119,

and

(III) requirements pertaining to the monitoring and reporting of such taking by harassment, including requirements for the independent peer review of proposed monitoring plans or other research proposals where the proposed activity may affect the availability of a species or

stock for taking for subsistence uses pursuant to subsection (b) or section 109(f) or pursuant to a cooperative

agreement under section 119.

(iii) The Secretary shall publish a proposed authorization

not later than 45 days after receiving an application under this

subparagraph and request public comment through notice in

the Federal Register, newspapers of general circulation, and

appropriate electronic media and to all locally affected communities for a period of 30 days after publication. Not later than

45 days after the close of the public comment period, if the Secretary makes the findings set forth in clause (i), the Secretary

shall issue an authorization with appropriate conditions to

meet the requirements of clause (ii).

(iv) The Secretary shall modify, suspend, or revoke an authorization if the Secretary finds that the provisions of

clauses 1 (i) or (ii) are not being met.

(v) A person conducting an activity for which an authorization has been granted under this subparagraph shall not be

subject to the penalties of this Act for taking by harassment

that occurs in compliance with such authorization.

(E)(i) During any period of up to 3 consecutive years, the

Secretary shall allow the incidental, but not the intentional,

taking by persons using vessels of the United States or vessels

which have valid fishing permits issued by the Secretary in accordance with section 204(b) of the Magnuson Fishery Con-
167 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 101

servation and Management Act (16 U.S.C. 1824(b)), while engaging in commercial fishing operations, of marine mammals

from a species or stock designated as depleted because of its

listing as an endangered species or threatened species under

the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) if

the Secretary, after notice and opportunity for public comment,

determines that—

(I) the incidental mortality and serious injury from

commercial fisheries will have a negligible impact on such

species or stock;

(II) a recovery plan has been developed or is being developed for such species or stock pursuant to the Endangered Species Act of 1973; and

(III) where required under section 118, a monitoring

program is established under subsection (d) of such section, vessels engaged in such fisheries are registered in accordance with such section, and a take reduction plan has

been developed or is being developed for such species or

stock.

(ii) Upon a determination by the Secretary that the requirements of clause (i) have been met, the Secretary shall

publish in the Federal Register a list of those fisheries for

which such determination was made, and, for vessels required

to register under section 118, shall issue an appropriate permit

for each authorization granted under such section to vessels to

which this paragraph applies. Vessels engaged in a fishery included in the notice published by the Secretary under this

clause which are not required to register under section 118

shall not be subject to the penalties of this Act for the incidental taking of marine mammals to which this paragraph applies, so long as the owner or master of such vessel reports any

incidental mortality or injury of such marine mammals to the

Secretary in accordance with section 118.

(iii) If, during the course of the commercial fishing season,

the Secretary determines that the level of incidental mortality

or serious injury from commercial fisheries for which a determination was made under clause (i) has resulted or is likely to

result in an impact that is more than negligible on the endangered or threatened species or stock, the Secretary shall use

the emergency authority granted under section 118 to protect

such species or stock, and may modify any permit granted

under this paragraph as necessary.

(iv) The Secretary may suspend for a time certain or revoke a permit granted under this subparagraph only if the Secretary determines that the conditions or limitations set forth

in such permit are not being complied with. The Secretary may

amend or modify, after notice and opportunity for public comment, the list of fisheries published under clause (ii) whenever

the Secretary determines there has been a significant change

in the information or conditions used to determine such list.

(v) Sections 103 and 104 shall not apply to the taking of

marine mammals under the authority of this subparagraph.

(vi) This subparagraph shall not govern the incidental taking of California sea otters and shall not be deemed to amend
Sec. 101 MARINE MAMMAL PROTECTION ACT OF 1972 168

or repeal the Act of November 7, 1986 (Public Law 99–625; 100

Stat. 3500).

(6)(A) A marine mammal product may be imported into the

United States if the product—

(i) was legally possessed and exported by any citizen

of the United States in conjunction with travel outside the

United States, provided that the product is imported into

the United States by the same person upon the termination of travel;

(ii) was acquired outside of the United States as part

of a cultural exchange by an Indian, Aleut, or Eskimo residing in Alaska; or

(iii) is owned by a Native inhabitant of Russia, Canada, or Greenland and is imported for noncommercial purposes in conjunction with travel within the United States

or as part of a cultural exchange with an Indian, Aleut, or

Eskimo residing in Alaska.

(B) For the purposes of this paragraph, the term—

(i) ‘‘Native inhabitant of Russia, Canada, or Greenland’’ means a person residing in Russia, Canada, or

Greenland who is related by blood, is a member of the

same clan or ethnological grouping, or shares a common

heritage with an Indian, Aleut, or Eskimo residing in Alaska; and

(ii) ‘‘cultural exchange’’ means the sharing or exchange

of ideas, information, gifts, clothing, or handicrafts between an Indian, Aleut, or Eskimo residing in Alaska and

a Native inhabitant of Russia, Canada, or Greenland, including rendering of raw marine mammal parts as part of

such exchange into clothing or handicrafts through carving, painting, sewing, or decorating.

(b) Except as provided in section 109, the provisions of this Act

shall not apply with respect to the taking of any marine mammal

by any Indian, Aleut, or Eskimo who resides in Alaska and who

dwells on the coast of the North Pacific Ocean or the Arctic Ocean

if such taking—

(1) is for subsistence purposes; or

(2) is done for purposes of creating and selling authentic

native articles of handicrafts and clothing: Provided, That only

authentic native articles of handicrafts and clothing may be

sold in interstate commerce: And provided further, That any

edible portion of marine mammals may be sold in native villages and towns in Alaska or for native consumption. For the

purposes of this subsection, the term ‘‘authentic native articles

of handicrafts and clothing’’ means items composed wholly or

in some significant respect of natural materials, and which are

produced, decorated, or fashioned in the exercise of traditional

native handicrafts without the use of panto-graphs, multiple

carvers, or other mass copying devices. Traditional native

handicrafts include, but are not limited to weaving, carving,

stitching, sewing, lacing, beading, drawing, and painting; and

(3) in each case, is not accomplished in a wasteful manner.

Notwithstanding the preceding provisions of this subsection, when,

under this Act, the Secretary determines any species or stock of

marine mammal subject to taking by Indians, Aleuts, or Eskimos
169 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 101

to be depleted, he may prescribe regulations upon thetaking of such

marine mammals by any Indian, Aleut, or Eskimo described in this

subsection. Such regulations may be established with reference to

species or stocks, geographical description of the area included, the

season for taking, or any other factors related to the reason for establishing such regulations and consistent with the purposes of this

Act. Such regulations shall be prescribed after notice and hearing

required by section 103 of this title and shall be removed as soon

as the Secretary determines that the need for their imposition has

disappeared. In promulgating any regulation or making any assessment pursuant to a hearing or proceeding under this subsection or

section 117(b)(2), or in making any determination of depletion

under this subsection or finding regarding unmitigable adverse impacts under subsection (a)(5) that affects stocks or persons to which

this subsection applies, the Secretary shall be responsible for demonstrating that such regulation, assessment, determination, or

finding is supported by substantial evidence on the basis of the

record as a whole. The preceding sentence shall only be applicable

in an action brought by one or more Alaska Native organizations

representing persons to which this subsection applies.

(c) It shall not be a violation of this Act to take a marine mammal if such taking is imminently necessary in self-defense or to

save the life of a person in immediate danger, and such taking is

reported to the Secretary within 48 hours. The Secretary may seize

and dispose of any carcass.

(d) GOOD SAMARITAN EXEMPTION.—It shall not be a violation

of this Act to take a marine mammal if—

(1) such taking is imminently necessary to avoid serious

injury, additional injury, or death to a marine mammal entangled in fishing gear or debris;

(2) reasonable care is taken to ensure the safe release of

the marine mammal, taking into consideration the equipment,

expertise, and conditions at hand;

(3) reasonable care is exercised to prevent any further injury to the marine mammal; and

(4) such taking is reported to the Secretary within 48

hours.

(e) ACT NOT TO APPLY TO INCIDENTAL TAKINGS BY UNITED

STATES CITIZENS EMPLOYED ON FOREIGN VESSELS OUTSIDE THE

UNITED STATES EEZ.—The provisions of this Act shall not apply to

a citizen of the United States who incidentally takes any marine

mammal during fishing operations outside the United States exclusive economic zone (as defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802))

when employed on a foreign fishing vessel of a harvesting nation

which is in compliance with the International Dolphin Conservation Program.
Sec. 102 MARINE MAMMAL PROTECTION ACT OF 1972 170

1 Error in amendment made by section 24(c)(9) of the Marine Mammal Protection Act Amendments of 1994 (P.L. 103–238, 108 Stat. 566). Section 13(c) of such Act amended section 102(a)

by striking ‘‘and 114 of this title or title III’’ and inserting ‘‘114, and 118 of this title and title

IV’’. Section 24(c)(9) attempted to amend section 102(a) by striking ‘‘title III’’ and inserting ‘‘title

IV’’. 2So in law. Probably should be ‘‘section’’. See section 5(a)(2)(C) of the Marine Mammal Protection Act Amendments of 1994 (P.L. 103–238, 108 Stat. 537).

PROHIBITIONS

SEC. 102. ø16 U.S.C. 1372¿ (a) Except as provided in sections

101, 103, 104, 109, 111, 113, 114, and 118 of this title and title

IV 1, it is unlawful—

(1) for any person subject to the jurisdiction of the United

States or any vessel or other conveyance subject to the jurisdiction of the United States to take any marine mammal on the

high seas;

(2) except as expressly provided for by an international

treaty, convention, or agreement to which the United States is

a party and which was entered into before the effective date

of this title or by any statute implementing any such treaty,

convention, or agreement—

(A) for any person or vessel or other conveyance to

take any marine mammal in waters or on lands under the

jurisdiction of the United States; or

(B) for any person to use any port, harbor, or other

place under the jurisdiction of the United States to take or

import marine mammals or marine mammal products; and

(3) for any person, with respect to any marine mammal

taken in violation of this title, to possess that mammal or any

product from that mammal;

(4) for any person to transport, purchase, sell, export, or

offer to purchase, sell, or export any marine mammal or marine mammal product—

(A) that is taken in violation of this Act; or

(B) for any purpose other than public display, scientific research, or enhancing the survival of a species or

stock as provided for under subsection 2 104(c); and

(5) for any person to use, in a commercial fishery, any

means or methods of fishing in contravention of any regulations or limitations, issued by the Secretary for that fishery to

achieve the purposes of this Act.

(b) Except pursuant to a permit for scientific research, or for

enhancing the survival or recovery of a species or stock, issued

under section 104(c) of this title, it is unlawful to import into the

United States any marine mammal if such mammal was—

(1) pregnant at the time of taking;

(2) nursing at the time of taking, or less than eight months

old, whichever occurs later;

(3) taken from a species or population stock which the Secretary has, by regulation published in the Federal Register,

designated as a depleted species or stock; or

(4) taken in a manner deemed inhumane by the Secretary.

Notwithstanding the provisions of paragraphs (1) and (2), the Secretary may issue a permit for the importation of a marine mammal, if the Secretary determines that such importation is necessary

for the protection or welfare of the animal.
171 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 103

1So in law. The semicolon probably should be a period.

(c) It is unlawful to import into the United States any of the

following:

(1) Any marine mammal which was—

(A) taken in violation of this title; or

(B) taken in another country in violation of the law of

that country.

(2) Any marine mammal product if—

(A) the importation into the United States of the marine mammal from which such product is made is unlawful

under paragraph (1) of this subsection; or

B) the sale in commerce of such product in the country

of origin of the product is illegal; 1

(3) Any fish, whether fresh, frozen, or otherwise prepared,

if such fish was caught in a manner which the Secretary has

proscribed for persons subject to the jurisdiction of the United

States, whether or not any marine mammals were in fact

taken incident to the catching of the fish.

(d) Subsections (b) and (c) of this section shall not apply—

(1) in the case of marine mammals or marine mammal

products, as the case may be, to which subsection (b)(3) of this

section applies, to such items imported into the United States

before the date on which the Secretary publishes notice in the

Federal Register of his proposed rulemaking with respect to

the designation of the species or stock concerned as depleted;

or

(2) in the case of marine mammals or marine mammal

products to which subsection (c)(1)(B) or (c)(2)(B) of this section

applies, to articles imported into the United States before the

effective date of the foreign law making the taking or sale, as

the case may be, of such marine mammals or marine mammal

products unlawful.

(e) This Act shall not apply with respect to any marine mammal taken before the effective date of this Act, or to any marine

mammal product consisting of, or composed in whole or in part of,

any marine mammal taken before such date.

(f) It is unlawful for any person or vessel or other conveyance

to take any species of whale incident to commercial whaling in waters subject to the jurisdiction of the United States.

REGULATIONS ON TAKING OF MARINE MAMMALS

SEC. 103. ø16 U.S.C. 1373¿ (a) The Secretary, on the basis of

the best scientific evidence available and in consultation with the

Marine Mammal Commission, shall prescribe such regulations with

respect to the taking and importing of animals from each species

of marine mammal (including regulations on the taking and importing of individuals within population stocks) as he deems necessary and appropriate to insure that such taking will not be to the

disadvantage of those species and population stocks and will be

consistent with the purposes and policies set forth in section 2 of

this Act.

(b) In prescribing such regulations, the Secretary shall give full

consideration to all factors which may affect the extent to which
Sec. 103 MARINE MAMMAL PROTECTION ACT OF 1972 172

such animals may be taken or imported, including but not limited

to the effect of such regulations on—

(1) existing and future levels of marine mammal species

and population stocks;

(2) existing international treaty and agreement obligations

of the United States;

(3) the marine ecosystem and related environmental considerations;

(4) the conservation, development, and utilization of fishery resources; and

(5) the economic and technological feasibility of implementation.

(c) The regulations prescribed under subsection (a) of this section for any species or population stock of marine mammal may include, but are not limited to, restrictions with respect to—

(1) the number of animals which may be taken or imported

in any calendar year pursuant to permits issued under section

104 of this title;

(2) the age, size, or sex (or any combination of the foregoing) of animals which may be taken or imported, whether or

not a quota prescribed under paragraph (1) of this subsection

applies with respect to such animals;

(3) the season or other period of time within which animals may be taken or imported;

(4) the manner and locations in which animals may be

taken or imported; and

(5) fishing techniques which have been found to cause

undue fatalities to any species of marine mammal in a fishery.

(d) Regulations prescribed to carry out this section with respect

to any species or stock of marine mammals must be made on the

record after opportunity for an agency hearing on both the Secretary’s determination to waive the moratorium pursuant to section

101(a)(3)(A) of this title and on such regulations, except that, in addition to any other requirements imposed by law with respect to

agency rulemaking, the Secretary shall publish and make available

to the public either before or concurrent with the publication of notice in the Federal Register of his intention to prescribe regulations

under this section—

(1) a statement of the estimated existing levels of the species and population stocks of the marine mammal concerned;

(2) a statement of the expected impact of the proposed regulations on the optimum sustainable population of such species

or population stock;

(3) a statement describing the evidence before the Secretary upon which he proposes to base such regulations; and

(4) any studies made by or for the Secretary or any recommendations made by or for the Secretary or the Marine

Mammal Commission which relate to the establishment of

such regulations.

(e) Any regulation prescribed pursuant to this section shall be

periodically reviewed, and may be modified from time to time in

such manner as the Secretary deems consistent with and necessary

to carry out the purposes of this Act.

(f) Within six months after the effective date of this Act and

every twelve months thereafter, the Secretary shall report to the
173 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 104

1So in law. Probably should be ‘‘section’’. See section 5(b)(1) of the Marine Mammal Protection

Act Amendments of 1994 (P.L. 103–238, 108 Stat. 537). 2Margins so in law. Section 5(b)(2)(B) of the Marine Mammal Protection Act Amendments of

1994 (P.L. 103–238, 108 Stat. 537) amended paragraph (2) by striking the existing paragraph

and inserting this text.

public through publication in the Federal Register and to the Congress on the current status of all marine mammal species and population stocks subject to the provisions of this Act. His report shall

describe those actions taken and those measures believed necessary, including where appropriate, the issuance of permits pursuant to this title to assure the well-being of such marine mammals.

PERMITS

SEC. 104. ø16 U.S.C. 1374¿ (a) The Secretary may issue permits which authorize the taking or importation of any marine

mammal. Permits for the incidental taking of marine mammals in

the course of commercial fishing operations may only be issued as

specifically provided for in sections 1 101(a)(5) or 306, or subsection

(h) of this section.

(b) Any permit issued under this section shall—

(1) be consistent with any applicable regulation established

by the Secretary under section 103 of this title, and

(2) specify

(A) the number and kind of animals which are authorized to be taken or imported,

(B) the location and manner (which manner must be

determined by the Secretary to be humane) in which they

may be taken, or from which they may be imported,

(C) the period during which the permit is valid, and

(D) any other terms or conditions which the Secretary

deems appropriate.

In any case in which an application for a permit cites as a reason

for the proposed taking the overpopulation of a particular species

or population stock, the Secretary shall first consider whether or

not it would be more desirable to transplant a number of animals

(but not to exceed the number requested for taking in the application) of that species or stock to a location not then inhabited by

such species or stock but previously inhabited by such species or

stock.

(c)(1) Any permit issued by the Secretary which authorizes the

taking or importation of a marine mammal for purposes of scientific research, public display, or enhancing the survival or recovery of a species or stock shall specify, in addition to the conditions

required by subsection (b) of this section, the methods of capture,

supervision, care, and transportation which must be observed pursuant to such taking or importation. Any person authorized to take

or import a marine mammal for purposes of scientific research,

public display, or enhancing the survival or recovery of a species

or stock shall furnish to the Secretary a report on all activities carried out by him pursuant to that authority.

(2) 2(A) A permit may be issued to take or import a marine

mammal for the purpose of public display only to a person

which the Secretary determines—
Sec. 104 MARINE MAMMAL PROTECTION ACT OF 1972 174

(i) offers a program for education or conservation purposes that is based on professionally recognized standards

of the public display community;

(ii) is registered or holds a license issued under 7

U.S.C. 2131 et seq.; and

(iii) maintains facilities for the public display of marine mammals that are open to the public on a regularly

scheduled basis and that access to such facilities is not

limited or restricted other than by charging of an admission fee.

(B) A permit under this paragraph shall grant to the person to which it is issued the right, without obtaining any additional permit or authorization under this Act, to—

(i) take, import, purchase, offer to purchase, possess,

or transport the marine mammal that is the subject of the

permit; and

(ii) sell, export, or otherwise transfer possession of the

marine mammal, or offer to sell, export, or otherwise

transfer possession of the marine mammal—

(I) for the purpose of public display, to a person

that meets the requirements of clauses (i), (ii), and (iii)

of subparagraph (A);

(II) for the purpose of scientific research, to a person that meets the requirements of paragraph (3); or

(III) for the purpose of enhancing the survival or

recovery of a species or stock, to a person that meets

the requirements of paragraph (4).

(C) A person to which a marine mammal is sold or exported or to which possession of a marine mammal is otherwise

transferred under the authority of subparagraph (B) shall have

the rights and responsibilities described in subparagraph (B)

with respect to the marine mammal without obtaining any additional permit or authorization under this Act. Such responsibilities shall be limited to—

(i) for the purpose of public display, the responsibility

to meet the requirements of clauses (i), (ii), and (iii) of subparagraph (A),

(ii) for the purpose of scientific research, the responsibility to meet the requirements of paragraph (3), and

(iii) for the purpose of enhancing the survival or recovery of a species or stock, the responsibility to meet the requirements of paragraph (4).

(D) If the Secretary—

(i) finds in concurrence with the Secretary of Agriculture, that a person that holds a permit under this paragraph for a marine mammal, or a person exercising rights

under subparagraph (C), no longer meets the requirements

of subparagraph (A)(ii) and is not reasonably likely to meet

those requirements in the near future, or

(ii) finds that a person that holds a permit under this

paragraph for a marine mammal, or a person exercising

rights under subparagraph (C), no longer meets the requirements of subparagraph (A) (i) or (iii) and is not reasonably likely to meet those requirements in the near future,
175 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 104

1Margins so in law. Section 5(b)(2)(C) of the Marine Mammal Protection Act Amendments of

1994 (P.L. 103–238, 108 Stat. 538) amended paragraph (3) by striking the existing paragraph

and inserting this text.

the Secretary may revoke the permit in accordance with section 104(e), seize the marine mammal, or cooperate with other

persons authorized to hold marine mammals under this Act for

disposition of the marine mammal. The Secretary may recover

from the person expenses incurred by the Secretary for that

seizure.

(E) No marine mammal held pursuant to a permit issued

under subparagraph (A), or by a person exercising rights under

subparagraph (C), may be sold, purchased, exported, or transported unless the Secretary is notified of such action no later

than 15 days before such action, and such action is for purposes of public display, scientific research, or enhancing the

survival or recovery of a species or stock. The Secretary may

only require the notification to include the information required for the inventory established under paragraph (10).

(3) 1(A) The Secretary may issue a permit under this paragraph for scientific research purposes to an applicant which

submits with its permit application information indicating that

the taking is required to further a bona fide scientific purpose.

The Secretary may issue a permit under this paragraph before

the end of the public review and comment period required

under subsection (d)(2) if delaying issuance of the permit could

result in injury to a species, stock, or individual, or in loss of

unique research opportunities.

(B) No permit issued for purposes of scientific research

shall authorize the lethal taking of a marine mammal unless

the applicant demonstrates that a nonlethal method of conducting the research is not feasible. The Secretary shall not

issue a permit for research which involves the lethal taking of

a marine mammal from a species or stock that is depleted, unless the Secretary determines that the results of such research

will directly benefit that species or stock, or that such research

fulfills a critically important research need.

(C) Not later than 120 days after the date of enactment of

the Marine Mammal Protection Act Amendments of 1994, the

Secretary shall issue a general authorization and implementing regulations allowing bona fide scientific research that

may result only in taking by Level B harassment of a marine

mammal. Such authorization shall apply to persons which submit, by 60 days before commencement of such research, a letter

of intent via certified mail to the Secretary containing the following:

(i) The species or stocks of marine mammals which

may be harassed.

(ii) The geographic location of the research.

(iii) The period of time over which the research will be

conducted.

(iv) The purpose of the research, including a description of how the definition of bona fide research as established under this Act would apply.

(v) Methods to be used to conduct the research.
Sec. 104 MARINE MAMMAL PROTECTION ACT OF 1972 176

1Margins so in law. Section 5(b)(2)(D) of the Marine Mammal Protection Act Amendments of

1994 (P.L. 103–238, 108 Stat. 539) added paragraphs (5) through (10).

Not later than 30 days after receipt of a letter of intent to conduct scientific research under the general authorization, the

Secretary shall issue a letter to the applicant confirming that

the general authorization applies, or, if the proposed research

is likely to result in the taking (including Level A harassment)

of a marine mammal, shall notify the applicant that subparagraph (A) applies.

(4)(A) A permit may be issued for enhancing the survival or recovery of a species or stock only with respect to a species or stock

for which the Secretary, after consultation with the Marine Mammal Commission and after notice and opportunity for public comment, has first determined that—

(i) taking or importation is likely to contribute significantly

to maintaining or increasing distribution or numbers necessary

to ensure the survival or recovery of the species or stock; and

(ii) taking or importation is consistent (I) with any conservation plan adopted by the Secretary under section 115(b)

of this title or any recovery plan developed under section 4(f)

of the Endangered Species Act of 1973 for the species or stock,

or (II) if there is no conservation or recovery plan in place,

with the Secretary’s evaluation of actions required to enhance

the survival or recovery of the species or stock in light to the

factors that would be addressed in a conservation plan or a recovery plan.

(B) A permit issued in accordance with this paragraph may

allow the captive maintenance of a marine mammal from a depleted species or stock only if the Secretary—

(i) determines that captive maintenance is likely to contribute to the survival or recovery of the species or stock by

maintaining a viable gene pool, increasing productivity, providing biological information, or establishing animal reserves;

(ii) determines that the expected benefit to the affected

species or stock outweighs the expected benefit of alternatives

which do not require removal of animals from the wild; and

(iii) requires that the marine mammal or its progeny be returned to the natural habitat of the species or stock as soon

as feasible, consistent with the objectives of any applicable conservation plan or recovery plan, or of any evaluation by the

Secretary under subparagraph (A).

The Secretary may allow the public display of such a marine mammal only if the Secretary determines that such display is incidental

to the authorized maintenance and will not interfere with the attainment of the survival or recovery objectives.

(5) 1(A) The Secretary may issue a permit for the importation of polar bear parts (other than internal organs) taken in

sport hunts in Canada to an applicant which submits with its

permit application proof that the polar bear was legally harvested in Canada by the applicant. Such a permit shall be

issued if the Secretary, in consultation with the Marine Mammal Commission and after notice and opportunity for public

comment, finds that—
177 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 104

(i) Canada has a monitored and enforced sport hunting program consistent with the purposes of the Agreement on the Conservation of Polar Bears;

(ii) Canada has a sport hunting program based on scientifically sound quotas ensuring the maintenance of the

affected population stock at a sustainable level;

(iii) the export and subsequent import are consistent

with the provisions of the Convention on International

Trade in Endangered Species of Wild Fauna and Flora and

other international agreements and conventions; and

(iv) the export and subsequent import are not likely to

contribute to illegal trade in bear parts.

(B) The Secretary shall establish and charge a reasonable

fee for permits issued under this paragraph. All fees collected

under this paragraph shall be available to the Secretary until

expended for use in developing and implementing cooperative

research and management programs for the conservation of

polar bears in Alaska and Russia pursuant to section 113(d).

(C)(i) The Secretary shall undertake a scientific review of

the impact of permits issued under this paragraph on the polar

bear population stocks in Canada within 2 years after the date

of enactment of this paragraph. The Secretary shall provide an

opportunity for public comment during the course of such review, and shall include a response to such public comment in

the final report on such review.

(ii) The Secretary shall not issue permits under this paragraph after September 30, 1996, if the Secretary determines,

based on the scientific review, that the issuance of permits

under this paragraph is having a significant adverse impact on

the polar bear population stocks in Canada. The Secretary may

review such determination annually thereafter, in light of the

best scientific information available, and shall complete the review not later than January 31 in any year a review is undertaken. The Secretary may issue permits under this paragraph

whenever the Secretary determines, on the basis of such annual review, that the issuance of permits under this paragraph

is not having a significant adverse impact on the polar bear

population stocks in Canada.

(D) The Secretary of the Interior shall, expeditiously after the

expiration of the applicable 30 day period under subsection (d)(2),

issue a permit for the importation of polar bear parts (other than

internal organs) from polar bears taken in sport hunts in Canada

before the date of enactment of the Marine Mammal Protection Act

Amendments of 1994, to each applicant who submits, with the permit application, proof that the polar bear was legally harvested in

Canada by the applicant. The Secretary shall issue such permits

without regard to the provisions of subparagraphs (A) and (C)(ii) of

this paragraph, subsection (d)(3) of this section, and sections 101

and 102. This subparagraph shall not apply to polar bear parts

that were imported before the effective date of this subparagraph.

(6) A permit may be issued for photography for educational

or commercial purposes involving marine mammals in the wild

only to an applicant which submits with its permit application

information indicating that the taking will be limited to Level
Sec. 104 MARINE MAMMAL PROTECTION ACT OF 1972 178

B harassment, and the manner in which the products of such

activities will be made available to the public.

(7) Upon request by a person for a permit under paragraph

(2), (3), or (4) for a marine mammal which is in the possession

of any person authorized to possess it under this Act and

which is determined under guidance under section 402(a) not

to be releasable to the wild, the Secretary shall issue the permit to the person requesting the permit if that person—

(A) meets the requirements of clauses (i), (ii), and (iii)

of paragraph (2)(A), in the case of a request for a permit

under paragraph (2);

(B) meets the requirements of paragraph (3), in the

case of a request for a permit under that paragraph; or

(C) meets the requirements of paragraph (4), in the

case of a request for a permit under that paragraph.

(8)(A) No additional permit or authorization shall be required to possess, sell, purchase, transport, export, or offer to

sell or purchase the progeny of marine mammals taken or imported under this subsection, if such possession, sale, purchase,

transport, export, or offer to sell or purchase is—

(i) for the purpose of public display, and by or to, respectively, a person which meets the requirements of

clauses (i), (ii), and (iii) of paragraph (2)(A);

(ii) for the purpose of scientific research, and by or to,

respectively, a person which meets the requirements of

paragraph (3); or

(iii) for the purpose of enhancing the survival or recovery of a species or stock, and by or to, respectively, a person which meets the requirements of paragraph (4).

(B)(i) A person which has a permit under paragraph (2), or

a person exercising rights under paragraph (2)(C), which has

possession of a marine mammal that gives birth to progeny

shall—

(I) notify the Secretary of the birth of such progeny

within 30 days after the date of birth; and

(II) notify the Secretary of the sale, purchase, or transport of such progeny no later than 15 days before such action.

(ii) The Secretary may only require notification under

clause (i) to include the information required for the inventory

established under paragraph (10).

(C) Any progeny of a marine mammal born in captivity before the date of the enactment of the Marine Mammal Protection Act Amendments of 1994 and held in captivity for the purpose of public display shall be treated as though born after

that date of enactment.

(9) No marine mammal may be exported for the purpose

of public display, scientific research, or enhancing the survival

or recovery of a species or stock unless the receiving facility

meets standards that are comparable to the requirements that

a person must meet to receive a permit under this subsection

for that purpose.

(10) The Secretary shall establish and maintain an inventory of all marine mammals possessed pursuant to permits

issued under paragraph (2)(A), by persons exercising rights
179 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 104

under paragraph (2)(C), and all progeny of such marine mammals. The inventory shall contain, for each marine mammal,

only the following information which shall be provided by a

person holding a marine mammal under this Act:

(A) The name of the marine mammal or other identification.

(B) The sex of the marine mammal.

(C) The estimated or actual birth date of the marine

mammal.

(D) The date of acquisition or disposition of the marine

mammal by the permit holder.

(E) The source from whom the marine mammal was

acquired including the location of the take from the wild,

if applicable.

(F) If the marine mammal is transferred, the name of

the recipient.

(G) A notation if the animal was acquired as the result

of a stranding.

(H) The date of death of the marine mammal and the

cause of death when determined.

(d)(1) The Secretary shall prescribe such procedures as are necessary to carry out this section, including the form and manner in

which application for permits may be made.

(2) The Secretary shall publish notice in the Federal Register

of each application made for a permit under this section. Such notice shall invite the submission from interested parties, within thirty days after the date of the notice, of written data or views, with

respect to the taking or importation proposed in such application.

(3) The applicant for any permit under this section must demonstrate to the Secretary that the taking or importation of any marine mammal under such permit will be consistent with the purposes of this Act and the applicable regulations established under

section 103 of this title.

(4) If within thirty days after the date of publication of notice

pursuant to paragraph (2) of this subsection with respect to any application for a permit any interested party or parties request a

hearing in connection therewith, the Secretary may, within sixty

days following such date of publication, afford to such party or parties an opportunity for such a hearing.

(5) As soon as practicable (but not later than thirty days) after

the close of the hearing or, if no hearing is held, after the last day

on which data, or views, may be submitted pursuant to paragraph

(2) of this subsection, the Secretary shall (A) issue a permit containing such terms and conditions as he deems appropriate, or (B)

shall deny issuance of a permit. Notice of the decision of the Secretary to issue or to deny any permit under this paragraph must

be published in the Federal Register within ten days after the date

of issuance or denial.

(6) Any applicant for a permit, or any party opposed to such

permit, may obtain judicial review of the terms and conditions of

any permit issued by the Secretary under this section or of his refusal to issue such a permit. Such review, which shall be pursuant

to chapter 7 of Title 5, United States Code, may be initiated by filing a petition for review in the United States district court for the

district wherein the applicant for a permit resides, or has his prin-
Sec. 104 MARINE MAMMAL PROTECTION ACT OF 1972 180

cipal place of business, or in the United States District Court for

the District of Columbia, within sixty days after the date on which

such permit is issued or denied.

(e)(1) The Secretary may modify, suspend, or revoke in whole

or part any permit issued by him under this section—

(A) in order to make any such permit consistent with any

change made after the date of issuance of such permit with respect to any applicable regulation prescribed under section 103

of this title,

(B) in any case in which a violation of the terms and conditions of the permit is found, or

(C) if, in the case of a permit under subsection (c)(5) authorizing importation of polar bear parts, the Secretary, in consultation with the appropriate authority in Canada, determines

that the sustainability of Canada’s polar bear population stocks

are being adversely affected or that sport hunting may be having a detrimental effect on maintaining polar bear population

stocks throughout their range.

(2) Whenever the Secretary shall propose any modification,

suspension, or revocation of a permit under this subsection, the

permittee shall be afforded opportunity, after due notice, for a

hearing by the Secretary with respect to such proposed modification, suspension, or revocation. Such proposed action by the Secretary shall not take effect until a decision is issued by him after

such hearing. Any action taken by the Secretary after such a hearing is subject to judicial review on the same basis as is any action

taken by him with respect to a permit application under paragraph

(5) of subsection (d) of this section.

(3) Notice of the modification, suspension, or revocation of any

permit by the Secretary shall be published in the Federal Register

within ten days from the date of the Secretary’s decision.

(f) Any permit issued under this section must be in the possession of the person to whom it is issued (or an agent of such person)

during—

(1) the time of the authorized or taking importation;

(2) the period of any transit of such person or agent which

is incident to such taking or importation; and

(3) any other time while any marine mammal taken or imported under such permit is in the possession of such person

or agent.

A duplicate copy of the issued permit must be physically attached

to the container, package, enclosure, or other means of containment, in which the marine mammal is placed for purposes of storage, transit, supervision, or care.

(g) The Secretary shall establish and charge a reasonable fee

for permits issued under this section.

(h) GENERAL PERMITS.—

(1) Consistent with the regulations prescribed pursuant to

section 103 of this title and to the requirements of section 101

of this title, the Secretary may issue an annual permit to a

United States purse seine fishing vessel for the taking of such

marine mammals, and shall issue regulations to cover the use

of any such annual permits.

(2) Such annual permits for the incidental taking of marine mammals in the course of commercial purse seine fishing
181 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 106

for yellowfin tuna in the eastern tropical Pacific Ocean shall be

governed by section 306 of this Act, subject to the regulations

issued pursuant to section 303 of this Act.

PENALTIES

SEC. 105. ø16 U.S.C. 1375¿ (a)(1) Any person who violates any

provision of this title or of any permit or regulation issued thereunder, except as provided in section 118, may be assessed a civil

penalty by the Secretary of not more than $10,000 for each such

violation. No penalty shall be assessed unless such person is given

notice and opportunity for a hearing with respect to such violation.

Each unlawful taking or importation shall be a separate offense.

Any such civil penalty may be remitted or mitigated by the Secretary for good cause shown. Upon any failure to pay a penalty assessed under this subsection, the Secretary may request the Attorney General to institute a civil action in a district court of the

United States for any district in which such person is found, resides, or transacts business to collect the penalty and such court

shall have jurisdiction to hear and decide any such action.

(2) In any case involving an alleged unlawful importation of a

marine mammal or marine mammal product, if such importation is

made by an individual for his own personal or family use (which

does not include importation as an accommodation to others or for

sale or other commercial use), the Secretary may, in lieu of instituting a proceeding under paragraph (1), allow the individual to

abandon the mammal or product, under procedures to be prescribed by the Secretary, to the enforcement officer at the port of

entry.

(b) Any person who knowingly violates any provision of this

title or of any permit or regulation issued thereunder (except as

provided in section 118) shall, upon conviction, be fined not more

than $20,000 for each such violation, or imprisoned for not more

than one year, or both.

(16 U.S.C. 1375)

VESSEL FINE, CARGO FORFEITURE, AND REWARDS

SEC. 106. ø16 U.S.C. 1376¿ (a) Any vessel or other conveyance

subject to the jurisdiction of the United States that is employed in

any manner in the unlawful taking of any marine mammal shall

have its entire cargo or the monetary value thereof subject to seizure and forfeiture. All provisions of law relating to the seizure, judicial forfeiture, and condemnation of cargo for violation of the customs laws, the disposition of such cargo, and the proceeds from the

sale thereof, and the remission or mitigation of any such forfeiture,

shall apply with respect to the cargo of any vessel or other

conveyanceseized in connection with the unlawful taking of a marine mammal insofar as such provisions of law are applicable and

not inconsistent with the provisions of this title.

(b) Any vessel subject to the jurisdiction of the United States

that is employed in any manner in the unlawful taking of any marine mammal shall be liable for a civil penalty of not more than

$25,000. Such penalty shall be assessed by the district court of the

United States having jurisdiction over the vessel. Clearance of a

vessel against which a penalty has been assessed, from a port of
Sec. 107 MARINE MAMMAL PROTECTION ACT OF 1972 182

the United States, may be withheld until such penalty is paid, or

until a bond or otherwise satisfactory surety is posted. Such penalty shall constitute a maritime lien on such vessel which may be

recovered by action in rem in the district court of the United States

having jurisdiction over the vessel.

(c) Upon the recommendation of the Secretary, the Secretary of

the Treasury is authorized to pay an amount equal to one-half of

the fine incurred but not to exceed $2,500 to any person who furnishes information which leads to a conviction for a violation of

this title. Any officer or employee of the United States or of any

State or local government who furnishes information or renders

service in the performance of his official duties shall not be eligible

for payment under this section.

ENFORCEMENT

SEC. 107. ø16 U.S.C. 1377¿ (a) Except as otherwise provided

in this title, the Secretary shall enforce the provisions of this title.

The Secretary may utilize, by agreement, the personnel, services,

and facilities of any other Federal agency for purposes of enforcing

this title.

(b) The Secretary may also designate officers and employees of

any State or of any possession of the United States to enforce the

provisions of this title. When so designated, such officers and employees are authorized to function as Federal law enforcement

agents for these purposes, but they shall not be held and considered as employees of the United States for the purposes of any laws

administered by the Director of the Office of Personnel Management.

(c) The judges of the district courts of the United States and

the United States magistrates may, within their respective jurisdictions, upon proper oath or affirmation showing probable cause,

issue such warrants or other process, including warrants or other

process issued in admiralty proceedings in United States district

courts, as may be required for enforcement of this title and any

regulations issued thereunder.

(d) Any person authorized by the Secretary to enforce this title

may execute any warrant or process issued by any officer or court

of competent jurisdiction for the enforcement of this title. Such person so authorized may, in addition to any other authority conferred

by law—

(1) with or without warrant or other process, arrest any

person committing in his presence or view a violation of this

title or the regulations issued thereunder;

(2) with a warrant or other process, or without a warrant

if he has reasonable cause to believe that a vessel or other conveyance subject to the jurisdiction of the United States or any

person on board is in violation of any provision of this title or

the regulations issued thereunder, search such vessel or conveyance and arrest such person;

(3) seize the cargo of any vessel or other conveyance subject to the jurisdiction of the United States used or employed

contrary to the provisions of this title or the regulations issued

hereunder or which reasonably appears to have been so used

or employed; and
183 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 108

(4) seize, whenever and wherever found, all marine mammals and marine mammal products taken or retained in violation of this title or the regulations issued thereunder and shall

dispose of them in accordance with regulations prescribed by

the Secretary.

(e)(1) Whenever any cargo or marine mammal or marine mammal product is seized pursuant to this section, the Secretary shall

expedite any proceedings commenced under section 105(a) or (b) of

this title. All marine mammals or marine mammal products or

other cargo so seized shall be held by any person authorized by the

Secretary pending disposition of such proceedings. The owner or

consignee of any such marine mammal or marine mammal product

or other cargo so seized shall, as soon as practicable following such

seizure, be notified of that fact in accordance with regulations established by the Secretary.

(2) The Secretary may, with respect to any proceeding under

section 105(a) or (b) of this title, in lieu of holding any marine

mammal or marine mammal product or other cargo, permit the

person concerned to post bond or other surety satisfactory to the

Secretary pending the disposition of such proceeding.

(3)(A) Upon the assessment of a penalty pursuant to section

105(a) of this title, all marine mammals and marine mammal products or other cargo seized in connection therewith may be proceeded against in any court of competent jurisdiction and forfeited

to the Secretary for disposition by him in such manner as he deems

appropriate.

(B) Upon conviction for violation of section 105(b) of this title,

all marine mammals and marine mammal products seized in connection therewith shall be forfeited to the Secretary for disposition

by him in such manner as he deems appropriate. Any other property or item so seized may, at the discretion of the court, be forfeited to the United States or otherwise disposed of.

(4) If with respect to any marine mammal or marine mammal

product or other cargo so seized—

(A) a civil penalty is assessed under section 105(a) of this

title and no judicial action is commenced to obtain the forfeiture of such mammal or product within thirty days after

such assessment, such marine mammal or marine mammal

product or other cargo shall be immediately returned to the

owner or the consignee; or

(B) no conviction results from an alleged violation of section 105(b) of this title, such marine mammal or marine mammal product or other cargo shall immediately be returned to

the owner or consignee if the Secretary does not, with

thirtydays after the final disposition of the case involving such

alleged violation, commence proceedings for the assessment of

a civil penalty under section 105(a) of this title.

INTERNATIONAL PROGRAM

SEC. 108. ø16 U.S.C. 1378¿ (a) The Secretary, through the Secretary of State, shall—

(1) initiate negotiations as soon as possible for the development of bilateral or multinational agreements with other nations for the protection and conservation of all marine mammals covered by this Act;
Sec. 108 MARINE MAMMAL PROTECTION ACT OF 1972 184

(2) initiate—

(A) negotiations as soon as possible with all foreign

governments which are engaged in, or which have persons

or companies engaged in, commercial fishing operations

which are found by the Secretary to be unduly harmful to

any species or population stock of marine mammal, for the

purpose of entering into bilateral and multilateral treaties

with such countries to protect marine mammals, with the

Secretary of State to prepare a draft agenda relating to

this matter for discussion at appropriate international

meetings and forums;

(B) discussions with foreign governments whose vessels harvest yellowfin tuna with purse seines in the eastern tropical Pacific Ocean, for the purpose of concluding,

through the Inter-American Tropical Tuna Commission or

such other bilateral or multilateral institutions as may be

appropriate, international arrangements for the conservation of marine mammals taken incidentally in the course

of harvesting such tuna, which should include provisions

for (i) cooperative research into alternative methods of locating and catching yellowfin tuna which do not involve

the taking of marine mammals, (ii) cooperative research on

the status of affected marine mammal population stocks,

(iii) reliable monitoring of the number, rate, and species of

marine mammals taken by vessels of harvesting nations,

(iv) limitations on incidental take levels based upon the

best scientific information available, and (v) the use of the

best marine mammal safety techniques and equipment

that are economically and technologically practicable to reduce the incidental kill and serious injury of marine mammals to insignificant levels approaching a zero mortality

and serious injury rate;

(C) negotiations to revise the Convention for the Establishment of an Inter-American Tropical Tuna Commission (1 U.S.T. 230; TIAS 2044) which will incorporate—

(i) the conservation and management provisions

agreed to by the nations which have signed the Declaration of Panama and in the Straddling Fish Stocks

and Highly Migratory Fish Stocks Agreement, as

opened for signature on December 4, 1995; and

(ii) a revised schedule of annual contributions to

the expenses of the Inter-American Tropical Tuna

Commission that is equitable to participating nations;

and

(D) discussions with those countries participating, or

likely to participate, in the International Dolphin Conservation Program, for the purpose of identifying sources

of funds needed for research and other measures promoting effective protection of dolphins, other marine species, and the marine ecosystem;

(3) encourage such other agreements to promote the purposes of this Act with other nations for the protection of specific ocean and land regions which are of special significance to

the health and stability of marine mammals;
185 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 108

(4) initiate the amendment of any existing international

treaty for the protection and conservation of any species of marine mammal to which the United States is a party in order

to make such treaty consistent with the purposes and policies

of this Act;

(5) seek the convening of any international ministerial

meeting on marine mammals before July 1, 1973, for the purposes of (A) the negotiation of a binding international convention for the protection and conservation of all marine mammals, and (B) the implementation of paragraph (3) of this section; and

(6) provide to the Congress by not later than one year after

the date of the enactment of this Act a full report on the results of his efforts under this section.

(b)(1) In addition to the foregoing, the Secretary shall—

(A) in consultation with the Marine Mammal Commission

established by section 201 of this Act, undertake a study of the

North Pacific fur seals to determine whether herds of such

seals subject to the jurisdiction of the United States are presently at their optimum sustainable population and what population trends are evident; and

(B) in consultation with the Secretary of State, promptly

undertake a comprehensive study of the provisions of this Act,

as they relate to North Pacific fur seals, and the provisions of

the North Pacific Fur Seal Convention signed on February 9,

1957, as extended (hereafter referred to in this subsection as

the ‘‘Convention’’), to determine what modifications, if any,

should be made to the provisions of the Convention, or of this

Act, or both, to make the Convention and this Act consistent

with each other.

The Secretary shall complete the studies required under this paragraph not later than one year after the date of enactment of this

Act and shall immediately provide copies thereof to Congress.

(2) If the Secretary finds—

(A) as a result of the study required under paragraph

(1)(A) of this subsection, that the North Pacific fur seal herds

are below their optimum sustainable population and are not

trending upward toward such level, or have reached their optimum sustainable population but are commencing a downward

trend, and believes the herds to be in danger of depletion; or

(B) as a result of the study required under paragraph

(1)(B) of this subsection, that modifications of the Convention

are desirable to make it and this Act consistent;

he shall, through the Secretary of State, immediately initiate negotiations to modify the Convention so as to (i) reduce or halt the taking of seals to the extent required to assure that such herds attain

and remain at their optimum sustainable population, or (ii) make

the Convention and this Act consistent; or both, as the case may

be. If negotiations to so modify the Convention are unsuccessful,

the Secretary shall, through the Secretary of State, take such steps

as may be necessary to continue the existing Convention beyond its

present termination date so as to continue to protect and conserve

the North Pacific fur seals and to prevent a return to pelagic sealing.
Sec. 109 MARINE MAMMAL PROTECTION ACT OF 1972 186

(c) The Secretary shall include a description of the annual results of discussions initiated and conducted pursuant to subsection

(a)(2)(B), as well as any proposals forfurther action to achieve the

purposes of that subsection, in the report required under section

103(f) of this title.

FEDERAL COOPERATION WITH STATES

SEC. 109. ø16 U.S.C. 1379¿ (a) No State may enforce, or attempt to enforce, any State law or regulation relating to the taking

of any species (which term for purposes of this section includes any

population stock) of marine mammal within the State unless the

Secretary has transferred authority for the conservation and management of that species (hereinafter referred to in this section as

‘‘management authority’’) to the State under subsection (b)(1).

(b)(1) Subject to paragraph (2) and subsection (f), the Secretary

shall transfer management authority for a species of marine mammal to a State if the Secretary finds, after notice and opportunity

for public comment, that the State has developed and will implement a program for the conservation and management of the species that—

(A) is consistent with the purposes, policies, and goals of

this Act and with international treaty obligations;

(B) requires that all taking of the species be humane;

(C) does not permit the taking of the species unless and

until—

(i) the State has determined, under a process consistent with the standards set forth in subsection (c)—

(I) that the species is at its optimum sustainable

population (hereinafter in this section referred to as

‘‘OSP’’), and

(II) the maximum number of animals of that species that may be taken without reducing the species

below its OSP, and

(ii) the determination required under clause (i) is final

and implemented under State law, and, if a cooperative allocation agreement for the species is required under subsection (d)(1), such an agreement is implemented;

(D) does not permit the taking of a number of animals of

the species that exceeds the maximum number determined

pursuant to subparagraph (C)(i)(II), and, in the case of taking

for subsistence uses (as defined in subsection (f)(2)), does not

permit the taking of a number of animals that would be inconsistent with the maintenance of the species at its OSP;

(E) does not permit the taking of the species for scientific

research, public display, or enhancing the survival or recovery

of a species or stock, except for taking for such purposes that

is undertaken by, or on behalf of, the State;

(F) provides procedures for acquiring data, and evaluating

such data and other new evidence, relating to the OSP of the

species, and the maximum take that would maintain the species at that level, and, if required on the basis of such evaluation, for amending determinations under subparagraph (C)(i);

(G) provides procedures for the resolution of differences between the State and the Secretary that might arise during the
187 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 109

development of a cooperative allocation agreement under subsection (d)(1); and

(H) provides for the submission of an annual report to the

Secretary regarding the administration of the program during

the reporting period.

(2) During the period between the transfer of management authority for a species to a State under paragraph (1) and the time

at which the implementation requirements under paragraph

(1)(C)(ii) are complied with—

(A) the State program shall not apply with respect to the

taking of the species within the State for any purpose, or

under any condition, provided for under section 101; and

(B) the Secretary shall continue to regulate, under this

title, all takings of the species within the State.

(3) After the determination required under paragraph (1)(C)(i)

regarding a species is final and implemented under State law and

after a cooperative allocation agreement described in subsection

(d)(1), if required, is implemented for such species—

(A) such determination shall be treated, for purposes of applying this title beyond the territory of the State, as a determination made in accordance with section 103 and as an applicable waiver under section 101(a)(3);

(B) the Secretary shall regulate, without regard to this section other than the allocations specified under such an agreement, the taking of the species—

(i) incidentally in the course of commercial fishing operations (whether provided for under section 101(a)(2) or

(4)), or in the course of other specified activities provided

for under section 101(a)(5), in the zone described in section

3(14)(B), and

(ii) for scientific research, public display, or enhancing

the survival or recovery of a species or stock (other than

by, or on behalf of, the State), except that any taking authorized under a permit issued pursuant to section

101(a)(1) after the date of the enactment of the 1981

amendment to this sub- section allowing the removal of

live animals from habitat within the State shall not be effective if the State agency disapproves, on or before the

date of issuance of the permit, such taking as being inconsistent with the State program; and

(C) section 101(b) shall not apply.

(c) The State process required under subsection (b)(1)(C) must

comply with the following standards:

(1) The State agency with management authority for the

species (hereinafter in this section referred to as the ‘‘State

agency’’) must make an initial determination regarding the factors described in clause (i) of that subsection. The State agency

must identify, and make available to the public under reasonable circumstances, the documentation supporting such initial

determination. Unless request for a hearing under paragraph

(2) regarding the initial determination is timely made, the initial determination shall be treated as final under State law.

(2) The State agency shall provide opportunity, at the request of any interested party, for a hearing with respect to the
Sec. 109 MARINE MAMMAL PROTECTION ACT OF 1972 188

initial determination made by it under paragraph (1) at which

interested parties may—

(A) present oral and written evidence in support of or

against such determination; and

(B) cross-examine persons presenting evidence at the

hearing.

The State agency must give public notice of the hearing and

make available to the public within a reasonable time before

commencing the hearing a list of the witnesses for the State

and a general description of the documentation and other evidence that will be relied upon by such witnesses.

(3) The State agency, solely on the basis of the record developed at a hearing held pursuant to paragraph (2), must

make a decision regarding its initial determination under paragraph (1) and shall include with the record a statement of the

findings and conclusions, and the reason or basis therefor, on

all material issues.

(4) Opportunity for judicial review of the decision made by

the State agency on the record under paragraph (3), under

scope of review equivalent to that provided for in section 706(2)

(A) through (E) of Title 5, United States Code, must be available under State law. The Secretary may not initiate judicial

review of any such decision.

(d)(1) If the range of a species with respect to which a determination under paragraph (1)(C)(i) of subsection (b) is made extends beyond the territorial waters of the State, the State agency

and the Secretary (who shall first coordinate with the Marine

Mammal Commission and the appropriate Regional Fishery Management Council established under section 302 of the Act of April

13, 1976 (16 U.S.C. 1852)) shall enter into a cooperative allocation

agreement providing procedures for allocating, on a timely basis,

such of the number of animals, as determined under paragraph

(1)(C)(i)(II) of subsection (b), as may be appropriate with priority of

allocation being given firstly to taking for subsistence uses in the

case of the State of Alaska, and secondly to taking for purposes

provided for under section 101(a) within the zone described in section 3(14)(B).

(2) If the State agency requests the Secretary to regulate the

taking of a species to which paragraph (1) applies within the zone

described in section 3(14)(B) for subsistence uses or for hunting, or

both, in a manner consistent with the regulation by the State agency of such taking within the State, the Secretary shall adopt, and

enforce within such zone, such of the State agency’s regulatory provisions as the Secretary considers to be consistent with his administration of section 101(a) within such zone. The Secretary shall

adopt such provisions through the issuance of regulations under

section 553 of Title 5, United States Code, and with respect to such

issuance theRegulatory Flexibility Act, the Paperwork Reduction

Act, Executive Order No. 12291, dated February 17, 1981, and the

thirty-day notice requirement in subsection (d) of such section 553

shall not apply. For purposes of sections 105, 106, and 107, such

regulations shall be treated as having been issued under this title.

(e)(1) Subject to paragraph (2), the Secretary shall revoke,

after opportunity for a hearing, any transfer of management authority made to a State under subsection (b)(1) if the Secretary
189 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 109

finds that the State program for the conservation and management

of the species concerned is not being implemented, or is being im- plemented in a manner inconsistent with the provisions of this section or the provisions of the program. The Secretary shall also establish a procedure for the voluntary return by a State to the Secretary of species management authority that was previously transferred to the State under subsection (b)(1).

(2)(A) The Secretary may not revoke a transfer of management

authority under paragraph (1) unless—

(i) The Secretary provides to the State a written notice of

intent to revoke together with a statement, in detail, of those

actions, or failures to act, on which such intent is based; and

(ii) during the ninety-day period after the date of the notice of intent to revoke—

(I) the Secretary provides opportunity for consultation

between him and the State concerning such State actions

or failures to act and the remedial measures that should

be taken by the State, and

(II) the State does not take such remedial measures as

are necessary, in the judgment of the Secretary, to bring

its conservation and management program, or the administration or enforcement of the program, into compliance

with the provisions of this section.

(B) When a revocation by the Secretary of a transfer of management authority to a State becomes final, or the State voluntarily returns management authority to the Secretary, the Secretary shall regulate the taking, and provide for the conservation

and management, of the species within the State in accordance

with the provisions of this Act (and in the case of Alaskan Natives,

section 101(b) and subsection (i) of this section shall apply upon

such revocation or return of management authority).

(f)(1) The Secretary may not transfer management authority to

the State of Alaska under subsection (b)(1) for any species of marine mammal unless—

(A) the State has adopted and will implement a statute

and regulations that insure that the taking of the species for

subsistence uses—

(i) is accomplished in a nonwasteful manner,

(ii) will be the priority consumptive use of the species,

and

(iii) if required to be restricted, such restriction will be

based upon—

(I) the customary and direct dependence upon the

species as the mainstay of livelihood,

(II) local residency, and

(III) the availability of alternative resources; and

(B) the State has adopted a statute or regulation that requires that any consumptive use of marine mammal species,

other than for subsistence uses, will be authorized during a

regulatory year only if the appropriate agency first makes findings, based on an administrative record before it, that—

(i) such use will have no significant adverse impact

upon subsistence uses of the species, and

(ii) the regulation of such use, including, but not limited to, licensing of marine mammal hunting guides and
Sec. 109 MARINE MAMMAL PROTECTION ACT OF 1972 190

the assignment of guiding areas, will, to the maximum extent practicable, provide economic opportunities for the

residents of the rural coastal villages of Alaska who engage in subsistence uses of that species.

(2) For purposes of paragraph (1), the term ‘‘subsistence uses’’

means the customary and traditional uses by rural Alaska residents of marine mammals for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the

making and selling of handicraft articles out of nonedible byproducts of marine mammals taken for personal or family consumption;

and for barter, or sharing for personal or family consumption. As

used in this paragraph—

(A) The term ‘‘family’’ means all persons related by blood,

marriage, or adoption, or any person living within a household

on a permanent basis.

(B) The term ‘‘barter’’ means the exchange of marine mammals or their parts, taken for subsistence uses—

(i) for other wildlife or fish or their parts, or

(ii) for other food or for nonedible items other than

money if the exchange is of a limited and noncommercial

nature.

(g) Neither the transfer of management authority to a State

under subsection (b)(1), nor the revocation or voluntary return of

such authority under subsection (e), shall be deemed to be an action for which an environmental impact statement is required

under section 102 of the National Environmental Policy Act of

1969.

(h)(1) Nothing in this title or title IV shall prevent a Federal,

State, or local government official or employee or a person designated under section 112(c) from taking, in the course of his or her

duties as an official, employee, or designee, a marine mammal in

a humane manner (including euthanasia) if such taking is for—

(A) the protection or welfare of the mammal,

(B) the protection of the public health and welfare, or

(C) the nonlethal removal of nuisance animals.

(2) Nothing in this title shall prevent the Secretary or a person

designated under section 112(c) from importing a marine mammal

into the United States if such importation is necessary to render

medical treatment that is not otherwise available.

(3) In any case in which it is feasible to return to its natural

habitat a marine mammal taken or imported under circumstances

described in this subsection, steps to achieve that result shall be

taken.

(i) The Secretary may (after providing notice thereof in the

Federal Register and in newspapers of general circulation, and

through appropriate electronic media, in the affected area and providing opportunity for a hearing thereon in such area) prescribe

regulations requiring the marking, tagging, and reporting of animals taken pursuant to section 101(b).

(j) The Secretary may make grants to States to assist them—

(1) in developing programs, to be submitted for approval

under subsection (b), for the conservation and management of

species of marine mammals; and
191 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 110

(2) in administering such programs if management authority for such species is transferred to the State under such subsection.

Grants made under this subsection may not exceed 50 per centum

of the costs of developing a State program before Secretarial ap- proval, or of administering the program thereafter.

(k) The Secretary is authorized and directed to enter into cooperative arrangements with the appropriate officials of any State for

the delegation to such State of the administration and enforcement

of this title: Provided, That any such arrangement shall contain

such provisions as the Secretary deems appropriate to insure that

the purposes and policies of this Act will be carried out.

(l)(1) There are authorized to be appropriated to the Department of the Interior, for the purposes of carrying out this section,

not to exceed $400,000 for each of the fiscal years ending September 30, 1979, September 30, 1980, and September 30, 1981.

(2) There are authorized to be appropriated to the Department

of Commerce, for the purposes of carrying out this section, not to

exceed $225,000 for each of the fiscal years ending September 30,

1979, September 30, 1980, and September 30, 1981.

MARINE MAMMAL RESEARCH GRANTS

SEC. 110. ø16 U.S.C. 1380¿ (a) The Secretary is authorized to

make grants, or to provide financial assistance in such other form

as he deems appropriate, to any Federal or State agency, public or

private institution, or other person for the purpose of assisting such

agency, institution, or person to undertake research in subjects

which are relevant to the protection and conservation of marine

mammals. In carrying out this subsection, the Secretary shall undertake a program of, and shall provide financial assistance for, research into new methods of locating and catching yellowfin tuna

without the incidental taking of marine mammals. The Secretary

shall include a description of the annual results of research carried

out under this section in the report required under section 103(f).

(b) Any grant or other financial assistance provided by the Secretary pursuant to this section shall be subject to such terms and

conditions as the Secretary deems necessary to protect the interests

of the United States and shall be made after review by the Marine

Mammal Commission. (c)(1) No later than 1 year after the date of enactment of the

Marine Mammal Protection Act Amendments of 1994, the Secretary of Commerce shall convene a regional workshop for the Gulf

of Maine to assess human-caused factors affecting the health and

stability of that marine ecosystem, of which marine mammals are

a part. The workshop shall be conducted in consultation with the

Marine Mammal Commission, the adjacent coastal States, individuals with expertise in marine mammal biology and ecology, representatives from environmental organizations, the fishing industry, and other appropriate persons. The goal of the workshop shall

be to identify such factors, and to recommend a program of research and management to restore or maintain that marine ecosystem and its key components that—

(A) protects and encourages marine mammals to develop to

the greatest extent feasible commensurate with sound policies

of resource management;
Sec. 111 MARINE MAMMAL PROTECTION ACT OF 1972 192

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

(B) has as the primary management objective the maintenance of the health and stability of the marine ecosystems;

(C) ensures the fullest possible range of management options for future generations; and

(D) permits nonwasteful, environmentally sound development of renewable and nonrenewable resources.

(2) On or before December 31, 1995, the Secretary of Commerce shall submit to the Committee on Merchant Marine and

Fisheries 1 of the House of Representatives and the Committee on

Commerce, Science and Transportation of the Senate a report containing the results of the workshop under this subsection, proposed

regulatory or research actions, and recommended legislative action.

(d)(1) The Secretary of Commerce, in consultation with the Secretary of the Interior, the Marine Mammal Commission, the State

of Alaska, and Alaska Native organizations, shall, not later than

180 days after the date of enactment of the Marine Mammal Protection Act Amendments of 1994, undertake a scientific research

program to monitor the health and stability of the Bering Sea marine ecosystem and to resolve uncertainties concerning the causes

of population declines of marine mammals, sea birds, and other living resources of that marine ecosystem. The program shall address

the research recommendations developed by previous workshops on

Bering Sea living marine resources, and shall include research on

subsistence uses of such resources and ways to provide for the continued opportunity for such uses.

(2) To the maximum extent practicable, the research program

undertaken pursuant to paragraph (1) shall be conducted in Alaska. The Secretary of Commerce shall utilize, where appropriate,

traditional local knowledge and may contract with a qualified Alaska Native organization to conduct such research.

(3) The Secretary of Commerce, the Secretary of the Interior,

and the Commission shall address the status and findings of the

research program in their annual reports to Congress required by

sections 103(f) and 204 of this Act.

COMMERCIAL FISHERIES GEAR DEVELOPMENT

SEC. 111. ø16 U.S.C. 1381¿ (a) The Secretary of the department in which the National Oceanic and Atmospheric Administration is operating (hereafter referred to in this section as the ‘‘Secretary’’) is hereby authorized and directed to immediately undertake a program of research and development for the purpose of devising improved fishing methods and gear so as to reduce to the

maximum extent practicable the incidental taking of marine mammals in connection with commercial fishing. At the end of the full

twenty-four calendar month period following the date of the enactment of this Act, the Secretary shall deliver his report in writing

to the Congress with respect to the results of such research and development. For the purposes of this section, there is hereby authorized to be appropriated the sum of $1,000,000 for the fiscal year

ending June 30, 1973, and the same amount for the next fiscal
193 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 112

year. Funds appropriated for this section shall remain available

until expended.

(b) The Secretary, after consultation with the Marine Mammal

Commission, is authorized and directed to issue, as soon as practicable, such regulations, covering the twenty-four-month period referred to in section 101(a)(2) of this title, as he deems necessary or

advisable, to reduce to the lowest practicable level the taking of

marine mammals incidental to commercial fishing operations. Such

regulations shall be adopted pursuant to section 553 of Title 5,

United States Code. In issuing such regulations, the Secretary

shall take into account the results of any scientific research under

subsection (a) of this section and, in each case, shall provide a reasonable time not exceeding four months for the persons affected to

implement such regulations.

(c) Additionally, the Secretary and Secretary of State are directed to commence negotiations within the Inter-American Tropical Tuna Commission in order to effect essential compliance with

the regulatory provisions of this Act so as to reduce to the maximum extent feasible the incidental taking of marine mammals by

vessels involved in the tuna fishery. The Secretary and Secretary

of State are further directed to request the Director of Investigations of the Inter-American Tropical Tuna Commission to make

recommendations to all member nations of the Commission as soon

as ispracticable as to the utilization of methods and gear devised

under subsection (a) of this section.

(d) Furthermore, after timely notice and during the period of

research provided in this section, duly authorized agents of the Secretary are hereby empowered to board and to accompany any commercial fishing vessel documented under the laws of the United

States, there being space available, on a regular fishing trip for the

purpose of conducting research or observing operations in regard to

the development of improved fishing methods and gear as authorized by this section. Such research and observation shall be carried

out in such manner as to minimize interference with fishing operations. The Secretary shall provide for the cost of quartering and

maintaining such agents. No master, operator, or owner of such a

vessel shall impair or in any way interfere with the research or observation being carried out by agents of the Secretary pursuant to

this section.

REGULATIONS AND ADMINISTRATION

SEC. 112. ø16 U.S.C. 1382¿ (a) The Secretary, in consultation

with any other Federal agency to the extent that such agency may

be affected, shall prescribe such regulations as are necessary and

appropriate to carry out the purposes of this title.

(b) Each Federal agency is authorized and directed to cooperate

with the Secretary, in such manner as may be mutually agreeable,

in carrying out the purposes of this title.

(c) The Secretary may enter into such contracts, leases, cooperative agreements, or other transactions as may be necessary to

carry out the purposes of this title or title IV and on such terms

as he deems appropriate with any Federal or State agency, public

or private institution, or other person.

(d) The Secretary shall review annually the operation of each

program in which the United States participates involving the tak-
Sec. 113 MARINE MAMMAL PROTECTION ACT OF 1972 194

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

ing of marine mammals on land. If at any time the Secretary finds

that any such program cannot be administered on lands owned by

the United States or in which the United States has an interest in

a manner consistent with the purposes of policies of this Act, he

shall suspend the operation of that program and shall include in

the annual report to the public and the Congress required under

section 103(f) of this Act his reasons for such suspension, together

with recommendations for such legislation as he deems necessary

and appropriate to resolve the problem.

(e) If the Secretary determines, based on a stock assessment

under section 117 or other significant new information obtained

under this Act, that impacts on rookeries, mating grounds, or other

areas of similar ecological significance to marine mammals may be

causing the decline or impeding the recovery of a strategic stock,

the Secretary may develop and implement conservation or management measures to alleviate those impacts. Such measures shall be

developed and implemented after consultation with the Marine

Mammal Commission and the appropriate Federal agencies and

after notice and opportunity for public comment.

APPLICATION TO OTHER TREATIES AND CONVENTIONS

SEC. 113. ø16 U.S.C. 1383¿ (a) The provisions of this title shall

be deemed to be in addition to and not in contravention of the provisions of any existing international treaty, convention, or agreement, or any statute implementing the same, which may otherwise

apply to the taking of marine mammals. Upon a finding by the Secretary that the provisions of any international treaty, convention,

or agreement, or any statute implementing the same has been

made applicable to persons subject to the provisions of this title in

order to effect essential compliance with the regulatory provisions

of this Act so as to reduce to the lowest practicable level the taking

of marine mammals incidental to commercial fishing operations,

section 105 of this title may not apply to such persons.

(b) Not later than 1 year after the date of enactment of the

Marine Mammal Protection Act Amendments of 1994, the Secretary of the Interior shall, in consultation with the contracting

parties, initiate a review of the effectiveness of the Agreement on

the Conservation of Polar Bears, as provided for in Article IX of the

Agreement, and establish a process by which future reviews shall

be conducted.

(c) The Secretary of the Interior, in consultation with the Secretary of State and the Marine Mammal Commission, shall review

the effectiveness of United States implementation of the Agreement

on the Conservation of Polar Bears, particularly with respect to the

habitat protection mandates contained in Article II. The Secretary

shall report the results of this review to the Committee on Merchant Marine and Fisheries 1 of the House of Representatives and

the Committee on Commerce, Science, and Transportation of the

Senate not later than April 1, 1995.
195 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 114

(d) Not later than 6 months after the date of enactment of the

Marine Mammal Protection Act Amendments of 1994, the Secretary of the Interior, acting through the Secretary of State and in

consultation with the Marine Mammal Commission and the State

of Alaska, shall consult with the appropriate officials of the Russian Federation on the development and implementation of en- hanced cooperative research and management programs for the

conservation of polar bears in Alaska and Russia. The Secretary

shall report the results of this consultation and provide periodic

progress reports on the research and management programs to the

Committee on Merchant Marine and Fisheries 1 of the House of

Representatives and the Committee on Commerce, Science and

Transportation of the Senate.

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

SEC. 114. ø16 U.S.C. 1383a¿ (a)(1) During the period beginning

on the date of enactment of this section and until superseded by

regulations prescribed under section 118, or until September 1,

1995, whichever is earlier, except as provided in paragraph (2), the

provisions of this section, rather than sections 101, 103, and 104,

shall govern the incidental taking of marine mammals in the

course of commercial fishing operations by persons using vessels of

the United States and vessels which have valid fishing permits

issued by the Secretary in accordance with section 204(b) of the

Magnuson Fishery Conservation and Management Act (16 U.S.C.

1824(b)). In any event it shall be the immediate goal that the incidental kill or serious injury of marine mammals permitted in the

course of commercial fishing operations be reduced to insignificant

levels approaching a zero mortality and serious injury rate.

(2) The provisions of this section other than subsection (e)(6)(A)

shall not govern the incidental taking of marine mammals in the

course of commercial yellowfin tuna fishing subject to section

104(h)(2) of this title.

(b)(1) The Secretary shall, after consultation with the Marine

Mammal Commission— (A) publish in the Federal Register, for public comment,

not later than sixty days after the date of enactment of this

section a proposed list of those fisheries, along with a statement of the marine mammals and the approximate number of

vessels or persons involved in each such fishery, that have—

(i) frequent incidental taking of marine mammals;

(ii) occasional incidental taking of marine mammals;

or

(iii) a remote likelihood of or no known incidental taking of marine mammals;

(B) publish in the Federal Register not later than one hundred and twenty days after the date of enactment of this section a final list of the fisheries and otherinformation required

by paragraph (A), together with a summary of the provisions

of this section and information sufficient to advise vessel owners on how to obtain an exemption and otherwise comply with

the requirements of this section; and

(C) at least once each year thereafter, and at such other

times as the Secretary considers appropriate, reexamine, based

on information gathered from the program established under
Sec. 114 MARINE MAMMAL PROTECTION ACT OF 1972 196

subsections (c), (d), (e), and (f), and other relevant sources and

after notice and opportunity for public comment, the classification of fisheries and other determinations required under subparagraph (A) and publish in the Federal Register any necessary changes.

(2)(A) An exemption shall be granted by the Secretary in accordance with this section for a vessel engaged in a fishery identified under paragraph (1)(A) (i) or (ii), upon receipt by the Secretary

of a completed registration form providing the name of the vessel

owner, the name and description of the vessel, the fisheries in

which it will be engaged, and such other information as the Secretary considers necessary. A decal or other physical evidence that

the exemption is current and valid shall be issued by the Secretary

at the time an exemption is granted, and so long as the exemption

remains current and valid, shall be reissued annually thereafter.

(B) No exemption may be granted under this section to the

owner of a vessel unless such vessel

(i) is a vessel of the United States; or

(ii) has a valid fishing permit issued by the Secretary in

accordance with section 204(b) of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1824(b)).

(C) Notwithstanding any other provision of this title, exemptions granted under this section shall authorize the incidental taking of marine mammals, other than California sea otters, from any

species or stock, including a population stock designated as depleted, but shall not authorize the intentional lethal taking of any

Steller sea lion, any cetacean, or any marine mammals from a population stock designated as depleted.

(3)(A) Beginning two hundred and forty days after the date of

enactment of this section, each owner of a vessel engaged in any

fishery identified under paragraph (1)(A) (i) or (ii) shall, in order

to engage lawfully in that fishery—

(i) have registered with the Secretary in order to obtain for

each such vessel owned an exemption for the purpose of incidentally taking marine mammals in accordance with this section;

(ii) ensure that a decal or such other physical evidence of

a current and valid exemption as the Secretary may require is

displayed on or is in the possession of the master of each such

vessel; and

(iii) report as required by subsection (c).

(B) Any owner of a vessel receiving an exemption under this

section for any fishery identified under paragraph (1)(A)(i) shall, as

a condition of that exemption, take on board a natural resource observer if requested to do so by the Secretary. (C) An owner of a vessel engaged in a fishery identified under

paragraph (1)(A) (i) or (ii) who—

(i) fails to obtain from the Secretary an exemption under

this section;

(ii) fails to maintain a current and valid exemption; or

(iii) fails to ensure that a decal or other physical evidence

of such exemption issued by the Secretary is displayed on or

is in possession of the master of the vessel,

and the master of any such vessel engaged in such fishery, shall

be deemed to have violated this title, and shall be subject to the
197 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 114

penalties of this title except in the case of unknowing violations before January l, 1990.

(D) If the owner of a vessel has obtained and maintains a current and valid exemption from the Secretary under this section and

meets the requirements set forth in this section, the owner of such

vessel, and the master and crew members of the vessel, shall not

be subject to the penalties set forth in this title for the incidental

taking of marine mammals while such vessel is engaged in a fishery to which the exemption applies.

(E) Each owner of a vessel engaged in any fishery not identified in paragraph (1)(A) (i) or (ii), and the master and crew members of such a vessel, shall not be subject to the penalties set forth

in this title for the incidental taking of marine mammals if such

owner reports to the Secretary, in such form and manner as the

Secretary may require, instances of lethal incidental taking in the

course of that fishery.

(4) The Secretary shall suspend or revoke an exemption granted under this section and shall not issue a decal or other physical

evidence of the exemption for any vessel until the owner of such

vessel complies with the reporting requirements under subsection

(c) and such requirements to take on board a natural resource observer under paragraph (3)(B) as are applicable to such vessel.

(5)(A) The Secretary shall develop, in consultation with the appropriate States, Regional Fishery Management Councils, and

other interested parties, the means by which the granting and administration of exemptions under this section shall be integrated

and coordinated, to the maximum extent practicable, with existing

fishery licenses, registrations, and related programs.

(B) The Secretary shall utilize newspapers of general circulation, fishery trade associations, electronic media, and other means

of advising commercial fishermen of the provisions of this section

and the means by which they can comply with its requirements.

(C) The Secretary is authorized to charge a fee for the granting

of an exemption under this subsection. The level of fees charged

under this subparagraph shallnot exceed the administrative costs

incurred in granting an exemption. Fees collected under this subparagraph shall be available to the Under Secretary of Commerce

for Oceans and Atmosphere for expenses incurred in the granting

and administration of exemptions under this section.

(c) The owner of each vessel holding an exemption granted

under subsection (b) of this section shall regularly compile information which shall be used in a report to be submitted to the Secretary at the close of the fishing season or annually, as the Secretary may prescribe. Such report shall be submitted in such form

as the Secretary may require and shall include the following:

(1) the type of fishery engaged in by the owner’s vessel;

(2) the date and approximate time of any incidental taking

of a marine mammal, together with the area in which the incidental taking occurred, the fishing gear used at the time of the

incidental taking, and the species of fish involved; and

(3) for each incidental taking, the number and species of

marine mammals involved, whether the marine mammals were

deterred from gear or catch, incidentally injured, incidentally

killed, or lethally removed to protect gear, catch, or human life.
Sec. 114 MARINE MAMMAL PROTECTION ACT OF 1972 198

If there was no incidental taking of marine mammals during the

reporting period, a report stating that fact shall be filed with the

Secretary.

(d)(1) The Secretary shall establish a program to enhance the

quality of and verify information received from reports submitted

by owners of vessels who have been granted an exemption under

subsection (b) of this section. The program shall include, but not

be limited to—

(A) education efforts regarding the information that must

be submitted;

(B) interviews with fishermen; and

(C) other such information gathering and verification activities that will enable the Secretary to determine reliably the

nature, type, and extent of the incidental taking of marine

mammals that occurs in a fishery.

Except to the extent authorized by the provisions of subsection (e),

the program shall not include placement of observers aboard exempted vessels.

(2) Information obtained under this subsection shall be subject

to the confidentiality provisions of subsection (j).

(e)(1) For each fishery identified under subsection (b)(1)(A)(i) of

this section, the Secretary shall, after consultation with the appropriate Regional Fishery Management Councils, other Federal and

State agencies, and other interested parties, and subject to paragraph (6), place observers on board exempted vessels so as to monitor not less than 20 percent nor more than 35 percent of the fishing operations by vessels in the fishery to obtain statistically reliable information on the species and number of marine mammals

incidentally taken in the fishery. If the Secretary determines that

fewer than 20 percent of the fishing operations by vessels in the

fishery will be monitored during the course of the fishing season,

the Secretary shall implement the alternative observation program

described in subsection (f) to the extent necessary to supplement

the observer program described in this subsection.

(2) When determining the distribution of observers among fisheries and between vessels in a particular fishery, the Secretary

shall be guided by the following standards:

(A) the requirement to obtain the best scientific information available;

(B) the requirement that assignment of observers is fair

and equitable among fisheries and among vessels in a fishery;

(C) consistent with paragraph (1), the requirement that no

individual person or vessel, or group of persons or vessels, be

subject to excessive or overly burdensome observer coverage;

and

(D) where practicable, the need to minimize costs and

avoid duplication.

(3) If the Secretary finds that, for reasons beyond his or her

control, the Secretary cannot assign observers to all the fisheries

identified under subsection (b)(1)(A)(i) of this section at the level of

observer coverage set forth in paragraph (1), the Secretary shall allocate available observers among such fisheries, consistent with

paragraph (2), according to the following priority:

(A) those fisheries that incidentally take marine mammals

from any population stock designated as depleted;
199 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 114

(B) those fisheries that incidentally take marine mammals

from population stocks that the Secretary believes are declining;

(C) those fisheries other than those described in subparagraphs (A) and (B) in which the greatest incidental take of marine mammals occur; and

(D) any other fishery identified under subsection

(b)(1)(A)(i).

The Secretary may, with the consent of the vessel owner, station

an observer on board a vessel engaged in a fishery not identified

under subsection (b)(1)(A)(i).

(4) Information gathered by observers shall be subject to the

provisions of subsection (j). Consistent with the requirements of

paragraph (1), the Secretary shall, if requested by the Appropriate

Regional Fishery Management Council, or in the case of a State

fishery, the State, require observers to collect additional information, including but not limited to the quantities, species, and physical condition of target and non- target fishery resources and, if requested by the Secretary of the Interior, seabirds.

(5) Notwithstanding the provisions of paragraph (4), the Secretary may decline to require observers to collect information described in such paragraph, if the Secretary finds in writing, following public notice and opportunity for comment, that such information will not contribute to the protection of marine mammals or

the understanding of the marine ecosystem, including fishery resources and seabirds.

(6) The Secretary shall not be required to place an observer on

a vessel in a fishery if the Secretary finds that—

(A) in a situation where harvesting vessels are delivering

fish to a processing vessel and the catch is not taken on board

the harvesting vessel, statistically reliable information can be

obtained from an observer on board the processing vessel to

which the fish are delivered;

(B) the facilities of a vessel for the quartering of an observer, or for carrying out observer functions, are so inadequate or unsafe that the health or safety of the observer or

the safe operation of the vessel would be jeopardized; or

(C) for reasons beyond the control of the Secretary, an observer is not available.

(7)(A) An observer on a vessel (or the observer’s personal representative) under the requirements of this section or section 104

that is ill, disabled, injured, or killed from service as an observer

on that vessel may not bring a civil action under any law of the

United States for that illness, disability, injury, or death against

the vessel or vessel owner, except that a civil action may be

brought against the vessel owner for the owner’s willful misconduct.

(B) This paragraph does not apply if the observer is engaged

by the owner, master, or individual in charge of a vessel to perform

any duties in service to the vessel.

(8) There are authorized to be appropriated to the Department

of Commerce for the purposes of carrying out this subsection not

to exceed $2,700,000 for fiscal year 1989 and not to exceed

$8,000,000 for each of the fiscal years 1990, 1991, 1992, and 1993.
Sec. 114 MARINE MAMMAL PROTECTION ACT OF 1972 200

(f)(1) The Secretary shall establish an alternative observation

program to provide statistically reliable information on the species

and number of marine mammals incidentally taken in those fisheries identified pursuant to subsection (b)(1)(A)(i) of this section for

which the required level of observer coverage has not been met or

for any other fisheries about which such reliable information is not

otherwise available. The alternative program shall include, but not

be limited to, direct observation of fishing activities from vessels,

airplanes, or points on shore.

(2) Individuals engaged in the alternative observation program

shall collect scientific information on the fisheries subject to observation, consistent with the requirements of paragraph (1) and subsection (e) (4) and (5). All information collected shall be subject to

the provisions of subsection (j).

(g)(1) The Secretary shall review information regarding the incidental taking of marine mammals and evaluate the effects of

such incidental taking on the affected population stocks of marine

mammals.

(2) If the Secretary finds, based on the information received

from the programs established under subsections (c), (d), (e), and

(f), that the incidental taking of marine mammals in a fishery is

having an immediate and significant adverse impact on a marine

mammal population stock or, in the case of Steller sea lions and

North Pacific fur seals, that more than 1,350 and 50, respectively,

will be incidentally killed during acalendar year, the Secretary

shall consult with appropriate Regional Fishery Management

Councils and State fishery managers and prescribe emergency regulations to prevent to the maximum extent practicable any further

taking. Any emergency regulations prescribed under this

paragraph—

(A) shall, to the maximum extent practicable, avoid interfering with existing State or regional fishery management

plans;

(B) shall be published in the Federal Register together

with the reasons therefor;

(C) shall remain in effect for not more than one hundred

and eighty days or until the end of the fishing season, whichever is earlier; and

(D) may be terminated by the Secretary at an earlier date

by publication in the Federal Register of a notice of termination if the Secretary determines the reasons for the emergency regulations no longer exist.

In prescribing emergency regulations under this paragraph, the

Secretary shall take into account the economics of the fishery concerned and the availability of existing technology to prevent or

minimize incidental taking of marine mammals.

(3) If the Secretary finds, based on information received from

the programs established under subsections (c), (d), (e), and (f),

that incidental taking of marine mammals in a fishery is not having an immediate and significant adverse impact on a marine

mammal population stock but that it will likely have a significant

adverse impact over a period of time longer than one year, the Secretary shall request the appropriate Regional Fishery Management

Council or State to initiate, recommend, or take such action within

its authority as it considers necessary to mitigate the adverse im-
201 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 114

pacts, including adjustments to requirements on fishing times or

areas or the imposition of restrictions on the use of vessels or gear.

(4) The Secretary shall impose appropriate conditions and restrictions on an exemption granted under subsection (b) if—

(A) a Regional Fishery Management Council or State does

not act in a reasonable period of time on a request made by

the Secretary under paragraph (3); or

(B) if the Secretary determines after notice and opportunity for public comment that the purposes of this section

would be better served by such action.

(h) The Secretary shall design and implement an information

management system capable of processing and analyzing reports

received from the programs established under subsections (c), (d),

(e), and (f), and other relevant sources, including Federal and State

enforcement authorities, marine mammal stranding networks, and

the marine mammal researchers. The information shall be made

accessible to the public on a continuing basis, but in any case no

later than six months after it is received, subject to the provisions

of subsection (j).

(i) When carrying out the Secretary’s responsibilities under

subsections (b), (d), (e), (f), and (h) of this section, the Secretary

shall, to the maximum extent practicable, utilizethe services and

programs of State agencies, Federal agencies (including programs

established by Regional Fishery Management Councils), marine

fisheries commissions, universities, and private entities, on a reimbursable basis or otherwise. The Secretary is authorized to enter

into contracts and agreements to carry out his or her responsibilities and shall establish appropriate guidelines to ensure that other

programs used or contracted for will meet the same standards as

a program established by the Secretary. A person contracting with

the Secretary to provide observer services under subsection (e) of

this section must provide evidence of financial responsibility in an

amount and form prescribed by the Secretary to compensate em- ployees (or their survivors) adequately for any illness, disability, injury, or death from service on a vessel.

(j)(1) Any information collected under subsection (c), (d), (e), (f),

or (h) of this section shall be confidential and shall not be disclosed

except—

(A) to Federal employees whose duties require access to

such information;

(B) to State employees pursuant to an agreement with the

Secretary that prevents public disclosure of the identity or

business of any person;

(C) when required by court order; or

(D) in the case of scientific information involving fisheries,

to employees of Regional Fishery Management Councils who

are responsible for fishery management plan development and

monitoring.

(2) The Secretary shall prescribe such procedures as may be

necessary to preserve such confidentiality, except that the Secretary shall release or make public any such information in aggregate, summary, or other form which does not directly or indirectly

disclose the identity or business of any person.

(k) The Secretary, in consultation with any other Federal agency to the extent that such agency may be affected, shall prescribe
Sec. 114 MARINE MAMMAL PROTECTION ACT OF 1972 202

such regulations as necessary and appropriate to carry out the purposes of this section.

(l)(1) The Chairman of the Marine Mammal Commission shall,

after consultation with interested parties and not later than February 1, 1990, transmit to the Secretary and make available to the

public recommended guidelines to govern the incidental taking of

marine mammals in the course of commercial fishing operations,

other than those subject to section 104(h)(2), after October 1, 1993.

Such guidelines shall be developed by the Commission and its

Committee of Scientific Advisers on Marine Mammals and shall—

(A) be designed to provide a scientific rationale and basis

for determining how many marine mammals may be incidentally taken under a regime to be adopted to govern such taking

after October 1, 1993;

(B) be based on sound principles of wildlife management,

and be consistent with and in furtherance of the purposes and

policies set forth in this Act; and

(C) to the maximum extent practicable, include as factors

to be considered and utilized in determining permissible levels

of such taking—

(i) the status and trends of the affected marine mammal population stocks;

(ii) the abundance and annual net recruitment of such

stocks;

(iii) the level of confidence in the knowledge of the affected stocks; and

(iv) the extent to which incidental taking will likely

cause or contribute to their decline or prevent their recovery to optimum sustainable population levels.

(2) The Secretary shall advise the Chairman of the Commission in writing if the Secretary determines that any additional information or explanation of the Chairman’s recommendations is

needed, and the Chairman shall respond in writing to any such request by the Secretary.

(3) On or before February 1, 1991, the Secretary, after consultation with the Marine Mammal Commission, Regional Fishery

Management Councils, and other interested governmental and nongovernmental organizations, shall publish in the Federal Register,

for public comment, the suggested regime that the Secretary considers should, if authorized by enactment of any additional legislation, govern incidental taking of marine mammals, other than

those subject to section 104(h)(2), after October 1, 1993. The suggested regime shall include—

(A) the scientific guidelines to be used in determining permissible levels of incidental taking;

(B) a description of the arrangements for consultation and

cooperation with other Federal agencies, the appropriate Regional Fishery Management Councils and States, the commercial fishing industry, and conservation organizations; and

(C) a summary of such regulations and legislation as

would be necessary to implement the suggested regime.

(4) On or before January 1, 1992, the Secretary, after consultation with the Marine Mammal Commission, and consideration of

public comment, shall transmit to the Committee on Commerce,

Science, and Transportation of the Senate and the Committee on
203 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 115

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

Merchant Marine and Fisheries 1 of the House of Representatives

recommendations pertaining to the incidental taking of marine

mammals, other than those subject to section 104(h)(2), after October 1, 1993. The recommendations shall include—

(A) the suggested regime developed under paragraph (3) of

this subsection as modified after comment and consultations;

(B) a proposed schedule for implementing the suggested regime; and

(C) such recommendations for additional legislation as the

Secretary considers necessary or desirable to implement the

suggested regime.

(m) The Secretary shall consult with the Secretary of the Interior prior to taking actions or making determinations under this

section that affect or relate to species or population stocks of marine mammals for which the Secretary of the Interior is responsible

under this title.

(n) For the purposes of this section, the owner of fixed or other

commercial fishing gear that is deployed with or without the use

of a vessel shall be deemed to be an owner of a vessel engaged in

the fishery in which that gear is deployed.

(o) As used in this section—

(1) the term ‘‘fishery’’ has the same meaning as it does in

section 3(8) of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802(8)).

(2) the term ‘‘Secretary’’ means the Secretary of Commerce.

(3) the term ‘‘vessel engaged in a fishery’’ means a fishing

vessel as defined in section 2101(11a) of Title 46, United States

Code, or a fish processing vessel as defined in section

2101(11b) of that title, which is engaged in fishery.

(4) the term ‘‘vessel of the United States’’ has the same

meaning as it does in section 3(27) of the Magnuson Fishery

Conservation and Management Act (16 U.S.C. 1802(27)).

STATUS REVIEW; CONSERVATION PLANS

SEC. 115. ø16 U.S.C. 1383b¿ (a)(1) In any action by the Secretary to determine if a species or stock should be designated as

depleted, or should no longer be designated as depleted, regardless

of whether such action is taken on the initiative of the Secretary

or in response to a petition for a status review, the Secretary shall

only make such a determination by issuance of a rule, after notice

and opportunity for public comment and after a call for information

in accordance with paragraph (2).

(2) The Secretary shall make any determination described in

paragraph (1) solely on the basis of the best scientific information

available. Prior to the issuance of a proposed rule concerning any

such determination, the Secretary shall publish in the Federal Register a call to assist the Secretary in obtaining scientific information from individuals and organizations concerned with the conservation of marine mammals, from persons in industry which
Sec. 115 MARINE MAMMAL PROTECTION ACT OF 1972 204

might be affected by the determination, and from academic institutions. In addition, the Secretary shall utilize, to the extent the Secretary determines to be feasible, informal working groups of interested parties and other methods to gather the necessary information.

(3)(A) If the Secretary receives a petition for a status review

as described in paragraph (1), the Secretary shall publish a notice

in the Federal Register that such a petition has been received and

is available for public review.

(B) Within sixty days after receipt of the petition, the Secretary shall publish a finding in the Federal Register as to whether

the petition presents substantial information indicating that the

petitioned action may be warranted.

(C) If the Secretary makes a positive finding under subparagraph (B), the Secretary shall include in the Federal Register notice, a finding that—

(i) a review of the status of the species or stock will be

commenced promptly; or

(ii) a prompt review of the petition is precluded by other

pending status determination petitions and that expeditious

progress is being made to process pending status determination petitions under this title.

In no case after making a finding under this subparagraph shall

the Secretary delay commencing a review of the status of a species

or stock for more than one hundred and twenty days after receipt

of the petition.

(D) No later than two hundred and ten days after the receipt

of the petition, the Secretary shall publish in the Federal Register

a proposed rule as to the status of the species or stock, along with

the reasons underlying the proposed status determination. Persons

shall have at least sixty days to submit comments on such a proposed rule.

(E) Not later than ninety days after the close of the comment

period on a proposed rule issued under subparagraph (D), the Secretary shall issue a final rule on the status of the species or stock

involved, along with the reasons for the status determination. If

the Secretary finds with respect to such a proposed rule that there

is substantial disagreement regarding the sufficiency or accuracy of

the available information relevant to a status determination, the

Secretary may delay the issuance of a final rule for a period of not

more than six months for purposes of soliciting additional information.

(F) Notwithstanding subparagraphs (D) and (E) of this paragraph and section 553 of Title 5, United States Code, the Secretary

may issue a final rule as to the status of a species or stock any

time sixty or more days after a positive finding under subparagraph (B) if the Secretary determines there is substantial information available to warrant such final status determination and further delay would pose a significant risk to the well-being of any

species or stock. Along with the final rule, the Secretary shall publish in the Federal Register detailed reasons for the expedited determination.

(b)(1) The Secretary shall prepare conservation plans—

(A) by December 31, 1989, for North Pacific fur seals;

(B) by December 31, 1990, for Steller sea lions; and
205 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 117

(C) as soon as possible, for any species or stock designated

as depleted under this title, except that a conservation plan

need not be prepared if the Secretary determines that it will

not promote the conservation of the species or stock.

(2) Each plan shall have the purpose of conserving and restoring the species or stock to its optimum sustainable population. The

Secretary shall model such plans on recovery plans required under

section 4(f) of the Endangered Species Act of 1973 (16 U.S.C.

1533(f)).

(3) The Secretary shall act expeditiously to implement each

conservation plan prepared under paragraph (1). Each year, the

Secretary shall specify in the annual report prepared under section

103(f) of this title what measures have been taken to prepare and

implement such plans.

(4) If the Secretary determines that a take reduction plan is

necessary to reduce the incidental taking of marine mammals in

the course of commercial fishing operations from a strategic stock,

or for species or stocks which interact with a commercial fishery for

which the Secretary has made a determination under section

118(f)(1), any conservation plan prepared under this subsection for

such species or stock shall incorporate the take reduction plan required under section 118 for such species or stock.

SEC. 116. ø16 U.S.C. 1384¿ AUTHORIZATION OF APPROPRIATIONS.

(a) DEPARTMENT OF COMMERCE.—(1) There are authorized to

be appropriated to the Department of Commerce, for purposes of

carrying out its functions and responsibilities under this title (other

than sections 117 and 118) and title IV, $12,138,000 for fiscal year

1994, $12,623,000 for fiscal year 1995, $13,128,000 for fiscal year

1996, $13,653,000 for fiscal year 1997, $14,200,000 for fiscal year

1998, and $14,768,000 for fiscal year 1999.

(2) There are authorized to be appropriated to the Department

of Commerce, for purposes of carrying out sections 117 and 118,

$20,000,000 for each of the fiscal years 1994 through 1999.

(b) DEPARTMENT OF THE INTERIOR.—There are authorized to be

appropriated to the Department of the Interior, for purposes of carrying out its functions and responsibilities under this title,

$8,000,000 for fiscal year 1994, $8,600,000 for fiscal year 1995,

$9,000,000 for fiscal year 1996, $9,400,000 for fiscal year 1997,

$9,900,000 for fiscal year 1998, and $10,296,000 for fiscal year

1999.

SEC. 117. ø16 U.S.C. 1386¿ STOCK ASSESSMENTS.

(a) IN GENERAL.—Not later than August 1, 1994, the Secretary

shall, in consultation with the appropriate regional scientific review group established under subsection (d), prepare a draft stock

assessment for each marine mammal stock which occurs in waters

under the jurisdiction of the United States. Each draft stock assessment, based on the best scientific information available, shall—

(1) describe the geographic range of the affected stock, including any seasonal or temporal variation in such range;

(2) provide for such stock the minimum population estimate, current and maximum net productivity rates, and current population trend, including a description of the information upon which these are based;
Sec. 117 MARINE MAMMAL PROTECTION ACT OF 1972 206

(3) estimate the annual human-caused mortality and serious injury of the stock by source and, for a strategic stock,

other factors that may be causing a decline or impeding recovery of the stock, including effects on marine mammal habitat

and prey;

(4) describe commercial fisheries that interact with the

stock, including—

(A) the approximate number of vessels actively participating in each such fishery;

(B) the estimated level of incidental mortality and serious injury of the stock by each such fishery on an annual

basis;

(C) seasonal or area differences in such incidental

mortality or serious injury; and

(D) the rate, based on the appropriate standard unit

of fishing effort, of such incidental mortality and serious

injury, and an analysis stating whether such level is insignificant and is approaching a zero mortality and serious

injury rate;

(5) categorize the status of the stock as one that either—

(A) has a level of human-caused mortality and serious

injury that is not likely to cause the stock to be reduced

below its optimum sustainable population; or

(B) is a strategic stock, with a description of the reasons therefor; and

(6) estimate the potential biological removal level for the

stock, describing the information used to calculate it, including

the recovery factor.

(b) PUBLIC COMMENT.—(1) The Secretary shall publish in the

Federal Register a notice of the availability of a draft stock assessment or any revision thereof and provide an opportunity for public

review and comment during a period of 90 days. Such notice shall

include a summary of the assessment and a list of the sources of

information or published reports upon which the assessment is

based.

(2) Subsequent to the notice of availability required under

paragraph (1), if requested by a person to which section 101(b) applies, the Secretary shall conduct a proceeding on the record prior

to publishing a final stock assessment or any revision thereof for

any stock subject to taking under section 101(b).

(3) After consideration of the best scientific information available, the advice of the appropriate regional scientific review group

established under subsection (d), and the comments of the general

public, the Secretary shall publish in the Federal Register a notice

of availability and a summary of the final stock assessment or any

revision thereof, not later than 90 days after—

(A) the close of the public comment period on a draft stock

assessment or revision thereof; or

(B) final action on an agency proceeding pursuant to paragraph (2).

(c) REVIEW AND REVISION.—(1) The Secretary shall review

stock assessments in accordance with this subsection—

(A) at least annually for stocks which are specified as strategic stocks;
207 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 117

(B) at least annually for stocks for which significant new

information is available; and

(C) at least once every 3 years for all other stocks.

(2) If the review under paragraph (1) indicates that the status

of the stock has changed or can be more accurately determined, the

Secretary shall revise the stock assessment in accordance with subsection (b).

(d) REGIONAL SCIENTIFIC REVIEW GROUPS.—(1) Not later than

60 days after the date of enactment of this section, the Secretary

of Commerce shall, in consultation with the Secretary of the Interior (with respect to marine mammals under that Secretary’s jurisdiction), the Marine Mammal Commission, the Governors of affected adjacent coastal States, regional fishery and wildlife management authorities, Alaska Native organizations and Indian

tribes, and environmental and fishery groups, establish three independent regional scientific review groups representing Alaska, the

Pacific Coast (including Hawaii), and the Atlantic Coast (including

the Gulf of Mexico), consisting of individuals with expertise in marine mammal biology and ecology, population dynamics and modeling, commercial fishing technology and practices, and stocks

taken under section 101(b). The Secretary of Commerce shall, to

the maximum extent practicable, attempt to achieve a balanced

representation of viewpoints among the individuals on each regional scientific review group. The regional scientific review groups

shall advise the Secretary on—

(A) population estimates and the population status and

trends of such stocks;

(B) uncertainties and research needed regarding stock separation, abundance, or trends, and factors affecting the distribution, size, or productivity of the stock;

(C) uncertainties and research needed regarding the species, number, ages, gender, and reproductive status of marine

mammals;

(D) research needed to identify modifications in fishing

gear and practices likely to reduce the incidental mortality and

serious injury of marine mammals in commercial fishing operations;

(E) the actual, expected, or potential impacts of habitat destruction, including marine pollution and natural environmental change, on specific marine mammal species or stocks,

and for strategic stocks, appropriate conservation or management measures to alleviate any such impacts; and

(F) any other issue which the Secretary or the groups consider appropriate.

(2) The scientific review groups established under this subsection shall not be subject to the Federal Advisory Committee Act

(5 App. U.S.C.).

(3) Members of the scientific review groups shall serve without

compensation, but may be reimbursed by the Secretary, upon request, for reasonable travel costs and expenses incurred in performing their obligations.

(4) The Secretary may appoint or reappoint individuals to the

regional scientific review groups under paragraph (1) as needed.

(e) EFFECT ON SECTION 101(b).—This section shall not affect or

otherwise modify the provisions of section 101(b).
Sec. 118 MARINE MAMMAL PROTECTION ACT OF 1972 208

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

SEC. 118. ø16 U.S.C. 1387¿ TAKING OF MARINE MAMMALS INCIDENTAL

TO COMMERCIAL FISHING OPERATIONS.

(a) IN GENERAL.—(1) Effective on the date of enactment of this

section, and except as provided in section 114 and in paragraphs

(2), (3), and (4) of this subsection, the provisions of this section

shall govern the incidental taking of marine mammals in the

course of commercial fishing operations by persons using vessels of

the United States or vessels which have valid fishing permits

issued by the Secretary in accordance with section 204(b) of the

Magnuson Fishery Conservation and Management Act (16 U.S.C.

1824(b)). In any event it shall be the immediate goal that the incidental mortality or serious injury of marine mammals occurring in

the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate

within 7 years after the date of enactment of this section.

(2) In the case of the incidental taking of marine mammals

from species or stocks designated under this Act as depleted on the

basis of their listing as threatened species or endangered species

under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.),

both this section and section 101(a)(5)(E) of this Act shall apply.

(3) Sections 104(h) and title III, and not this section, shall govern the taking of marine mammals in the course of commercial

purse seine fishing for yellowfin tuna in the eastern tropical Pacific

Ocean.

(4) This section shall not govern the incidental taking of California sea otters and shall not be deemed to amend or repeal the

Act of November 7, 1986 (Public Law 99–625; 100 Stat. 3500).

(5) Except as provided in section 101(c), the intentional lethal

take of any marine mammal in the course of commercial fishing operations is prohibited.

(6) Sections 103 and 104 shall not apply to the incidental taking of marine mammals under the authority of this section.

(b) ZERO MORTALITY RATE GOAL.—(1) Commercial fisheries

shall reduce incidental mortality and serious injury of marine

mammals to insignificant levels approaching a zero mortality and

serious injury rate within 7 years after the date of enactment of

this section.

(2) Fisheries which maintain insignificant serious injury and

mortality levels approaching a zero rate shall not be required to

further reduce their mortality and serious injury rates.

(3) Three years after such date of enactment, the Secretary

shall review the progress of all commercial fisheries, by fishery, toward reducing incidental mortality and serious injury to insignificant levels approaching a zero rate. The Secretary shall submit to

the Committee on Commerce, Science, and Transportation of the

Senate and the Committee on Merchant Marine and Fisheries 1 of

the House of Representatives a report setting forth the results of

such review within 1 year after commencement of the review. The

Secretary shall note any commercial fishery for which additional
209 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 118

information is required to accurately assess the level of incidental

mortality and serious injury of marine mammals in the fishery.

(4) If the Secretary determines after review under paragraph

(3) that the rate of incidental mortality and serious injury of marine mammals in a commercial fishery is not consistent with paragraph (1), then the Secretary shall take appropriate action under

subsection (f).

(c) REGISTRATION AND AUTHORIZATION.—(1) The Secretary

shall, within 90 days after the date of enactment of this section— (A) publish in the Federal Register for public comment, for

a period of not less than 90 days, any necessary changes to the

Secretary’s list of commercial fisheries published under section

114(b)(1) and which is in existence on March 31, 1994 (along

with an explanation of such changes and a statement describing the marine mammal stocks interacting with, and the approximate number of vessels or persons actively involved in,

each such fishery), with respect to commercial fisheries that

have—

(i) frequent incidental mortality and serious injury of

marine mammals;

(ii) occasional incidental mortality and serious injury

of marine mammals; or

(iii) a remote likelihood of or no known incidental mortality or serious injury of marine mammals;

(B) after the close of the period for such public comment,

publish in the Federal Register a revised list of commercial

fisheries and an update of information required by subparagraph (A), together with a summary of the provisions of this

section and information sufficient to advise vessel owners on

how to obtain an authorization and otherwise comply with the

requirements of this section; and

(C) at least once each year thereafter, and at such other

times as the Secretary considers appropriate, reexamine, based

on information gathered under this Act and other relevant

sources and after notice and opportunity for public comment,

the classification of commercial fisheries and other determinations required under subparagraph (A) and publish in the Federal Register any necessary changes.

(2)(A) An authorization shall be granted by the Secretary in accordance with this section for a vessel engaged in a commercial

fishery listed under paragraph (1)(A) (i) or (ii), upon receipt by the

Secretary of a completed registration form providing the name of

the vessel owner and operator, the name and description of the vessel, the fisheries in which it will be engaged, the approximate time,

duration, and location of such fishery operations, and the general

type and nature of use of the fishing gear and techniques used.

Such information shall be in a readily usable format that can be

efficiently entered into and utilized by an automated or computerized data processing system. A decal or other physical evidence

that the authorization is current and valid shall be issued by the

Secretary at the time an authorization is granted, and so long as

the authorization remains current and valid, shall be reissued annually thereafter.

(B) No authorization may be granted under this section to the

owner of a vessel unless such vessel—
Sec. 118 MARINE MAMMAL PROTECTION ACT OF 1972 210

(i) is a vessel of the United States; or

(ii) has a valid fishing permit issued by the Secretary in

accordance with section 204(b) of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1824(b)).

(C) Except as provided in subsection (a), an authorization

granted under this section shall allow the incidental taking of all

species and stocks of marine mammals to which this Act applies.

(3)(A) An owner of a vessel engaged in any fishery listed under

paragraph (1)(A) (i) or (ii) shall, in order to engage in the lawful

incidental taking of marine mammals in a commercial fishery—

(i) have registered as required under paragraph (2) with

the Secretary in order to obtain for each such vessel owned and

used in the fishery an authorization for the purpose of incidentally taking marine mammals in accordance with this section,

except that owners of vessels holding valid certificates of exemption under section 114 are deemed to have registered for

purposes of this subsection for the period during which such

exemption is valid;

(ii) ensure that a decal or such other physical evidence of

a current and valid authorization as the Secretary may require

is displayed on or is in the possession of the master of each

such vessel;

(iii) report as required by subsection (e); and

(iv) comply with any applicable take reduction plan and

emergency regulations issued under this section.

(B) Any owner of a vessel receiving an authorization under this

section for any fishery listed under paragraph (1)(A) (i) or (ii) shall,

as a condition of that authorization, take on board an observer if

requested to do so by the Secretary.

(C) An owner of a vessel engaged in a fishery listed under

paragraph (1)(A) (i) or (ii) who—

(i) fails to obtain from the Secretary an authorization for

such vessel under this section;

(ii) fails to maintain a current and valid authorization for

such vessel; or

(iii) fails to ensure that a decal or other physical evidence

of such authorization issued by the Secretary is displayed on

or is in possession of the master of the vessel,

and the master of any such vessel engaged in such fishery, shall

be deemed to have violated this title, and for violations of clauses

(i) and (ii) shall be subject to the penalties of this title, and for violations of clause (iii) shall be subject to a fine of not more than

$100 for each offense.

(D) If the owner of a vessel has obtained and maintains a current and valid authorization from the Secretary under this section

and meets the requirements set forth in this section, including

compliance with any regulations to implement a take reduction

plan under this section, the owner of such vessel, and the master

and crew members of the vessel, shall not be subject to the penalties set forth in this title for the incidental taking of marine

mammals while such vessel is engaged in a fishery to which the

authorization applies.

(E) Each owner of a vessel engaged in any fishery not listed

under paragraph (1)(A) (i) or (ii), and the master and crew members of such a vessel, shall not be subject to the penalties set forth
211 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 118

in this title for the incidental taking of marine mammals if such

owner reports to the Secretary, in the form and manner required

under subsection (e), instances of incidental mortality or injury of

marine mammals in the course of that fishery.

(4)(A) The Secretary shall suspend or revoke an authorization

granted under this section and shall not issue a decal or other

physical evidence of the authorization for any vessel until the

owner of such vessel complies with the reporting requirements

under subsection (e) and such requirements to take on board an observer under paragraph (3)(B) as are applicable to such vessel. Pre- vious failure to comply with the requirements of section 114 shall

not bar authorization under this section for an owner who complies

with the requirements of this section.

(B) The Secretary may suspend or revoke an authorization

granted under this subsection, and may not issue a decal or other

physical evidence of the authorization for any vessel which fails to

comply with a take reduction plan or emergency regulations issued

under this section.

(C) The owner and master of a vessel which fails to comply

with a take reduction plan shall be subject to the penalties of sections 105 and 107, and may be subject to section 106.

(5)(A) The Secretary shall develop, in consultation with the appropriate States, affected Regional Fishery Management Councils,

and other interested persons, the means by which the granting and

administration of authorizations under this section shall be integrated and coordinated, to the maximum extent practicable, with

existing fishery licenses, registrations, and related programs.

(B) The Secretary shall utilize newspapers of general circulation, fishery trade associations, electronic media, and other means

of advising commercial fishermen of the provisions of this section

and the means by which they can comply with its requirements.

(C) The Secretary is authorized to charge a fee for the granting

of an authorization under this section. The level of fees charged

under this subparagraph shall not exceed the administrative costs

incurred in granting an authorization. Fees collected under this

subparagraph shall be available to the Under Secretary of Commerce for Oceans and Atmosphere for expenses incurred in the

granting and administration of authorizations under this section.

(d) MONITORING OF INCIDENTAL TAKES.—(1) The Secretary

shall establish a program to monitor incidental mortality and serious injury of marine mammals during the course of commercial

fishing operations. The purposes of the monitoring program shall

be to—

(A) obtain statistically reliable estimates of incidental mortality and serious injury;

(B) determine the reliability of reports of incidental mortality and serious injury under subsection (e); and

(C) identify changes in fishing methods or technology that

may increase or decrease incidental mortality and serious injury.

(2) Pursuant to paragraph (1), the Secretary may place observers on board vessels as necessary, subject to the provisions of this

section. Observers may, among other tasks—

(A) record incidental mortality and injury, or by catch of

other nontarget species;
Sec. 118 MARINE MAMMAL PROTECTION ACT OF 1972 212

(B) record numbers of marine mammals sighted; and

(C) perform other scientific investigations.

(3) In determining the distribution of observers among commercial fisheries and vessels within a fishery, the Secretary shall

be guided by the following standards:

(A) The requirement to obtain statistically reliable information.

(B) The requirement that assignment of observers is fair

and equitable among fisheries and among vessels in a fishery.

(C) The requirement that no individual person or vessel, or

group of persons or vessels, be subject to excessive or overly

burdensome observer coverage.

(D) To the extent practicable, the need to minimize costs

and avoid duplication. (4) To the extent practicable, the Secretary shall allocate observers among commercial fisheries in accordance with the following priority:

(A) The highest priority for allocation shall be for commercial fisheries that have incidental mortality or serious injury of

marine mammals from stocks listed as endangered species or

threatened species under the Endangered Species Act of 1973

(16 U.S.C. 1531 et seq.).

(B) The second highest priority for allocation shall be for

commercial fisheries that have incidental mortality and serious

injury of marine mammals from strategic stocks.

(C) The third highest priority for allocation shall be for

commercial fisheries that have incidental mortality or serious

injury of marine mammals from stocks for which the level of

incidental mortality and serious injury is uncertain.

(5) The Secretary may establish an alternative observer program to provide statistically reliable information on the species and

number of marine mammals incidentally taken in the course of

commercial fishing operations. The alternative observer program

may include direct observation of fishing activities from vessels,

airplanes, or points on shore.

(6) The Secretary is not required to place an observer on a vessel in a fishery if the Secretary finds that—

(A) in a situation in which harvesting vessels are delivering fish to a processing vessel and the catch is not taken on

board the harvesting vessel, statistically reliable information

can be obtained from an observer on board the processing vessel to which the fish are delivered;

(B) the facilities on a vessel for quartering of an observer,

or for carrying out observer functions, are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized; or

(C) for reasons beyond the control of the Secretary, an observer is not available. (7) The Secretary may, with the consent of the vessel owner,

station an observer on board a vessel engaged in a fishery not listed under subsection (c)(1)(A) (i) or (ii).

(8) Any proprietary information collected under this subsection

shall be confidential and shall not be disclosed except—

(A) to Federal employees whose duties require access to

such information;
213 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 118

(B) to State or tribal employees pursuant to an agreement

with the Secretary that prevents public disclosure of the identity or business of any person;

(C) when required by court order; or

(D) in the case of scientific information involving fisheries,

to employees of Regional Fishery Management Councils who

are responsible for fishery management plan development and

monitoring.

(9) The Secretary shall prescribe such procedures as may be

necessary to preserve such confidentiality, except that the Secretary shall release or make public upon request any such information in aggregate, summary, or other form which does not directly

or indirectly disclose the identity or business of any person.

(e) REPORTING REQUIREMENT.—The owner or operator of a

commercial fishing vessel subject to this Act shall report all incidental mortality and injury of marine mammals in the course of

commercial fishing operations to the Secretary by mail or other

means acceptable to the Secretary within 48 hours after the end of

each fishing trip on a standard postage-paid form to be developed

by the Secretary under this section. Such form shall be capable of

being readily entered into and usable by an automated or computerized data processing system and shall require the vessel owner

or operator to provide the following:

(1) The vessel name, and Federal, State, or tribal registration numbers of the registered vessel.

(2) The name and address of the vessel owner or operator.

(3) The name and description of the fishery. (4) The species of each marine mammal incidentally killed

or injured, and the date, time, and approximate geographic location of such occurrence.

(f) TAKE REDUCTION PLANS.—(1) The Secretary shall develop

and implement a take reduction plan designed to assist in the recovery or prevent the depletion of each strategic stock which interacts with a commercial fishery listed under subsection (c)(1)(A) (i)

or (ii), and may develop and implement such a plan for any other

marine mammal stocks which interact with a commercial fishery

listed under subsection (c)(1)(A)(i) which the Secretary determines,

after notice and opportunity for public comment, has a high level

of mortality and serious injury across a number of such marine

mammal stocks.

(2) The immediate goal of a take reduction plan for a strategic

stock shall be to reduce, within 6 months of its implementation, the

incidental mortality or serious injury of marine mammals incidentally taken in the course of commercial fishing operations to levels

less than the potential biological removal level established for that

stock under section 117. The long-term goal of the plan shall be to

reduce, within 5 years of its implementation, the incidental mortality or serious injury of marine mammals incidentally taken in

the course of commercial fishing operations to insignificant levels

approaching a zero mortality and serious injury rate, taking into

account the economics of the fishery, the availability of existing

technology, and existing State or regional fishery management

plans.

(3) If there is insufficient funding available to develop and implement a take reduction plan for all such stocks that interact with
Sec. 118 MARINE MAMMAL PROTECTION ACT OF 1972 214

1Probably should be ‘‘injury; and’’. See section 11 of the Marine Mammal Protection Act

Amendments of 1994 (P.L. 103–238, 108 Stat. 546).

commercial fisheries listed under subsection (c)(1)(A) (i) or (ii), the

Secretary shall give highest priority to the development and implementation of take reduction plans for species or stocks whose level

of incidental mortality and serious injury exceeds the potential biological removal level, those that have a small population size, and

those which are declining most rapidly.

(4) Each take reduction plan shall include—

(A) a review of the information in the final stock assessment published under section 117(b) and any substantial new

information;

(B) an estimate of the total number and, if possible, age

and gender, of animals from the stock that are being incidentally lethally taken or seriously injured each year during the

course of commercial fishing operations, by fishery;

(C) recommended regulatory or voluntary measures for the

reduction of incidental mortality and serious injury; 1

(D) recommended dates for achieving the specific objectives

of the plan.

(5)(A) For any stock in which incidental mortality and serious

injury from commercial fisheries exceeds the potential biological removal level established under section 117, the plan shall include

measures the Secretary expects will reduce, within 6 months of the

plan’s implementation, such mortality and serious injury to a level

below the potential biological removal level. (B) For any stock in which human-caused mortality and serious injury exceeds the potential biological removal level, other than

a stock to which subparagraph (A) applies, the plan shall include

measures the Secretary expects will reduce, to the maximum extent practicable within 6 months of the plan’s implementation, the

incidental mortality and serious injury by such commercial fisheries from that stock. For purposes of this subparagraph, the term

‘‘maximum extent practicable’’ means to the lowest level that is feasible for such fisheries within the 6-month period.

(6)(A) At the earliest possible time (not later than 30 days)

after the Secretary issues a final stock assessment under section

117(b) for a strategic stock, the Secretary shall, and for stocks that

interact with a fishery listed under subsection (c)(1)(A)(i) for which

the Secretary has made a determination under paragraph (1), the

Secretary may—

(i) establish a take reduction team for such stock and appoint the members of such team in accordance with subparagraph (C); and

(ii) publish in the Federal Register a notice of the team’s

establishment, the names of the team’s appointed members,

the full geographic range of such stock, and a list of all commercial fisheries that cause incidental mortality and serious

injury of marine mammals from such stock.

(B) The Secretary may request a take reduction team to address a stock that extends over one or more regions or fisheries, or

multiple stocks within a region or fishery, if the Secretary determines that doing so would facilitate the development and implementation of plans required under this subsection.
215 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 118

(C) Members of take reduction teams shall have expertise regarding the conservation or biology of the marine mammal species

which the take reduction plan will address, or the fishing practices

which result in the incidental mortality and serious injury of such

species. Members shall include representatives of Federal agencies,

each coastal State which has fisheries which interact with the species or stock, appropriate Regional Fishery Management Councils,

interstate fisheries commissions, academic and scientific organizations, environmental groups, all commercial and recreational fisheries groups and gear types which incidentally take the species or

stock, Alaska Native organizations or Indian tribal organizations,

and others as the Secretary deems appropriate. Take reduction

teams shall, to the maximum extent practicable, consist of an equitable balance among representatives of resource user interests and

nonuser interests.

(D) Take reduction teams shall not be subject to the Federal

Advisory Committee Act (5 App. U.S.C.). Meetings of take reduction teams shall be open to the public, and prior notice of meetings

shall be made public in a timely fashion.

(E) Members of take reduction teams shall serve without compensation, but may be reimbursed by the Secretary, upon request,

for reasonable travel costs and expenses incurred in performing

their duties as members of the team.

(7) Where the human-caused mortality and serious injury from

a strategic stock is estimated to be equal to or greater than the potential biological removal level established under section 117 for

such stock and such stock interacts with a fishery listed under subsection (c)(1)(A) (i) or (ii), the following procedures shall apply in

the development of the take reduction plan for the stock:

(A)(i) Not later than 6 months after the date of establishment of a take reduction team for the stock, the team shall

submit a draft take reduction plan for such stock to the Secretary, consistent with the other provisions of this section.

(ii) Such draft take reduction plan shall be developed by

consensus. In the event consensus cannot be reached, the team

shall advise the Secretary in writing on the range of possibilities considered by the team, and the views of both the majority

and minority.

(B)(i) The Secretary shall take the draft take reduction

plan into consideration and, not later than 60 days after the

submission of the draft plan by the team, the Secretary shall

publish in the Federal Register the plan proposed by the team,

any changes proposed by the Secretary with an explanation of

the reasons therefor, and proposed regulations to implement

such plan, for public review and comment during a period of

not to exceed 90 days.

(ii) In the event that the take reduction team does not submit a draft plan to the Secretary within 6 months, the Secretary shall, not later than 8 months after the establishment

of the team, publish in the Federal Register a proposed take

reduction plan and implementing regulations, for public review

and comment during a period of not to exceed 90 days.

(C) Not later than 60 days after the close of the comment

period required under subparagraph (B), the Secretary shall
Sec. 118 MARINE MAMMAL PROTECTION ACT OF 1972 216

issue a final take reduction plan and implementing regulations, consistent with the other provisions of this section.

(D) The Secretary shall, during a period of 30 days after

publication of a final take reduction plan, utilize newspapers

of general circulation, fishery trade associations, electronic

media, and other means of advising commercial fishermen of

the requirements of the plan and how to comply with them.

(E) The Secretary and the take reduction team shall meet

every 6 months, or at such other intervals as the Secretary determines are necessary, to monitor the implementation of the

final take reduction plan until such time that the Secretary determines that the objectives of such plan have been met.

(F) The Secretary shall amend the take reduction plan and

implementing regulations as necessary to meet the requirements of this section, in accordance with the procedures in this

section for the issuance of such plans and regulations.

(8) Where the human-caused mortality and serious injury from

a strategic stock is estimated to be less than the potential biological removal level established under section 117 for such stock and

such stock interacts with a fishery listed under subsection (c)(1)(A)

(i) or (ii), or for any marine mammal stocks which interact with a

commercial fishery listed under subsection (c)(1)(A)(i) for which the

Secretary has made a determination under paragraph (1), the following procedures shall apply in the development of the take reduction plan for such stock:

(A)(i) Not later than 11 months after the date of establishment of a take reduction team for the stock, the team shall

submit a draft take reduction plan for the stock to the Secretary, consistent with the other provisions of this section.

(ii) Such draft take reduction plan shall be developed by

consensus. In the event consensus cannot be reached, the team

shall advise the Secretary in writing on the range of possibilities considered by the team, and the views of both the majority

and minority.

(B)(i) The Secretary shall take the draft take reduction

plan into consideration and, not later than 60 days after the

submission of the draft plan by the team, the Secretary shall

publish in the Federal Register the plan proposed by the team,

any changes proposed by the Secretary with an explanation of

the reasons therefor, and proposed regulations to implement

such plan, for public review and comment during a period of

not to exceed 90 days. (ii) In the event that the take reduction team does not submit a draft plan to the Secretary within 11 months, the Secretary shall, not later than 13 months after the establishment

of the team, publish in the Federal Register a proposed take

reduction plan and implementing regulations, for public review

and comment during a period of not to exceed 90 days.

(C) Not later than 60 days after the close of the comment

period required under subparagraph (B), the Secretary shall

issue a final take reduction plan and implementing regulations, consistent with the other provisions of this section.

(D) The Secretary shall, during a period of 30 days after

publication of a final take reduction plan, utilize newspapers

of general circulation, fishery trade associations, electronic
217 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 118

media, and other means of advising commercial fishermen of

the requirements of the plan and how to comply with them.

(E) The Secretary and the take reduction team shall meet

on an annual basis, or at such other intervals as the Secretary

determines are necessary, to monitor the implementation of

the final take reduction plan until such time that the Secretary

determines that the objectives of such plan have been met.

(F) The Secretary shall amend the take reduction plan and

implementing regulations as necessary to meet the requirements of this section, in accordance with the procedures in this

section for the issuance of such plans and regulations.

(9) In implementing a take reduction plan developed pursuant

to this subsection, the Secretary may, where necessary to implement a take reduction plan to protect or restore a marine mammal

stock or species covered by such plan, promulgate regulations

which include, but are not limited to, measures to—

(A) establish fishery-specific limits on incidental mortality

and serious injury of marine mammals in commercial fisheries

or restrict commercial fisheries by time or area;

(B) require the use of alternative commercial fishing gear

or techniques and new technologies, encourage the development of such gear or technology, or convene expert skippers’

panels;

(C) educate commercial fishermen, through workshops and

other means, on the importance of reducing the incidental mortality and serious injury of marine mammals in affected commercial fisheries; and

(D) monitor, in accordance with subsection (d), the effectiveness of measures taken to reduce the level of incidental

mortality and serious injury of marine mammals in the course

of commercial fishing operations.

(10)(A) Notwithstanding paragraph (6), in the case of any stock

to which paragraph (1) applies for which a final stock assessment

has not been published under section 117(b)(3) by April 1, 1995,

due to a proceeding under section 117(b)(2), or any Federal court

review of such proceeding, the Secretary shall establish a take reduction team under paragraph (6) for such stock as if a final stock

assessment had been published.

(B) The draft stock assessment published for such stock under

section 117(b)(1) shall be deemed the final stock assessment for

purposes of preparing and implementing a take reduction plan for

such stock under this section.

(C) Upon publication of a final stock assessment for such stock

under section 117(b)(3) the Secretary shall immediately reconvene

the take reduction team for such stock for the purpose of amending

the take reduction plan, and any regulations issued to implement

such plan, if necessary, to reflect the final stock assessment or

court action. Such amendments shall be made in accordance with

paragraph (7)(F) or (8)(F), as appropriate.

(D) A draft stock assessment may only be used as the basis for

a take reduction plan under this paragraph for a period of not to

exceed two years, or until a final stock assessment is published,

whichever is earlier. If, at the end of the two-year period, a final

stock assessment has not been published, the Secretary shall cat-
Sec. 118 MARINE MAMMAL PROTECTION ACT OF 1972 218

1So in law. The relationship between ‘‘shall’’ in the matter preceding clause (i) and ‘‘may’’ in

clause (iii) is not apparent.

egorize such stock under section 117(a)(5)(A) and shall revoke any

regulations to implement a take reduction plan for such stock.

(E) Subparagraph (D) shall not apply for any period beyond

two years during which a final stock assessment for such stock has

not been published due to review of a proceeding on such stock assessment by a Federal court. Immediately upon final action by such

court, the Secretary shall proceed under subparagraph (C).

(11) Take reduction plans developed under this section for a

species or stock listed as a threatened species or endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et

seq.) shall be consistent with any recovery plan developed for such

species or stock under section 4 of such Act.

(g) EMERGENCY REGULATIONS.—(1) If the Secretary finds that

the incidental mortality and serious injury of marine mammals

from commercial fisheries is having, or is likely to have, an immediate and significant adverse impact on a stock or species, the Secretary shall take actions as follows:

(A) In the case of a stock or species for which a take reduction plan is in effect, the Secretary shall—

(i) prescribe emergency regulations that, consistent

with such plan to the maximum extent practicable, reduce

incidental mortality and serious injury in that fishery; and

(ii) approve and implement, on an expedited basis, any

amendments to such plan that are recommended by the

take reduction team to address such adverse impact.

(B) In the case of a stock or species for which a take reduction plan is being developed, the Secretary shall—

(i) prescribe emergency regulations to reduce such incidental mortality and serious injury in that fishery; and

(ii) approve and implement, on an expedited basis,

such plan, which shall provide methods to address such

adverse impact if still necessary.

(C) In the case of a stock or species for which a take reduction plan does not exist and is not being developed, or in the

case of a commercial fishery listed under subsection

(c)(1)(A)(iii) which the Secretary believes may be contributing

to such adverse impact, the Secretary shall 1—

(i) prescribe emergency regulations to reduce such incidental mortality and serious injury in that fishery, to the

extent necessary to mitigate such adverse impact;

(ii) immediately review the stock assessment for such

stock or species and the classification of such commercial

fishery under this section to determine if a take reduction

team should be established; and

(iii) may, 1 where necessary to address such adverse

impact on a species or stock listed as a threatened species

or endangered species under the Endangered Species Act

of 1973 (16 U.S.C. 1531 et seq.), place observers on vessels

in a commercial fishery listed under subsection

(c)(1)(A)(iii), if the Secretary has reason to believe such

vessels may be causing the incidental mortality and serious injury to marine mammals from such stock.
219 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 119

(2) Prior to taking action under paragraph (1) (A), (B), or (C),

the Secretary shall consult with the Marine Mammal Commission,

all appropriate Regional Fishery Management Councils, State fishery managers, and the appropriate take reduction team (if established).

(3) Emergency regulations prescribed under this subsection—

(A) shall be published in the Federal Register, together

with an explanation thereof;

(B) shall remain in effect for not more than 180 days or

until the end of the applicable commercial fishing season,

whichever is earlier; and

(C) may be terminated by the Secretary at an earlier date

by publication in the Federal Register of a notice of termination, if the Secretary determines that the reasons for emergency regulations no longer exist.

(4) If the Secretary finds that incidental mortality and serious

injury of marine mammals in a commercial fishery is continuing to

have an immediate and significant adverse impact on a stock or

species, the Secretary may extend the emergency regulations for an

additional period of not more than 90 days or until reasons for the

emergency no longer exist, whichever is earlier.

(h) PENALTIES.—Except as provided in subsection (c), any person who violates this section shall be subject to the provisions of

sections 105 and 107, and may be subject to section 106 as the Secretary shall establish by regulations.

(i) ASSISTANCE.—The Secretary shall provide assistance to Regional Fishery Management Councils, States, interstate fishery

commissions, and Indian tribal organizations in meeting the goal

of reducing incidental mortality and serious injury to insignificant

levels approaching a zero mortality and serious injury rate.

(j) CONTRIBUTIONS.—For purposes of carrying out this section,

the Secretary may accept, solicit, receive, hold, administer, and use

gifts, devises, and bequests.

(k) CONSULTATION WITH SECRETARY OF THE INTERIOR.—The

Secretary shall consult with the Secretary of the Interior prior to

taking actions or making determinations under this section that affect or relate to species or population stocks of marine mammals

for which the Secretary of the Interior is responsible under this

title.

(l) DEFINITIONS.—As used in this section and section

101(a)(5)(E), each of the terms ‘‘fishery’’ and ‘‘vessel of the United

States’’ has the same meaning it does in section 3 of the Magnuson

Fishery Conservation and Management Act (16 U.S.C. 1802).

SEC. 119. ø16 U.S.C. 1388¿ MARINE MAMMAL COOPERATIVE AGREEMENTS IN ALASKA.

(a) IN GENERAL.—The Secretary may enter into cooperative

agreements with Alaska Native organizations to conserve marine

mammals and provide co-management of subsistence use by Alaska

Natives.

(b) GRANTS.—Agreements entered into under this section may

include grants to Alaska Native organizations for, among other

purposes—

(1) collecting and analyzing data on marine mammal populations;
Sec. 120 MARINE MAMMAL PROTECTION ACT OF 1972 220

(2) monitoring the harvest of marine mammals for subsistence use;

(3) participating in marine mammal research conducted by

the Federal Government, States, academic institutions, and

private organizations; and

(4) developing marine mammal co-management structures

with Federal and State agencies.

(c) EFFECT OF JURISDICTION.—Nothing in this section is intended or shall be construed—

(1) as authorizing any expansion or change in the respective jurisdiction of Federal, State, or tribal governments over

fish and wildlife resources; or

(2) as altering in any respect the existing political or legal

status of Alaska Natives, or the governmental or jurisdictional

status of Alaska Native communities or Alaska Native entities.

(d) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated for the purposes of carrying out this section— (1) $1,500,000 to the Secretary of Commerce for each of the

fiscal years 1994, 1995, 1996, 1997, 1998, and 1999; and (2) $1,000,000 to the Secretary of the Interior for each of

the fiscal years 1994, 1995, 1996, 1997, 1998, and 1999.

The amounts authorized to be appropriated under this subsection

are in addition to the amounts authorized to be appropriated under

section 116.

SEC. 120. ø16 U.S.C. 1389¿ PACIFIC COAST TASK FORCE; GULF OF

MAINE.

(a) PINNIPED REMOVAL AUTHORITY.—Notwithstanding any

other provision of this title, the Secretary may permit the intentional lethal taking of pinnipeds in accordance with this section.

(b) APPLICATION.—(1) A State may apply to the Secretary to

authorize the intentional lethal taking of individually identifiable

pinnipeds which are having a significant negative impact on the

decline or recovery of salmonid fishery stocks which—

(A) have been listed as threatened species or endangered

species under the Endangered Species Act of 1973 (16 U.S.C.

1531 et seq.);

(B) the Secretary finds are approaching threatened species

or endangered species status (as those terms are defined in

that Act); or

te through the Ballard Locks at Seattle, Washington.

(2) Any such application shall include a means of identifying

the individual pinniped or pinnipeds, and shall include a detailed

description of the problem interaction and expected benefits of the

taking.

(c) ACTIONS IN RESPONSE TO APPLICATION.—(1) Within 15 days

of receiving an application, the Secretary shall determine whether

the application has produced sufficient evidence to warrant establishing a Pinniped-Fishery Interaction Task Force to address the

situation described in the application. If the Secretary determines

sufficient evidence has been provided, the Secretary shall establish

a Pinniped-Fishery Interaction Task Force and publish a notice in

the Federal Register requesting public comment on the application.

(2) A Pinniped-Fishery Interaction Task Force established

under paragraph (1) shall consist of designated employees of the

Department of Commerce, scientists who are knowledgeable about
221 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 120

the pinniped interaction that the application addresses, representatives of affected conservation and fishing community organizations,

Indian Treaty tribes, the States, and such other organizations as

the Secretary deems appropriate.

(3) Within 60 days after establishment, and after reviewing

public comments in response to the Federal Register notice under

paragraph (1), the Pinniped-Fishery Interaction Task Force shall— (A) recommend to the Secretary whether to approve or

deny the proposed intentional lethal taking of the pinniped or

pinnipeds, including along with the recommendation a description of the specific pinniped individual or individuals, the proposed location, time, and method of such taking, criteria for

evaluating the success of the action, and the duration of the intentional lethal taking authority; and

(B) suggest nonlethal alternatives, if available and practicable, including a recommended course of action.

(4) Within 30 days after receipt of recommendations from the

Pinniped-Fishery Interaction Task Force, the Secretary shall either

approve or deny the application. If such application is approved,

the Secretary shall immediately take steps to implement the intentional lethal taking, which shall be performed by Federal or State

agencies, or qualified individuals under contract to such agencies.

(5) After implementation of an approved application, the

Pinniped-Fishery Interaction Task Force shall evaluate the effectiveness of the permitted intentional lethal taking or alternative

actions implemented. If implementation was ineffective in eliminating the problem interaction, the Task Force shall recommend

additional actions. If the implementation was effective, the Task

Force shall so advise the Secretary, and the Secretary shall disband the Task Force.

(d) CONSIDERATIONS.—In considering whether an application

should be approved or denied, the Pinniped-Fishery Interaction

Task Force and the Secretary shall consider—

(1) population trends, feeding habits, the location of the

pinniped interaction, how and when the interaction occurs, and

how many individual pinnipeds are involved;

(2) past efforts to nonlethally deter such pinnipeds, and

whether the applicant has demonstrated that no feasible and

prudent alternatives exist and that the applicant has taken all

reasonable nonlethal steps without success;

(3) the extent to which such pinnipeds are causing undue

injury or impact to, or imbalance with, other species in the ecosystem, including fish populations; and

(4) the extent to which such pinnipeds are exhibiting behavior that presents an ongoing threat to public safety.

(e) LIMITATION.—The Secretary shall not approve the intentional lethal taking of any pinniped from a species or stock that

is—

(1) listed as a threatened species or endangered species

under the Endangered Species Act of 1973 (16 U.S.C. 1531 et

seq.);

(2) depleted under this Act; or

(3) a strategic stock.

(f) CALIFORNIA SEA LIONS AND PACIFIC HARBOR SEALS; INVESTIGATION AND REPORT.—
Sec. 120 MARINE MAMMAL PROTECTION ACT OF 1972 222

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

(1) The Secretary shall engage in a scientific investigation

to determine whether California sea lions and Pacific harbor

seals—

(A) are having a significant negative impact on the recovery of salmonid fishery stocks which have been listed as

endangered species or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), or

which the Secretary finds are approaching such endangered species or threatened species status; or

(B) are having broader impacts on the coastal ecosystems of Washington, Oregon, and California.

The Secretary shall conclude this investigation and prepare a

report on its results no later than October 1, 1995.

(2) Upon completion of the scientific investigation required

under paragraph (1), the Secretary shall enter into discussions

with the Pacific States Marine Fisheries Commission, on behalf of the States of Washington, Oregon, and California, for

the purpose of addressing any issues or problems identified as

a result of the scientific investigation, and to develop recommendations to address such issues or problems. Any recommendations resulting from such discussions shall be submitted, along with the report, to the Committee on Merchant

Marine and Fisheries 1 of the House of Representatives and the

Committee on Commerce, Science, and Transportation of the

Senate.

(3) The Secretary shall make the report and the recommendations submitted under paragraph (2) available to the

public for review and comment for a period of 90 days.

(4) There are authorized to be appropriated to the Secretary such sums as are necessary to carry out the provisions

of this subsection.

(5) The amounts appropriated under section 308(c) of the

Interjurisdictional Fisheries Act of 1986 (16 U.S.C. 4107(c))

and allocated to the Pacific States Marine Fisheries Commission may be used by the Commission to participate in discussions with the Secretary under paragraph (2).

(g) REGIONWIDE PINNIPED-FISHERY INTERACTION STUDY.—

(1) The Secretary may conduct a study, of not less than

three high predation areas in anadromous fish migration corridors within the Northwest Region of the National Marine

Fisheries Service, on the interaction between fish and

pinnipeds. In conducting the study, the Secretary shall consult

with other State and Federal agencies with expertise in

pinniped-fishery interaction. The study shall evaluate—

(A) fish behavior in the presence of predators generally;

(B) holding times and passage rates of anadromous

fish stocks in areas where such fish are vulnerable to predation;
223 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 120

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

(C) whether additional facilities exist, or could be reasonably developed, that could improve escapement for

anadromous fish; and

(D) other issues the Secretary considers relevant.

(2) Subject to the availability of appropriations, the Secretary may, not later than 18 months after the commencement

of the study under this subsection, transmit a report on the results of the study to the Committee on Commerce, Science, and

Transportation of the Senate and the Committee on Merchant

Marine and Fisheries 1 of the House of Representatives.

(3) The study conducted under this subsection may not be

used by the Secretary as a reason for delaying or deferring a

determination or consideration under subsection (c) or (d).

(h) GULF OF MAINE TASK FORCE.—The Secretary shall establish a Pinniped-Fishery Interaction Task Force to advise the Secretary on issues or problems regarding pinnipeds interacting in a

dangerous or damaging manner with aquaculture resources in the

Gulf of Maine. No later than 2 years from the date of enactment

of this section, the Secretary shall after notice and opportunity for

public comment submit to the Committee on Merchant Marine and

Fisheries 1 of the House of Representatives and the Committee on

Commerce, Science, and Transportation of the Senate a report containing recommended available alternatives to mitigate such interactions.

(i) REQUIREMENTS APPLICABLE TO TASK FORCES.—(1) Any task

force established under this section—

(A) shall to the maximum extent practicable, consist of an

equitable balance among representatives of resource user interests and nonuser interests; and

(B) shall not be subject to the Federal Advisory Committee

Act (5 App. U.S.C.).

(2) Meetings of any task force established under this section

shall be open to the public, and prior notice of those meetings shall

be given to the public by the task force in a timely fashion.

(j) GULF OF MAINE HARBOR PORPOISE.—(1) Nothing in section

117 shall prevent the Secretary from publishing a stock assessment

for Gulf of Maine harbor porpoise in an expedited fashion.

(2) In developing and implementing a take reduction plan

under section 118 for Gulf of Maine harbor porpoise, the Secretary

shall consider all actions already taken to reduce incidental mortality and serious injury of such stock, and may, based on the recommendations of the take reduction team for such stock, modify

the time period required for compliance with section 118(f)(5)(A),

but in no case may such modification extend the date of compliance

beyond April 1, 1997.
Sec. 201 MARINE MAMMAL PROTECTION ACT OF 1972 224

TITLE II—MARINE MAMMAL COMMISSION

ESTABLISHMENT OF COMMISSION

SEC. 201. ø16 U.S.C. 1401¿ (a) There is hereby established the

Marine Mammal Commission (hereafter referred to in this title as

the ‘‘Commission’’).

(b)(1) Effective September 1, 1982, the Commission shall be

composed of three members who shall be appointed by the President, by and with the advice and consent of the Senate. The President shall make his selection from a list of individuals knowledgeable in the fields of marine ecology and resource management, and

who are not in a position to profit from the taking of marine mammals. Such list shall be submitted to him by the Chairman of the

Council on Environmental Quality and unanimously agreed to by

that Chairman, the Secretary of the Smithsonian Institution, the

Director of the National Science Foundation and the Chairman of

the National Academy of Sciences. No member of the Commission

may, during his period of service on the Commission, hold any

other position as an officer or employee of the United States except

as a retired officer or retired civilian employee of the United

States.

(2) The term of office for each member shall be three years; except that of the members initially appointed to the Commission,

the term of one member shall be for one year, the term of one

member shall be for two years, and the term of one member shall

be for three years. No member is eligible for reappointment; except

that any member appointed to fill a vacancy occurring before the

expiration of the term for which his predecessor was appointed (A)

shall be appointed for the remainder of such term, and (B) is eligible for reappointment for one full term. A member may serve after

the expiration of his term until his successor has taken office.

(c) The President shall designate a Chairman of the Commission (hereafter referred to in this title as the ‘‘Chairman’’) from

among its members.

(d) Members of the Commission shall each be compensated at

a rate equal to the daily equivalent of the rate for GS–18 of the

General Schedule under section 5332 of Title 5, United States

Code, for each day such member is engaged in the actual performance of duties vested in the Commission. Each member shall be reimbursed for travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of Title 5, United States Code,

for persons in Government service employed intermittently.

(e) The Commission shall have an Executive Director, who

shall be appointed (without regard to the provisions of Title 5,

United States Code, governing appointments in the competitive

service) by the Chairman with the approval of the Commission and

shall be paid at a rate not in excess of the rate for GS–18 of the

General Schedule under section 5332 of Title 5, United States

Code. The Executive Director shall have such duties as the Chairman may assign.

DUTIES OF COMMISSION

SEC. 202. ø16 U.S.C. 1402¿ (a) The Commission shall—
225 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 202

(1) undertake a review and study of the activities of the

United States pursuant to existing laws and international conventions relating to marine mammals, including, but not limited to, the International Convention for the Regulation of

Whaling, the Whaling Convention Act of 1949, the Interim

Convention on the Conservation of North Pacific Fur Seals,

and the Fur Seal Act of 1966;

(2) conduct a continuing review of the condition of the

stocks of marine mammals, of methods for their protection and

conservation, of humane means of taking marine mammals, of

research programs conducted or proposed to be conducted

under the authority of this Act, and of all applications for permits for scientific research, public display, or enhancing the

survival or recovery of a species or stock;

(3) undertake or cause to be undertaken such other studies

as it deems necessary or desirable in connection with its assigned duties as to the protection and conservation of marine

mammals;

(4) recommend to the Secretary and to other Federal officials such steps as it deems necessary or desirable for the protection and conservation of marine mammals;

(5) recommend to the Secretary of State appropriate policies regarding existing international arrangements for the protection and conservation of marine mammals, and suggest appropriate international arrangements for the protection and

conservation of marine mammals;

(6) recommend to the Secretary such revisions of the endangered species list and threatened species list published pursuant to section 4(c)(1) of the Endangered Species Act of 1973,

as may be appropriate with regard to marine mammals; and

(7) recommend to the Secretary, other appropriate Federal

officials, and Congress such additional measures as it deems

necessary or desirable to further the policies of this Act, including provisions for the protection of the Indians, Eskimos, and

Aleuts whose livelihood may be adversely affected by actions

taken pursuant to this Act.

(b) The Commission shall consult with the Secretary at such

intervals as it or he may deem desirable, and shall provide each

annual report required under section 204, before submission to

Congress, to the Secretary for comment.

(c) The reports and recommendations which the Commission

makes shall be matters of public record and shall be available to

the public at all reasonable times. All other activities of the Commission shall be matters of public record and available to the public in accordance with the provisions of section 552 of Title 5,

United States Code.

(d) Any recommendations made by the Commission to the Secretary and other Federal officials shall be responded to by those individuals within one hundred and twenty days after receipt thereof.

Any recommendations which are not followed or adoptedshall be referred to the Commission together with a detailed explanation of

the reasons why those recommendations were not followed or

adopted.
Sec. 203 MARINE MAMMAL PROTECTION ACT OF 1972 226

COMMITTEE OF SCIENTIFIC ADVISORS ON MARINE MAMMALS

SEC. 203. ø16 U.S.C. 1403¿ (a) The Commission shall establish,

within ninety days after its establishment, a Committee of Scientific Advisors on Marine Mammals (hereafter referred to in this

title as the ‘‘Committee’’). Such Committee shall consist of nine scientists knowledgeable in marine ecology and marine mammal affairs appointed by the Chairman after consultation with the Chairman of the Council on Environmental Quality, the Secretary of the

Smithsonian Institution, the Director of the National Science Foundation, and the Chairman of the National Academy of Sciences.

(b) Except for United States Government employees, members

of the Committee shall each be compensated at a rate equal to the

daily equivalent of the rate for GS–18 of the General Schedule

under section 5332 of Title 5, United States Code, for each day

such member is engaged in the actual performance of duties vested

in the Committee. Each member shall be reimbursed for travel expenses, including per diem in lieu of subsistence, as authorized by

section 5703 of Title 5, United States Code, for persons in Government service employed intermittently.

(c) The Commission shall consult with the Committee on all

studies and recommendations which it may propose to make or has

made, on research programs conducted or proposed to be conducted

under the authority of this Act, and on all applications for permits

for scientific research. Any recommendations made by the Com- mittee or any of its members which are not adopted by the Com- mission shall be transmitted by the Commission to the appropriate

Federal agency and to the appropriate committees of Congress with

a detailed explanation of the Commission’s reasons for not accepting such recommendations.

COMMISSION REPORTS

SEC. 204. ø16 U.S.C. 1404¿ The Commission shall transmit to

Congress, by January 31 of each year, a report which shall

include—

(1) a description of the activities and accomplishments of

the Commission during the immediately preceding year; and

(2) all the findings and recommendations made by and to

the Commission pursuant to section 202 of this Act together

with the responses made to these recommendations.

COORDINATION WITH OTHER FEDERAL AGENCIES

SEC. 205. ø16 U.S.C. 1405¿ The Commission shall have access

to all studies and data compiled by Federal agencies regarding marine mammals. With the consent of the appropriate Secretary or

Agency head, the Commission may also utilize the facilities or services of any Federal agency and shall take every feasible step to

avoid duplication of research and to carry out the purposes of this

Act.

ADMINISTRATION OF COMMISSION

SEC. 206. ø16 U.S.C. 1406¿ The Commission, in carrying out

its responsibilities under this title, may—

(1) employ and fix the compensation of such personnel;

(2) acquire, furnish, and equip such office space;
227 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 301

1So in law. The sentence beginning ‘‘Financial and administrative services...’’ should probably

begin as a flush sentence on the next line.

(3) enter into such contracts or agreements with, or provide such grants to, other organizations, both public and private;

(4) procure the services of such experts or consultants or

an organization thereof as is authorized under section 3109 of

Title 5, United States Code (but at rates for individuals not to

exceed $100 per diem); and

(5) incur such necessary expenses and exercise such other

powers, as are consistent with and reasonably required to perform its functions under this title; except that no fewer than

11 employees must be employed under paragraph (1) at any

time. 1 Financial and administrative services (including those

related to budgeting, accounting, financial reporting, personnel,

and procurement) shall be provided the Commission by the

General Services Administration, for which payment shall be

made in advance, or by reimbursement from funds of the Commission in such amounts as may be agreed upon by the Chairman and the Administrator of General Services.

SEC. 207. ø16 U.S.C. 1407¿ AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the Marine Mammal Commission, for purposes of carrying out this title, $1,500,000

for fiscal year 1994, $1,550,000 for fiscal year 1995, $1,600,000 for

fiscal year 1996, $1,650,000 for fiscal year 1997, $1,700,000 for fiscal year 1998, and $1,750,000 for fiscal year 1999.

TITLE III—INTERNATIONAL DOLPHIN CONSERVATION

PROGRAM

SEC. 301. ø16 U.S.C. 1411¿ FINDINGS AND POLICY.

(a) FINDINGS.—The Congress finds the following:

(1) The yellowfin tuna fishery of the eastern tropical Pacific Ocean has resulted in the deaths of millions of dolphins.

(2) Significant awareness and increased concern for the

health and safety of dolphin populations has encouraged a

change in fishing methods worldwide.

(3) United States tuna fishing vessels have led the world

in the development of fishing methods to reduce dolphin mortalities in the eastern tropical Pacific Ocean and United States

tuna processing companies have voluntarily promoted the marketing of tuna that is dolphin safe.

(4) Nations harvesting yellowfin tuna in the eastern tropical Pacific Ocean have demonstrated their willingness to participate in appropriate multilateral agreements to reduce dolphin mortality progressively to a level approaching zero

through the setting of annual limits, with the goal of eliminating dolphin mortality in that fishery. Recognition of the

International Dolphin Conservation Program will assure that

the existing trend of reduced dolphin mortality continues; that

individual stocks of dolphins are adequately protected; and

that the goal of eliminating all dolphin mortality continues to

be a priority.

(b) POLICY.—It is the policy of the United States to—
Sec. 302 MARINE MAMMAL PROTECTION ACT OF 1972 228

(1) eliminate the marine mammal mortality resulting from

the intentional encirclement of dolphins and other marine

mammals in tuna purse seine fisheries;

(2) support the International Dolphin Conservation Program and efforts within the Program to reduce, with the goal

of eliminating, the mortality referred to in paragraph (1);

(3) ensure that the market of the United States does not

act as an incentive to the harvest of tuna caught with driftnets

or caught by purse seine vessels in the eastern tropical Pacific

Ocean not operating in compliance with the International Dolphin Conservation Program;

(4) secure appropriate multilateral agreements to ensure

that United States tuna fishing vessels shall have continued

access to productive tuna fishing grounds in the South Pacific

Ocean and elsewhere; and

(5) encourage observer coverage on purse seine vessels

fishing for tuna outside of the eastern tropical Pacific Ocean in

a fishery in which the Secretary has determined that a regular

and significant association occurs between marine mammals

and tuna, and in which tuna is harvested through the use of

purse seine nets deployed on or to encircle marine mammals.

SEC. 302. ø16 U.S.C. 1412¿ INTERNATIONAL DOLPHIN CONSERVATION

PROGRAM.

The Secretary of State, in consultation with the Secretary,

shall seek to secure a binding international agreement to establish

an International Dolphin Conservation Program that requires—

(1) that the total annual dolphin mortality in the purse

seine fishery for yellowfin tuna in the eastern tropical Pacific

Ocean shall not exceed 5,000 animals with a commitment and

objective to progressively reduce dolphin mortality to a level

approaching zero through the setting of annual limits;

(2) the establishment of a per-stock per-year dolphin mortality limit, to be in effect through calendar year 2000, at a

level between 0.2 percent and 0.1 percent of the minimum population estimate, as calculated, revised, or approved by the

Secretary;

(3) the establishment of a per-stock per-year dolphin mortality limit, beginning with the calendar year 2001, at a level

less than or equal to 0.1 percent of the minimum

population estimate as calculated, revised, or approved by the

Secretary;

(4) that if a dolphin mortality limit is exceeded under—

(A) paragraph (1), all sets on dolphins shall cease for

the applicable fishing year; and

(B) paragraph (2) or (3), all sets on the stocks covered

under paragraph (2) or (3) and any mixed schools that contain any of those stocks shall cease for the applicable fishing year;

(5) a scientific review and assessment to be conducted in

calendar year 1998 to—

(A) assess progress in meeting the objectives set for

calendar year 2000 under paragraph (2); and

(B) as appropriate, consider recommendations for

meeting these objectives;
229 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 303

(6) a scientific review and assessment to be conducted in

calendar year 2000—

(A) to review the stocks covered under paragraph (3);

and

(B) as appropriate to consider recommendations to further the objectives set under that paragraph;

(7) the establishment of a per vessel maximum annual dolphin mortality limit consistent with the established per-year

mortality limits, as determined under paragraphs (1) through

(3); and

(8) the provision of a system of incentives to vessel captains to continue to reduce dolphin mortality, with the goal of

eliminating dolphin mortality.

SEC. 303. ø16 U.S.C. 1413¿ REGULATORY AUTHORITY OF THE SECRETARY.

(a) REGULATIONS.—

(1) The Secretary shall issue regulations, and revise those

regulations as may be appropriate, to implement the International Dolphin Conservation Program.

(2)(A) The Secretary shall issue regulations to authorize

and govern the taking of marine mammals in the eastern tropical Pacific Ocean, including any species of marine mammal

designated as depleted under this Act but not listed as endangered or threatened under the Endangered Species Act (16

U.S.C. 1531 et seq.), by vessels of the United States participating in the International Dolphin Conservation Program.

(B) Regulations issued under this section shall include

provisions—

(i) requiring observers on each vessel;

(ii) requiring use of the backdown procedure or other

procedures equally or more effective in avoiding mortality

of, or serious injury to, marine mammals in fishing operations;

(iii) prohibiting intentional sets on stocks and schools

in accordance with the International Dolphin Conservation

Program;

(iv) requiring the use of special equipment, including

dolphin safety panels in nets, monitoring devices as identified by the International Dolphin Conservation Program to

detect unsafe fishing conditions that may cause high incidental dolphin mortality before nets are deployed by a

tuna vessel, operable rafts, speedboats with towing bridles,

floodlights in operable condition, and diving masks and

snorkels;

(v) ensuring that the backdown procedure during sets

of purse seine net on marine mammals is completed and

rolling of the net to sack up has begun no later than 30

minutes before sundown;

(vi) banning the use of explosive devices in all purse

seine operations;

(vii) establishing per vessel maximum annual dolphin

mortality limits, total dolphin mortality limits and

per-stock per-year mortality limits in accordance with the

International Dolphin Conservation Program;
Sec. 303 MARINE MAMMAL PROTECTION ACT OF 1972 230

(viii) preventing the making of intentional sets on dolphins after reaching either the vessel maximum annual

dolphin mortality limits, total dolphin mortality limits, or

per-stock per-year mortality limits;

(ix) preventing the fishing on dolphins by a vessel

without an assigned vessel dolphin mortality limit;

(x) allowing for the authorization and conduct of experimental fishing operations, under such terms and conditions as the Secretary may prescribe, for the purpose of

testing proposed improvements in fishing techniques and

equipment that may reduce or eliminate dolphin mortality

or serious injury do not require the encirclement of dolphins in the course of commercial yellowfin tuna fishing;

(xi) authorizing fishing within the area covered by the

International Dolphin Conservation Program by vessels of

the United States without the use of special equipment or

nets if the vessel takes an observer and does not intentionally deploy nets on, or encircle, dolphins, under such

terms and conditions as the Secretary may prescribe; and

(xii) containing such other restrictions and requirements as the Secretary determines are necessary to

implement the International Dolphin Conservation Program with respect to vessels of the United States.

(C) ADJUSTMENTS TO REQUIREMENTS.—The Secretary may

make such adjustments as may be appropriate to requirements

of subparagraph (B) that pertain to fishing gear, vessel equipment, and fishing practices to the extent the adjustments are

consistent with the International Dolphin Conservation Program.

(b) CONSULTATION.—In developing any regulation under this

section, the Secretary shall consult with the Secretary of State, the

Marine Mammal Commission, and the United States Commissioners to the Inter-American Tropical Tuna Commission appointed

under section 3 of the Tuna Conventions Act of 1950 (16 U.S.C.

952).

(c) EMERGENCY REGULATIONS.—

(1) If the Secretary determines, on the basis of the best scientific information available (including research conducted

under section 304 and information obtained under the International Dolphin Conservation Program) that the incidental

mortality and serious injury of marine mammals authorized

under this title is having, or is likely to have, a significant adverse impact on a marine mammal stock or species, the Secretary shall—

(A) notify the Inter-American Tropical Tuna Commission of his or her determination, along with recommendations to the Commission as to actions necessary to reduce

incidental mortality and serious injury and mitigate such

adverse impact; and

(B) prescribe emergency regulations to reduce incidental mortality and serious injury and mitigate such adverse impact.

(2) Before taking action under subparagraph (A) or (B) of

paragraph (1), the Secretary shall consult with the Secretary

of State, the Marine Mammal Commission, and the United
231 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 304

States Commissioners to the Inter-American Tropical Tuna

Commission.

(3) Emergency regulations prescribed under this

subsection—

(A) shall be published in the Federal Register, together with an explanation thereof;

(B) shall remain in effect for the duration of the applicable fishing year; and

(C) may be terminated by the Secretary at an earlier

date by publication in the Federal Register of a notice of

termination if the Secretary determines that the reasons

for the emergency action no longer exist.

(4) If the Secretary finds that the incidental mortality and

serious injury of marine mammals in the yellowfin tuna fishery

in the eastern tropical Pacific Ocean is continuing to have a

significant adverse impact on a stock or species, the Secretary

may extend the emergency regulations for such additional periods as may be necessary.

(5) Within 120 days after the Secretary notifies the United

States Commissioners to the Inter-American Tropical Tuna

Commission of the Secretary’s determination under paragraph

(1)(A), the United States Commissioners shall call for a special

meeting of the Commission to address the actions necessary to

reduce incidental mortality and serious injury and mitigate the

adverse impact which resulted in the determination. The Commissioners shall report the results of the special meeting in

writing to the Secretary and to the Secretary of State. In their

report, the Commissioners shall—

(A) include a description of the actions taken by the

harvesting nations or under the International Dolphin

Conservation Program to reduce the incidental mortality

and serious injury and measures to mitigate the adverse

impact on the marine mammal species or stock;

(B) indicate whether, in their judgment, the actions

taken address the problem adequately; and

(C) if they indicate that the actions taken do not address the problem adequately, include recommendations of

such additional action to be taken as may be necessary.

SEC. 304. ø16 U.S.C. 1414a¿ RESEARCH.

(a) REQUIRED RESEARCH.—

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

the Marine Mammal Commission and the Inter-American

Tropical Tuna Commission, conduct a study of the effect of intentional encirclement (including chase) on dolphins and dolphin stocks incidentally taken in the course of purse seine fishing for yellowfin tuna in the eastern tropical Pacific Ocean.

The study, which shall commence on October 1, 1997, shall

consist of abundance surveys as described in paragraph (2) and

stress studies as described in paragraph (3), and shall address

the question of whether such encirclement is having a significant adverse impact on any depleted dolphin stock in the eastern tropical Pacific Ocean.

(2) POPULATION ABUNDANCE SURVEYS.—The abundance

surveys under this subsection shall survey the abundance of
Sec. 304 MARINE MAMMAL PROTECTION ACT OF 1972 232

such depleted stocks and shall be conducted during each of the

calendar years 1998, 1999, and 2000.

(3) STRESS STUDIES.—The stress studies under this subsection shall include—

(A) a review of relevant stress-related research and a

3-year series of necropsy samples from dolphins obtained

by commercial vessels;

(B) a 1-year review of relevant historical demographic

and biological data related to dolphins and dolphin stocks

referred to in paragraph (1); and

(C) an experiment involving the repeated chasing and

capturing of dolphins by means of intentional encirclement.

(4) REPORT.—No later than 90 days after publishing the

finding under subsection (g)(2) of the Dolphin Protection Consumer Information Act, the Secretary shall complete and submit a report containing the results of the research described in

this subsection to the United States Senate Committee on

Commerce, Science, and Transportation and the United States

House of Representatives Committees on Resources and on

Commerce, and to the Inter-American Tropical Tuna Commission.

(b) OTHER RESEARCH.—

(1) IN GENERAL.—In addition to conducting the research

described in subsection (a), the Secretary shall, in consultation

with the Marine Mammal Commission and in cooperation with

the nations participating in the International Dolphin

Conservation Program and the Inter-American Tropical Tuna

Commission, undertake or support appropriate scientific research to further the goals of the International Dolphin Conservation Program.

(2) SPECIFIC AREAS OF RESEARCH.—Research carried out

under paragraph (1) may include—

(A) projects to devise cost-effective fishing methods

and gear so as to reduce, with the goal of eliminating, the

incidental mortality and serious injury of marine mammals in connection with commercial purse seine fishing in

the eastern tropical Pacific Ocean;

(B) projects to develop cost-effective methods of fishing

for mature yellowfin tuna without setting nets on dolphins

or other marine mammals;

(C) projects to carry out stock assessments for those

marine mammal species and marine mammal stocks taken

in the purse seine fishery for yellowfin tuna in the eastern

tropical Pacific Ocean, including species or stocks not within waters under the jurisdiction of the United States; and

(D) projects to determine the extent to which the incidental take of nontarget species, including juvenile tuna,

occurs in the course of purse seine fishing for yellowfin

tuna in the eastern tropical Pacific Ocean, the geographic

location of the incidental take, and the impact of that incidental take on tuna stocks and nontarget species.

(c) AUTHORIZATION OF APPROPRIATIONS.—
233 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 306

(1) There are authorized to be appropriated to the Secretary the following amounts, to be used by the Secretary to

carry out the research described in subsection (a):

(A) $4,000,000 for fiscal year 1998.

(B) $3,000,000 for fiscal year 1999.

(C) $4,000,000 for fiscal year 2000.

(D) $1,000,000 for fiscal year 2001.

(2) In addition to the amount authorized to be appropriated under paragraph (1), there are authorized to be

appropriated to the Secretary for carrying out this section

$3,000,000 for each of the fiscal years 1998, 1999, 2000, and

2001.

SEC. 305. ø16 U.S.C. 1415¿ REPORTS BY THE SECRETARY.

Notwithstanding section 103(f), the Secretary shall submit annual reports to the Congress which include—

(1) results of research conducted pursuant to section 304;

(2) a description of the status and trends of stocks of tuna;

(3) a description of the efforts to assess, avoid, reduce, and

minimize the bycatch of juvenile yellowfin tuna and bycatch of

nontarget species;

(4) a description of the activities of the International

Dolphin Conservation Program and of the efforts of the United

States in support of the Program’s goals and objectives, including the protection of dolphin stocks in the eastern tropical Pacific Ocean, and an assessment of the effectiveness of the Program;

(5) actions taken by the Secretary under section

101(a)(2)(B) and section 101(d);

(6) copies of any relevant resolutions and decisions of the

Inter-American Tropical Tuna Commission, and any regulations promulgated by the Secretary under this title; and

(7) any other information deemed relevant by the Secretary.

SEC. 306. ø16 U.S.C. 1416¿ PERMITS.

(a) IN GENERAL.— (1) Consistent with the regulations issued pursuant to section 303, the Secretary shall issue a permit to a vessel of the

United States authorizing participation in the International

Dolphin Conservation Program and may require a permit for

the person actually in charge of and controlling the fishing operation of the vessel. The Secretary shall prescribe such procedures as are necessary to carry out this subsection, including

requiring the submission of—

(A) the name and official number or other identification of each fishing vessel for which a permit is sought, together with the name and address of the owner thereof;

and

(B) the tonnage, hold capacity, speed, processing

equipment, and type and quantity of gear, including an inventory of special equipment required under section 303,

with respect to each vessel.

(2) The Secretary is authorized to charge a fee for granting

an authorization and issuing a permit under this section. The

level of fees charged under this paragraph may not exceed the
Sec. 306 MARINE MAMMAL PROTECTION ACT OF 1972 234

administrative cost incurred in granting an authorization and

issuing a permit. Fees collected under this paragraph shall be

available to the Under Secretary of Commerce for Oceans and

Atmosphere for expenses incurred in granting authorizations

and issuing permits under this section.

(3) After the effective date of the International Dolphin

Conservation Program Act, no vessel of the United States shall

operate in the yellowfin tuna fishery in the eastern tropical Pacific Ocean without a valid permit issued under this section.

(b) PERMIT SANCTIONS.—

(1) In any case in which—

(A) a vessel for which a permit has been issued under

this section has been used in the commission of an act prohibited under section 307;

(B) the owner or operator of any such vessel or any

other person who has applied for or been issued a permit

under this section has acted in violation of section 307; or

(C) any civil penalty or criminal fine imposed on a vessel, owner or operator of a vessel, or other person who has

applied for or been issued a permit under this section has

not been paid or is overdue,

the Secretary may—

(i) revoke any permit with respect to such vessel,

with or without prejudice to the issuance of subsequent permits;

(ii) suspend such permit for a period of time considered by the Secretary to be appropriate;

(iii) deny such permit; or

(iv) impose additional conditions or restrictions on

any permit issued to, or applied for by, any such vessel or person under this section.

(2) In imposing a sanction under this subsection, the

Secretary shall take into account—

(A) the nature, circumstances, extent, and gravity of

the prohibited acts for which the sanction is imposed; and

(B) with respect to the violator, the degree of culpability, any history of prior offenses, and other such matters

as justice requires.

(3) Transfer of ownership of a vessel, by sale or otherwise,

shall not extinguish any permit sanction that is in effect or is

pending at the time of transfer of ownership. Before executing

the transfer of ownership of a vessel, by sale or otherwise, the

owner shall disclose in writing to the prospective transferee

the existence of any permit sanction that will be in effect or

pending with respect to the vessel at the time of transfer.

(4) In the case of any permit that is suspended for the failure to pay a civil penalty or criminal fine, the Secretary shall

reinstate the permit upon payment of the penalty or fine and

interest thereon at the prevailing rate.

(5) No sanctions shall be imposed under this section unless

there has been a prior opportunity for a hearing on the facts

underlying the violation for which the sanction is imposed, either in conjunction with a civil penalty proceeding under this

title or otherwise.
235 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 401

1So in law. Probably ‘‘and’’ should be deleted.

SEC. 307. ø16 U.S.C. 1417¿ PROHIBITIONS.

(a) IN GENERAL.—It is unlawful—

(1) for any person to sell, purchase, offer for sale, transport, or ship, in the United States, any tuna or tuna product

unless the tuna or tuna product is either dolphin safe or has

been harvested in compliance with the International Dolphin

Conservation Program by a country that is a member of the

Inter-American Tropical Tuna Commission or has initiated and

within 6 months thereafter completed all steps required of applicant nations in accordance with Article V, paragraph 3 of

the Convention establishing the Inter-American Tropical Tuna

Commission, to become a member of that organization;

(2) except as provided for in subsection 101(d), for any person or vessel subject to the jurisdiction of the United States intentionally to set a purse seine net on or to encircle any marine mammal in the course of tuna fishing operations in the

eastern tropical Pacific Ocean except in accordance with this

title and regulations issued pursuant to this title; and 1

(3) for any person to import any yellowfin tuna or yellowfin tuna product or any other fish or fish product in violation of a ban on importation imposed under section 101(a)(2);

(4) for any person to violate any regulation promulgated

under this title;

(5) for any person to refuse to permit any duly authorized

officer to board a vessel subject to that person’s control for purposes of conducting any search or inspection in connection with

the enforcement of this title; and

(6) for any person to assault, resist, oppose, impede, intimidate, or interfere with any such authorized officer in the

conduct of any search or inspection described in paragraph (5).

(b) PENALTIES.— (1) CIVIL PENALTY.—A person that knowingly and willfully

violates subsection (a) (1), (2), (3), (4), or (5) shall be subject

to a civil penalty under section 105(a).

(2) CRIMINAL PENALTY.—A person that knowingly and willfully violates subsection (a)(5) or (a)(6) shall be subject to a

criminal penalty under section 105(b).

(c) CIVIL FORFEITURES.—Any vessel (including its fishing gear,

appurtenances, stores, and cargo) used, and any fish (or its fair

market value) taken or retained, in any manner, in connection with

or as a result of the commission of any act prohibited by this section shall be subject to forfeiture to the United States in the manner provided in section 310 of the Magnuson Fishery Conservation

and Management Act.

TITLE IV—MARINE MAMMAL HEALTH AND STRANDING

RESPONSE

SEC. 401. ø16 U.S.C. 1421¿ ESTABLISHMENT OF PROGRAM.

(a) ESTABLISHMENT.—The Secretary shall, in consultation with

the Secretary of the Interior, the Marine Mammal Commission,

and individuals with knowledge and experience in marine science,

marine mammal science, marine mammal veterinary and husbandry practices, and marine conservation, including stranding
Sec. 402 MARINE MAMMAL PROTECTION ACT OF 1972 236

network participants, establish a program to be known as the ‘‘Marine Mammal Health and Stranding Response Program’’.

(b) PURPOSES.—The purposes of the Program shall be to—

(1) facilitate the collection and dissemination of reference

data on the health of marine mammals and health trends of

marine mammal populations in the wild;

(2) correlate the health of marine mammals and marine

mammal populations, in the wild, with available data on physical, chemical, and biological environmental parameters; and

(3) coordinate effective responses to unusual mortality

events by establishing a process in the Department of Commerce in accordance with section 404.

SEC. 402. ø16 U.S.C. 1421a¿ DETERMINATION; DATA COLLECTION AND

DISSEMINATION.

(a) DETERMINATION FOR RELEASE.—The Secretary shall, in consultation with the Secretary of the Interior, the Marine Mammal

Commission, and individuals with knowledge and experience in

marine science, marine mammal science, marine mammal veterinary and husbandry practices, and marine conservation, including

stranding network participants, develop objective criteria, after an

opportunity for public review and comment, to provide guidance for

determining at what point a rehabilitated marine mammal is releasable to the wild.

(b) COLLECTION.—The Secretary shall, in consultation with the

Secretary of the Interior, collect and update, periodically, existing

information on—

(1) procedures and practices for—

(A) rescuing and rehabilitating stranded marine mammals, including criteria used by stranding network participants, on a species-by-species basis, for determining at

what point a marine mammal undergoing rescue and rehabilitation is returnable to the wild; and

(B) collecting, preserving, labeling, and transporting

marine mammal tissues for physical, chemical, and biological analyses;

(2) appropriate scientific literature on marine mammal

health, disease, and rehabilitation;

(3) strandings, which the Secretary shall compile and analyze, by region, to monitor species, numbers, conditions, and

causes of illnesses and deaths of stranded marine mammals;

and

(4) other life history and reference level data, including

marine mammal tissue analyses, that would allow comparison

of the causes of illness and deaths in stranded marine mammals with physical, chemical, and biological environmental parameters.

(c) AVAILABILITY.—The Secretary shall make information collected under this section available to stranding network participants and other qualified scientists.

SEC. 403. ø16 U.S.C. 1421b¿ STRANDING RESPONSE AGREEMENTS.

(a) IN GENERAL.—The Secretary may enter into an agreement

under section 112(c) with any person to take marine mammals

under section 109(h)(1) in response to a stranding.
237 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 404

(b) REQUIRED PROVISION.—An agreement authorized by subsection (a) shall—

(1) specify each person who is authorized to perform activities under the agreement; and

(2) specify any terms and conditions under which a person

so specified may delegate that authority to another person.

(c) REVIEW.—The Secretary shall periodically review agreements under section 112(c) that are entered into pursuant to this

title, for performance adequacy and effectiveness.

SEC. 404. ø16 U.S.C. 1421c¿ UNUSUAL MORTALITY EVENT RESPONSE.

(a) RESPONSE.—

(1) WORKING GROUP.—

(A) The Secretary, acting through the Office, shall establish, in consultation with the Secretary of the Interior,

a marine mammal unusual mortality event working group,

consisting of individuals with knowledge and experience in

marine science, marine mammal science, marine mammal

veterinary and husbandry practices, marine conservation,

and medical science, to provide guidance to the Secretary

and the Secretary of the Interior for—

(i) determining whether an unusual mortality

event is occurring;

(ii) determining, after an unusual mortality event

has begun, if response actions with respect to that

event are no longer necessary; and

(iii) developing the contingency plan in accordance

with subsection (b), to assist the Secretary in responding to unusual mortality events.

(B) The Federal Advisory Committee Act (5 App.

U.S.C.) shall not apply to the marine mammal unusual

mortality event working group established under this

paragraph.

(2) RESPONSE TIMING.—The Secretary, in consultation with

the Secretary of the Interior, shall to the extent necessary and

practicable—

(A) within 24 hours after receiving notification from a

stranding network participant that an unusual mortality

event might be occurring, contact as many members as is

possible of the unusual mortality event working group for

guidance; and

(B) within 48 hours after receiving such notification—

(i) make a determination as to whether an unusual mortality event is occurring;

(ii) inform the stranding network participant of

that determination; and

(iii) if the Secretary has determined an unusual

mortality event is occurring, designate an Onsite Coordinator for the event, in accordance with subsection

(c).

(b) CONTINGENCY PLAN.—

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

the Secretary of the Interior and the unusual mortality event

working group, and after an opportunity for public review and
Sec. 404 MARINE MAMMAL PROTECTION ACT OF 1972 238

comment, issue a detailed contingency plan for responding to

any unusual mortality event.

(2) CONTENTS.—The contingency plan required under this

subsection shall include—

(A) a list of persons, including stranding network participants, at a regional, State, and local level, who can assist the Secretary in implementing a coordinated and effective response to an unusual mortality event;

(B) the types of marine mammal tissues and analyses

necessary to assist in diagnosing causes of unusual mortality events;

(C) training, mobilization, and utilization procedures

for available personnel, facilities, and other resources necessary to conduct a rapid and effective response to unusual

mortality events; and

(D) such requirements as are necessary to—

(i) minimize death of marine mammals in the wild

and provide appropriate care of marine mammals during an unusual mortality event;

(ii) assist in identifying the cause or causes of an

unusual mortality event;

(iii) determine the effects of an unusual mortality

event on the size estimates of the affected populations

of marine mammals; and

(iv) identify any roles played in an unusual mortality event by physical, chemical, and biological factors, including contaminants.

(c) ONSITE COORDINATORS.—

(1) DESIGNATION.—

(A) The Secretary shall, in consultation with the Secretary of the Interior, designate one or more Onsite Coordinators for an unusual mortality event, who shall make

immediate recommendations to the stranding network participants on how to proceed with response activities.

(B) An Onsite Coordinator so designated shall be one

or more appropriate Regional Directors of the National

Marine Fisheries Service or the United States Fish and

Wildlife Service, or their designees.

(C) If, because of the wide geographic distribution,

multiple species of marine mammals involved, or magnitude of an unusual mortality event, more than one Onsite Coordinator is designated, the Secretary shall, in consultation with the Secretary of the Interior, designate

which of the Onsite Coordinators shall have primary responsibility with respect to the event.

(2) FUNCTIONS.—

(A) An Onsite Coordinator designated under this subsection shall coordinate and direct the activities of all

persons responding to an unusual mortality event in

accordance with the contingency plan issued under subsection (b), except that—

(i) with respect to any matter that is not covered

by the contingency plan, an Onsite Coordinator shall

use his or her best professional judgment; and
239 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 406

1So in original. Public Law 103–238 (sec. 6, 108 Stat. 542) added this new clause with the

wrong indentation. 2So in law. Probably should be ‘‘Government’’.

(ii) the contingency plan may be temporarily modified by an Onsite Coordinator, consulting as expeditiously as possible with the Secretary, the Secretary of

the Interior, and the unusual mortality event working

group.

(B) An Onsite Coordinator may delegate to any qualified person authority to act as an Onsite Coordinator

under this title.

SEC. 405. ø16 U.S.C. 1421d¿ UNUSUAL MORTALITY EVENT ACTIVITY

FUNDING.

(a) ESTABLISHMENT OF FUND.—There is established in the

Treasury an interest bearing fund to be known as the ‘‘Marine

Mammal Unusual Mortality Event Fund’’, which shall consist of

amounts deposited into the Fund under subsection (c).

(b) USES.—

(1) IN GENERAL.—Amounts in the Fund—

(A) shall be available only for use by the Secretary, in

consultation with the Secretary of the Interior—

(i) to compensate persons for special costs incurred

in acting in accordance with the contingency plan

issued under section 404(b) or under the direction of

an Onsite Coordinator for an unusual mortality event;

(ii) for reimbursing any stranding network participant for costs incurred in preparing and transporting

tissues collected with respect to an unusual mortality

event for the Tissue Bank; and

(iii) 1 for care and maintenance of marine mammal seized

under section 104(c)(2)(D); and

(B) shall remain available until expended.

(2) PENDING CLAIMS.—If sufficient amounts are not available in the Fund to satisfy any authorized pending claim, such

claim shall remain pending until such time as sufficient

amounts are available. All authorized pending claims shall be

satisfied in the order received.

(c) DEPOSITS INTO THE FUND.—There shall be deposited into

the Fund—

(1) amounts appropriated to the Fund;

(2) other amounts appropriated to the Secretary for use

with respect to unusual mortality events; and

(3) amounts received by the United States in the form of

gifts, devises, and bequests under subsection (d).

(d) ACCEPTANCE OF DONATIONS.—For purposes of carrying out

this title and section 104(c)(2)(D), the Secretary may accept, solicit,

and use the services of volunteers, and may accept, solicit, receive,

hold, administer, and use gifts, devises, and bequests.

SEC. 406. ø16 U.S.C. 1421e¿ LIABILITY.

(a) IN GENERAL.—A person who is authorized to respond to a

stranding pursuant to an agreement entered into under section

112(c) is deemed to be an employee of the government 2 for pur-
Sec. 407 MARINE MAMMAL PROTECTION ACT OF 1972 240

poses of chapter 171 of title 28, United States Code, with respect

to actions of the person that are—

(1) in accordance with the agreement; and

(2) in the case of an unusual mortality event, in accordance with—

(A) the contingency plan issued under section 404(b);

(B) the instructions of an Onsite Coordinator designated under section 404(c); or

(C) the best professional judgment of an Onsite Coordinator, in the case of any matter that is not covered by

the contingency plan.

(b) LIMITATION.—Subsection (a) does not apply to actions of a

person described in that subsection that are grossly negligent or

that constitute willful misconduct.

SEC. 407. ø16 U.S.C. 1421f¿ NATIONAL MARINE MAMMAL TISSUE BANK

AND TISSUE ANALYSIS.

(a) TISSUE BANK.— (1) IN GENERAL.—The Secretary shall make provision for

the storage, preparation, examination, and archiving of marine

mammal tissues. Tissues archived pursuant to this subsection

shall be known as the ‘‘National Marine Mammal Tissue

Bank’’.

(2) GUIDANCE FOR MARINE MAMMAL TISSUE COLLECTION, PREPARATION, AND ARCHIVING.—The Secretary shall, in consultation with individuals with knowledge and expertise in marine science, marine mammal science, marine mammal veterinary and husbandry practices, and marine conservation, issue

guidance, after an opportunity for public review and comment,

for marine mammal tissue collection, preparation, archiving,

and quality control procedures, regarding—

(A) appropriate and uniform methods and standards

for those activities to provide confidence in marine mammal tissue samples used for research; and

(B) documentation of procedures used for collecting,

preparing, and archiving those samples.

(3) SOURCE OF TISSUE.—In addition to tissues taken during

marine mammal unusual mortality events, the Tissue Bank

shall incorporate tissue samples taken from other sources in

the wild, including—

(A) samples from marine mammals taken incidental to

commercial fishing operations;

(B) samples from marine mammals taken for subsistence purposes;

(C) biopsy samples; and

(D) any other samples properly collected.

(b) TISSUE ANALYSIS.—The Secretary shall, in consultation

with the Marine Mammal Commission, the Secretary of the Interior, and individuals with knowledge and experience in marine

science, marine mammal science, marine mammal veterinary and

husbandry practices, and marine conservation, issue guidance,

after an opportunity for public review and comment, for analyzing

tissue samples (by use of the most effective and advanced diagnostic technologies and tools practicable) as a means to monitor

and measure overall health trends in representative species or populations of marine mammals, including—
241 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 408

(1) the levels of, and if possible, the effects of, potentially

harmful contaminants; and

(2) the frequency of, and if possible, the causes and effects

of abnormal lesions or anomalies.

(c) DATA BASE.—

(1) IN GENERAL.—The Secretary shall maintain a central

data base which provides an effective means for tracking and

accessing data on marine mammals, including relevant data on

marine mammal tissues collected for and maintained in the

Tissue Bank.

(2) CONTENTS.—The data base established under this subsection shall include—

(A) reference data on the health of marine mammals

and populations of marine mammals; and

(B) data on species of marine mammals that are subject to unusual mortality events.

(d) ACCESS.—The Secretary shall, in consultation with the Secretary of the Interior, establish criteria, after an opportunity for

public review and comment, for access to—

(1) marine mammal tissues in the Tissue Bank;

(2) analyses conducted pursuant to subsection (b); and

(3) marine mammal data in the data base maintained

under subsection (c);

which provide for appropriate uses of the tissues, analyses, and

data by qualified scientists, including stranding network participants.

SEC. 408. ø16 U.S.C. 1421f–1¿ JOHN H. PRESCOTT MARINE MAMMAL RESCUE ASSISTANCE GRANT PROGRAM.

(a) IN GENERAL.—(1) Subject to the availability of appropriations, the Secretary shall conduct a grant program to be known as

the John H. Prescott Marine Mammal Rescue Assistance Grant

Program, to provide grants to eligible stranding network participants for the recovery or treatment of marine mammals, the collection of data from living or dead stranded marine mammals for scientific research regarding marine mammal health, and facility operation costs that are directly related to those purposes.

(2)(A) The Secretary shall ensure that, to the greatest extent

practicable, funds provided as grants under this subsection are distributed equitably among the stranding regions designated as of

the date of the enactment of the Marine Mammal Rescue Assistance Act of 2000, and in making such grants shall give preference

to those facilities that have established records for rescuing or rehabilitating sick and stranded marine mammals in each of the respective regions, or subregions.

(B) In determining priorities among such regions, the Secretary

may consider—

(i) any episodic stranding or any mortality event other

than an event described in section 410(6), that occurred in any

region in the preceding year;

(ii) data regarding average annual strandings and mortality events per region; and

(iii) the size of the marine mammal populations inhabiting

a geographic area within such a region.
Sec. 409 MARINE MAMMAL PROTECTION ACT OF 1972 242

(b) APPLICATION.—To receive a grant under this section, a

stranding network participant shall submit an application in such

form and manner as the Secretary may prescribe.

(c) CONSULTATION.—The Secretary shall consult with the Marine Mammal Commission, a representative from each of the designated stranding regions, and other individuals who represent

public and private organizations that are actively involved in rescue, rehabilitation, release, scientific research, marine conservation, and forensic science regarding stranded marine mammals, regarding the development of criteria for the implementation of the

grant program and the awarding of grants under the program.

(d) LIMITATION.—The amount of a grant under this section

shall not exceed $100,000.

(e) MATCHING REQUIREMENT.—

(1) IN GENERAL.—The non-Federal share of the costs of an

activity conducted with a grant under this section shall be 25

percent of such costs.

(2) IN-KIND CONTRIBUTIONS.—The Secretary may apply to

the non-Federal share of an activity conducted with a grant

under this section the amount of funds, and the fair market

value of property and services, provided by non-Federal sources

and used for the activity.

(f ) ADMINISTRATIVE EXPENSES.—Of amounts available each fiscal year to carry out this section, the Secretary may expend not

more than 6 percent or $80,000, whichever is greater, to pay the

administrative expenses necessary to carry out this section.

(g) DEFINITIONS.—In this section:

(1) DESIGNATED STRANDING REGION.—The term ‘designated

stranding region’ means a geographic region designated by the

Secretary for purposes of administration of this title.

(2) SECRETARY.—The term ‘Secretary’ has the meaning

given that term in section 3(12)(A).

(h) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated to carry out this section $5,000,000 for each of

fiscal years 2001 through 2003, to remain available until expended,

of which—

(1) $4,000,000 may be available to the Secretary of Commerce; and

(2) $1,000,000 may be available to the Secretary of the Interior.

SEC. 409. ø16 U.S.C. 1421g¿ AUTHORIZATION OF APPROPRIATIONS.

There is authorized to be appropriated—

(1) to the Secretary for carrying out this title (other than

sections 405 and 407) $250,000 for each of fiscal years 1993

and 1994;

(2) to the Secretary for carrying out section 407, $250,000

for each of fiscal years 1993 and 1994; and

(3) to the Fund, $500,000 for fiscal year 1993.

SEC. 410. ø16 U.S.C. 1421h¿ DEFINITIONS.

In this title, the following definitions apply:

(1) The term ‘‘Fund’’ means the Marine Mammal Unusual

Mortality Event Fund established by section 405(a).

(2) The term ‘‘Office’’ means the Office of Protected Resources, in the National Marine Fisheries Service.
243 MARINE MAMMAL PROTECTION ACT OF 1972 Sec. 410

(3) The term ‘‘stranding’’ means an event in the wild in

which—

(A) a marine mammal is dead and is—

(i) on a beach or shore of the United States; or

(ii) in waters under the jurisdiction of the United

States (including any navigable waters); or

(B) a marine mammal is alive and is—

(i) on a beach or shore of the United States and

unable to return to the water;

(ii) on a beach or shore of the United States and,

although able to return to the water, is in need of apparent medical attention; or

(iii) in the waters under the jurisdiction of the

United States (including any navigable waters), but is

unable to return to its natural habitat under its own

power or without assistance.

(4) The term ‘‘stranding network participant’’ means a person who is authorized by an agreement under section 112(c) to

take marine mammals as described in section 109(h)(1) in response to a stranding.

(5) The term ‘‘Tissue Bank’’ means the National Marine

Tissue Bank provided for under section 407(a).

(6) The term ‘‘unusual mortality event’’ means a stranding

that—

(A) is unexpected;

(B) involves a significant die-off of any marine mammal population; and

(C) demands immediate response.

245

DOPHIN PROTECTION CONSUMER INFORMATION ACT

247

THE DOPHIN PROTECTION CONSUMER INFORMATION

ACT

[Section 901 of Pub. L. 101–627; 104 Stat. 4465]

[As amended through P.L. 105–42, Aug. 15, 1997]

DOLPHIN PROTECTION

SEC. 901. ø16 U.S.C. 1385¿ (a) SHORT TITLE.—This section

may be cited as the ‘‘Dolphin Protection Consumer Information

Act’’.

(b) FINDINGS.—The Congress finds that—

(1) dolphins and other marine mammals are frequently

killed in the course of tuna fishing operations in the eastern

tropical Pacific Ocean and high seas driftnet fishing in other

parts of the world;

(2) it is the policy of the United States to support a worldwide ban on high seas driftnet fishing, in part because of the

harmful effects that such driftnets have on marine mammals,

including dolphins; and

(3) consumers would like to know if the tuna they purchase is falsely labeled as to the effect of the harvesting of the

tuna on dolphins.

(c) DEFINITIONS.—For purposes of this section—

(1) the terms ‘‘driftnet’’ and ‘‘driftnet fishing’’ have the

meanings given those terms in section 4003 of the Driftnet Impact Monitoring, Assessment, and Control Act of 1987 (16

U.S.C. 1822 note);

(2) the term ‘‘eastern tropical Pacific Ocean’’ means the

area of the Pacific Ocean bounded by 40 degrees north latitude,

40 degrees south latitude, 160 degrees west longitude, and the

western coastlines of North, Central, and South America;

(3) the term ‘‘label’’ means a display of written, printed, or

graphic matter on or affixed to the immediate container of any

article;

(4) the term ‘‘Secretary’’ means the Secretary of Commerce; and

(5) the term ‘‘tuna product’’ means a food item which contains tuna and which has been processed for retail sale, except

perishable sandwiches, salads, or other products with a shelf

life of less than 3 days.

(d) LABELING STANDARD.—

(1) It is a violation of section 5 of the Federal Trade Commission Act (15 U.S.C. 45) for any producer, importer, exporter, distributor, or seller of any tuna product that is exported from or offered for sale in the United States to include

on the label of that product the term ‘‘dolphin safe’’ or any

other term or symbol that falsely claims or suggests that the
Sec. 901 DOPHIN PROTECTION CONSUMER INFORMATION ACT 248

tuna contained in the product were harvested using a method

of fishing that is not harmful to dolphins if the product contains tuna harvested—

(A) on the high seas by a vessel engaged in driftnet

fishing;

(B) outside the eastern tropical Pacific Ocean by a vessel using purse seine nets—

(i) in a fishery in which the Secretary has determined that a regular and significant association occurs

between dolphins and tuna (similar to the association

between dolphins and tuna in the eastern tropical Pacific Ocean), unless such product is accompanied by a

written statement, executed by the captain of the vessel and an observer participating in a national or

international program acceptable to the Secretary, certifying that no purse seine net was intentionally deployed on or used to encircle dolphins during the particular voyage on which the tuna were caught and no

dolphins were killed or seriously injured in the sets in

which the tuna were caught; or

(ii) in any other fishery (other than a fishery described in subparagraph (D)) unless the product is accompanied by a written statement executed by the

captain of the vessel certifying that no purse seine net

was intentionally deployed on or used to encircle dolphins during the particular voyage on which the tuna

was harvested;

(C) in the eastern tropical Pacific Ocean by a vessel

using a purse seine net unless the tuna meet the requirements for being considered dolphin safe under paragraph

(2); or

(D) by a vessel in a fishery other than one described

in subparagraph (A), (B), or (C) that is identified by the

Secretary as having a regular and significant mortality or

serious injury of dolphins, unless such product is accompanied by a written statement executed by the captain of

the vessel and an observer participating in a national or

international program acceptable to the Secretary that no

dolphins were killed or seriously injured in the sets or

other gear deployments in which the tuna were caught,

provided that the Secretary determines that such an observer statement is necessary.

(2) For purposes of paragraph (1)(C), a tuna product that

contains tuna harvested in the eastern tropical Pacific Ocean

by a vessel using purse seine nets is dolphin safe if—

(A) the vessel is of a type and size that the Secretary

has determined, consistent with the International Dolphin

Conservation Program, is not capable of deploying its

purse seine nets on or to encircle dolphins; or

(B)(i) the product is accompanied by a written statement executed by the captain providing the certification

required under subsection (h);

(ii) the product is accompanied by a written statement

executed by—

(I) the Secretary or the Secretary’s designee;
249 DOPHIN PROTECTION CONSUMER INFORMATION ACT Sec. 901

(II) a representative of the Inter-American Tropical Tuna Commission; or

(III) an authorized representative of a participating nation whose national program meets the requirements of the International Dolphin Conservation

Program,

which states that there was an observer approved by the

International Dolphin Conservation Program on board the

vessel during the entire trip and that such observer provided the certification required under subsection (h); and

(iii) the statements referred to in clauses (i) and (ii)

are endorsed in writing by each exporter, importer, and

processor of the product; and

(C) the written statements and endorsements referred

to in subparagraph (B) comply with regulations promulgated by the Secretary which provide for the verification of

tuna products as dolphin safe.

(3)(A) The Secretary of Commerce shall develop an official

mark that may be used to label tuna products as dolphin safe

in accordance with this Act.

(B) A tuna product that bears the dolphin safe mark developed under subparagraph (A) shall not bear any other label or

mark that refers to dolphins, porpoises, or marine mammals.

(C) It is a violation of section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to label a tuna product with any

label or mark that refers to dolphins, porpoises, or marine

mammals other than the mark developed under subparagraph

(A) unless—

(i) no dolphins were killed or seriously injured in the

sets or other gear deployments in which the tuna were

caught;

(ii) the label is supported by a tracking and verification program which is comparable in effectiveness to the

program established under subsection (f); and

(iii) the label complies with all applicable labeling,

marketing, and advertising laws and regulations of the

Federal Trade Commission, including any guidelines for

environmental labeling.

(D) If the Secretary determines that the use of a label referred to in subparagraph (C) is substantially undermining the

conservation goals of the International Dolphin Conservation

Program, the Secretary shall report that determination to the

United States Senate Committee on Commerce, Science, and

Transportation and the United States House of Representatives Committees on Resources and on Commerce, along with

recommendations to correct such problems.

(E) It is a violation of section 5 of the Federal Trade Commission Act (15 U.S.C. 45) willingly and knowingly to use a

label referred to in subparagraph (C) in a campaign or effort

to mislead or deceive consumers about the level of protection

afforded dolphins under the International Dolphin Conservation Program.

(e) ENFORCEMENT.—Any person who knowingly and willfully

makes a statement or endorsement described in subsection

(d)(2)(B) that is false is liable for a civil penalty of not to exceed
Sec. 901 DOPHIN PROTECTION CONSUMER INFORMATION ACT 250

1So in law. Probably should be ‘‘this section’’. 2So in law. Probably should be ‘‘paragraph (6) of this subsection’’.

$100,000 assessed in an action brought in any appropriate district

court of the United States on behalf of the Secretary.

(f) REGULATIONS.—The Secretary, in consultation with the Secretary of the Treasury, shall issue regulations to implement this

Act 1, including regulations to establish a domestic tracking and

verification program that provides for the effective tracking of tuna

labeled under subsection (d). In the development of these regulations, the Secretary shall establish appropriate procedures for ensuring the confidentiality of proprietary information the submission

of which is voluntary or mandatory. The regulations shall address

each of the following items:

(1) The use of weight calculation for purposes of tracking

tuna caught, landed, processed, and exported.

(2) Additional measures to enhance current observer

coverage, including the establishment of criteria for training,

and for improving monitoring and reporting capabilities and

procedures.

(3) The designation of well location, procedures for sealing

holds, procedures for monitoring and certifying both above and

below deck, or through equally effective methods, the tracking

and verification of tuna labeled under subsection (d).

(4) The reporting, receipt, and database storage of radio

and facsimile transmittals from fishing vessels containing information related to the tracking and verification of tuna, and

the definition of set.

(5) The shore-based verification and tracking throughout

the fishing, transshipment, and canning process by means of

Inter-American Tropical Tuna Commission trip records or otherwise.

(6) The use of periodic audits and spot checks for caught,

landed, and processed tuna products labeled in accordance

with subsection (d).

(7) The provision of timely access to data required under

this subsection by the Secretary from harvesting nations to undertake the actions required in paragraph (6) of this paragraph 2.

The Secretary may make such adjustments as may be appropriate

to the regulations promulgated under this subsection to implement

an international tracking and verification program that meets or

exceeds the minimum requirements established by the Secretary

under this subsection.

(g) SECRETARIAL FINDINGS.—(1) Between March 1, 1999, and

March 31, 1999, the Secretary shall, on the basis of the research

conducted before March 1, 1999, under section 304(a) of the Marine

Mammal Protection Act of 1972, information obtained under the

International Dolphin Conservation Program, and any other relevant information, make an initial finding regarding whether the

intentional deployment on or encirclement of dolphins with purse

seine nets is having a significant adverse impact on any depleted

dolphin stock in the eastern tropical Pacific Ocean. The initial finding shall be published immediately in the Federal Register and
251 DOPHIN PROTECTION CONSUMER INFORMATION ACT Sec. 901

shall become effective upon a subsequent date determined by the

Secretary.

(2) Between July 1, 2001, and December 31, 2002, the

Secretary shall, on the basis of the completed study conducted

under section 304(a) of the Marine Mammal Protection Act of 1972,

information obtained under the International Dolphin Conservation

Program, and any other relevant information, make a finding regarding whether the intentional deployment on or encirclement of

dolphins with purse seine nets is having a significant adverse impact on any depleted dolphin stock in the eastern tropical Pacific

Ocean. The finding shall be published immediately in the Federal

Register and shall become effective upon a subsequent date determined by the Secretary.

(h) CERTIFICATION BY CAPTAIN AND OBSERVER.—

(1) Unless otherwise required by paragraph (2), the certification by the captain under subsection (d)(2)(B)(i) and the certification provided by the observer as specified in subsection

(d)(2)(B)(ii) shall be that no dolphins were killed or seriously

injured during the sets in which the tuna were caught.

(2) The certification by the captain under subsection

(d)(2)(B)(i) and the certification provided by the observer as

specified under subsection (d)(2)(B)(ii) shall be that no tuna

were caught on the trip in which such tuna were harvested

using a purse seine net intentionally deployed on or to encircle

dolphins, and that no dolphins were killed or seriously injured

during the sets in which the tuna were caught, if the tuna

were caught on a trip commencing—

(A) before the effective date of the initial finding by

the Secretary under subsection (g)(1);

(B) after the effective date of such initial finding and

before the effective date of the finding of the Secretary

under subsection (g)(2), where the initial finding is that

the intentional deployment on or encirclement of dolphins

is having a significant adverse impact on any depleted dolphin stock; or

(C) after the effective date of the finding under subsection (g)(2), where such finding is that the intentional

deployment on or encirclement of dolphins is having a significant adverse impact on any such depleted stock.

253

MAGNUSON-STEVENS FISHERY CONSERVATION AND

MANAGEMENT ACT

255

1The item in the table of contents for section 4 does not appear in law and is only included

for the convienence of the reader. 2This item does not conform with the heading of such section. 3This item does not conform with the heading of such section and should be deleted. 4This item conforms with the heading of such section, but was improperly added at the end

of the table of contents by section 211 of P.L. 104–297.

MAGNUSON-STEVENS FISHERY CONSERVATION AND

MANAGEMENT ACT

[Public Law 94–265, Approved Apr. 13, 1976, 90 Stat. 331]

[Amended through Public Law, 106–557, Dec. 21, 2000]

AN ACT To provide for the conservation and management of the fisheries, and for

other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That ø16 U.S.C.

1801 note¿ this Act may be cited as the ‘‘Magnuson-Stevens Fishery Conservation and Management Act’’.

TABLE OF CONTENTS

Sec. 2. Findings, purposes, and policy.

Sec. 3. Definitions.

[Sec. 4. Authorization of appropriations.] 1

TITLE I—UNITED STATES RIGHTS AND AUTHORITY REGARDING FISH AND

FISHERY RESOURCES

Sec. 101. United States sovereign rights to fish and fishery management authority.

Sec. 102. Highly migratory species.

TITLE II—FOREIGN FISHING AND INTERNATIONAL FISHERY AGREEMENTS

Sec. 201. Foreign fishing.

Sec. 202. International fishery agreements.

Sec. 203. Congressional oversight of governing International fishery agreements. 2

Sec. 204. Permits for foreign fishing.

Sec. 205. Import prohibitions.

Sec. 206. Large-scale driftnet fishing.

TITLE III—NATIONAL FISHERY MANAGEMENT PROGRAM

Sec. 301. National standards for fishery conservation and management.

Sec. 302. Regional fishery management councils.

Sec. 303. Contents of fishery management plans.

Sec. 304. Action by the Secretary.

Sec. 305. Implementation of fishery management plans. 2

Sec. 306. State jurisdiction.

Sec. 307. Prohibited acts.

Sec. 308. Civil penalties and permit sanctions.

Sec. 309. Criminal offenses.

Sec. 310. Civil forfeitures.

Sec. 311. Enforcement.

Sec. 312. Effective date of certain provisions. 3

Sec. 313. North Pacific fisheries research plan. 3

Sec. 314. Northwest Atlantic Oceans Fisheries Reinvestment Program.

Sec. 312. Transition to sustainable fisheries. 4
Sec. 2 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 256

Sec. 313. North Pacific fisheries conservation. 4

Sec. 314. Northwest Atlantic Ocean fisheries reinvestment program. 2

TITLE IV—FISHERY MONITORING AND RESEARCH

Sec. 401. Registration and information management.

Sec. 402. Information collection.

Sec. 403. Observers.

Sec. 404. Fisheries research.

Sec. 405. Incidental harvest research.

Sec. 406. Fisheries systems research.

Sec. 407. Gulf of Mexico red snapper research.

SEC. 2. ø16 U.S.C. 1801¿ FINDINGS, PURPOSES AND POLICY.

(a) FINDINGS.—The Congress finds and declares the following:

(1) The fish off the coasts of the United States, the highly

migratory species of the high seas, the species which dwell on

or in the Continental Shelf appertaining to the United States,

and the anadromous species which spawn in United States rivers or estuaries, constitute valuable and renewable natural resources. These fishery resources contribute to the food supply,

economy, and health of the Nation and provide recreational opportunities.

(2) Certain stocks of fish have declined to the point where

their survival is threatened, and other stocks of fish have been

so substantially reduced in number that they could become

similarly threatened as a consequence of (A) increased fishing

pressure, (B) the inadequacy of fishery resource conservation

and management practices and controls, or (C) direct and indirect habitat losses which have resulted in a diminished capacity to support existing fishing levels.

(3) Commercial and recreational fishing constitutes a

major source of employment and contributes significantly to

the economy of the Nation. Many coastal areas are dependent

upon fishing and related activities, and their economies have

been badly damaged by the overfishing of fishery resources at

an ever-increasing rate over the past decade. The activities of

massive foreign fishing fleets in waters adjacent to such coastal areas have contributed to such damage, interfered with domestic fishing efforts, and caused destruction of the fishing

gear of United States fishermen.

(4) International fishery agreements have not been effective in preventing or terminating the overfishing of these valuable fishery resources. There is danger that irreversible effects

from overfishing will take place before an effective international agreement on fishery management jurisdiction can be

negotiated, signed, ratified, and implemented.

(5) Fishery resources are finite but renewable. If placed

under sound management before overfishing has caused irreversible effects, the fisheries can be conserved and maintained

so as to provide optimum yields on a continuing basis.

(6) A national program for the conservation and management of the fishery resources of the United States is necessary

to prevent overfishing, to rebuild overfished stocks, to insure

conservation, to facilitate long-term protection of essential fish

habitats, and to realize the full potential of the Nation’s fishery

resources.

(7) A national program for the development of fisheries

which are underutilized or not utilized by the United States
257 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 2

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(a) of the Flower Garden National Marine Sanctuary (P.L.

102–251; 106 Stat. 62) amends paragraph (1) by inserting ‘‘, and fishery resources in the special

areas’’ before the semicolon at the end.

fishing industry, including bottom fish off Alaska, is necessary

to assure that our citizens benefit from the employment, food

supply, and revenue which could be generated thereby.

(8) The collection of reliable data is essential to the effective conservation, management, and scientific understanding of

the fishery resources of the United States.

(9) One of the greatest long-term threats to the viability of

commercial and recreational fisheries is the continuing loss of

marine, estuarine, and other aquatic habitats. Habitat considerations should receive increased attention for the conservation

and management of fishery resources of the United States.

(10) Pacific Insular Areas contain unique historical, cultural, legal, political, and geographical circumstances which

make fisheries resources important in sustaining their economic growth.

(b) PURPOSES.—It is therefore declared to be the purposes of

the Congress in this Act—

(1) to take immediate action to conserve and manage the

fishery resources found off the coasts of the United States, and

the anadromous species and Continental Shelf fishery resources of the United States, by exercising (A) sovereign rights

for the purposes of exploring, exploiting, conserving, and managing all fish, within the exclusive economic zone established

by Presidential Proclamation 5030, dated March 10, 1983, and

(B) exclusive fishery management authority beyond the exclusive economic zone over such anadromous species and Continental Shelf fishery resources 1;

(2) to support and encourage the implementation and enforcement of international fishery agreements for the conservation and management of highly migratory species, and to encourage the negotiation and implementation of additional such

agreements as necessary;

(3) to promote domestic commercial and recreational fishing under sound conservation and management principles, including the promotion of catch and release programs in recreational fishing;

(4) to provide for the preparation and implementation, in

accordance with national standards, of fishery management

plans which will achieve and maintain, on a continuing basis,

the optimum yield from each fishery;

(5) to establish Regional Fishery Management Councils to

exercise sound judgment in the stewardship of fishery resources through the preparation, monitoring, and revision of

such plans under circumstances (A) which will enable the

States, the fishing industry, consumer and environmental organizations, and other interested persons to participate in, and

advise on, the establishment and administration of such plans,

and (B) which take into account the social and economic needs

of the States;
Sec. 3 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 258

(6) to encourage the development by the United States

fishing industry of fisheries which are currently underutilized

or not utilized by United States fishermen, including bottom

fish off Alaska, and to that end, to ensure that optimum yield

determinations promote such development in a non-wasteful

manner; and

(7) to promote the protection of essential fish habitat in

the review of projects conducted under Federal permits, licenses, or other authorities that affect or have the potential to

affect such habitat.

(c) POLICY.—It is further declared to be the policy of the Congress in this Act—

(1) to maintain without change the existing territorial or

other ocean jurisdiction of the United States for all purposes

other than the conservation and management of fishery resources, as provided for in this Act;

(2) to authorize no impediment to, or interference with,

recognized legitimate uses of the high seas, except as necessary

for the conservation and management of fishery resources, as

provided for in this Act;

(3) to assure that the national fishery conservation and

management program utilizes, and is based upon, the best scientific information available; involves, and is responsive to the

needs of, interested and affected States and citizens; considers

efficiency; draws upon Federal, State, and academic capabilities in carrying out research, administration, management, and

enforcement; considers the effects of fishing on immature fish

and encourages development of practical measures that minimize bycatch and avoid unnecessary waste of fish; and is workable and effective;

(4) to permit foreign fishing consistent with the provisions

of this Act;

(5) to support and encourage active United States efforts

to obtain internationally acceptable agreements which provide

for effective conservation and management of fishery resources,

and to secure agreements to regulate fishing by vessels or persons beyond the exclusive economic zones of any nation;

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

United States; and

(7) to ensure that the fishery resources adjacent to a Pacific Insular Area, including resident or migratory stocks within the exclusive economic zone adjacent to such areas, be explored, developed, conserved, and managed for the benefit of

the people of such area and of the United States.

SEC. 3. ø16 U.S.C. 1802¿ DEFINITIONS.

As used in this Act, unless the context otherwise requires—

(1) The term ‘‘anadromous species’’ means species of fish

which spawn in fresh or estuarine waters of the United States

and which migrate to ocean waters.

(2) The term ‘‘bycatch’’ means fish which are harvested in

a fishery, but which are not sold or kept for personal use, and

includes economic discards and regulatory discards. Such term

does not include fish released alive under a recreational catch

and release fishery management program.
259 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 3

1Section 102(2)(A) of P.L. 104–297 (110 Stat. 3561) sought to amend this paragraph, as redesignated, by striking ‘‘COELENTERATA’’ from the heading of the list of corals and inserting

‘‘CNIDARIA’’. Because of the use of incorrect spelling, typeface, and capitalization in describing

the text to be struck, the amendment cannot execute.

(3) The term ‘‘charter fishing’’ means fishing from a vessel

carrying a passenger for hire (as defined in section 2101(21a)

of title 46, United States Code) who is engaged in recreational

fishing.

(4) The term ‘‘commercial fishing’’ means fishing in which

the fish harvested, either in whole or in part, are intended to

enter commerce or enter commerce through sale, barter or

trade.

(5) The term ‘‘conservation and management’’ refers to all

of the rules, regulations, conditions, methods, and other measures (A) which are required to rebuild, restore, or maintain,

and which are useful in rebuilding, restoring, or maintaining,

any fishery resource and the marine environment; and (B)

which are designed to assure that—

(i) a supply of food and other products may be taken,

and that recreational benefits may be obtained, on a continuing basis;

(ii) irreversible or long-term adverse effects on fishery

resources and the marine environment are avoided; and

(iii) there will be a multiplicity of options available

with respect to future uses of these resources.

(6) The term ‘‘Continental Shelf’’ means the seabed and

subsoil of the submarine areas adjacent to the coast, but outside the area of the territorial sea, of the United States, to a

depth of 200 meters or, beyond that limit, to where the depth

of the superjacent waters admits of the exploitation of the natural resources of such areas.

(7) The term ‘‘Continental Shelf fishery resources’’ means

the following:

COLENTERATA 1

Bamboo Coral—Acanella spp.;

Black Coral—Antipathes spp.;

Gold Coral—Callogorgia spp.;

Precious Red Coral—Corallium spp.;

Bamboo Coral—Keratoisis spp.; and

Gold Coral—Parazoanthus spp.

CRUSTACEA

Tanner Crab—Chionoecetes tanneri;

Tanner Crab—Chionoecetes opilio;

Tanner Crab—Chionoecetes angulatus;

Tanner Crab—Chionoecetes bairdi;

King Crab—Paralithodes camtschatica;

King Crab—Paralithodes platypus;

King Crab—Paralithodes brevipes;

Lobster—Homarus americanus;

Dungeness Crab—Cancer magister;

California King Crab—Paralithodes californiensis;

California King Crab—Paralithodes rathbuni;
Sec. 3 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 260

Golden King Crab—Lithodes aequispinus;

Northern Stone Crab—Lithodes maja;

Stone Crab—Menippe mercenaria; and

Deep-sea Red Crab—Chaceon quinquedens.

MOLLUSKS

Red Abalone—Haliotis rufescens;

Pink Abalone—Haliotis corrugata;

Japanese Abalone—Haliotis kamtschatkana;

Queen Conch—Strombus gigas;

Surf Clam—Spisula solidissima, and

Ocean Quahog—Arctica islandica.

SPONGES

Glove Sponge—Spongia cheiris

Sheepswool Sponge—Hippiospongia lachne;

Grass Sponge—Spongia graminea; and

Yellow Sponge—Spongia barbera.

If the Secretary determines, after consultation with the Secretary of State, that living organisms of any other sedentary

species are, at the harvestable stage, either—

(A) immobile on or under the seabed, or

(B) unable to move except in constant physical contact

with the seabed or subsoil,

of the Continental Shelf which appertains to the United States,

and publishes notice of such determination in the Federal Register, such sedentary species shall be considered to be added to

the foregoing list and included in such term for purposes of

this Act.

(8) The term ‘‘Council’’ means any Regional Fishery Management Council established under section 302.

(9) The term ‘‘economic discards’’ means fish which are the

target of a fishery, but which are not retained because they are

of an undesirable size, sex, or quality, or for other economic

reasons.

(10) The term ‘‘essential fish habitat’’ means those waters

and substrate necessary to fish for spawning, breeding, feeding

or growth to maturity.

(11) The term ‘‘exclusive economic zone’’ means the zone

established by Proclamation Numbered 5030, dated March 10,

1983. For purposes of applying this Act, the inner boundary of

that zone is a line coterminous with the seaward boundary of

each of the coastal States.

(12) The term ‘‘fish’’ means finfish, mollusks, crustaceans,

and all other forms of marine animal and plant life other than

marine mammals and birds.

(13) The term ‘‘fishery’’ means—

(A) one or more stocks of fish which can be treated as

a unit for purposes of conservation and management and

which are identified on the basis of geographical, scientific,

technical, recreational, and economic characteristics; and

(B) any fishing for such stocks.

(14) The term ‘‘fishery resource’’ means any fishery, any

stock of fish, any species of fish, and any habitat of fish.
261 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 3

(15) The term ‘‘fishing’’ means—

(A) the catching, taking, or harvesting of fish;

(B) the attempted catching, taking, or harvesting of

fish;

(C) any other activity which can reasonably be expected to result in the catching, taking, or harvesting of

fish; or

(D) any operations at sea in support of, or in preparation for, any activity described in subparagraphs (A)

through (C).

Such term does not include any scientific research activity

which is conducted by a scientific research vessel.

(16) The term ‘‘fishing community’’ means a community

which is substantially dependent on or substantially engaged

in the harvest or processing of fishery resources to meet social

and economic needs, and includes fishing vessel owners, operators, and crew and United States fish processors that are based

in such community.

(17) The term ‘‘fishing vessel’’ means any vessel, boat,

ship, or other craft which is used for, equipped to be used for,

or of a type which is normally used for—

(A) fishing; or

(B) aiding or assisting one or more vessels at sea in

the performance of any activity relating to fishing, including, but not limited to, preparation, supply, storage, refrigeration, transportation, or processing.

(18) The term ‘‘foreign fishing’’ means fishing by a vessel

other than a vessel of the United States.

(19) The term ‘‘high seas’’ means all waters beyond the territorial sea of the United States and beyond any foreign nation’s territorial sea, to the extent that such sea is recognized

by the United States.

(20) The term ‘‘highly migratory species’’ means tuna species, marlin (Tetrapturus spp. and Makaira spp.), oceanic

sharks, sailfishes (Istiophorus spp.), and swordfish (Xiphias

gladius).

(21) The term ‘‘individual fishing quota’’ means a Federal

permit under a limited access system to harvest a quantity of

fish, expressed by a unit or units representing a percentage of

the total allowable catch of a fishery that may be received or

held for exclusive use by a person. Such term does not include

community development quotas as described in section 305(i).

(22) The term ‘‘international fishery agreement’’ means

any bilateral or multilateral treaty, convention, or agreement

which relates to fishing and to which the United States is a

party.

(23) The term ‘‘large-scale driftnet fishing’’ means a method of fishing in which a gillnet composed of a panel or panels

of webbing, or a series of such gillnets, with a total length of

two and one-half kilometers or more is placed in the water and

allowed to drift with the currents and winds for the purpose

of entangling fish in the webbing.

(24) The term ‘‘Marine Fisheries Commission’’ means the

Atlantic States Marine Fisheries Commission, the Gulf States
Sec. 3 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 262

Marine Fisheries Commission, or the Pacific Marine Fisheries

Commission.

(25) The term ‘‘migratory range’’ means the maximum area

at a given time of the year within which fish of an anadromous

species or stock thereof can be expected to be found, as determined on the basis of scale pattern analysis, tagging studies,

or other reliable scientific information, except that the term

does not include any part of such area which is in the waters

of a foreign nation.

(26) The term ‘‘national standards’’ means the national

standards for fishery conservation and management set forth

in section 301.

(27) The term ‘‘observer’’ means any person required or authorized to be carried on a vessel for conservation and management purposes by regulations or permits under this Act.

(28) The term ‘‘optimum’’, with respect to the yield from a

fishery, means the amount of fish which—

(A) will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems;

(B) is prescribed on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant social, economic, or ecological factor; and

(C) in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum

sustainable yield in such fishery.

(29) The terms ‘‘overfishing’’ and ‘‘overfished’’ mean a rate

or level of fishing mortality that jeopardizes the capacity of a

fishery to produce the maximum sustainable yield on a continuing basis.

(30) The term ‘‘Pacific Insular Area’’ means American

Samoa, Guam, the Northern Mariana Islands, Baker Island,

Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef,

Midway Island, Wake Island, or Palmyra Atoll, as applicable,

and includes all islands and reefs appurtenant to such island,

reef, or atoll.

(31) The term ‘‘person’’ means any individual (whether or

not a citizen or national of the United States), any corporation,

partnership, association, or other entity (whether or not organized or existing under the laws of any State), and any Federal, State, local, or foreign government or any entity of any

such government.

(32) The term ‘‘recreational fishing’’ means fishing for

sport or pleasure.

(33) The term ‘‘regulatory discards’’ means fish harvested

in a fishery which fishermen are required by regulation to discard whenever caught, or are required by regulation to retain

but not sell.

(34) The term ‘‘Secretary’’ means the Secretary of Commerce or his designee.
263 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 3

1Section 3(35) was added (as paragraph (24)) by section 301(b)(2) of Public Law 102–251, redesignated by various sections of Public Law 104–297, and made effective by section 405(a) of

Public Law 104–297. 2Section 3(36) was added by section 102(10) of P.L. 104–297. It is substantially identical to

section 3(35). 3Section 102(11) of P.L. 104–297 (110 Stat. 3563) sought to amend paragraph (42) (as redesignated) by striking ‘‘for which a fishery management plan prepared under title III or a preliminary fishery management plan prepared under section 201(g) has been implemented’’ and insertContinued

(35) 1 The term ‘‘special areas’’ means the areas referred to

as eastern special areas in Article 3(1) of the Agreement between the United States of America and the Union of Soviet

Socialist Republics on the Maritime Boundary, signed June 1,

1990; in particular, the term refers to those areas east of the

maritime boundary, as defined in that Agreement, that lie

within 200 nautical miles of the baselines from which the

breadth of the territorial sea of Russia is measured but beyond

200 nautical miles of the baselines from which the breadth of

the territorial sea of the United States is measured.

(36) 2 The term ‘‘special areas’’ means the areas referred to

as eastern special areas in Article 3(1) of the Agreement between the United States of America and the Union of Soviet

Socialist Republics on the Maritime Boundary, signed June 1,

1990. In particular, the term refers to those areas east of the

maritime boundary, as defined in that Agreement, that lie

within 200 nautical miles of the baselines from which the

breadth of the territorial sea of Russia is measured but beyond

200 nautical miles of the baselines from which the breadth of

the territorial sea of the United States is measured.

(37) The term ‘‘State’’ means each of the several States,

the District of Columbia, the Commonwealth of Puerto Rico,

American Samoa, the Virgin Islands, Guam, and any other

Commonwealth, territory, or possession of the United States.

(38) The term ‘‘stock of fish’’ means a species, subspecies,

geographical grouping, or other category of fish capable of

management as a unit.

(39) The term ‘‘treaty’’ means any international fishery

agreement which is a treaty within the meaning of section 2

of article II of the Constitution.

(40) The term ‘‘tuna species’’ means the following:

Albacore Tuna—Thunnus alalunga;

Bigeye Tuna—Thunnus obesus;

Bluefin Tuna—Thunnus thynnus;

Skipjack Tuna—Katsuwonus pelamis; and

Yellowfin Tuna—Thunnus albacares.

(41) The term ‘‘United States’’, when used in a geographical context, means all the States thereof.

(42) The term ‘‘United States fish processors’’ means facilities located within the United States for, and vessels of the

United States used or equipped for, the processing of fish for

commercial use or consumption.

(43) The term ‘‘United States harvested fish’’ means fish

caught, taken, or harvested by vessels of the United States

within any fishery for which a fishery management plan prepared under title III or a preliminary fishery management plan

prepared under section 201(h) has been implemented 3.
Sec. 101 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 264

ing ‘‘regulated under this Act’’. The amendment cannot be executed because it should have been

made to paragraph (43), as redesignated. 1So in law. Probably should have been redesignated as paragraph (46) by section 102 of P.L.

104–297. 2 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(c)(1) of the Flower Garden National Marine Sanctuary (P.L.

102–251; 106 Stat. 62) amends this subsection by inserting ‘‘and special areas’’ before the period

at the end.

(44) The term ‘‘vessel subject to the jurisdiction of the

United States’’ has the same meaning such term has in section

3(c) of the Maritime Drug Law Enforcement Act (46 U.S.C.

App. 1903(c)).

(45) The term ‘‘vessel of the United States’’ means—

(A) any vessel documented under chapter 121 of title

46, United States Code;

(B) any vessel numbered in accordance with chapter

123 of title 46, United States Code, and measuring less

than 5 net tons;

(C) any vessel numbered in accordance with chapter

123 of title 46, United States Code, and used exclusively

for pleasure; or

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

(33) 1 The term ‘‘waters of a foreign nation’’ means any

part of the territorial sea or exclusive economic zone (or the

equivalent) of a foreign nation, to the extent such territorial

sea or exclusive economic zone is recognized by the United

States.

SEC. 4. ø16 U.S.C. 1803¿ AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the Secretary for

the purposes of carrying out the provisions of this Act, not to exceed the following sums:

(1) $147,000,000 for fiscal year 1996;

(2) $151,000,000 for fiscal year 1997;

(3) $155,000,000 for fiscal year 1998; and

(4) $159,000,000 for fiscal year 1999.

TITLE I—UNITED STATES RIGHTS AND AUTHORITY

REGARDING FISH AND FISHERY RESOURCES

SEC. 101. ø16 U.S.C. 1811¿ UNITED STATES SOVEREIGN RIGHTS TO

FISH AND FISHERY MANAGEMENT AUTHORITY.

(a) IN THE EXCLUSIVE ECONOMIC ZONE.—Except as provided in

section 102, the United States claims, and will exercise in the manner provided for in this Act, sovereign rights and exclusive fishery

management authority over all fish, and all Continental Shelf fishery resources, within the exclusive economic zone 2.

(b) BEYOND THE EXCLUSIVE ECONOMIC ZONE.—The United

States claims, and will exercise in the manner provided for in this

Act, exclusive fishery management authority over the following:

(1) All anadromous species throughout the migratory

range of each such species beyond the exclusive economic zone;

except that that management authority does not extend to any

such species during the time they are found within any waters

of a foreign nation.
265 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 201

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(c)(2) of the Flower Garden National Marine Sanctuary (P.L.

102–251; 106 Stat. 63) amends this subsection by inserting after paragraph (2) the following:

‘‘(3) All fishery resources in the special areas.’’ 2 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(d)(1) of the Flower Garden National Marine Sanctuary (P.L.

102–251; 106 Stat. 63) provides the following amendments:

(d) FOREIGN FISHING.—Section 201 of the Magnuson Fishery Conservation and Management

Act (16 U.S.C. 1821) is amended—

(1) in subsection (a)—

(A) by inserting ‘‘within the special areas,’’ immediately before ‘‘or for anadromous

species’’; and

(B) by striking ‘‘beyond the exclusive economic zone’’ and inserting in lieu thereof ‘‘beyond such zone or areas’’;

(2) All Continental Shelf fishery resources beyond the exclusive economic zone. 1

SEC. 102. ø16 U.S.C. 1812¿ HIGHLY MIGRATORY SPECIES.

The United States shall cooperate directly or through appropriate international organizations with those nations involved in

fisheries for highly migratory species with a view to ensuring conservation and shall promote the achievement of optimum yield of

such species throughout their range, both within and beyond the

exclusive economic zone.

TITLE II—FOREIGN FISHING AND

INTERNATIONAL FISHERY AGREEMENTS

SEC. 201. ø16 U.S.C. 1821¿ FOREIGN FISHING.

(a) IN GENERAL.—After February 28, 1977, no foreign fishing

is authorized within the exclusive economic zone, or for anadromous species or Continental Shelf fishery resources beyond the

exclusive economic zone 2, unless such foreign fishing—

(1) is authorized under subsections (b) or (c) or section

204(e), or under a permit issued under section 204(d);

(2) is not prohibited under subsection (f); and

(3) is conducted under, and in accordance with, a valid and

applicable permit issued pursuant to section 204.

(b) EXISTING INTERNATIONAL FISHERY AGREEMENTS.—Foreign

fishing described in subsection (a) may be conducted pursuant to

an international fishery agreement (subject to the provisions of section 202(b) or (c)), if such agreement—

(1) was in effect on the date of enactment of this Act; and

(2) has not expired, been renegotiated, or otherwise ceased

to be of force and effect with respect to the United States.

(c) GOVERNING INTERNATIONAL FISHERY AGREEMENTS.—Foreign fishing described in subsection (a) may be conducted pursuant

to an international fishery agreement (other than a treaty) which

meets the requirements of this subsection if such agreement becomes effective after application of section 203. Any such international fishery agreement shall hereafter in this Act be referred

to as a ‘‘governing international fishery agreement’’. Each governing international fishery agreement shall acknowledge the exclusive fishery management authority of the United States, as set

forth in this Act. It is the sense of the Congress that each such

agreement shall include a binding commitment, on the part of such
Sec. 201 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 266

foreign nation and its fishing vessels, to comply with the following

terms and conditions:

(1) The foreign nation, and the owner or operator of any

fishing vessel fishing pursuant to such agreement, will abide

by all regulations promulgated by the Secretary pursuant to

this Act, including any regulations promulgated to implement

any applicable fishery management plan or any preliminary

fishery management plan.

(2) The foreign nation, and the owner or operator of any

fishing vessel fishing pursuant to such agreement, will abide

by the requirement that—

officer authorized to enforce the provisions of this Act (as

provided for in section 311) be permitted—

(i) to board, and search or inspect, any such vessel

at any time,

(ii) to make arrests and seizures provided for in

section 311(b) whenever such officer has reasonable

cause to believe, as a result of such a search or inspection, that any such vessel or any person has committed an act prohibited by section 307, and

(iii) to examine and make notations on the permit

issued pursuant to section 204 for such vessel;

(B) the permit issued for any such vessel pursuant to

section 204 be prominently displayed in the wheelhouse of

such vessel;

(C) transponders, or such other appropriate positionfixing and identification equipment as the Secretary of the

department in which the Coast Guard is operating determines to be appropriate, be installed and maintained in

working order on each such vessel;

(D) United States observers required under subsection

(h) be permitted to be stationed aboard any such vessel

and that all of the costs incurred incident to such stationing, including the costs of data editing and entry and

observer monitoring, be paid for, in accordance with such

subsection, by the owner or operator of the vessel;

(E) any fees required under section 204(b)(10) be paid

in advance;

(F) agents be appointed and maintained within the

United States who are authorized to receive and respond

to any legal process issued in the United States with respect to such owner or operator; and

(G) responsibility be assumed, in accordance with any

requirements prescribed by the Secretary, for the reimbursement of United States citizens for any loss of, or

damage to, their fishing vessels, fishing gear, or catch

which is caused by any fishing vessel of that nation;

and will abide by any other monitoring, compliance, or enforcement requirement related to fishery conservation and management which is included in such agreement.

(3) The foreign nation and the owners or operators of all

of the fishing vessels of such nation shall not, in any year, harvest an amount of fish which exceeds such nation’s allocation

of the total allowable level of foreign fishing, as determined

under subsection (e).
267 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 201

(4) The foreign nation will—

(A) apply, pursuant to section 204, for any required

permits;

(B) deliver promptly to the owner or operator of the

appropriate fishing vessel any permit which is issued

under that section for such vessel;

(C) abide by, and take appropriate steps under its own

laws to assure that all such owners and operators comply

with, section 204(a) and the applicable conditions and restrictions established under section 204(b)(7); and

(D) take, or refrain from taking, as appropriate, actions of the kind referred to in subsection (e)(1) in order

to receive favorable allocations under such subsection.

(d) TOTAL ALLOWABLE LEVEL OF FOREIGN FISHING.—The total

allowable level of foreign fishing, if any, with respect to any fishery

subject to the exclusive fishery management authority of the

United States, shall be that portion of the optimum yield of such

fishery which will not be harvested by vessels of the United States,

as determined in accordance with this Act.

(e) ALLOCATION OF ALLOWABLE LEVEL.—(1)(A) The Secretary of

State, in cooperation with the Secretary, may make allocations to

foreign nations from the total allowable level of foreign fishing

which is permitted with respect to each fishery subject to the exclusive fishery management authority of the United States.

(B) From the determinations made under subparagraph (A),

the Secretary of State shall compute the aggregate of all of the

fishery allocations made to each foreign nation.

(C) The Secretary of State shall initially release to each foreign

nation for harvesting up to 50 percent of the allocations aggregate

computed for such nation under subparagraph (B), and such release of allocation shall be apportioned by the Secretary of State,

in cooperation with the Secretary, among the individual fishery allocations determined for that nation under subparagraph (A). The

basis on which each apportionment is made under this subparagraph shall be stated in writing by the Secretary of State.

(D) After the initial release of fishery allocations under subparagraph (C) to a foreign nation, any subsequent release of an allocation for any fishery to such nation shall only be made—

(i) after the lapse of such period of time as may be sufficient for purposes of making the determination required under

clause (ii); and

(ii) if the Secretary of State and the Secretary, after taking

into account the size of the allocation for such fishery and the

length and timing of the fishing season, determine in writing

that such nation is complying with the purposes and intent of

this paragraph with respect to such fishery.

If the foreign nation is not determined under clause (ii) to be in

such compliance, the Secretary of State shall reduce, in a manner

and quantity he considers to be appropriate (I) the remainder of

such allocation, or (II) if all of such allocation has been released,

the next allocation of such fishery, if any, made to such nation.

(E) The determinations required to be made under subparagraphs (A) and (D)(ii), and the apportionments required to be made

under subparagraph (C), with respect to a foreign nation shall be

based on—
Sec. 201 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 268

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(d)(2) of Public Law 102–251, sought to insert ‘‘or special

areas’’ after ‘‘exclusive economic zone’’ in section 201(e)(1)(E)(IV). The amendment probably

should have been made to section 201(e)(1)(E)(iv) and cannot be executed.

(i) whether, and to what extent, such nation imposes tariff

barriers or nontariff barriers on the importation, or otherwise

restricts the market access, of both United States fish and fishery products, particularly fish and fishery products for which

the foreign nation has requested an allocation;

(ii) whether, and to what extent, such nation is cooperating

with the United States in both the advancement of existing

and new opportunities for fisheries exports from the United

States through the purchase of fishery products from United

States processors, and the advancement of fisheries trade

through the purchase of fish and fishery products from United

States fishermen, particularly fish and fishery products for

which the foreign nation has requested an allocation;

(iii) whether, and to what extent, such nation and the fishing fleets of such nation have cooperated with the United

States in the enforcement of United States fishing regulations;

(iv) whether, and to what extent, such nation requires the

fish harvested from the exclusive economic zone 1 for its domestic consumption;

(v) whether, and to what extent, such nation otherwise

contributes to, or fosters the growth of, a sound and economic

United States fishing industry, including minimizing gear conflicts with fishing operations of United States fishermen, and

transferring harvesting or processing technology which will

benefit the United States fishing industry;

(vi) whether, and to what extent, the fishing vessels of

such nation have traditionally engaged in fishing in such fishery;

(vii) whether, and to what extent, such nation is cooperating with the United States in, and making substantial contributions to, fishery research and the identification of fishery

resources; and

(viii) such other matters as the Secretary of State, in cooperation with the Secretary, deems appropriate.

(2)(A) For the purposes of this paragraph—

(i) The term ‘‘certification’’ means a certification made by

the Secretary that nationals of a foreign country, directly or indirectly, are conducting fishing operations or engaging in trade

or taking which diminishes the effectiveness of the International Convention for the Regulation of Whaling. A certification under this section shall also be deemed a certification

for the purposes of section 8(a) of the Fishermen’s Protective

Act of 1967 (22 U.S.C. 1978(a)).

(ii) The term ‘‘remedial period’’ means the 365-day period

beginning on the date on which a certification is issued with

respect to a foreign country.

(B) If the Secretary issues a certification with respect to any

foreign country, then each allocation under paragraph (1) that—

(i) is in effect for that foreign country on the date of

issuance; or
269 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 201

(ii) is not in effect on such date but would, without regard

to this paragraph, be made to the foreign country within the

remedial period;

shall be reduced by the Secretary of State, in consultation with the

Secretary, by not less than 50 percent.

(C) The following apply for purposes of administering subparagraph (B) with respect to any foreign country:

(i) If on the date of certification, the foreign country has

harvested a portion, but not all, of the quantity of fish specified

under any allocation, the reduction under subparagraph (B) for

that allocation shall be applied with respect to the quantity not

harvested as of such date.

(ii) If the Secretary notified the Secretary of State that it

is not likely that the certification of the foreign country will be

terminated under section 8(d) of the Fishermen’s Protective Act

of 1967 before the close of the period for which an allocation

is applicable or before the close of the remedial period (whichever close first occurs) the Secretary of State, in consultation

with the Secretary, shall reallocate any portion of any reduction made under subparagraph (B) among one or more foreign

countries for which no certification is in effect.

(iii) If the certification is terminated under such section

8(d) during the remedial period, the Secretary of State shall return to the foreign country that portion of any allocation reduced under subparagraph (B) that was not reallocated under

clause (ii); unless the harvesting of the fish covered by the allocation is otherwise prohibited under this Act.

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

under section 204.

(D) If the certification of a foreign country is not terminated

under section 8(d) of the Fishermen’s Protective Act of 1967 before

the close of the last day of the remedial period, the Secretary of

State—

(i) with respect to any allocation made to that country and

in effect (as reduced under subparagraph (B)) on such last day,

shall rescind, effective on and after the day after such last day,

any unharvested portion of such allocation; and

(ii) may not thereafter make any allocation to that country

under paragraph (1) until the certification is terminated.

(f) RECIPROCITY.—Foreign fishing shall not be authorized for

the fishing vessels of any foreign nation unless such nation satisfies the Secretary and the Secretary of State that such nation extends substantially the same fishing privileges to fishing vessels of

the United States, if any, as the United States extends to foreign

fishing vessels.

(g) PRELIMINARY FISHERY MANAGEMENT PLANS.—The Secretary, when notified by the Secretary of State that any foreign nation has submitted an application under section 204(b), shall prepare a preliminary fishery management plan for any fishery covered by such application if the Secretary determines that no fishery

management plan for that fishery will be prepared and implemented, pursuant to title III, before March 1, 1977. To the extent

practicable, each such plan—
Sec. 201 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 270

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(d)(3)(A) of the Flower Garden National Marine Sanctuary

(P.L. 102–251; 106 Stat. 63) amends paragraph (1)(A) by inserting ‘‘or special areas’’ before the

period at the end. Section 301(d)(3)(B) of such Act amends paragraph (2)(A) by inserting ‘‘or special areas’’ after ‘‘exclusive economic zone’’.

(1) shall contain a preliminary description of the fishery

and a preliminary determination as to—

(A) the optimum yield from such fishery;

(B) when appropriate, the capacity and extent to

which United States fish processors will process that portion of such optimum yield that will be harvested by vessels of the United States; and

(C) the total allowable level of foreign fishing with respect to such fishery;

(2) shall require each foreign fishing vessel engaged or

wishing to engage in such fishery to obtain a permit from the

Secretary;

(3) shall require the submission of pertinent data to the

Secretary, with respect to such fishery, as described in section

303(a)(5); and

(4) may, to the extent necessary to prevent irreversible effects from overfishing, with respect to such fishery, contain

conservation and management measures applicable to foreign

fishing which—

(A) are determined to be necessary and appropriate for

the conservation and management of such fishery,

(B) are consistent with the national standards, the

other provisions of this Act, and other applicable law, and

(C) are described in section 303(b)(2), (3), (4), (5), and

(7).

Each preliminary fishery management plan shall be in effect with

respect to foreign fishing for which permits have been issued until

a fishery management plan is prepared and implemented, pursuant

to title III, with respect to such fishery. The Secretary may, in accordance with section 553 of title 5, United States Code, also prepare and promulgate interim regulations with respect to any such

preliminary plan. Such regulations shall be in effect until regulations implementing the applicable fishery management plan are

promulgated pursuant to section 305.

(h) FULL OBSERVER COVERAGE PROGRAM.—(1)(A) Except as

provided in paragraph (2), the Secretary shall establish a program

under which a United States observer will be stationed aboard each

foreign fishing vessel while that vessel is engaged in fishing within

the exclusive economic zone 1.

(B) The Secretary shall by regulation prescribe minimum

health and safety standards that shall be maintained aboard each

foreign fishing vessel with regard to the facilities provided for the

quartering of, and the carrying out of observer functions by, United

States observers.

(2) The requirement in paragraph (1) that a United States observer be placed aboard each foreign fishing vessel may be waived

by the Secretary if he finds that—

(A) in a situation where a fleet of harvesting vessels transfers its catch taken within the exclusive economic zone 1 to an-
271 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 201

1Margin so in law.

other vessel, aboard which is a United States observer, the stationing of United States observers on only a portion of the harvesting vessel fleet will provide a representative sampling of

the by-catch of the fleet that is sufficient for purposes of determining whether the requirements of the applicable management plans for the by-catch species are being complied with;

(B) 1 in a situation where the foreign fishing vessel is

operating under a Pacific Insular Area fishing agreement,

the Governor of the applicable Pacific Insular Area, in consultation with the Western Pacific Council, has established

an observer coverage program that is at least equal in effectiveness to the program established by the Secretary;

(C) the time during which a foreign fishing vessel will engage in fishing within the exclusive economic zone or special

areas will be of such short duration that the placing of a

United States observer aboard the vessel would be impractical;

or

(D) for reasons beyond the control of the Secretary, an observer is not available.

(3) Observers, while stationed aboard foreign fishing vessels,

shall carry out such scientific, compliance monitoring, and other

functions as the Secretary deems necessary or appropriate to carry

out the purposes of this Act; and shall cooperate in carrying out

such other scientific programs relating to the conservation and

management of living resources as the Secretary deems appropriate.

(4) In addition to any fee imposed under section 204(b)(10) of

this Act and section 10(e) of the Fishermen’s Protective Act of 1967

(22 U.S.C. 1980(e)) with respect to foreign fishing for any year after

1980, the Secretary shall impose, with respect to each foreign fishing vessel for which a permit is issued under such section 204, a

surcharge in an amount sufficient to cover all the costs of providing

a United States observer aboard that vessel. The failure to pay any

surcharge imposed under this paragraph shall be treated by the

Secretary as a failure to pay the permit fee for such vessel under

section 204(b)(10). All surcharges collected by the Secretary under

this paragraph shall be deposited in the Foreign Fishing Observer

Fund established by paragraph (5).

(5) There is established in the Treasury of the United States

the Foreign Fishing Observer Fund. The Fund shall be available to

the Secretary as a revolving fund for the purpose of carrying out

this subsection. The Fund shall consist of the surcharges deposited

into it as required under paragraph (4). All payments made by the

Secretary to carry out this subsection shall be paid from the Fund,

only to the extent and in the amounts provided for in advance in

appropriation Acts. Sums in the Fund which are not currently

needed for the purposes of this subsection shall be kept on deposit

or invested in obligations of, or guaranteed by, the United States.

(6) If at any time the requirement set forth in paragraph (1)

cannot be met because of insufficient appropriations, the Secretary

shall, in implementing a supplementary observer program:

(A) certify as observers, for the purposes of this subsection,

individuals who are citizens or nationals of the United States
Sec. 202 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 272

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(d)(4) of the Flower Garden National Marine Sanctuary (P.L.

102–251; 106 Stat. 63) amends this subsection (before its redesignation by P.L. 104–297) as follows:

(4) in subsection (j)—

(A) by inserting ‘‘, special areas,’’ immediately after ‘‘exclusive economic zone’’; and

(B) by inserting ‘‘, areas,’’ immediately after ‘‘such zone’’.

and who have the requisite education or experience to carry

out the functions referred to in paragraph (3);

(B) establish standards of conduct for certified observers

equivalent to those applicable to Federal personnel;

(C) establish a reasonable schedule of fees that certified

observers or their agents shall be paid by the owners and operators of foreign fishing vessels for observer services; and

(D) monitor the performance of observers to ensure that it

meets the purposes of this Act.

(i) RECREATIONAL FISHING.—Notwithstanding any other provision of this title, foreign fishing vessels which are not operated for

profit may engage in recreational fishing within the exclusive economic zone 1 and the waters within the boundaries of a State subject to obtaining such permits, paying such reasonable fees, and

complying with such conditions and restrictions as the Secretary

and the Governor of the State (or his designee) shall impose as

being necessary or appropriate to insure that the fishing activity of

such foreign vessels within such zone 1 or waters, respectively, is

consistent with all applicable Federal and State laws and any applicable fishery management plan implemented under section 304.

The Secretary shall consult with the Secretary of State and the

Secretary of the Department in which the Coast Guard is operating

in formulating the conditions and restrictions to be applied by the

Secretary under the authority of this subsection.

SEC. 202. ø16 U.S.C. 1822¿ INTERNATIONAL FISHERY AGREEMENTS.

(a) NEGOTIATIONS.—The Secretary of State—

(1) shall renegotiate treaties as provided for in subsection

(b);

(2) shall negotiate governing international fishery agreements described in section 201(c);

(3) may negotiate boundary agreements as provided for in

subsection (d);

(4) shall, upon the request of and in cooperation with the

Secretary, initiate and conduct negotiations for the purpose of

entering into international fishery agreements—

(A) which allow fishing vessels of the United States

equitable access to fish over which foreign nations assert

exclusive fishery management authority, and

(B) which provide for the conservation and management of anadromous species and highly migratory species;

and

(5) may enter into such other negotiations, not prohibited

by subsection (c), as may be necessary and appropriate to further the purposes, policy, and provisions of this Act.

(b) TREATY RENEGOTIATION.—The Secretary of State, in cooperation with the Secretary, shall initiate, promptly after the date

of enactment of this Act, the renegotiation of any treaty which per-
273 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 202

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(e) of the Flower Garden National Marine Sanctuary (P.L.

102–251; 106 Stat. 63) amends subsections (b) and (c) as follows:

(e) INTERNATIONAL FISHERY AGREEMENTS.—Section 202 of the Magnuson Fishery Conserva- tion and Management Act (16 U.S.C. 1822) is amended—

(1) in subsection (b)—

(A) by inserting ‘‘or special areas’’ immediately after ‘‘February 28, 1977)’’; and

(B) by striking ‘‘such zone or area’’ and inserting in lieu thereof ‘‘such zone or areas’’;

(2) in subsection (c)—

(A) by inserting ‘‘or special areas’’ immediately after ‘‘February 28, 1977)’’; and

(B) by striking ‘‘such zone or area’’ and inserting in lieu thereof ‘‘such zone or areas’’;

and

tains to fishing within the exclusive economic zone (or within the

area that will constitute such zone after February 28, 1977) 1, or for

anadromous species or Continental Shelf fishery resources beyond

such zone or area 1, and which is in any manner inconsistent with

the purposes, policy, or provisions of this Act, in order to conform

such treaty to such purposes, policy, and provisions. It is the sense

of Congress that the United States shall withdraw from any such

treaty, in accordance with its provisions, if such treaty is not so renegotiated within a reasonable period of time after such date of en- actment.

(c) INTERNATIONAL FISHERY AGREEMENTS.—No international

fishery agreement (other than a treaty) which pertains to foreign

fishing within the exclusive economic zone (or within the area that

will constitute such zone after February 28, 1977) 1, or for anadromous species or Continental Shelf fishery resources beyond such

zone or area 1— (1) which is in effect on June 1, 1976, may thereafter be

renewed, extended, or amended; or

(2) may be entered into after May 31, 1976;

by the United States unless it is in accordance with the provisions

of section 201(c) or section 204(e).

(d) BOUNDARY NEGOTIATIONS.—The Secretary of State, in cooperation with the Secretary, may initiate and conduct negotiations

with any adjacent or opposite foreign nation to establish the boundaries of the exclusive economic zone of the United States in relation

to any such nation.

(e) HIGHLY MIGRATORY SPECIES AGREEMENTS.— (1) EVALUATION.—The Secretary of State, in cooperation

with the Secretary, shall evaluate the effectiveness of each existing international fishery agreement which pertains to fishing for highly migratory species. Such evaluation shall consider

whether the agreement provides for—

(A) the collection and analysis of necessary information for effectively managing the fishery, including but not

limited to information about the number of vessels involved, the type and quantity of fishing gear used, the species of fish involved and their location, the catch and bycatch levels in the fishery, and the present and probable

future condition of any stock of fish involved;

(B) the establishment of measures applicable to the

fishery which are necessary and appropriate for the conservation and management of the fishery resource involved;

(C) equitable arrangements which provide fishing vessels of the United States with (i) access to the highly mi-
Sec. 202 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 274

gratory species that are the subject of the agreement and

(ii) a portion of the allowable catch that reflects the traditional participation by such vessels in the fishery;

(D) effective enforcement of conservation and management measures and access arrangements throughout the

area of jurisdiction; and

(E) sufficient and dependable funding to implement

the provisions of the agreement, based on reasonable assessments of the benefits derived by participating nations.

(2) ACCESS NEGOTIATIONS.—The Secretary of State, in cooperation with the Secretary, shall initiate negotiations with

respect to obtaining access for vessels of the United States fishing for tuna species within the exclusive economic zones of

other nations on reasonable terms and conditions.

(3) REPORTS.—The Secretary of State shall report to the

Congress—

(A) within 12 months after the date of enactment of

this subsection, on the results of the evaluation required

under paragraph (1), together with recommendations for

addressing any inadequacies identified; and

(B) within six months after such date of enactment, on

the results of the access negotiations required under paragraph (2).

(4) NEGOTIATION.—The Secretary of State, in consultation

with the Secretary, shall undertake such negotiations with respect to international fishery agreements on highly migratory

species as are necessary to correct inadequacies identified as a

result of the evaluation conducted under paragraph (1).

(5) SOUTH PACIFIC TUNA TREATY.—It is the sense of the

Congress that the United States Government shall, at the earliest opportunity, begin negotiations for the purpose of extending the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United

States of America, signed at Port Moresby, Papua New Guinea,

April 2, 1987, and it Annexes, Schedules, and implementing

agreements for an additional term of 10 years on terms and

conditions at least as favorable to vessels of the United States

and the United States Government.

(f) NONRECOGNITION.—It is the sense of the Congress that the

United States Government shall not recognize the claim of any foreign nation to an exclusive economic zone (or the equivalent) beyond such nation’s territorial sea, to the extent that such sea is recognized by the United States, if such nation—

(1) fails to consider and take into account traditional fishing activity of fishing vessels of the United States;

(2) fails to recognize and accept that highly migratory species are to be managed by applicable international fishery

agreements, whether or not such nation is a party to any such

agreement; or

(3) imposes on fishing vessels of the United States any

conditions or restrictions which are unrelated to fishery conservation and management.

(g) FISHERY AGREEMENT WITH UNION OF SOVIET SOCIALIST REPUBLICS.—(1) The Secretary of State, in consultation with the Secretary, is authorized to negotiate and conclude a fishery agreement
275 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 203

with Russia of a duration of no more than 3 years, pursuant to

which—

(A) Russia will give United States fishing vessels the opportunity to conduct traditional fisheries within waters claimed

by the United States prior to the conclusion of the Agreement

between the United States of America and the Union of Soviet

Socialist Republics on the Maritime Boundary, signed June 1,

1990, west of the maritime boundary, including the western

special area described in Article 3(2) of the Agreement;

(B) the United States will give fishing vessels of Russia

the opportunity to conduct traditional fisheries within waters

claimed by the Union of Soviet Socialist Republics prior to the

conclusion of the Agreement referred to in subparagraph (A),

east of the maritime boundary, including the eastern special

areas described in Article 3(1) of the Agreement;

(C) catch data shall be made available to the government

of the country exercising fisheries jurisdiction over the waters

in which the catch occurred; and

(D) each country shall have the right to place observers on

board vessels of the other country and to board and inspect

such vessels.

(2) Vessels operating under a fishery agreement negotiated and

concluded pursuant to paragraph (1) shall be subject to regulations

and permit requirements of the country in whose waters the fisheries are conducted only to the extent such regulations and permit

requirements are specified in that agreement.

(3) The Secretary of Commerce may promulgate such regulations, in accordance with section 553 of title 5, United States Code,

as may be necessary to carry out the provisions of any fishery

agreement negotiated and concluded pursuant to paragraph (1).

(h) BYCATCH REDUCTION AGREEMENTS.— (1) The Secretary of State, in cooperation with the Secretary, shall seek to secure an international agreement to establish standards and measures for bycatch reduction that are

comparable to the standards and measures applicable to

United States fishermen for such purposes in any fishery regulated pursuant to this Act for which the Secretary, in consultation with the Secretary of State, determines that such an international agreement is necessary and appropriate.

(2) An international agreement negotiated under this subsection shall be—

(A) consistent with the policies and purposes of this

Act; and

(B) subject to approval by Congress under section 203.

(3) Not later than January 1, 1997, and annually thereafter, the Secretary, in consultation with the Secretary of

State, shall submit to the Committee on Commerce, Science,

and Transportation of the Senate and the Committee on Resources of the House of Representatives a report describing actions taken under this subsection.

SEC. 203. ø16 U.S.C. 1823¿ CONGRESSIONAL OVERSIGHT OF INTERNATIONAL FISHERY AGREEMENTS.

(a) IN GENERAL.—No governing international fishery agreement, bycatch reduction agreement, or Pacific Insular Area fishery

agreement shall become effective with respect to the United States
Sec. 203 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 276

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives. 2The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

before the close of the first 120 days (excluding any days in a period for which the Congress is adjourned sine die) after the date

on which the President transmits to the House of Representatives

and to the Senate a document setting forth the text of such governing international fishery agreement, bycatch reduction agreement, or Pacific Insular Area fishery agreement. A copy of the document shall be delivered to each House of Congress on the same

day and shall be delivered to the Clerk of the House of Representatives, if the House is not in session, and to the Secretary of the

Senate, if the Senate is not in session.

(b) REFERRAL TO COMMITTEES.—Any document described in

subsection (a) shall be immediately referred in the House of Representatives to the Committee on Merchant Marine and Fisheries 1,

and in the Senate to the Committees on Commerce, Science, and

Transportation and on Foreign Relations.

(c) CONGRESSIONAL PROCEDURES.—

(1) RULES OF THE HOUSE OF REPRESENTATIVE AND SENATE.—The provisions of this section are enacted by the

Congress—

(A) as an exercise of the rulemaking power of the

House of Representatives and the Senate, respectively, and

they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to

be followed in that House in the case of fishery agreement

resolutions described in paragraph (2), and they supersede

other rules only to the extent that they are inconsistent

therewith; and

(B) with full recognition of the constitutional right of

either House to change the rules (so far as they relate to

the procedure of that House) at any time, and in the same

manner and to the same extent as in the case of any other

rule of that House.

(2) DEFINITION.—For purposes of this subsection, the term

‘‘fishery agreement resolution’’ refers to a joint resolution of either House of Congress—

(A) the effect of which is to prohibit the entering into

force and effect of any governing international fishery

agreement, bycatch reduction agreement, or Pacific Insular

Area fishery agreement the texst of which is transmitted

to the Congress pursuant to subsection (a); and

(B) which is reported from the Committee on Merchant Marine and Fisheries of the House of Representatives 2 or the Committee on Commerce, Science, and Transportation or the Committee on Foreign Relations of the

Senate, not later than 45 days after the date on which the
277 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 203

document described in subsection (a) relating to that

agreement is transmitted to the Congress.

(3) PLACEMENT ON CALENDAR.—Any fishery agreement resolution upon being reported shall immediately be placed on the

appropriate calendar.

(4) FLOOR CONSIDERATION IN THE HOUSE.— (A) A motion in the House of Representatives to proceed to the consideration of any fishery agreement resolution shall be highly privileged and not debatable. An

amendment to the motion shall not be in order, nor shall

it be in order to move to reconsider the vote by which the

motion is agreed to or disagreed to.

(B) Debate in the House of Representatives on any

fishery agreement resolution shall be limited to not more

than 10 hours, which shall be divided equally between

those favoring and those opposing the resolution. A motion

further to limit debate shall not be debatable. It shall not

be in order to move to recommit any fishery agreement

resolution or to move to reconsider the vote by which any

fishery agreement resolution is agreed to or disagreed to.

(C) Motions to postpone, made in the House of Representatives with respect to the consideration of any fishery agreement resolution, and motions to proceed to the

consideration of other business, shall be decided without

debate.

(D) All appeals from the decisions of the Chair relating

to the application of the Rules of the House of Representatives to the procedure relating to any fishery agreement

resolution shall be decided without debate.

(E) Except to the extent specifically provided in the

preceding provisions of this subsection, consideration of

any fishery agreement resolution shall be governed by the

Rules of the House of Representatives applicable to other

bills and resolutions in similar circumstances.

(5) FLOOR CONSIDERATION IN THE SENATE.—

(A) A motion in the Senate to proceed to the consideration of any fishery agreement resolution shall be privileged and not debatable. An amendment to the motion

shall not be in order, nor shall it be in order to move to

reconsider the vote by which the motion is agreed to or

disagreed to.

(B) Debate in the Senate on any fishery agreement

resolution and on all debatable motions and appeals in

connection therewith shall be limited to not more than 10

hours. The time shall be equally divided between, and controlled by, the majority leader and the minority leader or

their designees.

(C) Debate in the Senate on any debatable motion or

appeal in connection with any fishery agreement resolution shall be limited to not more than 1 hour, to be equally

divided between, and controlled by, the mover of the motion or appeal and the manager of the resolution, except

that if the manager of the resolution is in favor of any

such motion or appeal, the time in opposition thereto shall

be controlled by the minority leader or his designee. The
Sec. 204 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 278

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(f) of the Flower Garden National Marine Sanctuary (P.L. 102–

251; 106 Stat. 64) amends this subsection as follows:

(f) PERMITS FOR FOREIGN FISHING.—Section 204(a) of the Magnuson Fishery Conservation and

Management Act (16 U.S.C. 1824(a)) is amended—

(1) by inserting ‘‘within the special areas,’’ immediately before ‘‘or for anadromous species’’; and

(2) by inserting ‘‘or areas’’ immediately after ‘‘such zone’’.

majority leader and the minority leader, or either of them,

may allot additional time to any Senator during the consideration of any debatable motion or appeal, from time

under their control with respect to the applicable fishery

agreement resolution.

(D) A motion in the Senate to further limit debate is

not debatable. A motion to recommit any fishery agreement resolution is not in order.

SEC. 204. ø16 U.S.C. 1824¿ PERMITS FOR FOREIGN FISHING.

(a) IN GENERAL.—After February 28, 1977, no foreign fishing

vessel shall engage in fishing within the exclusive economic zone, 1

or for anadromous species or Continental Shelf fishery resources

beyond such zone 1, unless such vessel has on board a valid permit

issued under this section for such vessel.

(b) APPLICATIONS AND PERMITS UNDER GOVERNING INTERNATIONAL FISHERY AGREEMENTS.—

(1) ELIGIBILITY.—Each foreign nation with which the

United States has entered into a governing international fishery agreement shall submit an application to the Secretary of

State each year for a permit for each of its fishing vessels that

wishes to engage in fishing described in subsection (a). No permit issued under this section may be valid for longer than a

year; and section 558(c) of title 5, United States Code, does not

apply to the renewal of any such permit.

(2) FORMS.—The Secretary, in consultation with the Secretary of State and the Secretary of the department in which

the Coast Guard is operating, shall prescribe the forms for permit applications submitted under this subsection and for permits issued pursuant to any such application.

(3) CONTENTS.—Any application made under this subsection shall specify—

(A) the name and official number or other identification of each fishing vessel for which a permit is sought, together with the name and address of the owner thereof;

(B) the tonnage, hold capacity, speed, processing

equipment, type and quantity of fishing gear, and such

other pertinent information with respect to characteristics

of each such vessel as the Secretary may require;

(C) each fishery in which each such vessel wishes to

fish;

(D) the estimated amount of tonnage of fish which will

be caught, taken, or harvested in each such fishery by each

such vessel during the time the permit is in force;

(E) the amount or tonnage of United States harvested

fish, if any, which each such vessel proposes to receive at

sea from vessels of the United States;
279 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 204

(F) the ocean area in which, and the season or period

during which, such fishing will be conducted; and

(G) all applicable vessel safety standards imposed by

the foreign country, and shall include written certification

that the vessel is in compliance with those standards;

and shall include any other pertinent information and material

which the Secretary may require.

(4) TRANSMITTAL FOR ACTION.—Upon receipt of any application which complies with the requirements of paragraph (3),

the Secretary of State shall publish a notice of receipt of the

application in the Federal Register. Any such notice shall summarize the contents of the applications from each nation included therein with respect to the matters described in paragraph (3). The Secretary of State shall promptly transmit—

(A) such application, together with his comments and

recommendations thereon, to the Secretary;

(B) a copy of the application to the Secretary of the department in which the Coast Guard is operating; and

(C) a copy or a summary of the application to the appropriate Council.

(5) ACTION BY COUNCIL.—After receiving a copy or summary of an application under paragraph (4)(C), the Council

may prepare and submit to the Secretary such written comments on the application as it deems appropriate. Such comments shall be submitted within 45 days after the date on

which the application is received by the Council and may include recommendations with respect to approval of the application and, if approval is recommended, with respect to appropriate conditions and restrictions thereon. Any interested person may submit comments to such Council with respect to any

such application. The Council shall consider any such comments in formulating its submission to the Secretary.

(6) APPROVAL.—(A) After receipt of any application transmitted under paragraph (4)(A), the Secretary shall consult

with the Secretary of State and, with respect to enforcement,

with the Secretary of the department in which the Coast

Guard is operating. The Secretary after taking into consideration the views and recommendations of such Secretaries, and

any comments submitted by any Council under paragraph (5),

may approve, subject to subparagraph (B), the application, if

he determines that the fishing described in the application will

meet the requirements of this Act, or he may disapprove all or

any portion of the application.

(B)(i) In the case of any application which specifies that

one or more foreign fishing vessels propose to receive at sea

United States harvested fish from vessels of the United States,

the Secretary may approve the application unless the Secretary determines, on the basis of the views, recommendations,

and comments referred to in subparagraph (A) and other pertinent information, that United States fish processors have adequate capacity, and will utilize such capacity, to process all

United States harvested fish from the fishery concerned.

(ii) The amount or tonnage of United States harvested fish

which may be received at sea during any year by foreign fishing vessels under permits approved under this paragraph may
Sec. 204 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 280

not exceed that portion of the optimum yield of the fishery concerned which will not be utilized by United States fish processors.

(iii) In deciding whether to approve any application under

this subparagraph, the Secretary may take into account, with

respect to the foreign nation concerned, such other matters as

the Secretary deems appropriate.

(7) ESTABLISHMENT OF CONDITIONS AND RESTRICTIONS.—

The Secretary shall establish conditions and restrictions which

shall be included in each permit issued pursuant to any application approved under paragraph (6) or subsection (d) and

which must be complied with by the owner or operator of the

fishing vessel for which the permit is issued. Such conditions

and restrictions shall include the following:

(A) All of the requirements of any applicable fishery

management plan, or preliminary fishery management

plan, and any applicable Federal or State fishing regulations.

(B) The requirement that no permit may be used by

any vessel other than the fishing vessel for which it is

issued.

(C) The requirements described in section 201(c)(1),

(2), and (3).

(D) If the permit is issued other than pursuant to an

application approved under paragraph (6)(B) or subsection

(d), the restriction that the foreign fishing vessel may not

receive at sea United States harvested fish from vessels of

the United States.

(E) If the permit is issued pursuant to an application

approved under paragraph (6)(B), the maximum amount or

tonnage of United States harvested fish which may be received at sea from vessels of the United States.

(F) Any other condition and restriction related to fishery conservation and management which the Secretary

prescribes as necessary and appropriate.

(8) NOTICE OF APPROVAL.—The Secretary shall promptly

transmit a copy of each application approved under paragraph

(6) and the conditions and restrictions established under paragraph (7) to—

(A) the Secretary of State for transmittal to the foreign nation involved;

(B) the Secretary of the department in which the

Coast Guard is operating; and

(C) any Council which has authority over any fishery

specified in such application.

(9) DISAPPROVAL OF APPLICATIONS.—If the Secretary does

not approve any application submitted by a foreign nation

under this subsection, he shall promptly inform the Secretary

of State of the disapproval and his reasons therefore. The Secretary of State shall notify such foreign nation of the disapproval and the reasons therefor. Such foreign nation, after

taking into consideration the reasons for disapproval, may submit a revised application under this subsection.

(10) FEES.—
281 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 204

(A) Fees shall be paid to the Secretary by the owner

or operator of any foreign fishing vessel for which a permit

has been issued pursuant to this section. The Secretary, in

consultation with the Secretary of State, shall establish a

schedule of reasonable fees that shall apply

nondiscriminatorily to each foreign nation.

(B) Amounts collected by the Secretary under this

paragraph shall be deposited in the general fund of the

Treasury.

(11) ISSUANCE OF PERMITS.—If a foreign nation notifies the

Secretary of State of its acceptance of the conditions and restrictions established by the Secretary under paragraph (7),

the Secretary of State shall promptly transmit such notification to the Secretary. Upon payment of the applicable fees established pursuant to paragraph (10), the Secretary shall

thereupon issue to such foreign nation, through the Secretary

of State, permits for the appropriate fishing vessels of that nation. Each permit shall contain a statement of all conditions

and restrictions established under paragraph (7) which apply

to the fishing vessel for which the permit is issued.

(c) REGISTRATION PERMITS.—The Secretary of State, in cooperation with the Secretary, shall issue annually a registration permit

for each fishing vessel of a foreign nation which is a party to an

international fishery agreement under which foreign fishing is authorized by section 201(b) and which wishes to engage in fishing

described in subsection (a). Each such permit shall set forth the

terms and conditions contained in the agreement that apply with

respect to such fishing, and shall include the additional requirement that the owner or operator of the fishing vessel for which the

permit is issued shall prominently display such permit in the

wheelhouse of such vessel and show it, upon request, to any officer

authorized to enforce the provisions of this Act (as provided for in

section 311). The Secretary of State, after consultation with the

Secretary and the Secretary of the department in which the Coast

Guard is operating, shall prescribe the form and manner in which

applications for registration permits may be made, and the forms

of such permits. The Secretary of State may establish, require the

payment of, and collect fees for registration permits; except that

the level of such fees shall not exceed the administrative costs incurred by him in issuing such permits.

(d) TRANSSHIPMENT PERMITS.—

(1) AUTHORITY TO ISSUE PERMITS.—The Secretary may

issue a transshipment permit under this subsection which authorizes a vessel other than a vessel of the United States to engage in fishing consisting solely of transporting fish or fish

products at sea from a point within the exclusive economic

zone or, with the concurrence of a State, within the boundaries

of that State, to a point outside the United States to any person who—

(A) submits an application which is approved by the

Secretary under paragraph (3); and

(B) pays a fee imposed under paragraph (7).

(2) TRANSMITTAL.—Upon receipt of an application for a

permit under this subsection, the Secretary shall promptly

transmit copies of the application to the Secretary of State,
Sec. 204 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 282

Secretary of the department in which the Coast Guard is operating, any appropriate Council, and any affected State.

(3) APPROVAL OF APPLICATION.—The Secretary may approve, in consultation with the appropriate Council or Marine

Fisheries Commission, an application for a permit under this

section if the Secretary determines that—

(A) the transportation of fish or fish products to be

conducted under the permit, as described in the application, will be in the interest of the United States and will

meet the applicable requirements of this Act;

(B) the applicant will comply with the requirements

described in section 201(c)(2) with respect to activities authorized by any permit issued pursuant to the application;

(C) the applicant has established any bonds or financial assurances that may be required by the Secretary; and

(D) no owner or operator of a vessel of the United

States which has adequate capacity to perform the transportation for which the application is submitted has indicated to the Secretary an interest in performing the transportation at fair and reasonable rates.

(4) WHOLE OR PARTIAL APPROVAL.—The Secretary may approve all or any portion of an application under paragraph (3).

(5) FAILURE TO APPROVE APPLICATION.—If the Secretary

does not approve any portion of an application submitted under

paragraph (1), the Secretary shall promptly inform the applicant and specify the reasons therefor.

(6) CONDITIONS AND RESTRICTIONS.—The Secretary shall

establish and include in each permit under this subsection conditions and restrictions, including those conditions and restrictions set forth in subsection (b)(7), which shall be complied

with by the owner and operator of the vessel for which the permit is issued.

(7) FEES.—The Secretary shall collect a fee for each permit

issued under this subsection, in an amount adequate to recover

the costs incurred by the United States in issuing the permit,

except that the Secretary shall waive the fee for the permit if

the foreign nation under which the vessel is registered does not

collect a fee from a vessel of the United States engaged in similar activities in the waters of such foreign nation.

(e) PACIFIC INSULAR AREAS.—

(1) NEGOTIATION OF PACIFIC INSULAR AREA FISHERY AGREEMENTS.—The Secretary of State, with the concurrence of the

Secretary and in consultation with any appropriate Council,

may negotiate and enter into a Pacific Insular Area fishery

agreement to authorize foreign fishing within the exclusive economic zone adjacent to a Pacific Insular Area—

(A) in the case of American Samoa, Guam, or the

Northern Mariana Islands, at the request and with the

concurrence of, and in consultation with, the Governor of

the Pacific Insular Area to which such agreement applies;

and

(B) in the case of a Pacific Insular Area other than

American Samoa, Guam, or the Northern Mariana Islands,

at the request of the Western Pacific Council.
283 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 204

(2) AGREEMENT TERMS AND CONDITIONS.—A Pacific Insular

Area fishery agreement—

(A) shall not be considered to supersede any governing

international fishery agreement currently in effect under

this Act, but shall provide an alternative basis for the conduct of foreign fishing within the exclusive economic zone

adjacent to Pacific Insular Areas;

(B) shall be negotiated and implemented consistent

only with the governing international fishery agreement

provisions of this title specifically made applicable in this

subsection;

(C) may not be negotiated with a nation that is in violation of a governing international fishery agreement in effect under this Act;

(D) shall not be entered into if it is determined by the

Governor of the applicable Pacific Insular Area with respect to agreements initiated under paragraph (1)(A), or

the Western Pacific Council with respect to agreements

initiated under paragraph (1)(B), that such an agreement

will adversely affect the fishing activities of the indigenous

people of such Pacific Insular Area;

(E) shall be valid for a period not to exceed three years

and shall only become effective according to the procedures

in section 203; and

(F) shall require the foreign nation and its fishing vessels to comply with the requirements of paragraphs (1),

(2), (3) and (4)(A) of section 201(c), section 201(d), and section 201(h).

(3) PERMITS FOR FOREIGN FISHING.—

(A) Application for permits for foreign fishing authorized under a Pacific Insular Areas fishing agreement shall

be made, considered and approved or disapproved in accordance with paragraphs (3), (4), (5), (6), (7)(A) and (B),

(8), and (9) of subsection (b), and shall include any conditions and restrictions established by the Secretary in consultation with the Secretary of State, the Secretary of the

department in which the Coast Guard is operating, the

Governor of the applicable Pacific Insular Area, and the

appropriate Council.

(B) If a foreign nation notifies the Secretary of State

of its acceptance of the requirements of this paragraph,

paragraph (2)(F), and paragraph (5), including any conditions and restrictions established under subparagraph (A),

the Secretary of State shall promptly transmit such notification to the Secretary. Upon receipt of any payment required under a Pacific Insular Area fishing agreement, the

Secretary shall thereupon issue to such foreign nation,

through the Secretary of State, permits for the appropriate

fishing vessels of that nation. Each permit shall contain a

statement of all of the requirements, conditions, and restrictions established under this subsection which apply to

the fishing vessel for which the permit is issued.

(4) MARINE CONSERVATION PLANS.—

(A) Prior to entering into a Pacific Insular Area fishery

agreement, the Western Pacific Council and the appro-
Sec. 204 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 284

priate Governor shall develop a 3-year marine conservation plan detailing uses for funds to be collected by the

Secretary pursuant to such agreement. Such plan shall be

consistent with any applicable fishery management plan,

identify conservation and management objectives (including criteria for determining when such objectives have

been met), and prioritize planned marine conservation

projects. Conservation and management objectives shall

include, but not be limited to—

(i) establishment of Pacific Insular Area observer

programs, approved by the Secretary in consultation

with the Western Pacific Council, that provide observer coverage for foreign fishing under Pacific Insular Area fishery agreements that is at least equal in

effectiveness to the program established by the Secretary under section 201(h);

(ii) conduct of marine and fisheries research, including development of systems for information collection, analysis, evaluation, and reporting;

(iii) conservation, education, and enforcement activities related to marine and coastal management,

such as living marine resource assessments, habitat

monitoring and coastal studies;

(iv) grants to the University of Hawaii for technical assistance projects by the Pacific Island Network, such as education and training in the development and implementation of sustainable marine resources development projects, scientific research, and

conservation strategies; and

(v) western Pacific community-based demonstration projects under section 112(b) of the Sustainable

Fisheries Act and other coastal improvement projects

to foster and promote the management, conservation,

and economic enhancement of the Pacific Insular

Areas.

(B) In the case of American Samoa, Guam, and the Northern Mariana Islands, the appropriate Governor, with the concurrence of the Western Pacific Council, shall develop the marine conservation plan described in subparagraph (A) and submit such plan to the Secretary for approval. In the case of

other Pacific Insular Areas, the Western Pacific Council shall

develop and submit the marine conservation plan described in

subparagraph (A) to the Secretary for approval.

(C) If a Governor or the Western Pacific Council intends

to request that the Secretary of State renew a Pacific Insular

Area fishery agreement, a subsequent 3-year plan shall be submitted to the Secretary for approval by the end of the second

year of the existing 3-year plan.

(5) RECIPROCAL CONDITIONS.—Except as expressly provided

otherwise in this subsection, a Pacific Insular Area fishing

agreement may include terms similar to the terms applicable

to United States fishing vessels for access to similar fisheries

in waters subject to the fisheries jurisdiction of another nation.

(6) USE OF PAYMENTS BY AMERICAN SAMOA, GUAM, NORTHERN MARIANA ISLANDS.—Any payments received by the Sec-
285 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 204

retary under a Pacific Insular Area fishery agreement for

American Samoa, Guam, or the Northern Mariana Islands

shall be deposited into the United States Treasury and then

covered over to the Treasury of the Pacific Insular Area for

which those funds were collected. Amounts deposited in the

Treasury of a Pacific Insular Area shall be available, without

appropriation or fiscal year limitation, to the Governor of the

Pacific Insular Area—

(A) to carry out the purposes of this subsection;

(B) to compensate (i) the Western Pacific Council for

mutually agreed upon administrative costs incurred relating to any Pacific Insular Area fishery agreement for such

Pacific Insular Area, and (ii) the Secretary of State for mutually agreed upon travel expenses for no more than 2

Federal representatives incurred as a direct result of complying with paragraph (1)(A); and

(C) to implement a marine conservation plan developed and approved under paragraph (4).

(7) WESTERN PACIFIC SUSTAINABLE FISHERIES FUND.— There is established in the United States Treasury a Western

Pacific Sustainable Fisheries Fund into which any payments

received by the Secretary under a Pacific Insular Area fishery

agreement for any Pacific Insular Area other than American

Samoa, Guam, or the Northern Mariana Islands shall be deposited. The Western Pacific Sustainable Fisheries Fund shall

be made available, without appropriation or fiscal year limitation, to the Secretary, who shall provide such funds only to—

(A) the Western Pacific Council for the purpose of carrying out the provisions of this subsection, including implementation of a marine conservation plan approved

under paragraph (4);

(B) the Secretary of State for mutually agreed upon

travel expenses for no more than 2 Federal representatives

incurred as a direct result of complying with paragraph

(1)(B); and

(C) the Western Pacific Council to meet conservation

and management objectives in the State of Hawaii if monies remain in the Western Pacific Sustainable Fisheries

Fund after the funding requirements of subparagraphs (A)

and (B) have been satisfied.

Amounts deposited in such fund shall not diminish funding received by the Western Pacific Council for the purpose of carrying out other responsibilities under this Act.

(8) USE OF FINES AND PENALTIES.—In the case of violations

occurring within the exclusive economic zone off American

Samoa, Guam, or the Northern Mariana Islands, amounts received by the Secretary which are attributable to fines or penalties imposed under this Act, including such sums collected

from the forfeiture and disposition or sale of property seized

subject to its authority, after payment of direct costs of the enforcement action to all entities involved in such action, shall be

deposited into the Treasury of the Pacific Insular Area adjacent to the exclusive economic zone in which the violation occurred, to be used for fisheries enforcement and for implementation of a marine conservation plan under paragraph (4).
Sec. 205 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 286

SEC. 205. ø16 U.S.C. 1825¿ IMPORT PROHIBITIONS.

(a) DETERMINATIONS BY SECRETARY OF STATE.—If the Secretary of State determines that—

(1) he has been unable, within a reasonable period of time,

to conclude with any foreign nation an international fishery

agreement allowing fishing vessels of the United States equitable access to fisheries over which that nation asserts exclusive fishery management authority, including fisheries for tuna

species, as recognized by the United States, in accordance with

fishing activities of such vessels, if any, and under terms not

more restrictive than those established under sections 201 (c)

and (d) and 204 (b)(7) and (10), because such nation has (A)

refused to commence negotiations, or (B) failed to negotiate in

good faith;

(2) any foreign nation is not allowing fishing vessels of the

United States to engage in fishing for tuna species in accordance with an applicable international fishery agreement,

whether or not such nation is a party thereto;

(3) any foreign nation is not complying with its obligations

under any existing international fishery agreement concerning

fishing by fishing vessels of the United States in any fishery

over which that nation asserts exclusive fishery management

authority; or

(4) any fishing vessel of the United States, while fishing in

waters beyond any foreign nation’s territorial sea, to the extent

that such sea is recognized by the United States, is seized by

any foreign nation—

(A) in violation of an applicable international fishery

agreement;

(B) without authorization under an agreement between the United States and such nation; or

(C) as a consequence of a claim of jurisdiction which

is not recognized by the United States;

he shall certify such determination to the Secretary of the Treasury.

(b) PROHIBITIONS.—Upon receipt of any certification from the

Secretary of State under subsection (a), the Secretary of the Treasury shall immediately take such action as may be necessary and

appropriate to prohibit the importation into the United States—

(1) of all fish and fish products from the fishery involved,

if any; and

(2) upon recommendation of the Secretary of State, such

other fish or fish products, from any fishery of the foreign nation concerned, which the Secretary of State finds to be appropriate to carry out the purposes of this section.

(c) REMOVAL OF PROHIBITION.—If the Secretary of State finds

that the reasons for the imposition of any import prohibition under

this section no longer prevail, the Secretary of State shall notify

the Secretary of the Treasury, who shall promptly remove such import prohibition.

(d) DEFINITIONS.—As used in this section—

(1) The term ‘‘fish’’ includes any highly migratory species.

(2) The term ‘‘fish products’’ means any article which is

produced from or composed of (in whole or in part) any fish.
287 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 206

SEC. 206. ø16 U.S.C. 1826¿ LARGE-SCALE DRIFTNET FISHING.

(a) SHORT TITLE.—This section incorporates and expands upon

provisions of the Driftnet Impact Monitoring, Assessment, and Control Act of 1987 and may be cited as the ‘‘Driftnet Act Amendments

of 1990’’.

(b) FINDINGS.—The Congress finds that—

(1) the continued widespread use of large-scale driftnets

beyond the exclusive economic zone of any nation is a destructive fishing practice that poses a threat to living marine resources of the world’s oceans, including but not limited to the

North and South Pacific Ocean and the Bering Sea;

(2) the use of large-scale driftnets is expanding into new

regions of the world’s oceans, including the Atlantic Ocean and

Caribbean Sea;

(3) there is a pressing need for detailed and reliable information on the number of seabirds, sea turtles, nontarget fish,

and marine mammals that become entangled and die in actively fished large-scale driftnets and in large-scale driftnets

that are lost, abandoned, or discarded;

(4) increased efforts, including reliable observer data and

enforcement mechanisms, are needed to monitor, assess, control, and reduce the adverse impact of large-scale driftnet fishing on living marine resources;

(5) the nations of the world have agreed in the United Nations, through General Assembly Resolution Numbered 44–

225, approved December 22, 1989, by the General Assembly,

that a moratorium should be imposed by June 30, 1992, on the

use of large-scale driftnets beyond the exclusive economic zone

of any nation;

(6) the nations of the South Pacific have agreed to a moratorium on the use of large-scale driftnets in the South Pacific

through the Convention for the Prohibition of Fishing with

Long Driftnets in the South Pacific, which was agreed to in

Wellington, New Zealand, on November 29, 1989; and

(7) increasing population pressures and new knowledge of

the importance of living marine resources to the health of the

global ecosystem demand that greater responsibility be exercised by persons fishing or developing new fisheries beyond the

exclusive economic zone of any nation.

(c) POLICY.—It is declared to be the policy of the Congress in

this section that the United States should—

(1) implement the moratorium called for by the United Nations General Assembly in Resolution Numbered 44–225;

(2) support the Tarawa Declaration and the Wellington

Convention for the Prohibition of Fishing with Long Driftnets

in the South Pacific; and

(3) secure a permanent ban on the use of destructive fishing practices, and in particular large-scale driftnets, by persons

or vessels fishing beyond the exclusive economic zone of any

nation.

(d) INTERNATIONAL AGREEMENTS.—The Secretary, through the

Secretary of State and the Secretary of the department in which

the Coast Guard is operating, shall seek to secure international

agreements to implement immediately the findings, policy, and provisions of this section, and in particular an international ban on
Sec. 206 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 288

large-scale driftnet fishing. The Secretary, through the Secretary of

State, shall include, in any agreement which addresses the taking

of living marine resources of the United States, provisions to ensure that—

(1) each large-scale driftnet fishing vessel of a foreign nation that is party to the agreement, including vessels that may

operate independently to develop new fishing areas, which operate beyond the exclusive economic zone of any nation, is included in such agreement;

(2) each large-scale driftnet fishing vessel of a foreign nation that is party to the agreement, which operates beyond the

exclusive economic zone of any nation, is equipped with satellite transmitters which provide real-time position information

accessible to the United States;

(3) statistically reliable monitoring by the United States is

carried out, through the use of on-board observers or through

dedicated platforms provided by foreign nations that are parties to the agreement, of all target and nontarget fish species,

marine mammals, sea turtles, and sea birds entangled or killed

by large-scale driftnets used by fishing vessels of foreign nations that are parties to the agreement;

(4) officials of the United States have the right to board

and inspect for violations of the agreement any large-scale

driftnet fishing vessels operating under the flag of a foreign

nation that is party to the agreement at any time while such

vessel is operating in designated areas beyond the exclusive

economic zone of any nation;

(5) all catch landed or transshipped at sea by large-scale

driftnet fishing vessels of a foreign nation that is a party to the

agreement, and which are operated beyond the exclusive economic zone of any nation, is reliably monitored and documented;

(6) time and area restrictions are imposed on the use of

large-scale driftnets in order to prevent interception of anadromous species;

(7) all large-scale drifnets used are constructed, insofar as

feasible, with biodegradable materials which break into segments that do not represent a threat to living marine resources;

(8) all large-scale driftnets are marked at appropriate intervals in a manner that conclusively identifies the vessel and

flag nation responsible for each such driftnet;

(9) the taking of nontarget fish species, marine mammals,

sea turtles, seabirds, and endangered species or other species

protected by international agreements to which the United

States is a party is minimized and does not pose a threat to

existing fisheries or the long-term health of living marine resources; and

(10) definitive steps are agreed upon to ensure that parties

to the agreement comply with the spirit of other international

agreements and resolutions concerning the use of large-scale

driftnets beyond the exclusive economic zone of any nation.

(e) REPORT.—Not later than January 1, 1991, and every year

thereafter until the purposes of this section are met, the Secretary,

after consultation with the Secretary of State and the Secretary of
289 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 301

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

the department in which the Coast Guard is operating, shall submit to the Committee on Commerce, Science, and Transportation of

the Senate and the Committee on Merchant Marine and Fisheries

of the House of Representatives 1 a report—

(1) describing the steps taken to carry out the provisions

of this section, particularly subsection (c);

(2) evaluating the progress of those efforts, the impacts on

living marine resources, including available observer data, and

specifying plans for further action;

(3) containing a list and description of any new fisheries

developed by nations that conduct, or authorize their nationals

to conduct, large-scale driftnet fishing beyond the exclusive

economic zone of any nation; and

(4) containing a list of the nations that conduct, or authorize their nationals to conduct, large-scale driftnet fishing beyond the exclusive economic zone of any nation in a manner

that diminishes the effectiveness of or is inconsistent with any

international agreement governing large-scale driftnet fishing

to which the United States is a party or otherwise subscribes.

(f) CERTIFICATION.—If at any time the Secretary, in consultation with the the Secretary of State and the Secretary of the department in which the Coast Guard is operating, identifies any nation that warrants inclusion in the list described under subsection

(e)(4), the Secretary shall certify that fact to the President. Such

certification shall be deemed to be a certification for the purposes

of section 8(a) of the Fishermen’s Protective Act of 1967 (22 U.S.C.

1978(a)).

(g) EFFECT ON SOVEREIGN RIGHTS.—This section shall not

serve or be construed to expand or diminish the sovereign rights

of the United States, as stated by Presidential Proclamation Numbered 5030, dated March 10, 1983, and reflected in this Act or

other existing law.

(h) DEFINITION.—As used in this section, the term ‘‘living marine resources’’ includes fish, marine mammals, sea turtles, and

seabirds and other waterfowl.

TITLE III—NATIONAL FISHERY MANAGEMENT

PROGRAM

SEC. 301. ø16 U.S.C. 1851¿ NATIONAL STANDARDS FOR FISHERY CONSERVATION AND MANAGEMENT.

(a) IN GENERAL.—Any fishery management plan prepared, and

any regulation promulgated to implement any such plan, pursuant

to this title shall be consistent with the following national standards for fishery conservation and management:

(1) Conservation and management measures shall prevent

over-fishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.
Sec. 302 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 290

(2) Conservation and management measures shall be

based upon the best scientific information available.

(3) To the extent practicable, an individual stock of fish

shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination.

(4) Conservation and management measures shall not discriminate between residents of different States. If it becomes

necessary to allocate or assign fishing privileges among various

United States fishermen, such allocation shall be (A) fair and

equitable to all such fishermen; (B) reasonably calculated to

promote conservation; and (C) carried out in such manner that

no particular individual, corporation, or other entity acquires

an excessive share of such privileges.

(5) Conservation and management measures shall, where

practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose.

(6) Conservation and management measures shall take

into account and allow for variations among, and contingencies

in, fisheries, fishery resources, and catches. (7) Conservation and management measures shall, where

practicable, minimize costs and avoid unnecessary duplication.

(8) Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished

stocks), take into account the importance of fishery resources

to fishing communities in order to (A) provide for the sustained

participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.

(9) Conservation and management measures shall, to the

extent practicable, (A) minimize bycatch and (B) to the extent

bycatch cannot be avoided, minimize the mortality of such bycatch.

(10) Conservation and management measures shall, to the

extent practicable, promote the safety of human life at sea.

(b) The Secretary shall establish advisory guidelines (which

shall not have the force and effect of law), based on the national

standards, to assist in the development of fishery management

plans.

SEC. 302. ø16 U.S.C. 1852¿ REGIONAL FISHERY MANAGEMENT COUNCILS.

(a) ESTABLISHMENT.—(1) There shall be established, within 120

days after the date of the enactment of this Act, eight Regional

Fishery Management Councils, as follows:

(A) NEW ENGLAND COUNCIL.—The New England Fishery

Management Council shall consist of the States of Maine, New

Hampshire, Massachusetts, Rhode Island, and Connecticut and

shall have authority over the fisheries in the Atlantic Ocean

seaward of such States (except as provided in paragraph (3)).

The New England Council shall have 18 voting members, including 12 appointed by the Secretary in accordance with subsection (b)(2) (at least one of whom shall be appointed from

each such State).
291 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 302

1Margin so in law.

2So in original. The word ‘‘Federally’’ should be ‘‘federally’’.

(B) MID-ATLANTIC COUNCIL.—The Mid-Atlantic Fishery

Management Council shall consist of the States of New York,

New Jersey, Delaware, Pennsylvania, Maryland, Virginia, and

North Carolina and shall have authority over the fisheries in

the Atlantic Ocean seaward of such States (except North Carolina, and as provided in paragraph (3)). The Mid-Atlantic

Council shall have 21 voting members, including 13 appointed

by the Secretary in accordance with subsection (b)(2) (at lease

one of whom shall be appointed from each such State).

(C) SOUTH ATLANTIC COUNCIL.—The South Atlantic Fishery

Management Council shall consist of the States of North Carolina, South Carolina, Georgia, and Florida and shall have authority over the fisheries in the Atlantic Ocean seaward of such

States (except as provided in paragraph (3)). The South Atlantic Council shall have 13 voting members, including 8 appointed by the Secretary in accordance with subsection (b)(2)

(at least one of whom shall be appointed from each such State).

(D) CARIBBEAN COUNCIL.—The Caribbean Fishery Management Council shall consist of the Virgin Islands and the Commonwealth of Puerto Rico and shall have authority over the

fisheries in the Caribbean Sea and Atlantic Ocean seaward of

such States (except as provided in paragraph (3)). The Caribbean Council shall have 7 voting members, including 4 appointed by the Secretary in accordance with subsection (b)(2)

(at least one of whom shall be appointed from each such State).

(E) GULF COUNCIL.—The Gulf of Mexico Fishery Management Council shall consist of the States of Texas, Louisiana,

Mississippi, Alabama, and Florida and shall have authority

over the fisheries in the Gulf of Mexico seaward of such States

(except as provided in paragraph (3)). The Gulf Council shall

have 17 voting members, including 11 appointed by the Secretary in accordance with subsection (b)(2) (at least one of

whom shall be appointed from each such State).

(F) 1 PACIFIC COUNCIL.—The Pacific Fishery Management Council shall consist of the States of California, Oregon, Washington, and Idaho and shall have authority

over the fisheries in the Pacific Ocean seaward of such

States. The Pacific Council shall have 14 voting members,

including 8 appointed by the Secretary in accordance with

subsection (b)(2) (at least one of whom shall be appointed

from each such State), and including one appointed from

an Indian tribe with Federally 2 recognized fishing rights

from California, Oregon, Washington, or Idaho in accordance with subsection (b)(5).

(G) NORTH PACIFIC COUNCIL.—The North Pacific Fishery

Management Council shall consist of the States of Alaska,

Washington, and Oregon and shall have authority over the

fisheries in the Arctic Ocean, Bering Sea, and Pacific Ocean

seward of Alaska. The North Pacific Council shall have 11 voting members, including 7 appointed by the Secretary in accordance with subsection (b)(2) (5 of whom shall be appointed from
Sec. 302 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 292

1Margin so in law.

the State of Alaska and 2 of whom shall be appointed from the

State of Washington).

(H) WESTERN PACIFIC COUNCIL.—The Western Pacific Fishery Management Council shall consist of the States of Hawaii,

American Samoa, Guam, and the Northern Mariana Islands

and shall have authority over the fisheries in the Pacific Ocean

seaward of such States and of the Commonwealths, territories,

and possessions of the United States in the Pacific Ocean area.

The Western Pacific Council shall have 13 voting members, including 8 appointed by the Secretary in accordance with subsection (b)(2) (at least one of whom shall be appointed from

each of the following States: Hawaii, American Samoa, Guam,

and the Northern Mariana Islands).

(2) Each Council shall reflect the expertise and interest of the

several constituent States in the ocean area over which such Council is granted authority.

(3) 1 The Secretary shall have authority over any highly

migratory species fishery that is within the geographical area

of authority of more than one of the following Councils: New

England Council, Mid-Atlantic Council, South Atlantic Council,

Gulf Council, and Caribbean Council.

(b) VOTING MEMBERS.—(1) The voting members of each Council

shall be:

(A) The principal State official with marine fishery management responsibility and expertise in each constituent State,

who is designated as such by the Governor of the State, so long

as the official continues to hold such position, or the designee

of such official.

(B) The regional director of the National Marine Fisheries

Service for the geographic area concerned, or his designee, except that if two such directors are within such geographical

area, the Secretary shall designate which of such directors

shall be the voting member.

(C) The members required to be appointed by the Secretary in accordance with paragraphs (2) and (5).

(2)(A) The members of each Council required to be appointed

by the Secretary must be individuals who, by reason of their occupational or other experience, scientific expertise, or training, are

knowledgeable regarding the conservation and management, or the

commercial or recreational harvest, of the fishery resources of the

geographical area concerned. Within nine months after the date of

enactment of the Fishery Conservation Amendments of 1990, the

Secretary shall, by regulation, prescribe criteria for determining

whether an individual satisfies the requirements of this subparagraph.

(B) The Secretary, in making appointments under this section,

shall, to the extent practicable, ensure a fair and balanced apportionment, on a rotating or other basis, of the active participants (or

their representatives) in the commercial and recreational fisheries

under the jurisdiction of the Council. On January 31, 1991, and

each year thereafter, the Secretary shall submit to the Committee

on Commerce, Science, and Transportation of the Senate and the

Committee on Merchant Marine and Fisheries of the House of Rep-
293 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 302

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

resentatives 1 a report on the actions taken by the Secretary to ensure that such fair and balanced apportionment is achieved. The

report shall—

(i) list the fisheries under the jurisdiction of each Council,

outlining for each fishery the type and quantity of fish harvested, fishing and processing methods employed, the number

of participants, the duration and range of the fishery, and

other distinguishing characteristics;

(ii) assess the membership of each Council in terms of the

apportionment of the active participants in each such fishery;

and

(iii) state the Secretary’s plans and schedule for actions to

achieve a fair and balanced apportionment on the Council for

the active participants in any such fishery.

(C) The Secretary shall appoint the members of each Council

from a list of individuals submitted by the Governor of each applicable constituent State. A Governor may not submit the names of

individuals to the Secretary for appointment unless the Governor

has determined that each such individual is qualified under the requirements of subparagraph (A) and unless the Governor has, to

the extent practicable, first consulted with representatives of the

commercial and recreational fishing interests of the State regarding those individuals. Each such list shall include the names and

pertinent biographical data of not less than three individuals for

each applicable vacancy and shall be accompanied by a statement

by the Governor explaining how each such individual meets the requirements of subparagraph (A). The Secretary shall review each

list submitted by a Governor to ascertain if the individuals on the

list are qualified for the vacancy on the basis of such requirements.

If the Secretary determines that any individual is not qualified, the

Secretary shall notify the appropriate Governor of that determination. The Governor shall then submit a revised list or resubmit the

original list with an additional explanation of the qualifications of

the individual in question. An individual is not eligible for appointment by the Secretary until that individual complies with the applicable financial disclosure requirements under subsection (k).

(D) Whenever the Secretary makes an appointment to a Council, the Secretary shall make a public announcement of such appointment not less than 45 days before the first day on which the

individual is to take office as a member of the Council.

(3) Each voting member appointed to a Council by the Secretary in accordance with paragraphs (2) and (5) shall serve for a

term of 3 years; except that the Secretary may designate a shorter

term if necessary to provide for balanced expiration to terms of office. No member appointed after January 1, 1986, may serve more

than three consecutive terms. Any term in which an individual was

appointed to replace a member who left office during the term shall

not be counted in determining the number of consecutive terms

served by that Council member.
Sec. 302 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 294

1Margin so in law.

2So in original. The word ‘‘paragraphs’’ should be ‘‘paragraph’’.

(4) Successors to the voting members of any Council shall be

appointed in the same manner as the original voting members. Any

individual appointed to fill a vacancy occurring prior to the expiration of any term of office shall be appointed for the remainder of

that term.

(5)(A) 1 The Secretary shall appoint to the Pacific Council

one representative of an Indian tribe with Federally recognized

fishing rights from California, Oregon, Washington, or Idaho

from a list of not less than 3 individuals submitted by the tribal governments. The Secretary, in consultation with the Secretary of the Interior and tribal governments, shall establish

by regulation the procedure for submitting a list under this

subparagraph.

(B) Representation shall be rotated among the tribes taking into consideration—

(i) the qualifications of the individuals on the list referred to in subparagraph (A),

(ii) the various rights of the Indian tribes involved and

judicial cases that set forth how those rights are to be exercised, and

(iii) the geographic area in which the tribe of the representative is located.

(C) A vacancy occurring prior to the expiration of any term

shall be filled in the same manner as set out in subparagraphs

(A) and (B), except that the Secretary may use the list from

which the vacating representative was chosen.

(6) 1 The Secretary may remove for cause any member of

a Council required to be appointed by the Secretary in accordance with paragraphs 2 (2) or (5) if—

(A) the Council concerned first recommends removal

by not less than two-thirds of the members who are voting

members and submits such removal recommendation to

the Secretary in writing together with a statement of the

basis for the recommendation; or

(B) the member is found by the Secretary, after notice

and an opportunity for a hearing in accordance with section 554 of title 5, United States Code, to have committed

an act prohibited by section 307(1)(O).

(c) NONVOTING MEMBERS.—(1) The nonvoting members of each

Council shall be:

(A) The regional or area director of the United States Fish

and Wildlife Service for the geographical area concerned, or his

designee.

(B) The commander of the Coast Guard district for the geographical area concerned, or his designee; except that, if two

Coast Guard districts are within such geographical area, the

commander designated for such purpose by the commandant of

the Coast Guard.

(C) The executive director of the Marine Fisheries Commission for the geographical area concerned, if any, or his designee.
295 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 302

(D) One representative of the Department of State designated for such purpose by the Secretary of State, or his designee.

(2) The Pacific Council shall have one additional nonvoting

member who shall be appointed by, and serve at the pleasure of,

the Governor of Alaska.

(d) COMPENSATION AND EXPENSES.—The voting members of

each Council who are required to be appointed by the Secretary

and who are not employed by the Federal Government or any State

or local government, shall receive compensation at the daily rate

for GS–15, step 7 of the General Schedule, when engaged in the actual performance of duties for such Council. The voting members

of each Council, any nonvoting member described in subsection

(c)(1)(C), and the nonvoting member appointed pursuant to subsection (c)(2) shall be reimbursed for actual expenses incurred in

the performance of such duties, and other nonvoting members and

Council staff members may be reimbursed for actual expenses.

(e) TRANSACTION OF BUSINESS.—

(1) A majority of the voting members of any Council shall

constitute a quorum, but one or more such members designated by the Council may hold hearings. All decisions of any

Council shall be by majority vote of the voting members

present and voting.

(2) The voting members of each Council shall select a

Chairman for such Council from among the voting members.

(3) Each Council shall meet at appropriate times and

places in any of the constituent States of the Council at the

call of the Chairman or upon the request of a majority of its

voting members.

(4) If any voting member of a Council disagrees with respect to any matter which is transmitted to the Secretary by

such Council, such member may submit a statement to the

Secretary setting forth the reasons for such disagreement. The

regional director of the National Marine Fisheries Service serving on the Council, or the regional director’s designee, shall

submit such a statement, which shall be made available to the

public upon request, if the regional director disagrees with any

such matter.

(5) At the request of any voting member of a Council, the

Council shall hold a roll call vote on any matter before the

Council. The official minutes and other appropriate records of

any Council meeting shall identify all roll call votes held, the

name of each voting member present during each roll call vote,

and how each member voted on each roll call vote.

(f) STAFF AND ADMINISTRATION.—

(1) Each Council may appoint, and assign duties to, an executive director and such other full- and part-time administrative employees as the Secretary determines are necessary to

the performance of its functions.

(2) Upon the request of any Council, and after consultation

with the Secretary, the head of any Federal agency is authorized to detail to such Council, on a reimbursable basis, any of

the personnel of such agency, to assist such Council in the performance of its functions under this Act.
Sec. 302 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 296

(3) The Secretary shall provide to each Council such administrative and technical support services as are necessary

for the effective functioning of such Council.

(4) The Administrator of General Services shall furnish

each Council with such offices, equipment, supplies, and services as he is authorized to furnish to any other agency or instrumentality of the United States.

(5) The Secretary and the Secretary of State shall furnish

each Council with relevant information concerning foreign fishing and international fishery agreements.

(6) Each Council shall determine its organization, and prescribe its practices and procedures for carrying out its functions under this Act, in accordance with such uniform standards as are prescribed by the Secretary. The procedures of a

Council, and of its scientific and statistical committee and advisory panels established under subsection (g), must be consistent with the procedural guidelines set forth in subsection

(i)(2). Each Council shall publish and make available to the

public a statement of its organization, practices, and procedures.

(7) The Secretary shall pay—

(A) the compensation and expenses provided for in

subsection (d);

(B) appropriate compensation to employees appointed

under paragraph (1);

(C) the amounts required for reimbursement of other

Federal agencies under paragraphs (2) and (4);

(D) the actual expenses of the members of the committees and panels established under subsection (g); and

(E) such other costs as the Secretary determines are

necessary to the performance of the functions of the Councils.

(g) COMMITTEES AND PANELS.—

(1) Each Council shall establish and maintain, and appoint

the members of, a scientific and statistical committee to assist

it in the development, collection, and evaluation of such statistical, biological, economic, social, and other scientific information as is relevant to such Council’s development and amendment of any fishery management plan.

(2) Each Council shall establish such other advisory panels

as are necessary or appropriate to assist it in carrying out its

functions under this Act.

(3)(A) Each Council shall establish and maintain a fishing

industry advisory committee which shall provide information

and recommendations on, and assist in the development of,

fishery management plans and amendments to such plans.

(B) Appointments to a committee established under subparagraph (A) shall be made by each Council in such a manner

as to provide fair representation to commercial fishing interests in the geographical area of authority of the Council.

(4) The Secretary shall establish advisory panels to assist

in the collection and evaluation of information relevant to the

development of any fishery management plan or plan amendment for a fishery to which subsection (a)(3) applies. Each advisory panel shall participate in all aspects of the development
297 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 302

of the plan or amendment; be balanced in its representation of

commercial, recreational, and other interests; and consist of

not less than 7 individuals who are knowledgeable about the

fishery for which the plan or amendment is developed, selected

from among—

(A) members of advisory committees and species working groups appointed under Acts implementing relevant

international fishery agreements pertaining to highly migratory species; and

(B) other interested persons.

(5) Decisions and recommendations made by committees

and panels established under this subsection shall be considered to be advisory in nature.

(h) FUNCTIONS.—Each Council shall, in accordance with the

provisions of this Act—

(1) for each fishery under its authority that requires conservation and management, prepare and submit to the Secretary (A) a fishery management plan, and (B) amendments to

each such plan that are necessary from time to time (and

promptly whenever changes in conservation and management

measures in another fishery substantially affect the fishery for

which such plan was developed);

(2) prepare comments on any application for foreign fishing

transmitted to it under section 204(b)(4)(C) or section 204(d),

and any fishery management plan or amendment transmitted

to it under section 304(c)(4);

(3) conduct public hearings, at appropriate times and in

appropriate locations in the geographical area concerned, so as

to allow all interested persons an opportunity to be heard in

the development of fishery management plans and amendments to such plans, and with respect to the administration

and implementation of the provisions of this Act (and for purposes of this paragraph, the term ‘‘geographical area concerned’’ may include an area under the authority of another

Council if the fish in the fishery concerned migrate into, or

occur in, that area or if the matters being heard affect fishermen of that area; but not unless such other Council is first consulted regarding the conduct of such hearings within its area);

(4) submit to the Secretary such periodic reports as the

Council deems appropriate, and any other relevant report

which may be requested by the Secretary;

(5) review on a continuing basis, and revise as appropriate,

the assessments and specifications made pursuant to section

303(a)(3) and (4) with respect to the optimum yield from, the

capacity and extent to which United States fish processors will

process United States harvested fish from, and the total allowable level of foreign fishing in, each fishery (except as provided

in subsection (a)(3)) within its geographical area of authority;

and

(6) conduct any other activities which are required by, or

provided for in, this Act or which are necessary and appropriate to the foregoing functions.

(i) PROCEDURAL MATTERS.—(1) The Federal Advisory Committee Act (5 U.S.C. App. 1) shall not apply to the Councils or to
Sec. 302 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 298

1Margin so in law.

the scientific and statistical committees or advisory panels established under subsection (g).

(2) The following guidelines apply with respect to the conduct

of business at meetings of a Council, and of the scientific and statistical committee and advisory panels established under subsection (g):

(A) Unless closed in accordance with paragraph (3), each

regular meeting and each emergency meeting shall be open to

the public.

(B) Emergency meetings shall be held at the call of the

chairman or equivalent presiding officer.

(C) Timely public notice of each regular meeting and each

emergency meeting, including the time, place, and agenda of

the meeting, shall be published in local newspapers in the

major fishing ports of the region (and in other major fishing

ports having a direct interest in the affected fishery) and such

notice may be given by such other means as will result in wide

publicity. Timely notice of each regular meeting shall also be

published in the Federal Register. The published agenda of the

meeting may not be modified to include additional matters for

Council action without public notice or within 14 days prior to

the meeting date, unless such modification is to address an

emergency action under section 305(c), in which case public notice shall be given immediately.

(D) Interested persons shall be permitted to present oral or

written statements regarding the matters on the agenda at

meetings. All written information submitted to a Council by an

interested person shall include a statement of the source and

date of such information. Any oral or written statement shall

include a brief description of the background and interests of

the person in the subject of the oral or written statement.

(E) 1 Detailed minutes of each meeting of the Council,

except for any closed session, shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions

reached, and copies of all statements filed. The Chairman

shall certify the accuracy of the minutes of each such

meeting and submit a copy thereof to the Secretary. The

minutes shall be made available to any court of competent

jurisdiction.

(F) Subject to the procedures established under paragraph

(4), and the guidelines prescribed by the Secretary under section 402(b), relating to confidentiality, the administrative

record, including minutes required under subparagraph (E), of

each meeting, and records or other documents which were

made available to or prepared for or by the Council, committee,

or panel incident to the meeting, shall be available for public

inspection and copying at a single location in the offices of the

Council or the Secretary, as appropriate.

(3)(A) Each Council, scientific and statistical committee, and

advisory panel—
299 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 302

1Section 107(i)(1) of P.L. 104–297 sought to amend the heading for subsection (j) by inserting

‘‘and Recusal’’ after ‘‘Interest’’. Because of the use of incorrect typeface, the amendment cannot

be executed.

(i) shall close any meeting, or portion thereof, that concerns matters or information that bears a national security

classification; and

(ii) may close any meeting, or portion thereof, that concerns matters or information that pertains to national security,

employment matters, or briefings on litigation in which the

Council is interested.

Subparagraphs (D) and (F) of paragraph (2) shall not apply to any

meeting or portion thereof that is so closed.

(B) If any meeting or portion is closed, the Council concerned

shall notify local newspapers in the major fishing ports within its

region (and in other major, affected fishing ports), including in that

notification the time and place of the meeting. This subparagraph

does not require notification regarding any brief closure of a portion of a meeting in order to discuss employment or other internal

administrative matters.

(4) Each Council shall establish appropriate procedures applicable to it and to its committee and advisory panels for ensuring

the confidentiality of the statistics that may be submitted to it by

Federal or State authorities, and may be voluntarily submitted to

it by private persons; including, but not limited to, procedures for

the restriction of Council employee access and the prevention of

conflicts of interest; except that such procedures, in the case of statistics submitted to the Council by a State or by the Secretary

under section 402(b), must be consistent with the laws and regulations of that State, or with the procedures of the Secretary, as the

case may be, concerning the confidentiality of the statistics.

(5) Each Council shall specify those procedures that are necessary or appropriate to ensure that the committees and advisory

panels established under subsection (g) are involved, on a continuing basis, in the development and amendment of fishery management plans.

(6) At any time when a Council determines it appropriate to

consider new information from a State or Federal agency or from

a Council advisory body, the Council shall give comparable consideration to new information offered at that time by interested members of the public. Interested parties shall have a reasonable opportunity to respond to new data or information before the Council

takes final action on conservation and management measures.

(j) DISCLOSURE OF FINANCIAL INTEREST 1.—

(1) For the purposes of this subsection—

(A) the term ‘‘affected individual’’ means an individual

who—

(i) is nominated by the Governor of a State for appointment as a voting member of a Council in accordance with subsection (b)(2); or

(ii) is a voting member of a Council appointed—

(I) under subsection (b)(2); or

(II) under subsection (b)(5) who is not subject

to disclosure and recusal requirements under the

laws of an Indian tribal government; and
Sec. 302 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 300

1Margin so in law.

(B) the term ‘‘designated official’’ means a person with

expertise in Federal conflict-of-interest requirements who

is designated by the Secretary, in consultation with the

Council, to attend Council meetings and make determinations under paragraph (7)(B).

(2) Each affected individual must disclose any financial interest held by—

(A) that individual;

(B) the spouse, minor child, or partner of that individual;

and

(C) any organization (other than the Council) in which that

individual is serving as an officer, director, trustee, partner, or

employee;

in any harvesting, processing, or marketing activity that is being,

or will be, undertaken within any fishery over which the Council

concerned has jurisdiction.

(3) The disclosure required under paragraph (2) shall be

made—

(A) in the case of an affected individual referred to in paragraph (1)(A)(i), before appointment by the Secretary; and

(B) in the case of an affected individual referred to in paragraph (1)(A)(ii), within 45 days of taking office.

(4) An affected individual referred to in paragraph (1)(A)(ii)

must update his or her disclosure form at any time any such financial interest is acquired, or substantially changed, by any person

referred to in paragraph (2)(A), (B), or (C).

(5) The financial interest disclosures required by this subsection shall—

(A) be made on such forms, in accordance with such procedures, and at such times, as the Secretary shall by regulation

prescribe;

(B) be kept on file, and made available for public inspection at reasonable hours, at the Council offices; and

(C) 1 be kept on file by the Secretary for use in reviewing determinations under paragraph (7)(B) and made

available for public inspection at reasonable hours.

(6) The participation by an affected individual referred to in

paragraph (1)(A)(ii) in an action by a Council during any time in

which that individual is not in compliance with the regulations prescribed under paragraph (5) may not be treated as cause for the

invalidation of that action.

(7)(A) 1 After the effective date of regulations promulgated

under subparagraph (F) of this paragraph, an affected individual required to disclose a financial interest under paragraph

(2) shall not vote on a Council decision which would have a significant and predictable effect on such financial interest. A

Council decision shall be considered to have a significant and

predictable effect on a financial interest if there is a close causal link between the Council decision and an expected and substantially disproportionate benefit to the financial interest of

the affected individual relative to the financial interests of

other participants in the same gear type or sector of the fishery. An affected individual who may not vote may participate
301 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 303

in Council deliberations relating to the decision after notifying

the Council of the voting recusal and identifying the financial

interest that would be affected.

(B) At the request of an affected individual, or upon the

initiative of the appropriate designated official, the designated

official shall make a determination for the record whether a

Council decision would have a significant and predictable effect

on a financial interest. (C) Any Council member may submit a written request to

the Secretary to review any determination by the designated

official under subparagraph (B) within 10 days of such determination. Such review shall be completed within 30 days of receipt of the request.

(D) Any affected individual who does not vote in a Council

decision in accordance with this subsection may state for the

record how he or she would have voted on such decision if he

or she had voted.

(E) If the Council makes a decision before the Secretary

has reviewed a determination under subparagraph (C), the

eventual ruling may not be treated as cause for the invalidation or reconsideration by the Secretary of such decision.

(F) The Secretary, in consultation with the Councils and

by not later than one year from the date of enactment of the

Sustainable Fisheries Act, shall promulgate regulations which

prohibit an affected individual from voting in accordance with

subparagraph (A), and which allow for the making of determinations under subparagraphs (B) and (C). (8) Section 208 of title 18, United States Code, does not apply

to an affected individual referred to in paragraph (1)(A)(ii) during

any time in which that individual is in compliance with the regulations prescribed under paragraph (5).

SEC. 303. ø16 U.S.C. 1853¿ CONTENTS OF FISHERY MANAGEMENT

PLANS.

(a) REQUIRED PROVISIONS.—Any fishery management plan

which is prepared by any Council, or by the Secretary, with respect

to any fishery, shall—

(1) contain the conservation and management measures,

applicable to foreign fishing and fishing by vessels of the

United States, which are—

(A) necessary and appropriate for the conservation and

management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery;

(B) described in this subsection or subsection (b), or

both; and

(C) consistent with the national standards, the other

provisions of this Act, regulations implementing recommendations by international organizations in which the

United States participates (including but not limited to

closed areas, quotas, and size limits), and any other applicable law;

(2) contain a description of the fishery, including, but not

limited to, the number of vessels involved, the type and quantity of fishing gear used, the species of fish involved and their

location, the cost likely to be incurred in management, actual
Sec. 303 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 302

1So in law. The comma probably should be a semicolon.

and potential revenues from the fishery, any recreational interests in the fishery, and the nature and extent of foreign fishing

and Indian treaty fishing rights, if any;

(3) assess and specify the present and probable future condition of, and the maximum sustainable yield and optimum

yield from, the fishery, and include a summary of the information utilized in making such specification;

(4) assess and specify— (A) the capacity and the extent to which fishing vessels of the United States, on an annual basis, will harvest

the optimum yield specified under paragraph (3),

(B) the portion of such optimum yield which, on an annual basis, will not be harvested by fishing vessels of the

United States and can be made available for foreign fishing, and

(C) the capacity and extent to which United States

fish processors, on an annual basis, will process that portion of such optimum yield that will be harvested by fishing vessels of the United States;

(5) specify the pertinent data which shall be submitted to

the Secretary with respect to commercial, recreational, and

charter fishing in the fishery, including, but not limited to, information regarding the type and quantity of fishing gear used,

catch by species in numbers of fish or weight thereof, areas in

which fishing was engaged in, time of fishing, number of hauls,

and the estimated processing capacity of, and the actual processing capacity utilized by, United States fish processors,1

(6) consider and provide for temporary adjustments, after

consultation with the Coast Guard and persons utilizing the

fishery, regarding access to the fishery for vessels otherwise

prevented from harvesting because of weather or other ocean

conditions affecting the safe conduct of the fishery; except that

the adjustment shall not adversely affect conservation efforts

in other fisheries or discriminate among participants in the affected fishery;

(7) describe and identify essential fish habitat for the fishery based on the guidelines established by the Secretary under

section 305(b)(1)(A), minimize to the extent practicable adverse

effects on such habitat caused by fishing, and identify other actions to encourage the conservation and enhancement of such

habitat;

(8) in the case of a fishery management plan that, after

January 1, 1991, is submitted to the Secretary for review

under section 304(a) (including any plan for which an amendment is submitted to the Secretary for such review) or is prepared by the Secretary, assess and specify the nature and extent of scientific data which is needed for effective implementation of the plan;

(9) include a fishery impact statement for the plan or

amendment (in the case of a plan or amendment thereto submitted to or prepared by the Secretary after October 1, 1990)

which shall assess, specify, and describe the likely effects, if

any, of the conservation and management measures on—
303 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 303

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(g) of the Flower Garden National Marine Sanctuary (P.L.

102–251; 106 Stat. 64) amends this subparagraph as follows:

(g) CONTENTS OF FISHERY MANAGEMENT PLANS.—Section 303(b)(1)(A) of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1853(b)(1)(A)) is amended—

(1) by inserting ‘‘or special areas,’’ immediately after ‘‘exclusive economic zone’’; and

(2) by inserting ‘‘or areas’’ immediately after ‘‘such zone’’.

(A) participants in the fisheries and fishing communities affected by the plan or amendment; and

(B) participants in the fisheries conducted in adjacent

areas under the authority of another Council, after consultation with such Council and representatives of those

participants;

(10) specify objective and measurable criteria for identifying when the fishery to which the plan applies is overfished

(with an analysis of how the criteria were determined and the

relationship of the criteria to the reproductive potential of

stocks of fish in that fishery) and, in the case of a fishery

which the Council or the Secretary has determined is approaching an overfished condition or is overfished, contain conservation and management measures to prevent overfishing or

end overfishing and rebuild the fishery;

(11) establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery,

and include conservation and management measures that, to

the extent practicable and in the following priority—

(A) minimize bycatch; and

(B) minimize the mortality of bycatch which cannot be

avoided;

(12) assess the type and amount of fish caught and released alive during recreational fishing under catch and release fishery management programs and the mortality of such

fish, and include conservation and management measures that,

to the extent practicable, minimize mortality and ensure the

extended survival of such fish;

(13) include a description of the commercial, recreational,

and charter fishing sectors which participate in the fishery

and, to the extent practicable, quantify trends in landings of

the managed fishery resource by the commercial, recreational,

and charter fishing sectors; and

(14) to the extent that rebuilding plans or other conservation and management measures which reduce the overall harvest in a fishery are necessary, allocate any harvest restrictions or recovery benefits fairly and equitably among the commercial, recreational, and charter fishing sectors in the fishery.

(b) DISCRETIONARY PROVISIONS.—Any fishery management

plan which is prepared by any Council, or by the Secretary, with

respect to any fishery, may—

(1) require a permit to be obtained from, and fees to be

paid to, the Secretary, with respect to—

(A) any fishing vessel of the United States fishing, or

wishing to fish, in the exclusive economic zone 1 or for

anadromous species or Continental Shelf fishery resources

beyond such zone 1;

(B) the operator of any such vessel; or
Sec. 303 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 304

(C) any United States fish processor who first receives

fish that are subject to the plan;

(2) designate zones where, and periods when, fishing shall

be limited, or shall not be permitted, or shall be permitted only

by specified types of fishing vessels or with specified types and

quantities of fishing gear;

(3) establish specified limitations which are necessary and

appropriate for the conservation and management of the fishery on the—

(A) catch of fish (based on area, species, size, number,

weight, sex, bycatch, total biomass, or other factors);

(B) sale of fish caught during commercial, recreational,

or charter fishing, consistent with any applicable Federal

and State safety and quality requirements; and

(C) transshipment or transportation of fish or fish

products under permits issued pursuant to section 204;

(4) prohibit, limit, condition, or require the use of specified

types and quantities of fishing gear, fishing vessels, or equipment for such vessels, including devices which may be required

to facilitate enforcement of the provisions of this Act;

(5) incorporate (consistent with the national standards, the

other provisions of this Act, and any other applicable law) the

relevant fishery conservation and management measures of the

coastal States nearest to the fishery;

(6) establish a limited access system for the fishery in

order to achieve optimum yields if, in developing such system,

the Council and the Secretary take into account—

(A) present participation in the fishery,

(B) historical fishing practices in, and dependence on,

the fishery,

(C) the economics of the fishery,

(D) the capability of fishing vessels used in the fishery

to engage in other fisheries,

(E) the cultural and social framework relevant to the

fishery and any affected fishing communities, and

(F) any other relevant considerations;

(7) require fish processors who first receive fish that are

subject to the plan to submit data (other than economic data)

which are necessary for the conservation and management of

the fishery;

(8) require that one or more observers be carried on board

a vessel of the United States engaged in fishing for species

that are subject to the plan, for the purpose of collecting data

necessary for the conservation and management of the fishery;

except that such a vessel shall not be required to carry an observer on board if the facilities of the vessel for the quartering

of an observer, or for carrying out observer functions, are so inadequate or unsafe that the health or safety of the observer or

the safe operation of the vessel would be jeopardized;

(9) assess and specify the effect which the conservation

and management measures of the plan will have on the stocks

of naturally spawning anadromous fish in the region;

(10) include, consistent with the other provisions of this

Act, conservation and management measures that provide harvest incentives for participants within each gear group to em-
305 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 303

ploy fishing practices that result in lower levels of bycatch or

in lower levels of the mortality of bycatch;

(11) reserve a portion of the allowable biological catch of

the fishery for use in scientific research; and

(12) prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and

appropriate for the conservation and management of the fishery.

(c) PROPOSED REGULATIONS.—Proposed regulations which the

Council deems necessary or appropriate for the purposes of—

(1) implementing a fishery management plan or plan

amendment shall be submitted to the Secretary simultaneously

with the plan or amendment under section 304; and

(2) making modifications to regulations implementing a

fishery management plan or plan amendment may be submitted to the Secretary at any time after the plan or amendment is approved under section 304.

(d) INDIVIDUAL FISHING QUOTAS.— (1)(A) A Council may not submit and the Secretary may

not approve or implement before October 1, 2002, any fishery

management plan, plan amendment, or regulation under this

Act which creates a new individual fishing quota program.

(B) Any fishery management plan, plan amendment, or

regulation approved by the Secretary on or after January 4,

1995, which creates any new individual fishing quota program

shall be repealed and immediately returned by the Secretary

to the appropriate Council and shall not be resubmitted, reapproved, or implemented during the moratorium set forth in

subparagraph (A).

(2)(A) No provision of law shall be construed to limit the

authority of a Council to submit and the Secretary to approve

the termination or limitation, without compensation to holders

of any limited access system permits, of a fishery management

plan, plan amendment, or regulation that provides for a limited access system, including an individual fishing quota program.

(B) This subsection shall not be construed to prohibit a

Council from submitting, or the Secretary from approving and

implementing, amendments to the North Pacific halibut and

sablefish, South Atlantic wreckfish, or Mid-Atlantic surf clam

and ocean (including mahogany) quahog individual fishing

quota programs.

(3) An individual fishing quota or other limited access system authorization—

(A) shall be considered a permit for the purposes of

sections 307, 308, and 309;

(B) may be revoked or limited at any time in accordance with this Act;

(C) shall not confer any right of compensation to the

holder of such individual fishing quota or other such limited access system authorization if it is revoked or limited;

and

(D) shall not create, or be construed to create, any

right, title, or interest in or to any fish before the fish is

harvested.
Sec. 304 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 306

(4)(A) A Council may submit, and the Secretary may approve and implement, a program which reserves up to 25 percent of any fees collected from a fishery under section 304(d)(2)

to be used, pursuant to section 1104A(a)(7) of the Merchant

Marine Act, 1936 (46 U.S.C. App. 1274(a)(7)), to issue obligations that aid in financing the—

(i) purchase of individual fishing quotas in that fishery

by fishermen who fish from small vessels; and

(ii) first-time purchase of individual fishing quotas in

that fishery by entry level fishermen.

(B) A Council making a submission under subparagraph

(A) shall recommend criteria, consistent with the provisions of

this Act, that a fisherman must meet to qualify for guarantees

under clauses (i) and (ii) of subparagraph (A) and the portion

of funds to be allocated for guarantees under each clause.

(5) In submitting and approving any new individual fishing quota program on or after October 1, 2002, the Councils

and the Secretary shall consider the report of the National

Academy of Sciences required under section 108(f) of the Sustainable Fisheries Act, and any recommendations contained in

such report, and shall ensure that any such program—

(A) establishes procedures and requirements for the

review and revision of the terms of any such program (including any revisions that may be necessary once a national policy with respect to individual fishing quota programs is implemented), and, if appropriate, for the renewal, reallocation, or reissuance of individual fishing

quotas;

(B) provides for the effective enforcement and management of any such program, including adequate observer

coverage, and for fees under section 304(d)(2) to recover actual costs directly related to such enforcement and management; and

(C) provides for a fair and equitable initial allocation

of individual fishing quotas, prevents any person from acquiring an excessive share of the individual fishing quotas

issued, and considers the allocation of a portion of the annual harvest in the fishery for entry-level fishermen, small

vessel owners, and crew members who do not hold or qualify for individual fishing quotas.

SEC. 304. ø16 U.S.C. 1854¿ ACTION BY THE SECRETARY.

(a) REVIEW OF PLANS.—

(1) Upon transmittal by the Council to the Secretary of a

fishery management plan or plan amendment, the Secretary

shall—

(A) immediately commence a review of the plan or

amendment to determine whether it is consistent with the

national standards, the other provisions of this 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
307 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 304

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.
Sec. 304 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 308

1So in law. The em dash and following period were omitted from the subsection heading as

amended by section 109(b)(1) of P.L. 104–297. 2Margin so in 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 (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) 2 the Secretary is given authority to prepare such

plan or amendment under this section.

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

(A) conduct public hearings, at appropriate times and

locations in the geographical areas concerned, so as to

allow interested persons an opportunity to be heard in the

preparation and amendment of the plan and any regulations implementing the plan; and

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

foreign fishing and with the Secretary of the department

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

(3) Notwithstanding paragraph (1) for a fishery under the authority of a Council, the Secretary may not include in any fishery

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

by him, a provision establishing a limited access system, including

any individual fishing quota program, unless such system is first

approved by a majority of the voting members, present and voting,

of each appropriate Council.

(4) 2 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
309 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 304

1Margin so in law.

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) 1 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) 1 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) 1 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) 1 Notwithstanding paragraph (1), the Secretary is

authorized and shall collect a fee to recover the actual costs directly related to the management and enforcement of any—

(i) individual fishing quota 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 es-
Sec. 304 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 310

tablished under section 305(h)(5)(B), except that the portion of

any such fees reserved under section 303(d)(4)(A) shall be deposited in the Treasury and available, subject to annual appropriations, to cover the costs of new direct loan obligations and

new loan guarantee commitments as required by section

504(b)(1) of the Federal Credit Reform Act (2 U.S.C.

661c(b)(1)).

(ii) Upon application by a State, the Secretary shall transfer to such State up to 33 percent of any fee collected pursuant

to subparagraph (A) under a community development quota

program and deposited in the Limited Access System Administration Fund in order to reimburse such State for actual costs

directly incurred in the management and enforcement of such

program.

(e) REBUILDING OVERFISHED FISHERIES.—

(1) The Secretary shall report annually to the Congress

and the Councils on the status of fisheries within each Council’s geographical area of authority and identify those fisheries

that are overfished or are approaching a condition of being

overfished. For those fisheries managed under a fishery management plan or international agreement, the status shall be

determined using the criteria for overfishing specified in such

plan or agreement. A fishery shall be classified as approaching

a condition of being overfished if, based on trends in fishing effort, fishery resource size, and other appropriate factors, the

Secretary estimates that the fishery will become overfished

within two years.

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

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

Federal Register.

(3) Within one year of an identification under paragraph

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

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

shall prepare a fishery management plan, plan amendment, or

proposed regulations for the fishery to which the identification

or notice applies—

(A) to end overfishing in the fishery and to rebuild affected stocks of fish; or

(B) to prevent overfishing from occurring in the fishery

whenever such fishery is identified as approaching an

overfished condition.

(4) For a fishery that is overfished, any fishery management plan, amendment, or proposed regulations prepared pursuant to paragraph (3) or paragraph (5) for such fishery shall—

(A) specify a time period for ending overfishing and rebuilding the fishery that shall—

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

status and biology of any overfished stocks of fish, the

needs of fishing communities, recommendations by

international organizations in which the United States
311 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 304

1So in law. Section 110(b)(A) of P.L. 101–627 sought to strike ‘‘MISCELLANEOUS DUTIES’’ and

insert ‘‘FISHERIES UNDER AUTHORITY OF MORE THAN ONE COUNCIL’’. The amendment probably

should have striken ‘‘MISCELLANEOUS DUTIES’’ and inserted ‘‘FISHERIES UNDER AUTHORITY OF

MORE THAN ONE COUNCIL’’. Because the use of incorrect typeface and capitalization in describing the text to be struck, the amendment cannot be executed. 2Section 109(f) of P.L. 104–297 (110 Stat. 3585) repealed paragraph (3) of this subsection.

participates, and the interaction of the overfished

stock of fish within the marine ecosystem; and

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

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

(B) allocate both overfishing restrictions and recovery

benefits fairly and equitably among sectors of the fishery;

and

(C) for fisheries managed under an international

agreement, reflect traditional participation in the fishery,

relative to other nations, by fishermen of the United

States.

(5) If, within the one-year period beginning on the date of

identification or notification that a fishery is overfished, the

Council does not submit to the Secretary a fishery management plan, plan amendment, or proposed regulations required

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

within 9 months under subsection (c).

(6) During the development of a fishery management plan,

a plan amendment, or proposed regulations required by this

subsection, the Council may request the Secretary to implement interim measures to reduce overfishing under section

305(c) until such measures can be replaced by such plan,

amendment, or regulations. Such measures, if otherwise in

compliance with the provisions of this Act, may be implemented even though they are not sufficient by themselves to

stop overfishing of a fishery.

(7) The Secretary shall review any fishery management

plan, plan amendment, or regulations required by this subsection at routine intervals that may not exceed two years. If

the Secretary finds as a result of the review that such plan,

amendment, or regulations have not resulted in adequate

progress toward ending overfishing and rebuilding affected fish

stocks, the Secretary shall—

(A) in the case of a fishery to which section 302(a)(3)

applies, immediately make revisions necessary to achieve

adequate progress; or

(B) for all other fisheries, immediately notify the appropriate Council. Such notification shall recommend further conservation and management measures which the

Council should consider under paragraph (3) to achieve

adequate progress.

(f) MISCELLANEOUS DUTIES.1—(1) Except as provided in paragraph (3) 2, if any fishery extends beyond the geographical area of

authority of any one Council, the Secretary may—
Sec. 304 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 312

1So in law (see section 109(g) of P.L. 104–297). Paragraph (1) should begin on the next line.

(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(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;
313 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 305

(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) 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.

SEC. 305. ø16 U.S.C. 1855¿ OTHER REQUIREMENTS AND AUTHORITY.

(a) GEAR EVALUATION AND NOTIFICATION OF ENTRY.—

(1) Not later than 18 months after the date of enactment

of the Sustainable Fisheries Act, the Secretary shall publish in

the Federal Register, after notice and an opportunity for public

comment, a list of all fisheries—

(A) under the authority of each Council and all fishing

gear used in such fisheries, based on information submitted by the Councils under section 303(a); and

(B) to which section 302(a)(3) applies and all fishing

gear used in such fisheries.

(2) The Secretary shall include with such list guidelines for

determining when fishing gear or a fishery is sufficiently different from those listed as to require notification under paragraph (3).

(3) Effective 180 days after the publication of such list, no

person or vessel may employ fishing gear or engage in a fishery not included on such list without giving 90 days advance

written notice to the appropriate Council, or the Secretary with

respect to a fishery to which section 302(a)(3) applies. A signed

return receipt shall serve as adequate evidence of such notice

and as the date upon which the 90-day period begins.

(4) A Council may submit to the Secretary any proposed

changes to such list or such guidelines the Council deems appropriate. The Secretary shall publish a revised list, after notice and an opportunity for public comment, upon receiving any

such proposed changes from a Council.

(5) A Council may request the Secretary to promulgate

emergency regulations under subsection (c) to prohibit any persons or vessels from using an unlisted fishing gear or engaging

in an unlisted fishery if the appropriate Council, or the Secretary for fisheries to which section 302(a)(3) applies, determines that such unlisted gear or unlisted fishery would compromise the effectiveness of conservation and management efforts under this Act.
Sec. 305 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 314

(6) Nothing in this subsection shall be construed to permit

a person or vessel to engage in fishing or employ fishing gear

when such fishing or gear is prohibited or restricted by regulation under a fishery management plan or plan amendment, or

under other applicable law.

(b) FISH HABITAT.—(1)(A) The Secretary shall, within 6 months

of the date of enactment of the Sustainable Fisheries Act, establish

by regulation guidelines to assist the Councils in the description

and identification of essential fish habitat in fishery management

plans (including adverse impacts on such habitat) and in the consideration of actions to ensure the conservation and enhancement

of such habitat. The Secretary shall set forth a schedule for the

amendment of fishery management plans to include the identification of essential fish habitat and for the review and updating of

such identifications based on new scientific evidence or other relevant information.

(B) The Secretary, in consultation with participants in the fishery, shall provide each Council with recommendations and information regarding each fishery under that Council’s authority to assist

it in the identification of essential fish habitat, the adverse impacts

on that habitat, and the actions that should be considered to ensure the conservation and enhancement of that habitat.

(C) The Secretary shall review programs administered by the

Department of Commerce and ensure that any relevant programs

further the conservation and enhancement of essential fish habitat.

(D) The Secretary shall coordinate with and provide information to other Federal agencies to further the conservation and enhancement of essential fish habitat.

(2) Each Federal agency shall consult with the Secretary with

respect to any action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by such agency that

may adversely affect any essential fish habitat identified under this

Act.

(3) Each Council—

(A) may comment on and make recommendations to the

Secretary and any Federal or State agency concerning any activity authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by any Federal or State agency that, in the view of the Council, may affect the habitat, including essential fish habitat, of a fishery resource under its

authority; and

(B) shall comment on and make recommendations to the

Secretary and any Federal or State agency concerning any

such activity that, in the view of the Council, is likely to substantially affect the habitat, including essential fish habitat, of

an anadromous fishery resource under its authority.

(4)(A) If the Secretary receives information from a Council or

Federal or State agency or determines from other sources that an

action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by any State or Federal agency would

adversely affect any essential fish habitat identified under this Act,

the Secretary shall recommend to such agency measures that can

be taken by such agency to conserve such habitat.

(B) Within 30 days after receiving a recommendation under

subparagraph (A), a Federal agency shall provide a detailed re-
315 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 305

1Section 110(b)(2)(C) of P.L. 104–297 amended this paragraph by inserting ‘‘or overfishing’’

after ‘‘emergency’’, but did not specify at which occurence of the word ‘‘emergency’’ the amendment should be made. Therefore, the amendment was executed at each place such word appears. 2Section 110(b)(2)(B) of P.L. 104–297 amends this paragraph by inserting ‘‘or interim meas- ures’’ after ‘‘emergency regulations’’, but did not specify at which occurence of the phrase ‘‘emergency regulations’’ the amendment should be made. Therefore, the amendment was executed at

each place such phrase appears. 3Margin so in law.

sponse in writing to any Council commenting under paragraph (3)

and the Secretary regarding the matter. The response shall include

a description of measures proposed by the agency for avoiding,

mitigating, or offsetting the impact of the activity on such habitat.

In the case of a response that is inconsistent with the recommendations of the Secretary, the Federal agency shall explain its reasons

for not following the recommendations.

(c) EMERGENCY ACTIONS AND INTERIM MEASURES.—(1) If the

Secretary finds that an emergency or overfishing 1 exists or that interim measures are needed to reduce overfishing for any fishery, he

may promulgate emergency or overfishing 1 regulations or interim

measures necessary to address the emergency or overfishing 1,

without regard to whether a fishery management plan exists for

such fishery.

(2) If a Council finds that an emergency or overfishing 1 exists

or that interim measures 2 are needed to reduce overfishing 1 for

any fishery within its jurisdiction, whether or not a fishery management plan exists for such fishery—

(A) the Secretary shall promulgate emergency or overfishing 1 regulations or interim measures 2 under paragraph (1)

to address the emergency or overfishing 1 if the Council, by

unanimous vote of the members who are voting members, requests the taking of such action; and

(B) the Secretary may promulgate emergency or overfishing 1 regulations or interim measures 2 under paragraph (1)

to address the emergency or overfishing 1 if the Council, by less

than a unanimous vote, requests the taking of such action.

(3) Any emergency regulation or interim measure which

changes any existing fishery management plan or amendment shall

be treated as an amendment to such plan for the period in which

such regulation is in effect. Any emergency regulation or interim

measure promulgated under this subsection—

(A) shall be published in the Federal Register together

with the reasons therefor;

(B) 3 shall, except as provided in subparagraph (C), remain in effect for not more than 180 days after the date

of publication, and may be extended by publication in the

Federal Register for one additional period of not more than

180 days, provided the public has had an opportunity to

comment on the emergency regulation or interim measure,

and, in the case of a Council recommendation for emergency regulations or interim measures, the Council is actively preparing a fishery management plan, plan amendment, or proposed regulations to address the emergency or

overfishing on a permanent basis;

(C) 3 that responds to a public health emergency or an

oil spill may remain in effect until the circumstances that
Sec. 305 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 316

1So in original. The comma should be a colon. 2Section 110(b)(3)(A) of P.L. 104–297 amends paragraph (3) by inserting ‘‘or interim measure’’

after ‘‘emergency regulation’’ each place such term appears. It did not insert that phrase after

‘‘the regulation’’ in subparagraph (C) or ‘‘emergency regulations’’ in subparagraph (D).

created the emergency no longer exist, 1 Provided, That the

public has an opportunity to comment after the regulation 2 is published, and, in the case of a public health

emergency, the Secretary of Health and Human Services

concurs with the Secretary’s action; and

(D) may be terminated by the Secretary at an earlier date

by publication in the Federal Register of a notice of termination, except for emergency regulations 2 promulgated under

paragraph (2) in which case such early termination may be

made only upon the agreement of the Secretary and the Council concerned.

(d) RESPONSIBILITY OF THE SECRETARY.—The Secretary shall

have general responsibility to carry out any fishery management

plan or amendment approved or prepared by him, in accordance

with the provisions of this Act. The Secretary may promulgate such

regulations, in accordance with section 553 of title 5, United States

Code, as may be necessary to discharge such responsibility or to

carry out any other provision of this Act.

(e) EFFECT OF CERTAIN LAWS ON CERTAIN TIME REQUIREMENTS.—The Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et

seq.), the Regulatory Flexibility Act (5 U.S.C 601 et seq.), and Executive Order Numbered 12866, dated September 30, 1993, shall be

complied with within the time limitations specified in subsections

(a), (b), and (c) of section 304 as they apply to the functions of the

Secretary under such provisions.

(f) JUDICIAL REVIEW.—(1) Regulations promulgated by the Secretary under this Act and actions described in paragraph (2) shall

be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of title 5, United States Code, if a petition

for such review is filed within 30 days after the date on which the

regulations are promulgated or the action is published in the Federal Register, as applicable; except that—

(A) section 705 of such title is not applicable, and

(B) the appropriate court shall only set aside any such regulation or action on a ground specified in section 706(2)(A), (B),

(C), or (D) of such title.

(2) The actions referred to in paragraph (1) are actions that are

taken by the Secretary under regulations which implement a fishery management plan, including but not limited to actions that establish the date of closure of a fishery to commercial or recreational

fishing.

(3)(A) Notwithstanding any other provision of law, the Secretary shall file a response to any petition filed in accordance with

paragraph (1), not later than 45 days after the date the Secretary

is served with that petition, except that the appropriate court may

extend the period for filing such a response upon a showing by the

Secretary of good cause for that extension.

(B) A response of the Secretary under this paragraph shall include a copy of the administrative record for the regulations that

are the subject of the petition.
317 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 305

(4) Upon a motion by the person who files a petition under this

subsection, the appropriate court shall assign the matter for hearing at the earliest possible date and shall expedite the matter in

every possible way.

(g) NEGOTIATED CONSERVATION AND MANAGEMENT MEAS- URES.— (1)(A) In accordance with regulations promulgated by the

Secretary pursuant to this paragraph, a Council may establish

a fishery negotiation panel to assist in the development of specific conservation and management measures for a fishery

under its authority. The Secretary may establish a fishery negotiation panel to assist in the development of specific conservation and management measures required for a fishery

under section 304(e)(5), for a fishery for which the Secretary

has authority under section 304(g), or for any other fishery

with the approval of the appropriate Council.

(B) No later than 180 days after the date of enactment of

the Sustainable Fisheries Act, the Secretary shall promulgate

regulations establishing procedures, developed in cooperation

with the Administrative Conference of the United States, for

the establishment and operation of fishery negotiation panels.

Such procedures shall be comparable to the procedures for negotiated rulemaking established by subchapter III of chapter 5

of title 5, United States Code.

(2) If a negotiation panel submits a report, such report

shall specify all the areas where consensus was reached by the

panel, including, if appropriate, proposed conservation and

management measures, as well as any other information submitted by members of the negotiation panel. Upon receipt, the

Secretary shall publish such report in the Federal Register for

public comment.

(3) Nothing in this subsection shall be construed to require

either a Council or the Secretary, whichever is appropriate, to

use all or any portion of a report from a negotiation panel established under this subsection in the development of specific

conservation and management measures for the fishery for

which the panel was established.

(h) CENTRAL REGISTRY SYSTEM FOR LIMITED ACCESS SYSTEM

PERMITS.—

(1) Within 6 months after the date of enactment of the

Sustainable Fisheries Act, the Secretary shall establish an exclusive central registry system (which may be administered on

a regional basis) for limited access system permits established

under section 303(b)(6) or other Federal law, including individual fishing quotas, which shall provide for the registration

of title to, and interests in, such permits, as well as for procedures for changes in the registration of title to such permits

upon the occurrence of involuntary transfers, judicial or nonjudicial foreclosure of interests, enforcement of judgments

thereon, and related matters deemed appropriate by the Secretary. Such registry system shall—

(A) provide a mechanism for filing notice of a nonjudicial foreclosure or enforcement of a judgment by which

the holder of a senior security interest acquires or conveys

ownership of a permit, and in the event of a nonjudicial
Sec. 305 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 318

foreclosure, by which the interests of the holders of junior

security interests are released when the permit is transferred;

(B) provide for public access to the information filed

under such system, notwithstanding section 402(b); and

(C) provide such notice and other requirements of applicable law that the Secretary deems necessary for an effective registry system. (2) The Secretary shall promulgate such regulations as

may be necessary to carry out this subsection, after consulting

with the Councils and providing an opportunity for public comment. The Secretary is authorized to contract with non-Federal

entities to administer the central registry system.

(3) To be effective and perfected against any person except

the transferor, its heirs and devisees, and persons having actual notice thereof, all security interests, and all sales and

other transfers of permits described in paragraph (1), shall be

registered in compliance with the regulations promulgated

under paragraph (2). Such registration shall constitute the exclusive means of perfection of title to, and security interests in,

such permits, except for Federal tax liens thereon, which shall

be perfected exclusively in accordance with the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.). The Secretary shall notify both the buyer and seller of a permit if a lien has been

filed by the Secretary of the Treasury against the permit before

collecting any transfer fee under paragraph (5) of this subsection.

(4) The priority of security interests shall be determined in

order of filing, the first filed having the highest priority. A validly-filed security interest shall remain valid and perfected notwithstanding a change in residence or place of business of the

owner of record. For the purposes of this subsection, ‘‘security

interest’’ shall include security interests, assignments, liens

and other encumbrances of whatever kind.

(5)(A) Notwithstanding section 304(d)(1), the Secretary

shall collect a reasonable fee of not more than one-half of one

percent of the value of a limited access system permit upon

registration of the title to such permit with the central registry

system and upon the transfer of such registered title. Any such

fee collected shall be deposited in the Limited Access System

Administration Fund established under subparagraph (B).

(B) There is established in the Treasury a Limited Access

System Administration Fund. The Fund shall be available,

without appropriation or fiscal year limitation, only to the Secretary for the purposes of—

(i) administering the central registry system; and

(ii) administering and implementing this Act in the

fishery in which the fees were collected. Sums in the Fund

that are not currently needed for these purposes shall be

kept on deposit or invested in obligations of, or guaranteed

by, the United States.

(i) ALASKA AND WESTERN PACIFIC COMMUNITY DEVELOPMENT

PROGRAMS.—

(1)(A) The North Pacific Council and the Secretary shall

establish a western Alaska community development quota pro-
319 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 305

gram under which a percentage of the total allowable catch of

any Bering Sea fishery is allocated to the program.

(B) To be eligible to participate in the western Alaska community development quota program under subparagraph (A) a

community shall—

(i) be located within 50 nautical miles from the baseline from which the breadth of the territorial sea is measured along the Bering Sea coast from the Bering Strait to

the western most of the Aleutian Islands, or on an island

within the Bering Sea;

(ii) not be located on the Gulf of Alaska coast of the

north Pacific Ocean;

(iii) meet criteria developed by the Governor of Alaska,

approved by the Secretary, and published in the Federal

Register;

(iv) be certified by the Secretary of the Interior pursuant to the Alaska Native Claims Settlement Act (43 U.S.C.

1601 et seq.) to be a Native village;

(v) consist of residents who conduct more than onehalf of their current commercial or subsistence fishing effort in the waters of the Bering Sea or waters surrounding

the Aleutian Islands; and

(vi) not have previously developed harvesting or processing capability sufficient to support substantial participation in the groundfish fisheries in the Bering Sea, unless

the community can show that the benefits from an approved Community Development Plan would be the only

way for the community to realize a return from previous

investments.

(C)(i) Prior to October 1, 2001, the North Pacific Council

may not submit to the Secretary any fishery management plan,

plan amendment, or regulation that allocates to the western

Alaska community development quota program a percentage of

the total allowable catch of any Bering Sea fishery for which,

prior to October 1, 1995, the Council had not approved a percentage of the total allowable catch for allocation to such community development quota program. The expiration of any

plan, amendment, or regulation that meets the requirements of

clause (ii) prior to October 1, 2001, shall not be construed to

prohibit the Council from submitting a revision or extension of

such plan, amendment, or regulation to the Secretary if such

revision or extension complies with the other requirements of

this paragraph.

(ii) With respect to a fishery management plan, plan

amendment, or regulation for a Bering Sea fishery that—

(I) allocates to the western Alaska community development quota program a percentage of the total allowable

catch of such fishery; and

(II) was approved by the North Pacific Council prior to

October 1, 1995;

the Secretary shall, except as provided in clause (iii) and after

approval of such plan, amendment, or regulation under section

304, allocate to the program the percentage of the total allowable catch described in such plan, amendment, or regulation.

Prior to October 1, 2001, the percentage submitted by the
Sec. 305 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 320

1So in original; probably should be ‘‘western’’.

Council and approved by the Secretary for any such plan,

amendment, or regulation shall be no greater than the percentage approved by the Council for such fishery prior to October

1, 1995.

(iii) The Secretary shall phase in the percentage for community development quotas approved in 1995 by the North Pacific Council for the Bering Sea crab fisheries as follows:

(I) 3.5 percent of the total allowable catch of each such

fishery for 1998 shall be allocated to the western Alaska

community development quota program;

(II) 5 percent of the total allowable catch of each such

fishery for 1999 shall be allocated to the western Alaska

community development quota program; and

(III) 7.5 percent of the total allowable catch of each

such fishery for 2000 and thereafter shall be allocated to

the western Alaska community development quota program, unless the North Pacific Council submits and the

Secretary approves a percentage that is no greater than

7.5 percent of the total allowable catch of each such fishery

for 2001 or the North Pacific Council submits and the Secretary approves any other percentage on or after October

1, 2001.

(D) This paragraph shall not be construed to require the

North Pacific Council to resubmit, or the Secretary to reapprove, any fishery management plan or plan amendment approved by the North Pacific Council prior to October 1, 1995,

that includes a community development quota program, or any

regulations to implement such plan or amendment.

(2)(A) The Western Pacific Council and the Secretary may

establish a western Pacific community development program

for any fishery under the authority of such Council in order to

provide access to such fishery for western Pacific communities

that participate in the program.

(B) To be eligible to participate in the western Pacific community development program, a community shall—

(i) be located within the Western Pacific Regional

Fishery Management Area;

(ii) meet criteria developed by the Western Pacific

Council, approved by the Secretary and published in the

Federal Register;

(iii) consist of community residents who are descended

from the aboriginal people indigenous to the area who conducted commercial or subsistence fishing using traditional

fishing practices in the waters of the Western 1 Pacific region;

(iv) not have previously developed harvesting or processing capability sufficient to support substantial participation in fisheries in the Western Pacific Regional Fishery

Management Area; and

(v) develop and submit a Community Development

Plan to the Western Pacific Council and the Secretary.

(C) In developing the criteria for eligible communities

under subparagraph (B)(ii), the Western Pacific Council shall
321 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 306

base such criteria on traditional fishing practices in or dependence on the fishery, the cultural and social framework relevant

to the fishery, and economic barriers to access to the fishery.

(D) For the purposes of this subsection ‘‘Western Pacific

Regional Fishery Management Area’’ means the area under the

jurisdiction of the Western Pacific Council, or an island within

such area.

withstanding any other provision of this Act, the Western

Pacific Council shall take into account traditional indigenous

fishing practices in preparing any fishery management plan.

(3) The Secretary shall deduct from any fees collected from

a community development quota program under section

304(d)(2) the costs incurred by participants in the program for

observer and reporting requirements which are in addition to

observer and reporting requirements of other participants in

the fishery in which the allocation to such program has been

made.

(4) After the date of enactment of the Sustainable Fisheries Act, the North Pacific Council and Western Pacific Council may not submit to the Secretary a community development

quota program that is not in compliance with this subsection.

SEC. 306. ø16 U.S.C. 1856¿ STATE JURISDICTION.

(a) IN GENERAL.—

(1) Except as provided in subsection (b), nothing in this

Act shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.

(2) For the purposes of this Act, except as provided in subsection (b), the jurisdiction and authority of a State shall

extend—

(A) to any pocket of waters that is adjacent to the

State and totally enclosed by lines delimiting the territorial sea of the United States pursuant to the Geneva

Convention on the Territorial Sea and Contiguous Zone or

any successor convention to which the United States is a

party;

(B) with respect to the body of water commonly known

as Nantucket Sound, to the pocket of water west of the

seventieth meridian west of Greenwich; and

(C) to the waters of southeastern Alaska (for the purpose of regulating fishing for other than any species of

crab) that are—

(i) north of the line representing the international

boundary at Dixon Entrance and the westward extension of that line; east of 138 degrees west longitude;

and not more than three nautical miles seaward from

the coast, from the lines extending from headland to

headland across all bays, inlets, straits, passes,

sounds, and entrances, and from any island or group

of islands, including the islands of the Alexander Archipelago (except Forrester Island); or

(ii) between the islands referred to in clause (i)

(except Forrester Island) and the mainland.

(3) A State may regulate a fishing vessel outside the

boundaries of the State in the following circumstances:
Sec. 306 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 322

(A) The fishing vessel is registered under the law of

that State, and (i) there is no fishery management plan or

other applicable Federal fishing regulations for the fishery

in which the vessel is operating; or (ii) the State’s laws and

regulations are consistent with the fishery management

plan and applicable Federal fishing regulations for the

fishery in which the vessel is operating.

(B) The fishery management plan for the fishery in

which the fishing vessel is operating delegates management of the fishery to a State and the State’s laws and

regulations are consistent with such fishery management

plan. If at any time the Secretary determines that a State

law or regulation applicable to a fishing vessel under this

circumstance is not consistent with the fishery management plan, the Secretary shall promptly notify the State

and the appropriate Council of such determination and

provide an opportunity for the State to correct any inconsistencies identified in the notification. If, after notice and

opportunity for corrective action, the State does not correct

the inconsistencies identified by the Secretary, the authority granted to the State under this subparagraph shall not

apply until the Secretary and the appropriate Council find

that the State has corrected the inconsistencies. For a fishery for which there was a fishery management plan in

place on August 1, 1996 that did not delegate management

of the fishery to a State as of that date, the authority provided by this subparagraph applies only if the Council approves the delegation of management of the fishery to the

State by a three-quarters majority vote of the voting members of the Council.

(C) The fishing vessel is not registered under the law

of the State of Alaska and is operating in a fishery in the

exclusive economic zone off Alaska for which there was no

fishery management plan in place on August 1, 1996, and

the Secretary and the North Pacific Council find that there

is a legitimate interest of the State of Alaska in the conservation and management of such fishery. The authority

provided under this subparagraph shall terminate when a

fishery management plan under this Act is approved and

implemented for such fishery.

(b) EXCEPTION.—(1) If the Secretary finds, after notice and an

opportunity for a hearing in accordance with section 554 of title 5,

United States Code, that—

(A) the fishing is a fishery, which is covered by a fishery

management plan implemented under this Act, is engaged in

predominately within the exclusive economic zone and beyond

such zone; and

(B) any State has taken any action, or omitted to take any

action, the results of which will substantially and adversely affect the carrying out of such fishery management plan;

the Secretary shall promptly notify such State and the appropriate

Council of such finding and of his intention to regulate the applicable fishery within the boundaries of such State (other than its internal waters), pursuant to such fishery management plan and the

regulations promulgated to implement such plan.
323 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 306

1Margin so in law.

(2) If the Secretary, pursuant to this subsection, assumes responsibility for the regulation of any fishery, the State involved

may at any time thereafter apply to the Secretary for reinstatement of its authority over such fishery. If the Secretary finds that

the reasons for which he assumed such regulation no longer prevail, he shall promptly terminate such regulation.

(3) 1 If the State involved requests that a hearing be held

pursuant to paragraph (1), the Secretary shall conduct such

hearing prior to taking any action under paragraph (1).

(c) EXCEPTION REGARDING FOREIGN FISH PROCESSING IN INTER- NAL WATERS.—(1) A foreign fishing vessel may engage in fish processing within the internal waters of a State if, and only if—

(A) the vessel is qualified for purposes of this paragraph

pursuant to paragraph (4)(C) or has received a permit under

section 204(d);

(B) the owner or operator of the vessel applies to the Governor of the State for, and (subject to paragraph (2)) is granted,

permission for the vessel to engage in such processing and the

application specifies the species to be processed; and

(C) 1 the owner or operator of the vessel submits reports on the tonnage of fish received from vessels of the

United States and the locations from which such fish were

harvested, in accordance with such procedures as the Secretary by regulation shall prescribe.

(2) The Governor of a State may not grant permission for a foreign fishing vessel to engage in fish processing under paragraph

(1)—

(A) for a fishery which occurs in the waters of more than

one State or in the exclusive economic zone, except after—

(i) consulting with the appropriate Council and Marine

Fisheries Commission, and

(ii) considering any comments received from the Governor of any other State where the fishery occurs; and

(B) if the Governor determines that fish processors within

the State have adequate capacity, and will utilize such capacity, to process all of the United States harvested fish from the

fishery concerned that are landed in the State.

(3) Nothing in this subsection may be construed as relieving a

foreign fishing vessel from the duty to comply with all applicable

Federal and State laws while operating within the internal waters

of a State incident to permission obtained under paragraph (1)(B).

(4) For purposes of this subsection—

(A) The term ‘‘fish processing’’ includes, in addition to processing, the performance of any other activity relating to fishing, including, but not limited to, preparation, supply, storage,

refrigeration, or transportation.

(B) The phrase ‘‘internal waters of a State’’ means all waters within the boundaries of a State except those seaward of

the baseline from which the territorial sea is measured.

(C) A foreign fishing vessel shall be treated as qualified for

purposes of paragraph (1) if the foreign nation under which it

is flagged will be a party to (i) a governing international fishery agreement or (ii) a treaty described in section 201(b) of this
Sec. 307 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 324

Act (16 U.S.C. 1821(b)) during the time the vessel will engage

in the fish processing for which permission is sought under

paragraph (1)(B).

SEC. 307. ø16 U.S.C. 1857¿ PROHIBITED ACTS.

It is unlawful—

(1) for any person—

(A) to violate any provision of this Act or any regulation or permit issued pursuant to this Act;

(B) to use any fishing vessel to engage in fishing after

the revocation, or during the period of suspension, of an

applicable permit issued pursuant to this Act;

(C) to violate any provision of, or regulation under, an

applicable governing international fishery agreement entered into pursuant to section 201(c);

(D) to refuse to permit any officer authorized to enforce the provisions of this Act (as provided for in section

311) to board a fishing vessel subject to such person’s control for purposes of conducting any search or inspection in

connection with the enforcement of this Act or any regulation, permit, or agreement referred to in subparagraph (A)

or (C);

(E) to forcibly assault, resist, oppose, impede, intimidate, or interfere with any such authorized officer in the

conduct of any search or inspection described in subparagraph (D);

(F) to resist a lawful arrest for any act prohibited by

this section;

(G) to ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any

fish taken or retained in violation of this Act or any regulation, permit, or agreement referred to in subparagraph

(A) or (C);

(H) to interfere, with, delay, or prevent, by any means,

the apprehension or arrest of another person, knowing

that such other person has committed any act prohibited

by this section;

(I) to knowingly and willfully submit to a Council, the

Secretary, or the Governor of a State false information (including, but not limited to, false information regarding the

capacity and extent to which a United States fish processor, on an annual basis, will process a portion of the optimum yield of a fishery that will be harvested by fishing

vessels of the United States) regarding any matter that

the Council, Secretary, or Governor is considering in the

course of carrying out this Act;

(J) to ship, transport, offer for sale, sell, or purchase,

in interstate or foreign commerce, any whole live lobster of

the species Homarus americanus, that—

(i) is smaller than the minimum possession size in

effect at the time under the American Lobster Fishery

Management Plan, as implemented by regulations

published in part 649 of title 50, Code of Federal Regulations, or any successor to that plan implemented

under this title, or in the absence of any such plan, is
325 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 307

1Section 113(b)(1) of P.L. 104–297 sought to amend this subparagraph by striking ‘‘knowingly

steal or without authorization, to’’ and inserting ‘‘to steal or attempt to steal or to negligently

and without authorization’’. The text sought to be struck does not appear. Therefore the amendment cannot be executed. 2 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(h)(1) of the Flower Garden National Marine Sanctuary (P.L.

102–251; 106 Stat. 64) amends this subparagraph by inserting ‘‘or special area’’ after ‘‘exclusive

economic zone’’. 3Punctuation so in law.

smaller than the minimum possession size in effect at

the time under a coastal fishery management plan for

American lobster adopted by the Atlantic States Marine Fisheries Commission under the Atlantic Coastal

Fisheries Cooperative Management Act (16 U.S.C.

5101 et seq.);

(ii) is bearing eggs attached to its abdominal appendages; or

(iii) bears evidence of the forcible removal of extruded eggs from its abdominal appendages;

(K) to knowingly steal, or without authorization, to 1

remove, damage, or tamper with—

(i) fishing gear owned by another person, which is

located in the exclusive economic zone 2, or

(ii) fish contained in such fishing gear;

(L) to forcibly assault, resist, oppose, impede, intimidate, sexually harass, bribe, or interfere with any observer

on a vessel under this Act, or any data collector employed

by the National Marine Fisheries Service or under contract

to any person to carry out responsibilities under this Act;

(M) to engage in large-scale driftnet fishing that is

subject to the jurisdiction of the United States, including

use of a fishing vessel of the United States to engage in

such fishing beyond the exclusive economic zone of any nation;

(N) to strip pollock of its roe and discard the flesh of

the pollock;

(O) to knowingly and willfully fail to disclose, or to

falsely disclose, any financial interest as required under

section 302(j), or to knowingly vote on a Council decision

in violation of section 302(j)(7)(A); or

(P)(i) to remove any of the fins of a shark (including

the tail) and discard the carcass of the shark at sea;

(ii) to have custody, control, or possession of any such

fin aboard a fishing vessel without the corresponding carcass; or

(iii) to land any such fin without the corresponding

carcass. 1

For purposes of subparagraph (P) there is a rebuttable presumption that any shark fins landed from a fishing vessel or

found on board a fishing vessel were taken, held, or landed in

violation of subparagraph (P) if the total weight of shark fins

landed or found on board exceeds 5 percent of the total weight

of shark carcasses landed or found on board. 3

(2) for any vessel other than a vessel of the United States,

and for the owner or operator of any vessel other than a vessel

of the United States, to engage—
Sec. 307 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 326

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(h)(4) of the Flower Garden National Marine Sanctuary (P.L.

102–251; 106 Stat. 64) amends this paragraph by inserting ‘‘or special area’’ after ‘‘exclusive economic zone’’.

(A) in fishing within the boundaries of any State,

except—

(i) recreational fishing permitted under section

201(i);

(ii) fish processing permitted under section 306(c);

or

(iii) transshipment at sea of fish or fish products

within the boundaries of any State in accordance with

a permit approved under section 204(d);

(B) in fishing, except recreational fishing permitted

under section 201(i), within the exclusive economic zone, or

for any anadromous species or Continental Shelf fishery

resources beyond such zone or areas, unless such fishing

is authorized by, and conducted in accordance with, a valid

and applicable permit issued pursuant to section 204(b),

(c), or (d); or

(C) except as permitted under section 306(c), in fish

processing (as defined in paragraph (4)(A) of such section)

within the internal waters of a State (as defined in paragraph (4)(B) of such section);

(3) for any vessel of the United States, and for the owner

or operator of any vessel of the United States, to transfer at

sea directly or indirectly, or attempt to so transfer at sea, any

United States harvested fish to any foreign fishing vessel,

while such foreign vessel is within the exclusive economic zone

or within the boundaries of any State except to the extent that

the foreign fishing vessel has been permitted under section

204(d) or section 306(c) to receive such fish;

(4) for any fishing vessel other than a vessel of the United

States to operate, and for the owner or operator of a fishing

vessel other than a vessel of the United States to operate such

vessel, in the exclusive economic zone 1 or within the boundaries of any State or special areas, if—

(A) all fishing gear on the vessel is not stored below

deck or in an area where it is not normally used, and not

readily available, for fishing; or

(B) all fishing gear on the vessel which is not so stored

is not secured and covered so as to render it unusable for

fishing;

unless such vessel is authorized to engage in fishing in the

area in which the vessel is operating; and

(5) for any vessel of the United States, and for the owner

or operator of any vessel of the United States, to engage in

fishing in the waters of a foreign nation in a manner that violates an international fishery agreement between that nation

and the United States that has been subject to Congressional

oversight in the manner described in section 203, or any regulations issued to implement such an agreement; except that the

binding provisions of such agreement and implementing regu-
327 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 308

1So in original. The comma should be changed to a colon.

lations shall have been published in the Federal Register prior

to such violation.

SEC. 308. ø16 U.S.C. 1858¿ CIVIL PENALTIES AND PERMIT SANCTIONS.

(a) ASSESSMENT OF PENALTY.—Any person who is found by the

Secretary, after notice and an opportunity for a hearing in accordance with section 554 of title 5, United States Code, to have com- mitted an act prohibited by section 307 shall be liable to the United

States for a civil penalty. The amount of the civil penalty shall not

exceed $100,000 for each violation. Each day of a continuing violation shall constitute a separate offense. The amount of such civil

penalty shall be assessed by the Secretary, or his designee, by written notice. In determining the amount of such penalty, the Secretary shall take into account the nature, circumstances, extent,

and gravity of the prohibited acts committed and, with respect to

the violator, the degree of culpability, any history of prior offenses,

and such other matters as justice may require. In assessing such

penalty the Secretary may also consider any information provided

by the violator relating to the ability of the violator to pay, 1 Provided, That the information is served on the Secretary at least 30

days prior to an administrative hearing.

(b) REVIEW OF CIVIL PENALTY.—Any person against whom a

civil penalty is assessed under subsection (a) or against whom a

permit sanction is imposed under subsection (g) (other than a permit suspension for nonpayment of penalty or fine) may obtain review thereof in the United States district court for the appropriate

district by filing a complaint against the Secretary in such court

within 30 days from the date of such order. The Secretary shall

promptly file in such court a certified copy of the record upon

which such violation was found or such penalty imposed, as provided in section 2112 of title 28, United States Code. The findings

and order of the Secretary shall be set aside by such court if they

are not found to be supported by substantial evidence, as provided

in section 706(2) of title 5, United States Code.

(c) ACTION UPON FAILURE TO PAY ASSESSMENT.—If any person

fails to pay an assessment of a civil penalty after it has become a

final and unappealable order, or after the appropriate court has entered final judgment in favor of the Secretary, the Secretary shall

refer the matter to the Attorney General of the United States, who

shall recover the amount assessed in any appropriate district court

of the United States. In such action, the validity and appropriateness of the final order imposing the civil penalty shall not be subject to review.

(d) IN REM JURISDICTION.—A fishing vessel (including its fishing gear, furniture, appurtenances, stores, and cargo) used in the

commission of an act prohibited by section 307 shall be liable in

rem for any civil penalty assessed for such violation under section

308 and may be proceeded against in any district court of the

United States having jurisdiction thereof. Such penalty shall constitute a maritime lien on such vessel which may be recovered in

an action in rem in the district court of the United States having

jurisdiction over the vessel.

(e) COMPROMISE OR OTHER ACTION BY SECRETARY.—The Secretary may compromise, modify, or remit, with or without condi-
Sec. 308 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 328

tions, any civil penalty which is subject to imposition or which has

been imposed under this section.

(f) SUBPENAS.—For the purposes of conducting any hearing

under this section, the Secretary may issue subpenas for the attendance and testimony of witnesses and the production of relevant

papers, books, and documents, and may administer oaths. Witnesses summoned shall be paid the same fees and mileage that are

paid to witnesses in the courts of the United States. In case of contempt or refusal to obey a subpena served upon any person pursuant to this subsection, the district court of the United States for

any district in which such person is found, resides, or transacts

business, upon application by the United States and after notice to

such person, shall have jurisdiction to issue an order requiring

such person to appear and give testimony before the Secretary or

to appear and produce documents before the Secretary, or both,

and any failure to obey such order of the court may be punished

by such court as a contempt thereof.

(g) PERMIT SANCTIONS.—(1) In any case in which (A) a vessel

has been used in the commission of an act prohibited under section

307, (B) the owner or operator of a vessel or any other person who

has been issued or has applied for a permit under this Act has

acted in violation of section 307, (C) any amount in settlement of

a civil forfeiture imposed on a vessel or other property, or any civil

penalty or criminal fine imposed on a vessel or owner or operator

of a vessel or any other person who has been issued or has applied

for a permit under any marine resource law enforced by the Secretary has not been paid and is overdue, or (D) any payment required for observer services provided to or contracted by an owner

or operator who has been issued a permit or applied for a permit

under any marine resource law administered by the Secretary has

not been paid and is overdue, the Secretary may—

(i) revoke any permit issued with respect to such vessel or

person, with or without prejudice to the issuance of subsequent

permits;

(ii) suspend such permit for a period of time considered by

the Secretary to be appropriate;

(iii) deny such permit; or

(iv) impose additional conditions and restrictions on any

permit issued to or applied for by such vessel or person under

this Act and, with respect to foreign fishing vessels, on the approved application of the foreign nation involved and on any

permit issued under that application.

(2) In imposing a sanction under this subsection, the Secretary

shall take into account—

(A) the nature, circumstances, extent, and gravity of the

prohibited acts for which the sanction is imposed; and

(B) with respect to the violator, the degree of culpability,

any history of prior offenses, and such other matters as justice

may require.

(3) Transfer of ownership of a vessel, by sale or otherwise,

shall not extinguish any permit sanction that is in effect or is pending at the time of transfer of ownership. Before executing the

transfer of ownership of a vessel, by sale or otherwise, the owner

shall disclose in writing to the prospective transferee the existence
329 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 310

of any permit sanction that will be in effect or pending with respect

to the vessel at the time of the transfer.

(4) In the case of any permit that is suspended under this subsection for nonpayment of a civil penalty or criminal fine, the Secretary shall reinstate the permit upon payment of the penalty or

fine and interest thereon at the prevailing rate.

(5) No sanctions shall be imposed under this subsection unless

there has been a prior opportunity for a hearing on the facts underlying the violation for which the sanction is imposed, either in conjunction with a civil penalty proceeding under this section or otherwise.

SEC. 309. ø16 U.S.C. 1859¿ CRIMINAL OFFENSES.

(a) OFFENSES.—A person is guilty of an offense if he commits

any act prohibited by—

(1) section 307(1)(D), (E), (F), (H), (I), or (L); or

(2) section 307(2).

(b) PUNISHMENT.—Any offense described in subsection (a)(1) is

punishable by a fine of not more than $100,000, or imprisonment

for not more than 6 months, or both; except that if in the commission of any such offense the person uses a dangerous weapon, engages in conduct that causes bodily injury to any observer described in section 307(1)(L) or any officer authorized to enforce the

provisions of this Act (as provided for in section 311), or places any

such observer or officer in fear of imminent bodily injury, the offense is punishable by a fine of not more than $200,000, or imprisonment for not more than 10 years, or both. Any offense described

in subsection (a)(2) is punishable by a fine of not more than

$200,000.

(c) JURISDICTION.—There is Federal jurisdiction over any offense described in this section.

SEC. 310. ø16 U.S.C. 1860¿ CIVIL FORFEITURES.

(a) IN GENERAL.—Any fishing vessel (including its fishing gear,

furniture, appurtenances, stores, and cargo) used, and any fish (or

the fair market value thereof) taken or retained, in any manner,

in connection with or as a result of the commission of any act prohibited by section 307 (other than any act for which the issuance

of a citation under section 311(c) is sufficient sanction) shall be

subject to forfeiture to the United States. All or part of such vessel

may, and all such fish (or the fair market value thereof) shall, be

forfeited to the United States pursuant to a civil proceeding under

this section.

(b) JURISDICTION OF COURTS.—Any district court of the United

States which has jurisdiction under section 311(d) shall have jurisdiction, upon application by the Attorney General on behalf of the

United States, to order any forfeiture authorized under subsection

(a) and any action provided for under subsection (d).

(c) JUDGMENT.—If a judgment is entered for the United States

in a civil forfeiture proceeding under this section, the Attorney

General may seize any property or other interest declared forfeited

to the United States, which has not previously been seized pursuant to this Act or for which security has not previously been obtained under subsection (d). The provisions of the customs laws relating to—
Sec. 310 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 330

1Margin so in law.

(1) the seizure, forfeiture, and condemnation of property

for violation of the customs law;

(2) the disposition of such property or the proceeds from

the sale thereof; and

(3) the remission or mitigation of any such forfeiture;

shall apply to seizures and forfeitures incurred, or alleged to have

been incurred, under the provisions of this Act, unless such provisions are inconsistent with the purposes, policy, and provisions of

this Act. The duties and powers imposed upon the Commissioner

of Customs or other persons under such provisions shall, with respect to this Act, be performed by officers or other persons designated for such purpose by the Secretary.

(d) PROCEDURE.—(1) Any officer authorized to serve any process in rem which is issued by a court having jurisdiction under section 311 (d) shall—

(A) stay the execution of such process; or

(B) discharge any fish seized pursuant to such process;

upon the receipt of a satisfactory bond or other security from any

person claiming such property. Such bond or other security shall be

conditioned upon such person (i) delivering such property to the appropriate court upon order thereof, without any impairment of its

value, or (ii) paying the monetary value of such property pursuant

to an order of such court. Judgment shall be recoverable on such

bond or other security against both the principal and any sureties

in the event that any condition thereof is breached, as determined

by such court. Nothing in this paragraph may be construed to require the Secretary, except in the Secretary’s discretion or pursuant to the order of a court under section 311(d), to release on bond

any seized fish or other property or the proceeds from the sale

thereof.

(2) Any fish seized pursuant to this Act may be sold, subject

to the approval and direction of the appropriate court, for not less

than the fair market value thereof. The proceeds of any such sale

shall be deposited with such court pending the disposition of the

matter involved.

(e) REBUTTABLE PRESUMPTION.—(1) For purposes of this section, it shall be a rebuttable presumption that all fish found on

board a fishing vessel which is seized in connection with an act

prohibited by section 307 were taken or retained in violation of this

Act.

(2) For purposes of this Act, it shall be a rebuttable presumption that any fish of a species which spawns in fresh or estuarine

waters and migrates to ocean waters that is found on board a vessel is of United States origin if the vessel is within the migratory

range of the species during that part of the year to which the migratory range applies.)

(3) 1 For purposes of this Act, it shall be a rebuttable presumption that any vessel that is shoreward of the outer boundary of the exclusive economic zone of the United States or beyond the exclusive economic zone of any nation, and that has

gear on board that is capable of use for large-scale driftnet

fishing, is engaged in such fishing.
331 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 311

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 301(i) of the Flower Garden National Marine Sanctuary (P.L. 102–

251; 106 Stat. 64) amends this paragraph by inserting ‘‘and special areas’’ after ‘‘exlusive economic zone’’.

SEC. 311. ø16 U.S.C. 1861¿ ENFORCEMENT.

(a) RESPONSIBILITY.—The provisions of this Act shall be enforced by the Secretary and the Secretary of the department in

which the Coast Guard is operating. Such Secretaries may, by

agreement, on a reimbursable basis or otherwise, utilize the personnel, services, equipment (including aircraft and vessels), and facilities of any other Federal agency, including all elements of the

Department of Defense, and of any State agency, in the performance of such duties.

(b) POWERS OF AUTHORIZED OFFICERS.—(1) Any officer who is

authorized (by the Secretary, the Secretary of the department in

which the Coast Guard is operating, or the head of any Federal or

State agency which has entered into an agreement with such Secretaries under subsection (a)) to enforce the provisions of this Act

may—

(A) with or without a warrant or other process—

(i) arrest any person, if he has reasonable cause to believe that such person has committed an act prohibited by

section 307;

(ii) board, and search or inspect, any fishing vessel

which is subject to the provisions of this Act;

(iii) seize any fishing vessel (together with its fishing

gear, furniture, appurtenances, stores, and cargo) used or

employed in, or with respect to which it reasonably appears that such vessel was used or employed in, the violation of any provisions of this Act;

(iv) seize any fish (wherever found) taken or retained

in violation of any provision of this Act; and

(v) seize any other evidence related to any violation of

any provisions of this Act;

(B) execute any warrant or other process issued by any

court of competent jurisdiction; and

(C) exercise any other lawful authority.

(2) Subject to the direction of the Secretary, a person charged

with law enforcement responsibilities by the Secretary who is performing a duty related to enforcement of a law regarding fisheries

or other marine resources may make an arrest without a warrant

for an offense against the United States committed in his presence,

or for a felony cognizable under the laws of the United States, if

he has reasonable grounds to believe that the person to be arrested

has committed or is committing a felony. The arrest authority described in the preceding sentence may be conferred upon an officer

or employee of a State agency, subject to such conditions and restrictions as are set forth by agreement between the State agency,

the Secretary, and, with respect to enforcement operations within

the exclusive economic zone 1, the Secretary of the department in

which the Coast Guard is operating.

(c) ISSUANCE OF CITATIONS.—If any officer authorized to enforce the provisions of this Act (as provided for in this section) finds

that a fishing vessel is operating or has been operated in violation
Sec. 311 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 332

1Section 115(a)(1) of P.L. 104–297 (110 Stat. 3599) sought to amend this subsection by striking ‘‘Guam, any Commonwealth, territory, or’’ and inserting ‘‘Guam or any’’. The text sought

to be struck does not appear. Therefore the amendment cannot be executed.

of any provision of this Act, such officer may, in accordance with

regulations issued jointly by the Secretary and the Secretary of the

department in which the Coast Guard is operating, issue a citation

to the owner or operator of such vessel in lieu of proceeding under

subsection (b). If a permit has been issued pursuant to this Act for

such vessel, such officer shall note the issuance of any citation

under this subsection, including the date thereof and the reason

therefor, on the permit. The Secretary shall maintain a record of

all citations issued pursuant to this subsection.

(d) JURISDICTION OF COURTS.—The district courts of the United

States shall have exclusive jurisdiction over any case or controversy arising under the provisions of this Act. In the case of

Guam, and any Commonwealth, territory, or 1 possession of the

United States in the Pacific Ocean, the appropriate court is the

United States District Court for the District of Guam, except that

in the case of American Samoa, the appropriate court is the United

States District Court for the District of Hawaii, and except that in

the case of the Northern Mariana Islands, the appropriate court is

the United States District Court for the District of the Northern

Mariana Islands. Any such court may, at any time—

(1) enter restraining orders or prohibitions;

(2) issue warrants, process in rem, or other process;

(3) prescribe and accept satisfactory bonds or other security; and

(4) take such other actions as are in the interest of justice.

(e) PAYMENT OF STORAGE, CARE, AND OTHER COSTS.—(1) Notwithstanding any other provision of law, the Secretary or the Secretary of the Treasury may pay from sums received as fines, penalties, and forfeitures of property for violations of any provisions of

this Act or of any other marine resource law enforced by the Secretary, including the Lacey Act Amendments of 1981 (16 U.S.C.

3371 et seq.)—

(A) the reasonable and necessary costs incurred in providing temporary storage, care, and maintenance of seized fish

or other property pending disposition of any civil or criminal

proceeding alleging a violation of any provision of this Act or

any other marine resource law enforced by the Secretary with

respect to that fish or other property;

(B) a reward of not less than 20 percent of the penalty collected or $20,000, whichever is the lesser amount, to any person who furnishes information which leads to an arrest, conviction, civil penalty assessment, or forfeiture of property for any

violation of any provision of this Act or any other marine resource law enforced by the Secretary;

(C) any expenses directly related to investigations and civil

or criminal enforcement proceedings, including any necessary

expenses for equipment, training, travel, witnesses, and contracting services directly related to such investigations or proceedings;

(D) any valid liens or mortgages against any property that

has been forfeited;
333 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 311

1Margin so in law.

(E) 1 claims of parties in interest to property disposed

of under section 612(b) of the Tariff Act of 1930 (19 U.S.C.

1612(b)), as made applicable by section 310(c) of this Act

or by any other marine resource law enforced by the Secretary, to seizures made by the Secretary, in amounts determined by the Secretary to be applicable to such claims

at the time of seizure; and

(F) reimbursement to any Federal or State agency, including the Coast Guard, for services performed, or personnel,

equipment, or facilities utilized, under any agreement with the

Secretary entered into pursuant to subsection (a), or any similar agreement authorized by law.

(2) 1 Any person found in an administrative or judicial proceeding to have violated this Act or any other marine resource

law enforced by the Secretary shall be liable for the cost incurred in the sale, storage, care, and maintenance of any fish

or other property lawfully seized in connection with the violation.

(f) ENFORCEMENT OF NORTHEAST MULTISPECIES FISHERY MANAGEMENT PLAN.—

(1) ENFORCEMENT AGREEMENTS.—Beginning not later than

October 1, 1993, the Secretary shall, if requested by the Governor of a State represented on the New England Fishery Management Council, enter into an agreement under subsection

(a), with each of the States represented on such Council, that

authorizes the marine law enforcement agency of such State to

perform duties of the Secretary relating to enforcement of the

Northeast Multispecies Fishery Management Plan.

(2) REIMBURSEMENT.—An agreement with a State under

this subsection shall provide, subject to the availability of appropriations, for reimbursement of the State for expenses incurred in detection and prosecution of violations of any fishery

management plan approved by the Secretary.

(3) COAST GUARD ENFORCEMENT WORKING GROUP.—

(A) ESTABLISHMENT.—The Commander of the First

Coast Guard District shall establish an informal fisheries

enforcement working group to improve the overall compliance with and effectiveness of the regulations issued under

the Northeast Multispecies Fishery Management Plan.

(B) MEMBERSHIP.—The working group shall consist of

members selected by the Commander, and shall include—

(i) individuals who are representatives of various

fishing ports located in the States represented on the

New England Fishery Management Council;

(ii) captains of fishing vessels that operate in waters under the jurisdiction of that Council; and

(iii) other individuals the Commander considers

appropriate.

(C) NON-FEDERAL STATUS OF WORKING GROUP MEMBERS.—An individual shall not receive any compensation

for, and shall not be considered to be a Federal employee

based on, membership in the working group.
Sec. 312 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 334

1Section 115(e) of P.L. 104–297 sought to amend section 311(i)(1) of the Magnuson Fishery

Conservation and Management Act by striking ‘‘201(b), (c)’’ and inserting ‘‘201(b) or (c), or section 204(d)’’. However, there is no subsection (i) in section 311. The intent may have been to

amend section 311(h)(1). However, the language sought to be struck does not appear in that section. For both of these reasons, the amendment cannot be executed.

(D) MEETINGS.—The working group shall meet, at the

call of the Commander, at least 4 times each year. The

meetings shall be held at various major fishing ports in

States represented on the New England Fishery Management Council, as specified by the Commander.

(4) USE OF FINES AND PENALTIES.—Amounts available to

the Secretary under this Act which are attributable to fines

and penalties imposed for violations of the Northeast Multispecies Fishery Management Plan shall be used by the Secretary

pursuant to this section to enforce that Plan.

(g) ENFORCEMENT IN THE PACIFIC INSULAR AREAS.—The Secretary, in consultation with the Governors of the Pacific Insular

Areas and the Western Pacific Council, shall to the extent practicable support cooperative enforcement agreements between Federal and Pacific Insular Area authorities.

(h) DEFINITIONS.—For purposes of this section—

(1) The term ‘‘provisions of this Act’’ includes (A) any regulation or permit issued pursuant to this Act, and (B) any provision of, or regulation issued pursuant to, any international

fishery agreement under which foreign fishing is authorized by

section 201 (b) or (c), 1 with respect to fishing subject to the exclusive fishery management authority of the United States.

(2) The term ‘‘violation of any provision of this Act’’ includes (A) the commission of any act prohibited by section 307,

and (B) the violation of any regulation, permit, or agreement

referred to in paragraph (1).

SEC. 312. ø16 U.S.C. 1861a¿ TRANSITION TO SUSTAINABLE FISHERIES.

(a) FISHERIES DISASTER RELIEF.—(1) At the discretion of the

Secretary or at the request of the Governor of an affected State or

a fishing community, the Secretary shall determine whether there

is a commercial fishery failure due to a fishery resource disaster as

a result of—

(A) natural causes;

(B) man-made causes beyond the control of fishery managers to mitigate through conservation and management measures; or

(C) undetermined causes.

(2) Upon the determination under paragraph (1) that there is

a commercial fishery failure, the Secretary is authorized to make

sums available to be used by the affected State, fishing community,

or by the Secretary in cooperation with the affected State or fishing

community for assessing the economic and social effects of the commercial fishery failure, or any activity that the Secretary determines is appropriate to restore the fishery or prevent a similar failure in the future and to assist a fishing community affected by

such failure. Before making funds available for an activity authorized under this section, the Secretary shall make a determination

that such activity will not expand the size or scope of the commercial fishery failure in that fishery or into other fisheries or other

geographic regions.
335 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 312

(3) The Federal share of the cost of any activity carried out

under the authority of this subsection shall not exceed 75 percent

of the cost of that activity.

(4) There are authorized to be appropriated to the Secretary

such sums as are necessary for each of the fiscal years 1996, 1997,

1998, and 1999.

(b) FISHING CAPACITY REDUCTION PROGRAM.—(1) The Secretary, at the request of the appropriate Council for fisheries under

the authority of such Council, or the Governor of a State for fisheries under State authority, may conduct a fishing capacity reduction program (referred to in this section as the ‘‘program’’) in a fishery if the Secretary determines that the program—

(A) is necessary to prevent or end overfishing, rebuild

stocks of fish, or achieve measurable and significant improvements in the conservation and management of the fishery;

(B) is consistent with the Federal or State fishery management plan or program in effect for such fishery, as appropriate,

and that the fishery management plan—

(i) will prevent the replacement of fishing capacity removed by the program through a moratorium on new entrants, restrictions on vessel upgrades, and other effort

control measures, taking into account the full potential

fishing capacity of the fleet; and

(ii) establishes a specified or target total allowable

catch or other measures that trigger closure of the fishery

or adjustments to reduce catch; and

(C) is cost-effective and capable of repaying any debt obligation incurred under section 1111 of title XI of the Merchant

Marine Act, 1936.

(2) The objective of the program shall be to obtain the maximum sustained reduction in fishing capacity at the least cost and

in a minimum period of time. To achieve that objective, the Secretary is authorized to pay—

(A) the owner of a fishing vessel, if such vessel is (i)

scrapped, or (ii) through the Secretary of the department in

which the Coast Guard is operating, subjected to title restrictions that permanently prohibit and effectively prevent its use

in fishing, and if the permit authorizing the participation of

the vessel in the fishery is surrendered for permanent revocation and the owner relinquishes any claim associated with the

vessel and permit that could qualify such owner for any

present or future limited access system permit in the fishery

for which the program is established; or

(B) the holder of a permit authorizing participation in the

fishery, if such permit is surrendered for permanent revocation, and such holder relinquishes any claim associated with

the permit and vessel used to harvest fishery resources under

the permit that could qualify such holder for any present or future limited access system permit in the fishery for which the

program was established.

(3) Participation in the program shall be voluntary, but the

Secretary shall ensure compliance by all who do participate.

(4) The Secretary shall consult, as appropriate, with Councils,

Federal agencies, State and regional authorities, affected fishing

communities, participants in the fishery, conservation organiza-
Sec. 312 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 336

tions, and other interested parties throughout the development and

implementation of any program under this section.

(c) PROGRAM FUNDING.—(1) The program may be funded by

any combination of amounts—

(A) available under clause (iv) of section 2(b)(1)(A) of the

Act of August 11, 1939 (15 U.S.C. 713c–3(b)(1)(A); the

Saltonstall-Kennedy Act);

(B) appropriated for the purposes of this section;

(C) provided by an industry fee system established under

subsection (d) and in accordance with section 1111 of title XI

of the Merchant Marine Act, 1936; or

(D) provided from any State or other public sources or private or non-profit organizations.

(2) All funds for the program, including any fees established

under subsection (d), shall be paid into the fishing capacity reduction fund established under section 1111 of title XI of the Merchant

Marine Act, 1936.

(d) INDUSTRY FEE SYSTEM.—(1)(A) If an industry fee system is

necessary to fund the program, the Secretary, at the request of the

appropriate Council, may conduct a referendum on such system. Prior to the referendum, the Secretary, in consultation with the

Council, shall—

(i) identify, to the extent practicable, and notify all permit

or vessel owners who would be affected by the program; and

(ii) make available to such owners information about the

industry fee system describing the schedule, procedures, and

eligibility requirements for the referendum, the proposed program, and the amount and duration and any other terms and

conditions of the proposed fee system.

(B) The industry fee system shall be considered approved if the

referendum votes which are cast in favor of the proposed system

constitute a two-thirds majority of the participants voting.

(2) Notwithstanding section 304(d) and consistent with an approved industry fee system, the Secretary is authorized to establish

such a system to fund the program and repay debt obligations incurred pursuant to section 1111 of title XI of the Merchant Marine

Act, 1936. The fees for a program established under this section

shall—

(A) be determined by the Secretary and adjusted from time

to time as the Secretary considers necessary to ensure the

availability of sufficient funds to repay such debt obligations;

(B) not exceed 5 percent of the ex-vessel value of all fish

harvested from the fishery for which the program is established;

(C) be deducted by the first ex-vessel fish purchaser from

the proceeds otherwise payable to the seller and accounted for

and forwarded by such fish purchasers to the Secretary in such

manner as the Secretary may establish; and

(D) be in effect only until such time as the debt obligation

has been fully paid.

(e) IMPLEMENTATION PLAN.—(1) The Secretary, in consultation

with the appropriate Council or State and other interested parties,

shall prepare and publish in the Federal Register for a 60-day public comment period an implementation plan, including proposed

regulations, for each program. The implementation plan shall—
337 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 313

(A) define criteria for determining types and numbers of

vessels which are eligible for participation in the program taking into account characteristics of the fishery, the requirements

of applicable fishery management plans, the needs of fishing

communities, and the need to minimize program costs; and

(B) establish procedures for program participation (such as

submission of owner bid under an auction system or fair market-value assessment) including any terms and conditions for

participation which the Secretary deems to be reasonably necessary to meet the goals of the program.

(2) During the 60-day public comment period—

(A) the Secretary shall conduct a public hearing in each

State affected by the program; and

(B) the appropriate Council or State shall submit its comments and recommendations, if any, regarding the plan and

regulations.

(3) Within 45 days after the close of the public comment period, the Secretary, in consultation with the appropriate Council or

State, shall analyze the public comment received and publish in

the Federal Register a final implementation plan for the program

and regulations for its implementation. The Secretary may not

adopt a final implementation plan involving industry fees or debt

obligation unless an industry fee system has been approved by a

referendum under this section.

SEC. 313. ø16 U.S.C. 1862¿ NORTH PACIFIC FISHERIES CONSERVATION.

(a) IN GENERAL.—The North Pacific Council may prepare, in

consultation with the Secretary, a fisheries research plan for all

fisheries under the Council’s jurisdiction except salmon fisheries

which—

(1) requires that observers be stationed on fishing vessels

engaged in the catching, taking, or harvesting of fish and on

United States fish processors fishing for or processing species

under the jurisdiction of the Council, including the Northern

Pacific halibut fishery, for the purpose of collecting data necessary for the conservation, management, and scientific understanding of any fisheries under the Council’s jurisdiction; and

(2) establishes a system of fees to pay for the costs of implementing the plan.

(b) STANDARDS.—(1) Any plan or plan amendment prepared

under this section shall be reasonably calculated to—

(A) gather reliable data, by stationing observers on all or

a statistically reliable sample of the fishing vessels and United

States fish processors included in the plan, necessary for the

conservation, management, and scientific understanding of the

fisheries covered by the plan;

(B) be fair and equitable to all vessels and processors;

(C) be consistent with applicable provisions of law; and

(D) take into consideration the operating requirements of

the fisheries and the safety of observers and fishermen.

(2) Any system of fees established under this section shall—

(A) provide that the total amount of fees collected under

this section not exceed the combined cost of (i) stationing observers on board fishing vessels and United States fish processors, (ii) the actual cost of inputting collected data, and (iii)
Sec. 313 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 338

assessments necessary for a risk-sharing pool implemented

under subsection (e) of this section, less any amount received

for such purpose from another source or from an existing surplus in the North Pacific Fishery Observer Fund established in

subsection (d) of this section;

(B) be fair and equitable to all participants in the fisheries

under the jurisdiction of the Council, including the Northern

Pacific halibut fishery;

(C) provide that fees collected not be used to pay any costs

of administrative overhead or other costs not directly incurred

in carrying out the plan;

(D) not be used to offset amounts authorized under other

provisions of law;

(E) be expressed as a percentage, not to exceed 2 percent,

of the unprocessed ex-vessel value of fish and shellfish harvested under the jurisdiction of the Council, including the

Northern Pacific halibut fishery;

(F) be assessed against all fishing vessels and United

States fish processors, including those not required to carry an

observer under the plan, participating in fisheries under the

jurisdiction of the Council, including the Northern Pacific halibut fishery;

(G) provide that fees collected will be deposited in the

North Pacific Fishery Observer Fund established under subsection (d) of this section;

(H) provide that fees collected will only be used for implementing the plan established under this section; and

(I) meet the requirements of section 9701(b) of title 31,

United States Code.

(c) ACTION BY SECRETARY.—(1) Within 60 days after receiving

a plan or plan amendment from the North Pacific Council under

this section, the Secretary shall review such plan or plan amendment and either (A) remand such plan or plan amendment to the

Council with comments if it does not meet the requirements of this

section, or (B) publish in the Federal Register proposed regulations

for implementing such plan or plan amendment.

(2) During the 60-day public comment period, the Secretary

shall conduct a public hearing in each State represented on the

Council for the purpose of receiving public comments on the proposed regulations.

(3) Within 45 days of the close of the public comment period,

the Secretary, in consultation with the Council, shall analyze the

public comment received and publish final regulations for implementing such plan.

(4) If the Secretary remands a plan or plan amendment to the

Council for failure to meet the requirements of this section, the

Council may resubmit such plan or plan amendment at any time

after taking action the Council believes will address the defects

identified by the Secretary. Any plan or plan amendment resubmitted to the Secretary will be treated as an original plan submitted to the Secretary under paragraph (1) of this subsection.

(d) FISHERY OBSERVER FUND.—There is established in the

Treasury a North Pacific Fishery Observer Fund. The Fund shall

be available, without appropriation or fiscal year limitation, only to

the Secretary for the purpose of carrying out the provisions of this
339 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 313

1So in original. The comma should be changed to a colon.

section, subject to the restrictions in subsection (b)(2) of this section. The Fund shall consist of all monies deposited into it in accordance with this section. Sums in the Fund that are not currently

needed for the purposes of this section shall be kept on deposit or

invested in obligations of, or guaranteed by, the United States.

(e) SPECIAL PROVISIONS REGARDING OBSERVERS.—(1) The Secretary shall review—

(A) the feasibility of establishing a risk sharing pool

through a reasonable fee, subject to the limitations of subsection (b)(2)(E) of this section, to provide coverage for vessels

and owners against liability from civil suits by observers, and

(B) the availability of comprehensive commercial insurance

for vessel and owner liability against civil suits by observers.

(2) If the Secretary determines that a risk sharing pool is feasible, the Secretary shall establish such a pool, subject to the provisions of subsection (b)(2) of this section, unless the Secretary determines that—

(A) comprehensive commercial insurance is available for

all fishing vessels and United States fish processors required

to have observers under the provisions of this section, and

(B) such comprehensive commercial insurance will provide

a greater measure of coverage at a lower cost to each participant.

(f) BYCATCH REDUCTION.—In implementing section 303(a)(11)

and this section, the North Pacific Council shall submit conservation and management measures to lower, on an annual basis for

a period of not less than four years, the total amount of economic

discards occurring in the fisheries under its jurisdiction.

(g) BYCATCH REDUCTION INCENTIVES.—(1) Notwithstanding

section 304(d), the North Pacific Council may submit, and the Secretary may approve, consistent with the provisions of this Act, a

system of fines in a fishery to provide incentives to reduce bycatch

and bycatch rates; except that such fines shall not exceed $25,000

per vessel per season. Any fines collected shall be deposited in the

North Pacific Fishery Observer Fund, and may be made available

by the Secretary to offset costs related to the reduction of bycatch

in the fishery from which such fines were derived, including conservation and management measures and research, and to the

State of Alaska to offset costs incurred by the State in the fishery

from which such penalties were derived or in fisheries in which the

State is directly involved in management or enforcement and which

are directly affected by the fishery from which such penalties were

derived.

(2)(A) Notwithstanding section 303(d), and in addition to the

authority provided in section 303(b)(10), the North Pacific Council

may submit, and the Secretary may approve, conservation and

management measures which provide allocations of regulatory discards to individual fishing vessels as an incentive to reduce per

vessel bycatch and bycatch rates in a fishery, 1 Provided, That—

(i) such allocations may not be transferred for monetary

consideration and are made only on an annual basis; and
Sec. 314 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 340

(ii) any such conservation and management measures will

meet the requirements of subsection (h) and will result in an

actual reduction in regulatory discards in the fishery.

(B) The North Pacific Council may submit restrictions in addition to the restriction imposed by clause (i) of subparagraph (A) on

the transferability of any such allocations, and the Secretary may

approve such recommendation.

(h) CATCH MEASUREMENT.—(1) By June 1, 1997 the North Pacific Council shall submit, and the Secretary may approve, consistent with the other provisions of this Act, conservation and management measures to ensure total catch measurement in each fishery under the jurisdiction of such Council. Such measures shall ensure the accurate enumeration, at a minimum, of target species,

economic discards, and regulatory discards.

(2) To the extent the measures submitted under paragraph (1)

do not require United States fish processors and fish processing

vessels (as defined in chapter 21 of title 46, United States Code)

to weigh fish, the North Pacific Council and the Secretary shall

submit a plan to the Congress by January 1, 1998, to allow for

weighing, including recommendations to assist such processors and

processing vessels in acquiring necessary equipment, unless the

Council determines that such weighing is not necessary to meet the

requirements of this subsection.

(i) FULL RETENTION AND UTILIZATION.—(1) The North Pacific

Council shall submit to the Secretary by October 1, 1998 a report

on the advisability of requiring the full retention by fishing vessels

and full utilization by United States fish processors of economic

discards in fisheries under its jurisdiction if such economic discards, or the mortality of such economic discards, cannot be avoided. The report shall address the projected impacts of such requirements on participants in the fishery and describe any full retention

and full utilization requirements that have been implemented.

(2) The report shall address the advisability of measures to

minimize processing waste, including standards setting minimum

percentages which must be processed for human consumption. For

the purpose of the report, ‘‘processing waste’’ means that portion of

any fish which is processed and which could be used for human

consumption or other commercial use, but which is not so used.

SEC. 314. ø16 U.S.C. 1863¿ NORTHWEST ATLANTIC OCEAN FISHERIES

REINVESTMENT PROGRAM.

(a) PROGRAM.—(1) Not later than October 1, 1993, the Secretary shall establish a Northwest Atlantic Ocean Fisheries Reinvestment Program for the purposes of—

(A) promoting development of commercial fisheries and

markets for underutilized species of the northwest Atlantic

Ocean;

(B) developing alternative fishing opportunities for participants in the New England groundfish fishery;

(C) providing technical support and assistance to United

States fishermen and fish processors to improve the valueadded processing of underutilized species and to make participation in fisheries for underutilized species of the northwest

Atlantic Ocean economically viable;

(D) creating new economic opportunities through the improved processing and expanded use of fish waste; and
341 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 314

1So in law. Should be ‘‘paragraph (1)’’.

(E) helping to restore overfished New England groundfish

stocks through aquaculture or hatchery programs.

(2) CONSULTATION.—In establishing and implementing the

Northwest Fisheries Reinvestment Program, the Secretary shall

consult with representatives of the commercial fishing industry, the

seafood processing industry, and the academic community (including the National Sea Grant Program).

(3) ACTIVITIES UNDER PROGRAM.—Subject to the availability of

appropriations, the Secretary shall award contracts, grants and

other financial assistance to United States citizens to carry out the

purposes of subsection (1) 1, under the terms and conditions provided in section 2(c) of the Act of August 11, 1939 (15 U.S.C. 713c–

3(c); commonly referred to as the ‘‘Saltonstall-Kennedy Act’’), except that, in making awards under this section for projects involving participation in fisheries for underutilized species, the Secretary shall give the highest priority to a person who owns or operates a fishing vessel permitted under this Act to participate in the

New England groundfish fishery who agrees to surrender that permit to the Secretary during the duration of the contract, grant or

other assistance.

(4) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated $5,000,000 for each of fiscal years 1993 through

1999 to carry out the purposes of this section. For fiscal year 1993

no more than $1,000,000, and for fiscal year 1994 no more than

$2,000,000, of such funds may be provided from monies made available under section 2(b) of the Act of August 11, 1939 (15 U.S.C.

713c–3(b)).

(b) ASSISTANCE OF OTHER AGENCIES.—The Secretary shall actively seek the assistance of other Federal agencies in the development of fisheries for underutilized species of the northwest Atlantic

Ocean, including, to the extent permitted by other applicable laws,

assistance from the Secretary of Agriculture in including such underutilized species as agricultural commodities in the programs of

the Foreign Agricultural Service for which amounts are authorized

under the Food, Agriculture, Conservation, and Trade Act of 1990

(Public Law 101–624; 104 Stat. 3359).

(c) MANAGEMENT PLANS FOR UNDERUTILIZED SPECIES.—The

New England Fishery Management Council, in consultation with

other appropriate Councils, shall develop fishery management

plans as soon as possible for any underutilized species of the northwest Atlantic Ocean that is not covered under such a plan, in order

to prevent overfishing of that species.

(d) UNDERUTILIZED SPECIES DEFINED.—For purposes of this

section, the term ‘‘underutilized species of the northwest Atlantic

Ocean’’ means any fish species of the northwest Atlantic Ocean

that is identified, by the Director of the Northeast Fisheries Center

of the National Marine Fisheries Service, as an underutilized

species.
Sec. 401 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 342

TITLE IV—FISHERY MONITORING AND

RESEARCH

SEC. 401. ø16 U.S.C. 1881¿ REGISTRATION AND INFORMATION MANAGEMENT.

(a) STANDARDIZED FISHING VESSEL REGISTRATION AND INFOR- MATION MANAGEMENT SYSTEM.—The Secretary shall, in cooperation

with the Secretary of the department in which the Coast Guard is

operating, the States, the Councils, and Marine Fisheries Commissions, develop recommendations for implementation of a standardized fishing vessel registration and information management system on a regional basis. The recommendations shall be developed

after consultation with interested governmental and nongovernmental parties and shall—

(1) be designed to standardize the requirements of vessel

registration and information collection systems required by

this Act, the Marine Mammal Protection Act (16 U.S.C. 1361

et seq.), and any other marine resource law implemented by

the Secretary, and, with the permission of a State, any marine

resource law implemented by such State;

(2) integrate information collection programs under existing fishery management plans into a non-duplicative information collection and management system;

(3) avoid duplication of existing State, tribal, or Federal

systems and shall utilize, to the maximum extent practicable,

information collected from existing systems;

(4) provide for implementation of the system through cooperative agreements with appropriate State, regional, or tribal

entities and Marine Fisheries Commissions;

(5) provide for funding (subject to appropriations) to assist

appropriate State, regional, or tribal entities and Marine Fisheries Commissions in implementation;

(6) establish standardized units of measurement, nomenclature, and formats for the collection and submission of information;

(7) minimize the paperwork required for vessels registered

under the system;

(8) include all species of fish within the geographic areas

of authority of the Councils and all fishing vessels including

charter fishing vessels, but excluding recreational fishing vessels;

(9) require United States fish processors, and fish dealers

and other first ex-vessel purchasers of fish that are subject to

the proposed system, to submit information (other than economic information) which may be necessary to meet the goals

of the proposed system; and

(10) include procedures necessary to ensure—

(A) the confidentiality of information collected under

this section in accordance with section 402(b); and

(B) the timely release or availability to the public of

information collected under this section consistent with

section 402(b).

(b) FISHING VESSEL REGISTRATION.—The proposed registration

system should, at a minimum, obtain the following information for

each fishing vessel—
343 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 401

(1) the name and official number or other identification, together with the name and address of the owner or operator or

both;

(2) gross tonnage, vessel capacity, type and quantity of

fishing gear, mode of operation (catcher, catcher processor, or

other), and such other pertinent information with respect to

vessel characteristics as the Secretary may require; and

(3) identification (by species, gear type, geographic area of

operations, and season) of the fisheries in which the fishing

vessel participates.

(c) FISHERY INFORMATION.—The proposed information management system should, at a minimum, provide basic fisheries performance information for each fishery, including—

(1) the number of vessels participating in the fishery including charter fishing vessels;

(2) the time period in which the fishery occurs;

(3) the approximate geographic location or official reporting area where the fishery occurs;

(4) a description of fishing gear used in the fishery, including the amount and type of such gear and the appropriate unit

of fishing effort; and

(5) other information required under subsection 303(a)(5)

or requested by the Council under section 402.

(d) USE OF REGISTRATION.—Any registration recommended

under this section shall not be considered a permit for the purposes

of this Act, and the Secretary may not propose to revoke, suspend,

deny, or impose any other conditions or restrictions on any such

registration or the use of such registration under this Act.

(e) PUBLIC COMMENT.—Within one year after the date of enactment of the Sustainable Fisheries Act, the Secretary shall publish

in the Federal Register for a 60-day public comment period a proposal that would provide for implementation of a standardized fishing vessel registration and information collection system that meets

the requirements of subsections (a) through (c). The proposal shall

include—

(1) a description of the arrangements of the Secretary for

consultation and cooperation with the department in which the

Coast Guard is operating, the States, the Councils, Marine

Fisheries Commissions, the fishing industry and other interested parties; and

(2) any proposed regulations or legislation necessary to implement the proposal.

(f) CONGRESSIONAL TRANSMITTAL.—Within 60 days after the

end of the comment period and after consideration of comments received under subsection (e), the Secretary shall transmit to the

Committee on Commerce, Science, and Transportation of the Senate and the Committee on Resources of the House of Representatives a recommended proposal for implementation of a national

fishing vessel registration system that includes—

(1) any modifications made after comment and consultation;

(2) a proposed implementation schedule, including a schedule for the proposed cooperative agreements required under

subsection (a)(4); and
Sec. 402 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 344

(3) recommendations for any such additional legislation as

the Secretary considers necessary or desirable to implement

the proposed system.

(g) REPORT TO CONGRESS.—Within 15 months after the date of

enactment of the Sustainable Fisheries Act, the Secretary shall report to Congress on the need to include recreational fishing vessels

into a national fishing vessel registration and information collection system. In preparing its report, the Secretary shall cooperate

with the Secretary of the department in which the Coast Guard is

operating, the States, the Councils, and Marine Fisheries Commissions, and consult with governmental and nongovernmental parties.

SEC. 402. ø16 U.S.C. 1881a¿ INFORMATION COLLECTION.

(a) COUNCIL REQUESTS.—If a Council determines that additional information (other than information that would disclose proprietary or confidential commercial or financial information regarding fishing operations or fish processing operations) would be beneficial for developing, implementing, or revising a fishery management plan or for determining whether a fishery is in need of management, the Council may request that the Secretary implement an

information collection program for the fishery which would provide

the types of information (other than information that would disclose proprietary or confidential commercial or financial information regarding fishing operations or fish processing operations)

specified by the Council. The Secretary shall undertake such an information collection program if he determines that the need is justified, and shall promulgate regulations to implement the program

within 60 days after such determination is made. If the Secretary

determines that the need for an information collection program is

not justified, the Secretary shall inform the Council of the reasons

for such determination in writing. The determinations of the Secretary under this subsection regarding a Council request shall be

made within a reasonable period of time after receipt of that request.

(b) CONFIDENTIALITY OF INFORMATION.—(1) Any information

submitted to the Secretary by any person in compliance with any

requirement under this Act shall be confidential and shall not be

disclosed, except—

(A) to Federal employees and Council employees who are

responsible for fishery management plan development and

monitoring;

(B) to State or Marine Fisheries Commission employees

pursuant to an agreement with the Secretary that prevents

public disclosure of the identity or business of any person;

(C) when required by court order;

(D) when such information is used to verify catch under an

individual fishing quota program;

(E) that observer information collected in fisheries under

the authority of the North Pacific Council may be released to

the public as specified in a fishery management plan or regulation for weekly summary bycatch information identified by vessel, and for haul-specific bycatch information without vessel

identification; or
345 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 402

1Margin so in law.

(F) when the Secretary has obtained written authorization

from the person submitting such information to release such

information to persons for reasons not otherwise provided for

in this subsection, and such release does not violate other requirements of this Act.

(2) The Secretary shall, by regulation, prescribe such procedures as may be necessary to preserve the confidentiality of information submitted in compliance with any requirement or regulation under this Act, except that the Secretary may release or make

public any such information in any aggregate or summary form

which does not directly or indirectly disclose the identity or business of any person who submits such information. Nothing in this

subsection shall be interpreted or construed to prevent the use for

conservation and management purposes by the Secretary, or with

the approval of the Secretary, the Council, of any information submitted in compliance with any requirement or regulation under

this Act or the use, release, or publication of bycatch information

pursuant to paragraph (1)(E).

(c) RESTRICTION ON USE OF CERTAIN INFORMATION.—(1) The

Secretary shall promulgate regulations to restrict the use, in civil

enforcement or criminal proceedings under this Act, the Marine

Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.), and the

Endangered Species Act (16 U.S.C. 1531 et seq.), of information collected by voluntary fishery data collectors, including sea samplers,

while aboard any vessel for conservation and management purposes if the presence of such a fishery data collector aboard is not

required by any of such Acts or regulations thereunder.

(2) The Secretary may not require the submission of a Federal

or State income tax return or statement as a prerequisite for

issuance of a permit until such time as the Secretary has promulgated regulations to ensure the confidentiality of information contained in such return or statement, to limit the information submitted to that necessary to achieve a demonstrated conservation

and management purpose, and to provide appropriate penalties for

violation of such regulations.

(d) CONTRACTING AUTHORITY.—Notwithstanding any other provision of law, the Secretary may provide a grant, contract, or other

financial assistance on a sole-source basis to a State, Council, or

Marine Fisheries Commission for the purpose of carrying out information collection or other programs if—

(1) the recipient of such a grant, contract, or other financial assistance is specified by statute to be, or has customarily

been, such State, Council, or Marine Fisheries Commission; or

(2) the Secretary has entered into a cooperative agreement

with such State, Council, or Marine Fisheries Commission.

(e) RESOURCE ASSESSMENTS.—(1) The Secretary may use the

private sector to provide vessels, equipment, and services necessary

to survey the fishery resources of the United States when the arrangement will yield statistically reliable results.

(2) 1 The Secretary, in consultation with the appropriate

Council and the fishing industry—

(A) may structure competitive solicitations under paragraph (1) so as to compensate a contractor for a fishery re-
Sec. 403 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 346

sources survey by allowing the contractor to retain for sale

fish harvested during the survey voyage;

(B) in the case of a survey during which the quantity

or quality of fish harvested is not expected to be adequately compensatory, may structure those solicitations so

as to provide that compensation by permitting the contractor to harvest on a subsequent voyage and retain for

sale a portion of the allowable catch of the surveyed fishery; and

(C) may permit fish harvested during such survey to

count toward a vessel’s catch history under a fishery management plan if such survey was conducted in a manner

that precluded a vessel’s participation in a fishery that

counted under the plan for purposes of determining catch

history.

(3) The Secretary shall undertake efforts to expand annual

fishery resource assessments in all regions of the Nation.

SEC. 403. ø16 U.S.C. 1881b¿ OBSERVERS.

(a) GUIDELINES FOR CARRYING OBSERVERS.—Within one year

after the date of enactment of the Sustainable Fisheries Act, the

Secretary shall promulgate regulations, after notice and opportunity for public comment, for fishing vessels that carry observers.

The regulations shall include guidelines for determining—

(1) when a vessel is not required to carry an observer on

board because the facilities of such vessel for the quartering of

an observer, or for carrying out observer functions, are so inadequate or unsafe that the health or safety of the observer or

the safe operation of the vessel would be jeopardized; and

(2) actions which vessel owners or operators may reasonably be required to take to render such facilities adequate and

safe.

(b) TRAINING.—The Secretary, in cooperation with the appropriate States and the National Sea Grant College Program, shall—

(1) establish programs to ensure that each observer receives adequate training in collecting and analyzing the information necessary for the conservation and management purposes of the fishery to which such observer is assigned;

(2) require that an observer demonstrate competence in

fisheries science and statistical analysis at a level sufficient to

enable such person to fulfill the responsibilities of the position;

(3) ensure that an observer has received adequate training

in basic vessel safety; and

(4) make use of university and any appropriate private

nonprofit organization training facilities and resources, where

possible, in carrying out this subsection.

(c) OBSERVER STATUS.—An observer on a vessel and under contract to carry out responsibilities under this Act or the Marine

Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.) shall be

deemed to be a Federal employee for the purpose of compensation

under the Federal Employee Compensation Act (5 U.S.C. 8101 et

seq.).

SEC. 404. ø16 U.S.C. 1881c¿ FISHERIES RESEARCH.

(a) IN GENERAL.—The Secretary shall initiate and maintain, in

cooperation with the Councils, a comprehensive program of fishery
347 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 404

research to carry out and further the purposes, policy, and provisions of this Act. Such program shall be designed to acquire knowledge and information, including statistics, on fishery conservation

and management and on the economics and social characteristics

of the fisheries.

(b) STRATEGIC PLAN.—Within one year after the date of enactment of the Sustainable Fisheries Act, and at least every 3 years

thereafter, the Secretary shall develop and publish in the Federal

Register a strategic plan for fisheries research for the 5 years im- mediately following such publication. The plan shall—

(1) identify and describe a comprehensive program with a

limited number of priority objectives for research in each of the

areas specified in subsection (c);

(2) indicate goals and timetables for the program described

in paragraph (1);

(3) provide a role for commercial fishermen in such research, including involvement in field testing;

(4) provide for collection and dissemination, in a timely

manner, of complete and accurate information concerning fishing activities, catch, effort, stock assessments, and other research conducted under this section; and

(5) be developed in cooperation with the Councils and affected States, and provide for coordination with the Councils,

affected States, and other research entities. (c) AREAS OF RESEARCH.—Areas of research are as follows:

(1) Research to support fishery conservation and management, including but not limited to, biological research concerning the abundance and life history parameters of stocks of

fish, the interdependence of fisheries or stocks of fish, the identification of essential fish habitat, the impact of pollution on

fish populations, the impact of wetland and estuarine degradation, and other factors affecting the abundance and availability

of fish.

(2) Conservation engineering research, including the study

of fish behavior and the development and testing of new gear

technology and fishing techniques to minimize bycatch and any

adverse effects on essential fish habitat and promote efficient

harvest of target species.

(3) Research on the fisheries, including the social, cultural,

and economic relationships among fishing vessel owners, crew,

United States fish processors, associated shoreside labor, seafood markets and fishing communities.

(4) Information management research, including the development of a fishery information base and an information management system under section 401 that will permit the full use

of information in the support of effective fishery conservation

and management.

(d) PUBLIC NOTICE.—In developing the plan required under

subsection (a), the Secretary shall consult with relevant Federal,

State, and international agencies, scientific and technical experts,

and other interested persons, public and private, and shall publish

a proposed plan in the Federal Register for the purpose of receiving

public comment on the plan. The Secretary shall ensure that affected commercial fishermen are actively involved in the development of the portion of the plan pertaining to conservation engineer-
Sec. 405 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 348

ing research. Upon final publication in the Federal Register, the

plan shall be submitted by the Secretary to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Resources of the House of Representatives.

SEC. 405. ø16 U.S.C. 1881d¿ INCIDENTAL HARVEST RESEARCH.

(a) COLLECTION OF INFORMATION.—Within nine months after

the date of enactment of the Sustainable Fisheries Act, the Secretary shall, after consultation with the Gulf Council and South Atlantic Council, conclude the collection of information in the program to assess the impact on fishery resources of incidental harvest by the shrimp trawl fishery within the authority of such Councils. Within the same time period, the Secretary shall make available to the public aggregated summaries of information collected

prior to June 30, 1994 under such program.

(b) IDENTIFICATION OF STOCK.—The program concluded pursuant to subsection (a) shall provide for the identification of stocks of

fish which are subject to significant incidental harvest in the

course of normal shrimp trawl fishing activity.

(c) COLLECTION AND ASSESSMENT OF SPECIFIC STOCK INFORMATION.—For stocks of fish identified pursuant to subsection (b), with

priority given to stocks which (based upon the best available scientific information) are considered to be overfished, the Secretary

shall conduct—

(1) a program to collect and evaluate information on the

nature and extent (including the spatial and temporal distribution) of incidental mortality of such stocks as a direct result of

shrimp trawl fishing activities;

(2) an assessment of the status and condition of such

stocks, including collection of information which would allow

the estimation of life history parameters with sufficient accuracy and precision to support sound scientific evaluation of the

effects of various management alternatives on the status of

such stocks; and

(3) a program of information collection and evaluation for

such stocks on the magnitude and distribution of fishing mortality and fishing effort by sources of fishing mortality other

than shrimp trawl fishing activity.

(d) BYCATCH REDUCTION PROGRAM.—Not later than 12 months

after the enactment of the Sustainable Fisheries Act, the Secretary

shall, in cooperation with affected interests, and based upon the

best scientific information available, complete a program to—

(1) develop technological devices and other changes in fishing operations necessary and appropriate to minimize the incidental mortality of bycatch in the course of shrimp trawl activity to the extent practicable, taking into account the level of

bycatch mortality in the fishery on November 28, 1990;

(2) evaluate the ecological impacts and the benefits and

costs of such devices and changes in fishing operations; and

(3) assess whether it is practicable to utilize bycatch which

is not avoidable.

(e) REPORT TO CONGRESS.—The Secretary shall, within one

year of completing the programs required by this section, submit

a detailed report on the results of such programs to the Committee
349 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 407

on Commerce, Science, and Transportation of the Senate and the

Committee on Resources of the House of Representatives.

(f) IMPLEMENTATION CRITERIA.—To the extent practicable, any

conservation and management measure implemented under this

Act to reduce the incidental mortality of bycatch in the course of

shrimp trawl fishing shall be consistent with—

(1) measures applicable to fishing throughout the range in

United States waters of the bycatch species concerned; and

(2) the need to avoid any serious adverse environmental

impacts on such bycatch species or the ecology of the affected

area.

SEC. 406. ø16 U.S.C. 1882¿ FISHERIES SYSTEMS RESEARCH.

(a) ESTABLISHMENT OF PANEL.—Not later than 180 days after

the date of enactment of the Sustainable Fisheries Act, the Secretary shall establish an advisory panel under this Act to develop

recommendations to expand the application of ecosystem principles

in fishery conservation and management activities.

(b) PANEL MEMBERSHIP.—The advisory panel shall consist of

not more than 20 individuals and include—

(1) individuals with expertise in the structures, functions,

and physical and biological characteristics of ecosystems; and

(2) representatives from the Councils, States, fishing industry, conservation organizations, or others with expertise in

the management of marine resources.

(c) RECOMMENDATIONS.—Prior to selecting advisory panel

members, the Secretary shall, with respect to panel members described in subsection (b)(1), solicit recommendations from the National Academy of Sciences.

(d) REPORT.—Within 2 years after the date of enactment of this

Act, the Secretary shall submit to the Congress a completed report

of the panel established under this section, which shall include—

(1) an analysis of the extent to which ecosystem principles

are being applied in fishery conservation and management activities, including research activities;

(2) proposed actions by the Secretary and by the Congress

that should be undertaken to expand the application of ecosystem principles in fishery conservation and management;

and

(3) such other information as may be appropriate.

(e) PROCEDURAL MATTER.—The advisory panel established

under this section shall be deemed an advisory panel under section

302(g).

SEC. 407. ø16 U.S.C. 1883¿ GULF OF MEXICO RED SNAPPER RESEARCH.

(a) INDEPENDENT PEER REVIEW.—(1) Within 30 days of the

date of enactment of the Sustainable Fisheries Act, the Secretary

shall initiate an independent peer review to evaluate—

(A) the accuracy and adequacy of fishery statistics used by

the Secretary for the red snapper fishery in the Gulf of Mexico

to account for all commercial, recreational, and charter fishing

harvests and fishing effort on the stock;

(B) the appropriateness of the scientific methods, information, and models used by the Secretary to assess the status and

trends of the Gulf of Mexico red snapper stock and as the basis
Sec. 407 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT 350

for the fishery management plan for the Gulf of Mexico red

snapper fishery;

(C) the appropriateness and adequacy of the management

measures in the fishery management plan for red snapper in

the Gulf of Mexico for conserving and managing the red snapper fishery under this Act; and

(D) the costs and benefits of all reasonable alternatives to

an individual fishing quota program for the red snapper fishery in the Gulf of Mexico.

(2) The Secretary shall ensure that commercial, recreational,

and charter fishermen in the red snapper fishery in the Gulf of

Mexico are provided an opportunity to—

(A) participate in the peer review under this subsection;

and

(B) provide information to the Secretary concerning the review of fishery statistics under this subsection without being

subject to penalty under this Act or other applicable law for

any past violation of a requirement to report such information

to the Secretary.

(3) The Secretary shall submit a detailed written report on the

findings of the peer review conducted under this subsection to the

Gulf Council no later than one year after the date of enactment of

the Sustainable Fisheries Act.

(b) PROHIBITION.—In addition to the restrictions under section

303(d)(1)(A), the Gulf Council may not, prior to October 1, 2002,

undertake or continue the preparation of any fishery management

plan, plan amendment or regulation under this Act for the Gulf of

Mexico commercial red snapper fishery that creates an individual

fishing quota program or that authorizes the consolidation of licenses, permits, or endorsements that result in different trip limits

for vessels in the same class.

(c) REFERENDUM.—

(1) On or after October 1, 2002, the Gulf Council may prepare and submit a fishery management plan, plan amendment,

or regulation for the Gulf of Mexico commercial red snapper

fishery that creates an individual fishing quota program or

that authorizes the consolidation of licenses, permits, or endorsements that result in different trip limits for vessels in the

same class, only if the preparation of such plan, amendment,

or regulation is approved in a referendum conducted under

paragraph (2) and only if the submission to the Secretary of

such plan, amendment, or regulation is approved in a subsequent referendum conducted under paragraph (2).

(2) The Secretary, at the request of the Gulf Council, shall

conduct referendums under this subsection. Only a person who

held an annual vessel permit with a red snapper endorsement

for such permit on September 1, 1996 (or any person to whom

such permit with such endorsement was transferred after such

date) and vessel captains who harvested red snapper in a commercial fishery using such endorsement in each red snapper

fishing season occurring between January 1, 1993, and such

date may vote in a referendum under this subsection. The referendum shall be decided by a majority of the votes cast. The

Secretary shall develop a formula to weigh votes based on the

proportional harvest under each such permit and endorsement
351 MAGNUSON-STEVENS FISHERY CONSERVATION & MGT. ACT Sec. 407

and by each such captain in the fishery between January 1,

1993, and September 1, 1996. Prior to each referendum, the

Secretary, in consultation with the Council, shall—

(A) identify and notify all such persons holding permits with red snapper endorsements and all such vessel

captains; and

(B) make available to all such persons and vessel captains information about the schedule, procedures, and eligibility requirements for the referendum and the proposed

individual fishing quota program.

(d) CATCH LIMITS.—Any fishery management plan, plan

amendment, or regulation submitted by the Gulf Council for the

red snapper fishery after the date of enactment of the Sustainable

Fisheries Act shall contain conservation and management measures that—

(1) establish separate quotas for recreational fishing

(which, for the purposes of this subsection shall include charter

fishing) and commercial fishing that, when reached, result in

a prohibition on the retention of fish caught during recreational fishing and commercial fishing, respectively, for the

remainder of the fishing year; and

(2) ensure that such quotas reflect allocations among such

sectors and do not reflect any harvests in excess of such allocations.

353

MITCHELL ACT

355

MITCHELL ACT

[Chapter 193, Approved May 11, 1938, 52 Stat. 345]

[Amended through chapter 882, Aug. 8, 1946]

AN ACT To provide for the conservation of the fishery resources of the Columbia

River, establishment, operation, and maintenance of one or more stations in Oregon, Washington, and Idaho, and for the conduct of necessary investigations, surveys, stream improvements, and stocking operations for these purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø16 U.S.C. 755¿

That the Secretary of Commerce is authorized and directed to establish one or more salmon-cultural stations in the Columbia River

Basin in each of the States of Oregon, Washington, and Idaho. Any

sums appropriated for the purpose of establishing such stations

may be expended, and such stations shall be established, operated,

and maintained, in accordance with the provisions of the Act entitled ‘‘An Act to provide for a five-year construction and maintenance program for the United States Bureau of Fisheries’’, approved May 21, 1930, insofar as the provisions of such Act are not

inconsistent with the provisions of this Act.

SEC. 2. ø16 U.S.C. 756¿ The Secretary of Commerce is further

authorized and directed (1) to conduct such investigations, and

such engineering and biological surveys and experiments, as may

be necessary to direct and facilitate conservation of the fishery resources of the Columbia River and its tributaries; (2) to construct

and install devices in the Columbia River Basin for the improvement of feeding and spawning conditions for fish, for the protection

of migratory fish from irrigation projects, and for facilitating free

migration of fish over obstructions; and (3) to perform all other activities necessary for the conservation of fish in the Columbia River

Basin in accordance with law.

SEC. 3. ø16 U.S.C. 757¿ In carrying out the authorizations and

duties imposed by section 2 of this Act, the Secretary of the Interior is authorized to utilize the facilities and services of the agencies of the States of Oregon, Washington, and Idaho responsible for

the conservation of the fish and wildlife resources in such States,

under the terms of agreements entered into between the United

States and these States, without regard to the provisions of section

3709 of the Revised Statutes, and funds appropriated to carry out

the purposes of this Act may be expended for the construction of

facilities on and the improvement of lands not owned or controlled

by the United States: Provided, That the appropriate agency of the

State wherein such construction or improvement is to be carried on

first shall have obtained without cost to the United States the necessary title to, interest therein, rights-of-way over, or licenses covering the use of such lands.

357

ANADROMOUS FISH CONSERVATION ACT

359

ANADROMOUS FISH CONSERVATION ACT

[Public Law 89–304, Approved Oct. 30, 1965, 79 Stat. 1125]

[Amended through Public Law 105–146, Dec. 16, 1997]

AN ACT To authorize the Secretary of the Interior to initiate with the several

States a cooperative program for the conservation, development, and enhancement

of the Nation’s anadromous fish, and for other purposes

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø16 U.S.C. 757a¿

That (a) for the purpose of conserving, developing, and enhancing

within the several States the anadromous fishery resources of the

Nation that are subject to depletion from water resources developments and other causes, or with respect to which the United States

has made conservation commitments by international agreements,

and for the purpose of conserving, developing, and enhancing the

fish in the Great Lakes and Lake Champlain that ascend streams

to spawn, the Secretary of the Interior is authorized to enter into

cooperative agreements with one or more States, acting jointly or

severally, that are concerned with the development, conservation,

and enhancement of such fish, and, whenever he deems it appropriate, with other non-Federal interests. Such agreements shall describe (1) the actions to be taken by the Secretary and the cooperating parties, (2) the benefits that are expected to be derived by the

States and other non-Federal interests, (3) the estimated cost of

these actions, (4) the share of such costs to be borne by the Federal

Government and by the States and other non-Federal interests:

Provided, That, except as provided in subsection (c) of this section,

The Federal share, including the operation and maintenance costs

of any facilities constructed by the Secretary pursuant to this Act,

which he annually determines to be a proper Federal cost, shall not

exceed 50 per centum of such costs exclusive of the value of any

Federal land involved: Provided further, That the non-Federal

share may be in the form of real or personal property, the value

of which will be determined by the Secretary, as well as money, (5)

the term of the agreement, (6) the terms and conditions for disposing of any real or personal property acquired by the Secretary

during or at the end of the term of the agreement, and (7) such

other terms and conditions as he deems desirable.

(b) The Secretary may also enter into agreements with the

States for the operation of any facilities and management and administration of any lands or interests therein acquired or facilities

constructed pursuant to this Act.

(c)(1) Whenever two or more States having a common interest

in any basin jointly enter into a cooperative agreement with the

Secretary under subsection (a) of this section to carry out a research and development program to conserve, develop, and enhance
Sec. 2 ANADROMOUS FISH CONSERVATION ACT 360

anadromous fishery resources of the Nation, or fish in the Great

Lakes and Lake Champlain that ascend streams to spawn, the Federal share of the program costs shall be increased to a maximum

of 662⁄3 per centum. For the purpose of this subsection, the term

‘‘basin’’ includes rivers and their tributaries, lakes, and other bodies of water or portions thereof.

(2) In the case of any State that has implemented an interstate

fisheries management plan for anadromous fishery resources, prepared by an interstate commission, the Federal share of any grant

made under this section to carry out activities required by such

plan shall be up to 90 percent. For purposes of this paragraph, the

term ‘‘interstate commission’’ means—

(A) the commission established by the Atlantic States Marine Fisheries Compact (as consented to and approved by Public Law 80–77), approved May 4, 1942 (56 Stat. 267);

(B) the commission established by the Pacific Marine Fisheries Compact (as consented to and approved by Public Law

80–232), approved July 24, 1947 (16 Stat. 419); and

(C) the commission established by the Gulf States Marine

Fisheries Compact (as consented to and approved by Public

Law 81–66), approved May 19, 1949 (63 Stat. 70).

SEC. 2. ø16 U.S.C. 757b¿ The Secretary, in accordance with

any agreements entered into pursuant to section 1(a) of this Act,

is authorized (1) to conduct such investigations, engineering and biological surveys, and research as may be desirable to carry out the

program; (2) to carry out stream clearance activities; (3) to construct, install, maintain, and operate devices and structures for the

improvement of feeding and spawning conditions, for the protection

of fishery resources, and for facilitating the free migration of the

fish, and for control of the sea lamprey; (4) to construct, operate,

and maintain fish hatcheries wherever necessary to accomplish the

purposes of this Act; (5) to conduct such studies and make such recommendations as the Secretary determines to be appropriate regarding the development and management of any stream or other

body of water for the conservation and enhancement of anadromous

fishery resources and the fish in the Great Lakes and Lake Champlain that ascend streams to spawn: Provided, That the reports on

such studies and the recommendations of the Secretary shall be

transmitted to the States, the Congress, and the Federal water resources construction agencies for their information: Provided further, That this Act shall not be construed as authorizing the formulation or construction of water resources projects, except that water

resources projects which are determined by the Secretary to be

needed solely for the conservation, protection, and enhancement of

such fish may be planned and constructed by the Bureau of Reclamation in its currently authorized geographic area of responsibility, or by the Corps of Engineers, or by the Department of Agriculture, or by the States, with funds made available by the Secretary under this Act and subject to the costsharing and appropriations provisions of this Act; (6) to acquire lands or interests therein

by purchase, lease, donation, or exchange for acquired lands or

public lands under his jurisdiction which he finds suitable for disposition: Provided, That the lands or interests therein so exchanged

shall involve approximately equal values, as determined by the

Secretary: Provided further, That the Secretary may accept cash
361 ANADROMOUS FISH CONSERVATION ACT Sec. 8

from, or pay cash to, the grantor in such an exchange in order to

equalize the values of the properties exchanged; (7) to accept donations of funds and to use such funds to acquire or manage lands

or interests therein; and (8) to administer such lands or interests

therein for the purposes of this Act. Title to lands or interests

therein acquired pursuant to this Act shall be in the cooperating

States or other non-Federal interests.

SEC. 3. ø16 U.S.C. 757c¿ Activities authorized by this Act to

be performed on lands administered by other Federal departments

or agencies shall be carried out only with the prior approval of such

departments or agencies.

SEC. 4. ø16 U.S.C. 757d¿ (a)(1) There are authorized to be appropriated to carry out the purposes of this Act not to exceed the

following sums:

(A) $4,000,000 for fiscal year 1997; and

(B) $4,250,000 for each of fiscal years 1998, 1999, and

2000.

(2) Sums appropriated under this subsection are authorized to

remain available until expended.

(b) Not more than $625,000 of the funds appropriated under

this section in any one fiscal year shall be obligated in any one

State.

SEC. 5. ø16 U.S.C. 757e¿ This Act shall not be construed to affect, modify, or apply to the same area as the provisions of the Act

of May 11, 1938 (52 Stat. 345), as amended (16 U.S.C. 755–757).

SEC. 6. ø16 U.S.C. 757f¿ The Secretary of the Interior shall, on

the basis of studies carried out pursuant to this Act and section 5

of the Fish and Wildlife Coordination Act (48 Stat. 402), as amended (16 U.S.C. 665), make recommendations to the Secretary of

Health, Education, and Welfare concerning the elimination or reduction of polluting substances detrimental to fish and wildlife in

interstate or navigable waters or the tributaries thereof. Such recommendations and any enforcement measures initiated pursuant

thereto by the Secretary of Health, Education, and Welfare shall be

designed to enhance the quality of such waters, and shall take into

consideration all other legitimate uses of such waters.

øSEC. 7. Repealed by section 3(a) of the Atlantic Striped Bass

Conservation Act Amendments of 1997; P.L. 105–146 (111 Stat.

2677¿

SEC. 8. ø16 U.S.C. 757a note¿ This Act may be cited as the

‘‘Anadromous Fish Conservation Act.’’

363

SELECTED PROVISIONS OF THE ACT OF AUGUST 11, 1939

COMMONLY KNOWN AS THE ‘‘SALTONSTALL-KENNEDY ACT’’

365

1The Federal Surplus Commodities Corporation and its functions were consolidated into the

Surplus Marketing Administration by section 5 of Reorganization Plan No. III of 1940. The functions of the Surplus Marketing Administration were transferred to the Secretary of Agriculture

by section 501 of Reorganization Plan No. 3 of 1946. [15 U.S.C. 712a note]

SELECTED PROVISIONS OF THE ACT OF AUGUST 11, 1939

COMMONLY KNOWN AS THE ‘‘SALTONSTALL-KENNEDY ACT’’

[Chap. 696, Approved Aug. 11, 1939, 53 Stat. 1411]

[Amended through Public Law 104–297, Oct. 11, 1996]

AN ACT To authorize the Federal Surplus Commodities Corporation to purchase

and distribute surplus products of the fishing industry.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø15 U.S.C.713c–

2¿ That any part of the funds not to exceed $1,500,000 per year,

transferred by the Secretary of Agriculture to the Federal Surplus

Commodities Corporation 1 created under and to carry out the provisions of section 32 of the Act of August 24, 1935 (49 Stat. 774),

as amended, may also be used by such Corporation for the purpose

of diverting surplus fishery products (including fish, shellfish, mollusks, and crustacea) from the normal channels of trade and commerce by acquiring them and providing for their distribution

through Federal, State, and private relief channels: Provided, That

none of the funds made available to the Federal Surplus Commodities Corporation 1 under this Act shall be used to purchase any of

the commodities designated in this Act which may have been produced in any foreign country. The provisions of law relating to the

acquisition of materials or supplies for the United States shall not

apply to the acquisition of commodities under this Act.

SEC. 2. ø15 U.S.C. 713c–3¿ (a) DEFINITIONS.—As used in this

section—

(1) The term ‘‘person’’ means—

(A) any individual who is a citizen or national of the

United States or a citizen of the Northern Mariana Islands;

(B) any fishery development foundation or other private nonprofit corporation in Alaska; and

(C) any corporation, partnership, association, or other

entity (including, but not limited to, any fishery development foundation or other private nonprofit corporation not

located in Alaska), nonprofit or otherwise, if such entity is

a citizen of the United States within the meaning of section 2 of the Shipping Act, 1916 (46 U.S.C. 802) and for

purposes of applying such section 2 with respect to this

section—
Sec. 2 SALTONSTALL-KENNEDY ACT 366

(i) the term ‘‘State’’ as used therein includes any

State referred to in paragraph (3),

(ii) citizens of the United States must own not less

than 75 percent of the interest in the entity or, in the

case of a nonprofit entity, exercise control in the entity

that is determined by the Secretary to be the equivalent of such ownership, and

(iii) nationals of the United States and citizens of

the Northern Mariana Islands shall be treated as citizens of the United States in meeting the ownership

and control requirements referred to in clause (ii).

(2) The term ‘‘Secretary’’ means the Secretary of Commerce.

(3) The term ‘‘State’’ means any State, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa,

the Virgin Islands of the United States, Guam, the Northern

Mariana Islands, and any other Commonwealth, territory, or

possession of the United States.

(4) The term ‘‘United States fishery’’ means any fishery, including any tuna fishery, that is, or may be, engaged in by citizens or nationals of the United States or citizens of the Northern Mariana Islands.

(5) The term ‘‘citizen of the Northern Mariana Islands’’

means—

(A) an individual who qualifies as such under section

8 of the Schedule on Transitional Matters attached to the

Constitution of the Northern Mariana Islands; or

(B) a corporation, partnership, association, or other entity organized or existing under the laws of the Northern

Mariana Islands, not less than 75 percent of the interest

in which is owned by individuals referred to in subparagraph (A) or citizens or nationals of the United States, in

cases in which ‘‘owned’’ is used in the same sense as in

section 2 of the Shipping Act, 1916 (46 U.S.C. 802).

(b) FUND.—(1) The Secretary of Agriculture shall transfer to

the Secretary each fiscal year, beginning with the fiscal year commencing July 1, 1954, and ending on June 30, 1957, from moneys

made available to carry out the provisions of section 32 of such Act

of August 24, 1935, an amount equal to 30 per centum of the gross

receipts from duties collected under the customs laws on fishery

products (including fish, shellfish, mollusks, crustacea, aquatic

plants and animals, and any products thereof, including processed

and manufactured products), which shall be maintained in a separate fund only for—

(A) use by the Secretary—

(i) to provide financial assistance for the purpose of

carrying out fisheries research and development projects

approved under subsection (c),

(ii) to implement the national fisheries research and

development program provided for under subsection (d);

(iii) to implement the Northwest Atlantic Ocean Fisheries Reinvestment Program established under section 314
367 SALTONSTALL-KENNEDY ACT Sec. 2

1Section 211 of the Department of Commerce and Related Agencies Appropriations Act, 1997

(Division A, title II of P.L. 104–208; 110 Stat. 3009–41) changed (by amendment) the short title

of such Act to the Magnuson-Stevens Fishery and Conservation and Management Act and provided that ‘‘all references to the Magnuson Fishery Conservation and Management Act shall be

redesignated as references to the Magnuson-Stevens Fishery Conservation and Management

Act’’. Since such section did not actually amended each occurrence of the short title in law, the

former short title appears here. 2 Indentation so in law.

3So in original. Probably should be ‘‘209(a)’’.

of the Magnuson Fishery Conservation and Management

Act 1; and

(iv) 2 to fund the Federal share of a fishing capacity reduction program established under section 312 of

the Magnuson Fishery Conservation and Management

Act 1; and

(B) the provision of moneys, subject to paragraph (2), to

carry out the purposes of the Fisheries Promotion Fund established under section 208(a) 3 of the Fish and Seafood Promotion

Act of 1986.

(2) There are transferred from the fund established under

paragraph (1) to the Fisheries Promotion Fund referred to in para- graph (1)(B) $750,000 in fiscal year 1987, $3,000,000 in each of fiscal years 1988 and 1989, and $2,000,000 in each of fiscal years

1990 and 1991.

(c) FISHERIES RESEARCH AND DEVELOPMENT PROJECTS.—(1)

The Secretary shall make grants from the fund established under

subsection (b) to assist persons in carrying out research and development projects addressed to any aspect of United States fisheries,

including, but not limited to, harvesting, processing, marketing,

and associated infrastructures.

(2) The Secretary shall—

(A) at least once each fiscal year, receive, during a 60-day

period specified by him, applications for grants under this subsection;

(B) prescribe the form and manner in which applications

for grants under this subsection must be made, including, but

not limited to, the specification of the information which must

accompany applications to ensure that the proposed projects

comply with Federal law and can be evaluated in accordance

with paragraph (3)(B); and

(C) approve or disapprove each such application before the

close of the 120th day after the last day of the 60-day period

(specified under subparagraph (A)) in which the application

was received.

(3) No application for a grant under this subsection may be approved unless the Secretary—

(A) is satisfied that the applicant has the requisite technical and financial capability to carry out the project; and

(B) evaluates the proposed project as to—

(i) soundness of design,

(ii) the possibilities of securing productive results,

(iii) minimization of duplication with other fisheries

research and development projects,

(iv) the organization and management of the project,

(v) methods proposed for monitoring and evaluating

the success or failure of the project, and
Sec. 2 SALTONSTALL-KENNEDY ACT 368

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

(vi) such other criteria as the Secretary may require.

(4) Each grant made under this subsection shall be subject to

such terms and conditions as the Secretary may require to protect

the interests of the United States, including, but not limited to, the

following:

(A) The recipient of the grant must keep such records as

the Secretary shall require as being necessary or appropriate

for disclosing the use made of grant funds and shall allow the

Secretary and the Comptroller General of the United States, or

any of their authorized representatives, access to such records

for purposes of audit and examination.

(B) The amount of a grant may not be less than 50 percent

of the estimated cost of the project.

(C) The recipient of the grant must submit to the Secretary periodic project status reports.

(5)(A) If the cost of a project will be shared by the grant recipient, the Secretary shall accept, as a part of all of that share, the

value of in-kind contributions made by the recipient, or made available to, and applied by, the recipient, with respect to the project.

(B) For purposes of subparagraph (A), in-kind contributions

may be in the form of, but are not limited to, personal services rendered in carrying out functions related to, and permission to use

real or personal property owned by others (for which consideration

is not required) in carrying out the project. The Secretary shall establish (i) the training, experience, and other qualifications which

shall be required in order for services to be considered as in-kind

contributions; and (ii) the standards under which the Secretary will

determine the value of in-kind contributions for purposes of subparagraph (A).

(C) Any valuation determination made by the Secretary for

purposes of this paragraph shall be conclusive.

(d) NATIONAL FISHERIES RESEARCH AND DEVELOPMENT PROGRAM.—(1) The Secretary shall carry out a national program of research and development addressed to such aspects of United States

fisheries (including, but not limited to, harvesting, processing, marketing, and associated infrastructures), if not adequately covered

by projects assisted under subsection (c), as the Secretary deems

appropriate.

(2) The Secretary shall, after consultation with appropriate

representatives of the fishing industry, submit to the Committee on

Commerce, Science, and Transportation of the Senate and the

Committee on Merchant Marine and Fisheries 1 of the House of

Representatives, an annual report, that must be submitted not

later than 60 days before the close of each fiscal year, containing—

(A) the fisheries development goals and funding priorities

under paragraph (1) for the next fiscal year;

(B) a description of all pending projects assisted under

subsection (c) or carried out under paragraph (1), in addition

to—
369 SALTONSTALL-KENNEDY ACT Sec. 2

(i) a list of those applications approved and those disapproved under subsection (c), and the total amount of

grants made, for the current fiscal year, and

(ii) a statement of the extent to which available funds

were not obligated or expended by the Secretary for grants

under subsection (c) during the current fiscal year; and

(C) an assessment of each project assisted under subsection (c) or carried out under paragraph (1) that was completed in the preceding fiscal year regarding the extent to

which (i) the objectives of the project were attained, and (ii) the

project contributed to fishery development.

(e) ALLOCATION OF FUND MONEYS.—(1) Notwithstanding any

other provisions of law, all moneys in the fund shall be used exclusively for the purpose of promoting United States fisheries in accordance with the provisions of this section, and no such moneys

shall be transferred from the fund for any other purpose. With

repect to any fiscal year, all moneys in the fund, including the sum

of all unexpended moneys carried over into that fiscal year and all

moneys transferred to the fund under subsection (b) or any other

provison of law with respect to that fiscal year, shall be allocated

as follows:

(A) the Secretary shall use no less than 60 per centum of

such moneys to make direct industry assistance grants to develop the United States fisheries and to expand domestic and

foreign markets for United States fishery products pursuant to

subsection (c) of this section; and

(B) the Secretary shall use the balance of the moneys in

the fund to finance those activities of the National Marine

Fisheries Service which are directly related to development of

the United States fisheries pursuant to subsection (d) of this

section.

(2) The Secretary shall, consistent with the number of meritorious applications received with respect to any fiscal year, obligate or expend all of the moneys in the fund described in paragraph (1). Any such moneys which are not expended in a given fiscal year shall remain available for expenditure in accordance with

this section without fiscal year limitation, except that the Secretary

shall not obligate such moneys at a rate less than that necessary

to prevent the balance of moneys in the fund from exceeding

$3,000,000 at the end of any fiscal year.

371

FISHERMEN’S PROTECTIVE ACT OF 1967

373

1Section 1802(8) of title 16, referred to in text, which defined ‘‘fishery conservation zone’’, was

repealed and section 1802(6) of title 16, Conservation, defining ‘‘exclusive economic zone’’, was

added by Pub. L. 99–659, title I, § 101(a), Nov. 14, 1986 100 Stat. 3706. 2Section 238 of the American Fisheries Promotion Act (Public Law 96–561; 94 Stat. 3301)

changed (by amendment) the short title of such Act to the Magnuson Fishery Conservation and

Management Act and provided that ‘‘all references to the Fishery Conservation and Management Act of 1976 shall be redesignated as references to the Magnuson Fishery Conservation and

Management Act’’. Subsequently, section 211 of the Department of Commerce and Related Agencies Appropriations Act, 1997 (Division A, title II of P.L. 104–208; 110 Stat. 3009–41) changed

(by amendment) the short title of such Act to the Magnuson-Stevens Fishery and Conservation

and Management Act and provided that ‘‘all references to the Magnuson Fishery Conservation

and Management Act shall be redesignated as references to the Magnuson-Stevens Fishery Conservation and Management Act’’. Since neither renaming provision actually amended each occurrence of either short title in law, the former short title appears here. 3So in original. Probably should be followed by ‘‘or’’.

FISHERMEN’S PROTECTIVE ACT OF 1967

[Chap. 1018, Approved Aug. 27, 1954, 68 Stat. 883]

[Amended through Public Law 106–450, Nov. 7, 2000]

AN ACT To protect the rights of vessels of the United States on the high seas and

in territorial waters of foreign countries.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø22 U.S.C. 1971¿

That for the purposes of this Act the term ‘‘vessel of the United

States’’ shall mean any private vessel documented or certificated

under the laws of the United Stated. Notwithstanding any other

law, the documentation or certification of any such vessel shall not

be considered to be affected, for the purposes of this Act, in any

manner or to any extent if at any time during any voyage for the

purpose of fishing beyond the fishery conservation zone (as defined

in section 3(8) 1 of the Fishery Conservation and Management Act

of 1976 2 (16 U.S.C. 1802(8)), the vessel is commanded by other

than a citizen of the United States.

SEC. 2. ø22 U.S.C. 1972¿ If—

(1) any vessel of the United States is seized by a foreign

country on the basis of claims to jurisdiction that are not recognized by the United States, or on the basis of claims to jurisdiction recognized by the United States but exercised in a manner inconsistent with international law as recognized by the

United States; 3

(2) any general claim of any foreign country to exclusive

fishery management authority is recognized by the United

States, and any vessel of the United States is seized by such

foreign country on the basis of conditions and restrictions

under such claim, if such conditions and restrictions—

(A) are unrelated to fishery conservation and management,

(B) fail to consider and take into account traditional

fishing practices of vessels of the United States,
Sec. 3 FISHERMEN’S PROTECTIVE ACT OF 1967 374

1See footnote 2 to the first section.

(C) are greater or more onerous than the conditions

and restrictions which the United States applies to foreign

fishing vessels subject to the exclusive fishery management authority of the United States (as established in title

I of the Fishery Conservation and Management Act of

1976 1), or

(D) fail to allow fishing vessels of the United States

equitable access to fish subject to such country’s exclusive

fishery management authority;

the Secretary of State, unless there is clear and convincing credible

evidence that the seizure did not meet the requirements under

paragraph (1) or (2), as the case may be, shall immediately take

such steps as are necessary—

(i) for the protection of such vessel and for the health

and welfare of its crew;

(ii) to secure the release of such vessel and its crew;

and

(iii) to determine the amount of any fine, license, fee,

registration fee, or other direct charge reimbursable under

section 3(a) of this Act.

SEC. 3. ø22 U.S.C. 1973¿ (a) In any case where a vessel of the

United States is seized by a foreign country under the conditions

of section 2 and a fine, license fee, registration fee, or any other direct charge must be paid in order to secure the prompt release of

the vessel and crew, the owners of the vessel shall be reimbursed

by the Secretary of State in the amount determined and certified

by him as being the amount of the fine, license fee, registration fee,

or any other direct charge actually paid. For purposes of this section, the term ‘‘other direct charge’’ means any levy, however characterized or computed (including, but not limited to, any computation based on the value of a vessel or the value of fish or other

property on board a vessel), which is imposed in addition to any

fine, license fee, or registration fee. Any reimbursement under this

section shall be made from the Fishermen’s Protective Fund established pursuant to section 9.

(b) The Secretary of State shall make a determination and certification under subsection (a) of this section as soon as possible

after he is notified pursuant to section 2(b) of the amounts of the

fines, fees, and other direct charges which were paid by the owners

to secure the release of their vessel and crew. The amount of reimbursement made by the Secretary of State to the owners of any

vessel under subsection (a) of this section shall constitute a lien on

the vessel which may be recovered in proceedings by libel in rem

in the district court of the United States for any district within

which the vessel may be. Any such lien shall terminate on the

ninetieth day after the date on which the Secretary of State reimburses the owners under this section unless before such ninetieth

day the United States initiates action to enforce the lien.

SEC. 4. ø22 U.S.C. 1974¿ The provisions of this Act shall not

apply with respect to a seizure made by a country at war with the

United States or a seizure made in accordance with the provisions

of any applicable convention or treaty, if that treaty or convention
375 FISHERMEN’S PROTECTIVE ACT OF 1967 Sec. 7

1So in original. Probably should be ‘‘of’’.

was made with advice and consent to 1 the Senate and was in force

and effect for the United States and the seizing country at the time

of the seizure.

SEC. 5. ø22 U.S.C. 1975¿ (a) The Secretary of State shall—

(1) immediately notify a foreign country of—

(A) any reimbursement made by him under section 3

as a result of the seizure of a vessel of the United States

by such country,

(B) any payment made pursuant to section 7 in connection with such seizure, and

(2) take such action as he deems appropriate to make and

collect claims against such foreign country for the amounts so

reimbursed and payments so made.

(b) If a foreign country fails or refuses to make payment in full

on any claim made under subsection (a)(2) of this section within

one hundred and twenty days after the date on which such country

is notified pursuant to subsection (a)(1) of this section, the Secretary of State shall transfer an amount equal to such unpaid

claim or unpaid portion thereof from any funds appropriated by

Congress and programed for the current fiscal year for assistance

to the government of such country under the Foreign Assistance

Act of 1961 unless the President certifies to the Congress that it

is in the national interest not to do so in the particular instance

(and if such funds are insufficient to cover such claim, transfer

shall be made from any funds so appropriated and programed for

the next and any succeeding fiscal year) to (1) the Fishermen’s Protective Fund established pursuant to section 9 if the amount is

transferred with respect to an unpaid claim for a reimbursement

made under section 3, or (2) the separate account established in

the Treasury of the United States pursuant to section 7(c) if the

amount is transferred with respect to an unpaid claim for a payment made under section 7(a). Amounts transferred under this section shall not constitute satisfaction of any such claim of the

United States against such foreign country.

SEC. 6. ø22 U.S.C. 1976¿ There are authorized to be appropriated such amounts as may be necessary to carry out the provisions of this Act.

SEC. 7. ø22 U.S.C. 1977¿ (a) The Secretary, upon receipt of an

application filed with him at any time after the effective date of

this section by the owner of any vessel of the United States which

is documented or certificated as a commercial fishing vessel, shall

enter into an agreement with such owner subject to the provisions

of this section and such other terms and conditions as the Secretary deems appropriate. Such agreement shall provide that, if

said vessel is seized by a foreign country and detained under the

conditions of section 2 of this Act, the Secretary shall guarantee—

(1) the owner of such vessel for all actual costs, except

those covered by section 3 of this Act, incurred by the owner

during the seizure and detention period and as a direct result

thereof, as determined by the Secretary, resulting (A) from any

damage to, or destruction of, such vessel, or its fishing gear or

other equipment, (B) from the loss or confiscation of such vessel, gear, or equipment, or (C) from dockage fees or utilities;
Sec. 8 FISHERMEN’S PROTECTIVE ACT OF 1967 376

(2) the owner of such vessel and its crew for the market

value of fish caught before seizure of such vessel and confiscated or spoiled during the period of detention; and

(3) the owner of such vessel and its crew for not to exceed

50 per centum of the gross income lost as a direct result of

such seizure and detention, as determined by the Secretary of

Commerce, based on the value of the average catch per day’s

fishing during the three must recent calendar years immediately preceding such seizure and detention of the vessel

seized, or, if such experience is not available, then of all commercial fishing vessels of the United States engaged in the

same fishery as that of the type and size of the seized vessel.

(b) Payments made by the Secretary under paragraphs (2) and

(3) of subsection (a) of this section shall be distributed by the Secretary in accordance with the usual practices and procedures of the

particular segment of the United States commercial fishing industry to which the seized vessel belongs relative to the sale of fish

caught and the distribution of the proceeds of such sale.

(c) The Secretary shall from time to time establish by regulation fees which shall be paid by the owners of vessels entering into

agreements under this section. Such fees shall be adequate (1) to

recover the costs of administering this section, and (2) to cover a

reasonable portion of any payments made by the Secretary under

this section. All fees collected by the Secretary shall be credited to

a separate account established in the Treasury of the United States

which shall remain available without fiscal year limitation to carry

out the provisions of this section. Those fees not currently needed

for payments under this section shall be kept on deposit or invested

in obligations of, or guaranteed by, the United States and all revenues accruing from such deposits or investments shall be credited

to such separate account. If a transfer of funds is made to the separate account under section 5(b)(2) with respect to an unpaid claim

and such claim is later paid, the amount so paid shall be covered

into the Treasury as miscellaneous receipts. All payments under

this section shall be made first out of such fees so long as they are

available, and thereafter out of funds which are hereby authorized

to be appropriated to such account to carry out the provisions of

this section.

(d) All determinations made under this section shall be final.

No payment under this section shall be made with respect to any

losses covered by any policy of insurance or other provision of law.

(e) The provisions of this section shall be effective until October 1, 2003, except that payments may be made under this section

only to such extent and in such amounts as are provided in advance in appropriation Acts.

(f) For the purposes of this section—

(1) the term ‘‘Secretary’’ means the Secretary of State.

(2) the term ‘‘owner’’ includes any charterer of a commercial fishing vessel.

SEC. 8. ø22 U.S.C. 1978¿ (a)(1) When the Secretary of Commerce determines that nationals of a foreign country, directly or indirectly, are conducting fishing operations in a manner or under

circumstances which diminish the effectiveness of an international

fishery conservation program, the Secretary of Commerce shall certify such fact to the President.
377 FISHERMEN’S PROTECTIVE ACT OF 1967 Sec. 8

1 Indentation so in law. (P.L. 96–61, 93 Stat. 408).

(2) When the Secretary of Commerce or the Secretary of the Interior finds that nationals of a foreign country, directly or indirectly, are engaging in trade or taking which diminishes the effectiveness of any international program for endangered or threatened

species, the Secretary making such finding shall certify such fact

to the President.

(3) 1 In administering this subsection, the Secretary of

Commerce or the Secretary of the Interior, as appropriate,

shall—

(A) periodically monitor the activities of foreign nationals that may affect the international programs referred

to in paragraphs (1) and (2);

(B) promptly investigate any activity by foreign nationals that, in the opinion of the Secretary, may be cause

for certification under paragraph (1) or (2); and

(C) promptly conclude; and reach a decision with respect to; any investigation commenced under subparagraph (B).

(4) Upon receipt of any certification made under paragraph (1)

or (2), the President may direct the Secretary of the Treasury to

prohibit the bringing or the importation into the United States of

any products from the offending country for any duration as the

President determines appropriate and to the extent that such prohibition is sanctioned by the World Trade Organization (as defined

in section 2(8) of the Uruguay Round Agreements Act) or the multilateral trade agreements (as defined in section 2(4) of that Act).

(b) Within sixty days following certification by the Secretary of

Commerce or the Secretary of the Interior, the President shall notify the Congress of any action taken by him pursuant to such certification. In the event the President fails to direct the Secretary

of the Treasury to prohibit the importation of fish products or wildlife products of the offending country, or if such prohibition does

not cover all fish products or wildlife products of the offending

country, the President shall inform the Congress of the reasons

therefore.

(c) It shall be unlawful for any person subject to the jurisdiction of the United States knowingly to bring or import into, or

cause to be imported into, the United States any products prohibited by the Secretary of the Treasury pursuant to this section.

(d) After making a certification to the President under subsection (a), the Secretary of Commerce or the Secretary of the Interior, as the case may be, shall periodically review the activities of

the nationals of the offending country to determine if the reasons

for which the certification was made no longer prevail. Upon determining that such reasons no longer prevail, the Secretary concerned shall terminate the certification and publish notice thereof,

together with a statement of the facts on which such determination

is based, in the Federal Register.

(e)(1) Any person violating the provisions of this section shall

be fined not more than $10,000 for the first violation, and not more

than $25,000 for each subsequent violation.
Sec. 8 FISHERMEN’S PROTECTIVE ACT OF 1967 378

1So in law. Probably should be ‘‘; and’’. 2 Indentation so in law. (P.L. 102–582, sec. 201, 106 Stat. 4905).

(2) All products brought or imported into the United States in

violation of this section, or the monetary value thereof, may be forfeited.

(3) All provisions of law relating to the seizure, judicial forfeiture, and condemnation of a cargo for violation of the customs

laws, the disposition of such cargo or the proceeds from the sale

thereof, and the remission or mitigation of such forfeitures shall

apply to seizures and forfeitures incurred, or alleged to have been

incurred, under the provisions of this section, insofar as such provisions of law and applicable and not inconsistent with this section.

(f)(1) Enforcement of the provisions of this section prohibiting

the bringing or importation of products into the United States shall

be the responsibility of the Secretary of the Treasury.

(2) The judges of the United States district courts, and United

States commissioners may, within their respective jurisdictions,

upon proper oath or affirmation showing probable cause, issue such

warrants or other process as may be required for enforcement of

this Act and regulations issued thereunder.

(3) Any person authorized to carry out enforcement activities

hereunder shall have the power to execute any warrant or process

issued by any officer or court of competent jurisdiction for the enforcement of this section.

(4) Such person so authorized shall have the power—

(A) with or without a warrant or other process, to arrest

any persons subject to the jurisdiction of the United States

committing in his presence or view a violation of this section

or the regulations issued thereunder; 1

(B) with or without a warrant or other process, to search

any vessel subject to the jurisdiction of the United States, and,

if as a result of such search he has reasonable cause to believe

that such vessel or any person on board is engaging in operations in violation of this section or the regulations issued

thereunder, then to arrest such person.

(5) Such person so authorized, may seize, whenever and wherever lawfully found, all products brought or imported into the

United States in violation of this section or the regulations issued

thereunder. Products so seized may be disposed of pursuant to the

order of a court of competent jurisdiction, or, if perishable, in a

manner prescribed by regulations promulgated by the Secretary of

the Treasury after consultation with the Secretary of Health, Education, and Welfare.

(g) The Secretary of the Treasury, the Secretary of Commerce,

and the Secretary of the Interior are each authorized to prescribe

such regulations as he determines necessary to carry out the provisions of this section.

(h) As used in this section—

(1) The term ‘‘person’’ means any individual, partnership, corporation, or association.

(2) 2 The term ‘‘United States’’ means the several States,

the District of Columbia, Puerto Rico, the Northern Mariana

Islands, American Samoa, Guam, the Virgin Islands, and every

other territory and possession of the United States.
379 FISHERMEN’S PROTECTIVE ACT OF 1967 Sec. 10

1Section 3 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802), referred to in subsec. (a)(1), contained a prior par. (8) defining ‘‘fishery conservation zone’’ which

was repealed and a new par. (6) defining ‘‘exclusive economic zone’’ was added by Pub. L. 99–

659, title I, § 101(a), Nov. 14, 1986, 100 Stat. 3706. 2See footnote 2 to the first section.

(3) The term ‘‘international fishery conservation program’’

means any ban, restriction, regulation, or other measure in effect

pursuant to a bilateral or multilateral agreement which is in force

with respect to the United States, the purpose of which is to conserve or protect the living resources of the sea, including marine

mammals.

(4) The term ‘‘international program for endangered or threatened species’’ means any ban, restriction, regulation, or other

measure in effect pursuant to a multilateral agreement which is in

force with respect to the United States, the purpose of which is to

protect endangered or threatened species of animals.

(5)1 The term ‘‘taking’’, as used with respect to animals to

which an international program for endangered or threatened

species applies, means to—

(A) harass, harm, pursue, hunt, shoot, would, kill,

trap, capture, or collect; or

(B) attempt to harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect.

SEC. 9. ø22 U.S.C. 1979¿ There is created a Fishermen’s Protective Fund which shall be used by the Secretary of State to reimburse owners of vessels for amounts determined and certified by

him under section 3. The amount of any claim or portion thereof

collected by the Secretary of State from any foreign country pursuant to section 5(a) shall be deposited in the fund and shall be available for the purpose of reimbursing vessel owners under section 3;

except that if a transfer to the fund was made pursuant to section

5(b)(1) with respect to any such claim, an amount from the fund

equal to the amount so collected shall be covered into the Treasury

as miscellaneous receipts. There is authorized to be appropriated to

the fund (1) the sum of $3,000,000 to provide initial capital, and

(2) such additional sums as may be necessary from time to time to

supplement the fund in order to meet the requirements of the fund.

SEC. 10. ø22 U.S.C. 1980¿ (a) For purposes of this section—

(1) The terms ‘‘fishery’’, ‘‘fishery conservation zone’’, ‘‘fishing’’, ‘‘fishing vessel,’’ ‘‘Secretary’’, and ‘‘vessel of the United

States’’ shall each have the same respective meaning as is

given to such terms in section 3 1 of the Fishery Conservation

and Management Act of 1976 (16 U.S.C. 1802). 2

(2) The term ‘‘fishing gear’’ means any equipment or appurtenance which is necessary for the carrying out of fishing

operations by a fishing vessel, whether or not such equipment

or appurtenance is attached to such vessel.

(3) The term ‘‘fund’’ means the Fishing Vessel and Gear

Damage Compensation Fund established under subsection (f).

(4) The term ‘‘resulting economic loss’’ means the gross income, as estimated by the Secretary, that a fishing vessel

owner or operator who is eligible for compensation under this

section for damage to, loss of, or destruction of, a fishing vessel

or the fishing gear used with such vessel will lose by reason

of not being able to engage in fishing, or having to reduce his
Sec. 10 FISHERMEN’S PROTECTIVE ACT OF 1967 380

1 Indentation so in law. (See P.L. 96–561, 94 Stat. 3302).

fishing effort, during the period before the vessel or gear, or

both, are repaired or replaced and available for use.

(b) Subject to the provisions of this section, the owner or operator (hereinafter referred to as the ‘‘vessel owner’’) of any fishing

vessel which is a vessel of the United States is eligible for monetary compensation under this section for any damage to, loss of, or

destruction of such vessel, or any fishing gear used with such vessel, or both, and for any resulting economic loss, if the damage,

loss, or destruction—

(1) in the case of such vessel—

(A) occurs when such vessel is engaged in any fishery

subject to the exclusive fishery management authority of

the United States under the Fishery Conservation and

Management Act of 1976 2, and

(B) is attributable to any vessel (or its crew or fishing

gear) other than a vessel of the United States; or

(2) in the case of such fishing gear—

(A) occurs when such fishing gear is being used for

fishing in any fishery subject to such exclusive management authority, and

(B) is attributable to any other vessel, whether or not

such vessel is a vessel of the United States.

For purposes of subparagraph (B), there shall be a rebuttable presumption that any damage, loss, or destruction of fishing gear is

attributable to another vessel.

(c) A vessel owner is not eligible for compensation under this

section with respect to fishing vessel or fishing gear damage, loss,

or destruction and resulting economic loss unless such owner—

(1) makes application to the Secretary for compensation

under this section within 90 days after the day on which the

damage, loss, or destruction occurred or was first noticed by

the owner;

(2) pays upon making such application a reasonable administrative fee which the Secretary shall deposit into the

fund;

(3) has, in such form as the Secretary shall prescribe by

regulation, a current inventory or other evidence of possession

of the fishery vessel or fishing gear concerned;

(4) has complied with all applicable regulations, if any, relating to the marking of, and (if appropriate) the notification

of the location of, the fishing gear concerned; and

(5) is in compliance with such other regulations as may be

prescribed by the Secretary to carry out this section.

(d)(1) Application for compensation under this section shall be

made in such form and manner, and include such documentation

and other evidence relating to the cause and extent of the damage,

loss, or destruction, and economic loss, claimed, as the Secretary

shall prescribe by regulation. The Secretary shall promptly, but not

later than sixty days after receipt of an application, consider, and

issue an initial determination with respect to, the application.

(2) 1 the amount of compensation awarded to any vessel

owner under this section shall be—
381 FISHERMEN’S PROTECTIVE ACT OF 1967 Sec. 10

1See footnote 2 to first section. 2The code cite should have a closing parenthesis after (10).

(A) the depreciated replacement cost, or the repair

cost, whichever cost is less, of the fishing vessel or the

fishing gear concerned; and

(B) 25 percent of any resulting economic loss.

Any amount determined pursuant to subparagraph (A) or (B)

shall be reduced to the extent that evidence indicates that negligence by the vessel owner or operator contributed to the

cause or the extent of the damage, loss, or destruction and

shall be further reduced by the amount of compensation, if

any, that the vessel owner or operator has received or will receive with respect to the damage, loss, destruction, or resulting

economic loss through insurance, pursuant to any other provision of law, or otherwise.

(3) The initial determination made by the Secretary under

paragraph (1) with respect to any application shall—

(A) if the application is disapproved, set forth the reasons

therefore; or

(B) if the application is approved, set forth the amount of

compensation to which the applicant is entitled and the basis

on which such amount was determined.

(4) Any vessel owner who is aggrieved by any decision of the

Secretary contained in the initial determination of the Secretary regarding such owner’s application may, within thirty days after the

date of issue of the initial determination, petition the Secretary for

a review of the decision. If petition for review is not made to the

Secretary within such thirty-day period regarding the initial determination, the initial determination shall be deemed to be the final

determination on the application. Before undertaking any such review, the Secretary shall provide to the vessel owner opportunity

to submit additional written or oral evidence relating to the decision. After review the Secretary shall issue a final determination

with respect to the application.

(5) If compensation is awarded under the final determination

on any application, the Secretary shall promptly pay from the fund

to such owner the amount of compensation stated in the final determination. Upon the acceptance of such payment by the vessel

owner, the United States shall be subrogated to all rights of the

vessel owner with respect to which the payment is made.

(e) In addition to any fee imposed under section 204(b)(10) of

the Fishery Conservation and Management Act of 1976 1 (16 U.S.C.

1824(b)(10) 2 with respect to any foreign fishing vessel for any year

after 1978, the Secretary shall impose a surcharge in an amount

not to exceed 20 percent of the amount of the fee imposed under

such section for such year. The failure to pay any surcharge imposed under this subsection with respect to any foreign fishing vessel shall be treated by the Secretary as a failure to pay the fee for

such vessel under such section 204(b)(10).

(f)(1) There is established in the Treasury of the United States

the Fishing Vessel and Gear Damage Compensation Fund. The

fund shall be available without fiscal year limitation as a revolving

fund for the purposes of administering, and paying compensation

awarded under, this section.
Sec. 11 FISHERMEN’S PROTECTIVE ACT OF 1967 382

1So in original. Probably should be ‘‘notes’’.

(2) The fund shall consist of—

(A) all sums recovered by the United States in the exercise

of rights subrogated to it under subsection (d)(5);

(B) all administrative fees collected under subsection (c)(2);

(C) all surcharges collected under subsection (e);

(D) revenues received from deposits or investments made

under the last sentence of this paragraph; and

(E) any revenue acquired through the issuance of obligations under paragraph (3).

Sums may be expended from the fund only to such extent and in

such amounts as are provided in advance in appropriation Acts.

Sums in the fund which are not currently needed for the purpose

of paying such awards shall be kept on deposit or invested in obligations of, or guaranteed by, the United States.

(3) Whenever the amount in the fund is not sufficient to pay

compensation under this section, the Secretary may issue, in an

amount not to exceed $5,000,000, notes or other obligations to the

Secretary of the Treasury, in such forms and denominations, bearing such maturities, and subject to such terms and conditions as

the Secretary of the Treasury may prescribe. Such notices 1 or

other obligations shall bear interest at a rate to be determined by

the Secretary of the Treasury of the basis of the current average

market yield on outstanding marketable obligations of the United

States of comparable maturities during the month preceding the

issuance of such notices 1 or other obligations. Moneys obtained by

the Secretary under this paragraph shall be deposited in the fund

and redemptions of any such notices 1 or other obligations shall be

made from the fund. The Secretary of the Treasury shall purchase

any such notes or other obligations, and for such purpose he may

use as a public debt transaction the proceeds from the sale of any

securities issued under the Second Liberty Bond Act. The Secretary

of the Treasury may sell any such notices 1 or other obligations at

such times and prices and upon such terms and conditions as he

shall determine. All purchases, redemptions, and sales of such

notes or other obligations by the Secretary of the Treasury shall be

treated as public debt transactions of the United States. All borrowing authority contained herein shall be effective only to such

extent or in such amounts as are provided in advance in appropriation Acts.

(g) Any person who willfully makes any false or misleading

statement or representation for the purpose of obtaining compensation under this section is guilty of a criminal offense and, upon conviction thereof, shall be punished by a fine of not more than

$25,000, or by imprisonment for not more than one year, or both.

SEC. 11. ø22 U.S.C. 1980a¿ (a) In any case on or after June

15, 1994, in which a vessel of the United States exercising its right

of passage is charged a fee by the government of a foreign country

to engage in transit passage between points in the United States

(including a point in the exclusive economic zone or in an area over

which jurisdiction is in dispute), and such fee is regarded by the

United States as being inconsistent with international law, the Secretary of State shall, subject to the availability of appropriated
383 FISHERMEN’S PROTECTIVE ACT OF 1967 Sec. 12

funds, reimburse the vessel owner for the amount of any such fee

paid under protest.

(b) In seeking such reimbursement, the vessel owner shall provide, together with such other information as the Secretary of State

may require—

(1) a copy of the receipt for payment;

(2) an affidavit attesting that the owner or the owner’s

agent paid the fee under protest; and

(3) a copy of the vessel’s certificate of documentation.

(c) Requests for reimbursement shall be made to the Secretary

of State within 120 days after the date of payment of the fee, or

within 90 days after the date of enactment of this section, whichever is later.

(d) Such funds as may be necessary to meet the requirements

of this section may be made available from the unobligated balance

of previously appropriated funds remaining in the Fishermen’s Protective Fund established under section 9. To the extent that requests for reimbursement under this section exceed such funds,

there are authorized to be appropriated such sums as may be needed for reimbursements authorized under subsection (a), which shall

be deposited in the Fishermen’s Protective Fund established under

section 9.

(e) The Secretary of State shall take such action as the Secretary deems appropriate to make and collect claims against the

foreign country imposing such fee for any amounts reimbursed

under this section.

(f) For purposes of this section, the term ‘‘owner’’ includes any

charterer of a vessel of the United States.

SEC. 12. ø22 U.S.C. 1980b¿ (a) If the Secretary of State finds

that the government of any nation imposes conditions on the operation or transit of United States fishing vessels which the United

States regards as being inconsistent with international law or an

international agreement, the Secretary of State shall certify that

fact to the President.

(b) Upon receipt of a certification under subsection (a), the

President shall direct the heads of Federal agencies to impose similar conditions on the operation or transit of fishing vessels registered under the laws of the nation which has imposed conditions

on United States fishing vessels.

(c) For the purposes of this section, the term ‘‘fishing vessel’’

has the meaning given that term in section 2101(11a) of title 46,

United States Code.

(d) It is the sense of the Congress that any action taken by any

Federal agency under subsection (b) should be commensurate with

any conditions certified by the Secretary of State under subsection

(a).

385

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION MARINE FISHERIES PROGRAM AUTHORIZATION

ACT

387

1So in law. Section 211 of the Department of Commerce and Related Agencies Appropriations

Act, 1997 (as contained in section 101(a), title I of Division A of Public Law 104–208; 110 Stat.

3009–41) provides:

SEC. 211. (a) Effective 15 days after the enactment of the Sustainable Fisheries Act, section

1 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801) shall be amended to read as follows: ‘‘That this Act may be cited as the ‘Magnuson-Stevens Fishery Conservation and Management Act’.’’

(b) Effective 15 days after the enactment of the Sustainable Fisheries Act, all references to

the Magnuson Fishery Conservation and Management Act shall be redesignated as references

to the Magnuson-Stevens Fishery Conservation and Management Act.

Since such section did not actually amend each occurrence of the short title in law, the former

short title appears here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION MARINE FISHERIES PROGRAM AUTHORIZATION

ACT

[Public Law 98–210, Approved Dec. 6, 1983, 97 Stat. 1409]

[Amended through Public Law 104–297, Oct. 11, 1996]

AN ACT To consolidate and authorize certain marine fishery programs and functions of the National Oceanic and Atmospheric Administration under the Department of Commerce.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That this Act may

be cited as the ‘‘National Oceanic and Atmospheric Administration

Marine Fisheries Program Authorization Act’’.

FISHERIES INFORMATION COLLECTION AND ANALYSIS

SEC. 2. (a) There are authorized to be appropriated to the Department of Commerce to enable the National Marine Fisheries

Service to carry out its Fisheries Information Collection and Analysis duties under law, $47,933,000 for fiscal year 1992 and

$59,162,000 for fiscal year 1993. These moneys shall be used to

fund those duties relating to fisheries information collection and

analysis specified by the Fish and Wildlife Act of 1956 (16 U.S.C.

742a et seq.), the Act of May 11, 1938 (16 U.S.C. 755), and the Fur

Seal Act of 1966 (16 U.S.C. 1151 et seq.), the Act entitled, ‘‘An Act

to promote the conservation of wildlife, fish, and game, and for

other purposes’’, approved March 10, 1934 (16 U.S.C. 661 et seq.),

and any other law involving such duties. These duties include, but

are not limited to, collection analysis and dissemination of scientific

data necessary to manage: marine fishery resources, marine mammals, endangered species, and their habitats.

(b) This authorization shall be in addition to any Fisheries Information Collection Analysis moneys authorized under the Magnuson Fishery Conservation and Management Act 1 (16 U.S.C. 1801

et seq.), the Marine Mammal Protection Act of 1972 (16 U.S.C.

1361 et seq.), and the Endangered Species Act of 1973 (16 U.S.C.

1531 et seq.).
Sec. 3 NOAA MARINE FISHERIES PROGRAM AUTHORIZATION ACT 388

(c) The duties authorized in subsection (a) of this section shall

be considered separate and distinct from duties and functions performed pursuant to moneys authorized in subsection (b) of this section. The total authorization for all such duties and functions shall

be the sum of amounts specified in such subsections.

(d) Of the sums authorized under subsection (a) of this section,

$1,000,000 for each of the fiscal years 1992 and 1993 are authorized to be appropriated for the purpose of developing dolphin-safe

methods of locating and catching yellowfin tuna. Such authorization shall be in addition to moneys authorized under section 7 of

the Act entitled ‘‘An Act to improve the operation of the Marine

Mammal Protection Act of 1972, and for other purposes’’, approved

October 9, 1981 (16 U.S.C. 1384). Within six months after the date

of enactment of this subsection, the Secretary, in cooperation with

the Inter-American Tropical Tuna Commission and after consultation with interested persons, shall publish a program plan for public comment that shall provide for—

(1) cooperative research to improve understanding of the

behavioral association of dolphins and yellowfin tuna in the

eastern tropical Pacific Ocean;

(2) development, testing, and implementation of new methods of locating and catching yellowfin tuna without the incidental taking of dolphins; and

(3) appropriate measures to ensure program participation

and sharing of associated costs by each foreign government

that conducts, or authorizes its nationals to conduct, yellowfin

tuna fishing in the eastern tropical Pacific Ocean.

(e) Of the sums authorized under subsection (a) of this section,

no more than $2,500,000 are authorized to be appropriated for each

of the fiscal years 1997 and 1998 to enable the National Oceanic

and Atmospheric Administration to establish the Chesapeake Bay

Estuarine Resources Office under section 307 of the National Oceanic and Atmospheric Administration Authorization Act of 1992.

No more than 20 percent of the amount appropriated under the authorization in this subsection shall be used for administrative purposes.

FISHERIES CONSERVATION AND MANAGEMENT OPERATIONS

SEC. 3. (a) There are authorized to be appropriated to the Department of Commerce to enable the National Marine Fisheries

Service to carry out its fisheries conservation and management operations duties under law, $27,290,000 for fiscal year 1992 and

$35,594,000 for fiscal year 1993. These moneys shall be used to

fund those duties relating to fisheries conservation and management operations specified by the Fish and Wildlife Act of 1956 (16

U.S.C. 742a et seq.), the Act of May 11, 1938 (16 U.S.C. 755), the

Fur Seal Act of 1966 (16 U.S.C. 1151 et seq.), and the Act entitled,

‘‘An Act to promote the conservation of wildlife, fish, and game, and

for other purposes’’, approved March 10, 1934 (16 U.S.C. 661 et

seq.), and any other law involving such duties. These duties include, but are not limited to, development, implementation, and enforcement of conservation and management measures to achieve

continued optimum use of living marine resources; including hatchery operations, fishery management plan activities, habitat conservation, and protected species management.
389 NOAA MARINE FISHERIES PROGRAM AUTHORIZATION ACT Sec. 5

1See footnote to section 2(b).

(b) This authorization shall be in addition to any fisheries conservation and management moneys authorized under the Magnuson Fishery Conservation and Management Act of 1976 1 (16 U.S.C.

1801 et seq.), the Endangered Species Act of 1973 (16 U.S.C. 1531

et seq.), the Salmon and Steelhead Conservation Act of 1980 (16

U.S.C. 3301 et seq.), and the Marine Mammal Protection Act of

1972 (16 U.S.C. 1361 et seq.).

(c) The duties authorized in subsection (a) of this section shall

be considered separate and distinct from duties and functions performed pursuant to moneys authorized in subsection (b) of this section. The total authorization for all such duties and functions shall

be the sum of amounts specified in such subsections.

FISHERIES STATE AND INDUSTRY ASSISTANCE PROGRAMS

SEC. 4. (a) There are authorized to be appropriated to the Department of Commerce to enable the National Marine Fisheries

Service to carry out its fisheries State and industry assistance program duties under law, $12,182,000 for fiscal year 1992 and

$18,838,000 for fiscal year 1993. These moneys shall be used to

fund those duties specified by the Fish and Wildlife Act of 1956 (16

U.S.C. 742a et seq.) and any other law affecting State and industry

fisheries assistance. These duties include, but are not limited to, financial assistance for fishing vessels and fish processing plants,

market development for fishery products, product quality and

grants to States for improving management of interstate fisheries

and stimulating fishery development.

(b) This authorization shall be in addition to any fisheries

State and industry assistance program moneys authorized under

the Commercial Fisheries Research and Development Act of 1964

(16 U.S.C. 779 et seq.), the Act entitled ‘‘An Act to authorize the

Secretary of the Interior to initiate with several States a cooperative program for the conservation, development, and enhancement

of the Nation’s anadromous fish, and for other purposes’’, approved

October 30, 1965 (16 U.S.C. 757a et seq.), the Central, Western,

and South Pacific Fishery Development Act (16 U.S.C. 758e), and

the Magnuson Fishery Conservation and Management Act 1 (16

U.S.C. 1801 et seq.).

(c) The duties authorized in subsection (a) of this section shall

be considered separate and distinct from duties and functions performed pursuant to moneys authorized in subsection (b) of this section. The total authorization for all such duties and functions shall

be the sum of amounts specified in such subsections.

PAY INCREASE AUTHORIZATIONS

SEC. 5. There are authorized to be appropriated to the Department of Commerce to enable the National Oceanic and Atmospheric

Administration to carry out its duties indicated under this Act,

such additional sums as may be necessary for increases in salary,

pay, and other employee benefits authorized by law.
Sec. 6 NOAA MARINE FISHERIES PROGRAM AUTHORIZATION ACT 390

1So in law. This section was enacted without including a subsection (b).

FREIGHT FORWARDER AMENDMENTS

SEC. 6. Subsection (c) of section 1608 of the Act of August 13,

1981 (95 Stat. 752) is repealed.

COASTWISE VESSELS

SEC. 7. (a) 1 That, notwithstanding the failure of the vessel

named below to meet the requirements contained in 46 U.S.C. 12105, 46 U.S.C. 12106, and 46 U.S.C. 12107, and section 27 of the

Merchant Marine Act, 1920, as amended (46 App. U.S.C. 883), on

the date of this Act, the Secretary of the department in which the

Coast Guard is operating shall cause the vessel Protector Alpha,

Official Number 394610, to be documented as a vessel of the

United States with the privilege of engaging in the coastwise trade,

if (1) such vessel complies with all other requirements of law and

(2) all repairs and modifications totalling at least $3,000,000 are

performed on such vessel in a shipyard in the United States.
391

LACEY ACT AMENDMENTS OF 1981

393

LACEY ACT AMENDMENTS OF 1981

[Public Law 97–79, Approved Nov. 16, 1981, 95 Stat. 1073]

[Amended through Public Law 100–653, Nov. 14, 1988]

AN ACT To provide for the control of illegally taken fish and wildlife.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø16 U.S.C. 3371

note¿ That this Act may be cited as the ‘‘Lacey Act Amendments

of 1981’’.

SEC. 2. ø16 U.S.C. 3371¿ DEFINITIONS.

For purposes of this Act:

(a) The term ‘‘fish or wildlife’’ means any wild animal, whether

alive or dead, including without limitation any wild mammal, bird, reptile, amphibian, fish, mollusk, crustacean, arthropod,

coelenterate, or other invertebrate, whether or not bred, hatched,

or born in captivity, and includes any part, product, egg, or offspring thereof.

(b) The term ‘‘import’’ means to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States,

whether or not such landing, bringing, or introduction constitutes

an importation within the meaning of the customs laws of the

United States.

(c) The term ‘‘Indian tribal law’’ means any regulation of, or

other rule of conduct enforceable by, any Indian tribe, band, or

group but only to the extent that the regulation or rule applies

within Indian country as defined in section 1151 of title 18, United

States Code.

(d) The terms ‘‘law,’’ ‘‘treaty,’’ ‘‘regulation,’’ and ‘‘Indian tribal

law’’ mean laws, treaties, regulations or Indian tribal laws which

regulate the taking, possession, importation, exportation, transportation, or sale of fish or wildlife or plants.

(e) The term ‘‘person’’ includes any individual, partnership, association, corporation, trust, or any officer, employee, agent, department, or instrumentality of the Federal Government or of any

State or political subdivision thereof, or any other entity subject to

the jurisdiction of the United States.

(f) The terms ‘‘plant’’ and ‘‘plants’’ mean any wild member of

the plant kingdom, including roots, seeds, and other parts thereof

(but excluding common food crops and cultivars) which is indigenous to any State and which is either (A) listed on an appendix to

the Convention on International Trade in Endangered Species of

Wild Fauna and Flora, or (B) listed pursuant to any State law that

provides for the conservation of species threatened with extinction.

(g) The term ‘‘Secretary’’ means, except as otherwise provided

in the Act, the Secretary of the Interior or the Secretary of Commerce, as program responsibilities are vested pursuant to the pro-
Sec. 3 LACEY ACT AMENDMENTS OF 1981 394

1So in original. Probably should be followed by ‘‘or’’. 2So in original. Probably should refer to paragraphs (1) through (3).

visions of Reorganization Plan Numbered 4 of 1970 (84 Stat. 2090);

except that with respect to the provisions of this Act which pertain

to the importation or exportation of plants the term means the Secretary of Agriculture.

(h) The term ‘‘State’’ means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, Northern Mariana Islands, American Samoa, and

any other territory, commonwealth, or possession of the United

States.

(i) The term ‘‘taken’’ means captured, killed, or collected.

(j) The term ‘‘transport’’ means to move, convey, carry, or ship

by any means, or to deliver or receive for the purpose of movement,

conveyance, carriage, or shipment.

SEC. 3. ø16 U.S.C. 3372¿ PROHIBITED ACTS.

(a) OFFENSES OTHER THAN MARKING OFFENSES.—It is unlawful for any person—

(1) to import, export, transport, sell, receive, acquire, or

purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of

the United States or in violation of any Indian tribal law;

(2) to import, export, transport, sell, receive, acquire, or

purchase in interstate or foreign commerce—

(A) any fish or wildlife taken, possessed, transported,

or sold in violation of any law or regulation of any State

or in violation of any foreign law, or

(B) any plant taken, possessed, transported, or sold in

violation of any law or regulation of any State;

(3) within the special maritime and territorial jurisdiction

of the United States (as defined in section 7 of title 18, United

States Code)—

(A) to possess any fish or wildlife taken, possessed,

transported, or sold in violation of any law or regulation

of any State or in violation of any foreign law or Indian

tribal law, or

(B) to possess any plant taken, possessed, transported,

or sold in violation of any law or regulation of any State; 1

(4) to attempt to commit any act described in paragraphs

(1) through (4). 2

(b) MARKING OFFENSES.—It is unlawful for any person to import, export, or transport in interstate commerce any container or

package containing any fish or wildlife unless the container or

package has previously been plainly marked, labeled, or tagged in

accordance with the regulations issued pursuant to paragraph (2)

of subsection 7(a) of this Act.

(c) SALE AND PURCHASE OF GUIDING AND OUTFITTING SERVICES

AND INVALID LICENSES AND PERMITS.—

(1) SALE.—It is deemed to be a sale of fish or wildlife in

violation of this Act for a person for money or other consideration to offer or provide—

(A) guiding, outfitting, or other services; or

(B) a hunting or fishing license or permit;
395 LACEY ACT AMENDMENTS OF 1981 Sec. 4

1Section 102(c) of Public Law 100–653 attempts to amend section 4(a)(1), (d)(1)(A), (d)(1)(B),

and (d)(2) by striking ‘‘(other than section 3(b))’’ each place it appears and inserting ‘‘(other than

subsections (b) and (d) of section 3)’’. The amendment could not be executed because the matter

proposed to be struck did not appear.

for the illegal taking, acquiring, receiving, transporting, or possessing of fish or wildlife.

(2) PURCHASE.—It is deemed to be a purchase of fish or

wildlife in violation of this Act for a person to obtain for money

or other consideration—

(A) guiding, outfitting, or other services; or

(B) a hunting or fishing license or permit;

for the illegal taking, acquiring, receiving, transporting, or possessing of fish or wildlife.

(d) FALSE LABELING OFFENSES.—It is unlawful for any person

to make or submit any false record, account, or label for, or any

false identification of, any fish, wildlife, or plant which has been,

or is intended to be—

(1) imported, exported, transported, sold, purchased, or received from any foreign country; or

(2) transported in interstate or foreign commerce.

SEC. 4. ø16 U.S.C. 3373¿ PENALTIES AND SANCTIONS.

(a) CIVIL PENALTIES.—

(1) Any person who engages in conduct prohibited by any

provision of this Act (other than subsection 3(b)) 1 and in the

exercise of due care should know that the fish or wildlife or

plants were taken, possessed, transported, or sold in violation

of, or in a manner unlawful under, any underlying law, treaty,

or regulation, may be assessed a civil penalty by the Secretary

of not more than $10,000 for each such violation: Provided,

That when the violation involves fish or wildlife or plants with

a market value of less than $350, and involves only the transportation, acquisition, or receipt of fish or wildlife or plants

taken or possessed in violation of any law, treaty, or regulation

of the United States, any Indian tribal law, any foreign law,

or any law or regulation of any State, the penalty assessed

shall not exceed the maximum provided for violation of said

law, treaty, or regulation, and any person who knowingly violates section 3(d), or $10,000, whichever is less.

(2) Any person who violates subsection 3(b) may be assessed a civil penalty by the Secretary of not more than $250.

(3) For purposes of paragraphs (1) and (2), any reference

to a provision of this Act or to a section of this Act shall be

treated as including any regulation issued to carry out any

such provision or section.

(4) No civil penalty may be assessed under this subsection

unless the person accused of the violation is given notice and

opportunity for a hearing with respect to the violation. Each

violation shall be a separate offense and the offense shall be

deemed to have been committed not only in the district where

the violation first occurred, but also in any district in which a

person may have taken or been in possession of the said fish

or wildlife or plants.

(5) Any civil penalty assessed under this subsection may

be remitted or mitigated by the Secretary.
Sec. 4 LACEY ACT AMENDMENTS OF 1981 396

1So in law. Probably should be ‘‘this subsection’’. 2See footnote to section 4(a)(1).

(6) In determining the amount of any penalty assessed

pursuant to paragraphs (1) and (2), the Secretary shall take

into account the nature, circumstances, extent, and gravity of

the prohibited act committed, and with respect to the violator,

the degree of culpability, ability to pay, and such other matters

as justice may require.

(b) HEARINGS.—Hearings held during proceedings for the assessment of civil penalties shall be conducted in accordance with

section 554 of title 5, United States Code. The administrative law

judge may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, or documents,

and may administer oaths. Witnesses summoned shall be paid the

same fees and mileage that are paid to witnesses in the courts of

the United States. In case of contumacy or refusal to obey a subpena issued pursuant to this paragraph 1 and served upon any person, the district court of the United States for any district in which

such person is found, resides, or transacts business, upon application by the United States and after notice to such person, shall

have jurisdiction to issue an order requiring such person to appear

and give testimony before the administrative law judge or to appear and produce documents before the administrative law judge,

or both, and any failure to obey such order of the court may be

punished by such court as a contempt thereof.

(c) REVIEW OF CIVIL PENALTY.—Any person against whom a

civil penalty is assessed under this section may obtain review

thereof in the appropriate District Court of the United States by

filing a complaint in such court within 30 days after the date of

such order and by simultaneously serving a copy of the complaint

by certified mail on the Secretary, the Attorney General, and the

appropriate United States attorney. The Secretary shall promptly

file in such court a certified copy of the record upon which such violation was found or such penalty imposed, as provided in section

2112 of title 28, United States Code. If any person fails to pay an

assessment of a civil penalty after it has become a final and

unappealable order or after the appropriate court has entered final

judgment in favor of the Secretary, the Secretary may request the

Attorney General of the United States to institute a civil action in

an appropriate district court of the United States to collect the penalty, and such court shall have jurisdiction to hear and decide any

such action. In hearing such action, the court shall have authority

to review the violation and the assessment of the civil penalty de

novo.

(d) CRIMINAL PENALTIES.—

(1) Any person who—

(A) knowingly imports or exports any fish or wildlife

or plants in violation of any provision of this Act (other

than subsection 3(b)), 2 or

(B) violates any provision of this Act (other than subsection 3(b)) 2 by knowingly engaging in conduct that involves the sale or purchase of, the offer of sale or purchase

of, or the intent to sell or purchase, fish or wildlife or

plants with a market value in excess of $350,
397 LACEY ACT AMENDMENTS OF 1981 Sec. 4

1See footnote to section 4(a)(1). 2Section 238 of the American Fisheries Promotion Act (Public Law 96–561; 94 Stat. 3301)

changed (by amendment) the short title of such Act to the Magnuson Fishery Conservation and

Management Act and provided that ‘‘all references to the Fishery Conservation and Management Act of 1976 shall be redesignated as references to the Magnuson Fishery Conservation and

Management Act’’. Subsequently, section 211 of the Department of Commerce and Related Agencies Appropriations Act, 1997 (Division A, title II of P.L. 104–208; 110 Stat. 3009–41) changed

(by amendment) the short title of such Act to the Magnuson-Stevens Fishery and Conservation

and Management Act and provided that ‘‘all references to the Magnuson Fishery Conservation

and Management Act shall be redesignated as references to the Magnuson-Stevens Fishery Conservation and Management Act’’. Since neither renaming provision actually amended each occurrence of either short title in law, the former short title appears here.

knowing that the fish or wildlife or plants were taken, possessed, transported, or sold in violation of, or in a manner unlawful under, any underlying law, treaty or regulation, shall be

fined not more than $20,000, or imprisoned for not more than

five years, or both. Each violation shall be a separate offense

and the offense shall be deemed to have been committed not

only in the district where the violation first occurred, but also

in any district in which the defendant may have taken or been

in possession of the said fish or wildlife or plants.

(2) Any person who knowingly engages in conduct prohibited by any provision of this Act (other than subsection 3(b)) 1

and in the exercise of due care should know that the fish or

wildlife or plants were taken, possessed, transported, or sold in

violation of, or in a manner unlawful under, any underlying

law, treaty or regulation shall be fined not more than $10,000,

or imprisoned for not more than one year, or both. Each violation shall be a separate offense and the offense shall be

deemed to have been committed not only in the district where

the violation first occurred, but also in any district in which

the defendant may have taken or been in possession of the said

fish or wildlife or plants.

(3) Any person who knowingly violates section 3(d)—

(A) shall be fined under title 18, United States Code,

or imprisoned for not more than 5 years, or both, if the offense involves—

(i) the importation or exportation of fish or wildlife or plants; or

(ii) the sale or purchase, offer of sale or purchase,

or commission of an act with intent to sell or purchase

fish or wildlife or plants with a market value greater than $350; and

(B) shall be fined under title 18, United States Code,

or imprisoned for not more than 1 year, or both, if the offense does not involve conduct described in subparagraph

(A).

(e) PERMIT SANCTIONS.—The Secretary may also suspend, modify, or cancel any Federal hunting or fishing license, permit, or

stamp, or any license or permit authorizing a person to import or

export fish or wildlife or plants (other than a permit or license

issued pursuant to the Fishery Conservation and Management Act

of 1976 2), or to operate a quarantine station or rescue center for

imported wildlife or plants, issued to any person who is convicted

of a criminal violation of any provision of this Act or any regulation

issued hereunder. The Secretary shall not be liable for the payments of any compensation, reimbursement, or damages in connec-
Sec. 5 LACEY ACT AMENDMENTS OF 1981 398

tion with the modification, suspension, or revocation of any licenses, permits, stamps, or other agreements pursuant to this section.

SEC. 5. ø16 U.S.C. 3374¿ FORFEITURE.

(a) IN GENERAL.—

(1) All fish or wildlife or plants imported, exported, transported, sold, received, acquired, or purchased contrary to the

provisions of section 3 of this Act (other than subsection 3(b)),

or any regulation issued pursuant thereto, shall be subject to

forfeiture to the United States notwithstanding any culpability

requirements for civil penalty assessment or criminal prosecution included in section 4 of this Act.

(2) All vessels, vehicles, aircraft, and other equipment used

to aid in the importing, exporting, transporting, selling, receiving, acquiring, or purchasing of fish or wildlife or plants in a

criminal violation of this Act for which a felony conviction is

obtained shall be subject to forfeiture to the United States if

(A) the owner of such vessel, vehicle, aircraft, or equipment

was at the time of the alleged illegal act a consenting party or

privy thereto or in the exercise of due care should have known

that such vessel, vehicle, aircraft, or equipment would be used

in a criminal violation of this Act, and (B) the violation involved the sale or purchase of, the offer of sale or purchase of,

or the intent to sell or purchase, fish or wildlife or plants.

(b) APPLICATION OF CUSTOMS LAWS.—All provisions of law relating to the seizure, forfeiture, and condemnation of property for

violation of the customs laws, the disposition of such property or

the proceeds from the sale thereof, and the remission or mitigation

of such forfeiture, shall apply to the seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of

this Act, insofar as such provisions of law are applicable and not

inconsistent with the provisions of this Act; except that all powers,

rights, and duties conferred or imposed by the customs laws upon

any officer or employee of the Treasury Department may, for the

purposes of this Act, also be exercised or performed by the Secretary or by such persons as he may designate: Provided, That any

warrant for search or seizure shall be issued in accordance with

rule 41 of the Federal Rules of Criminal Procedure.

(c) STORAGE COST.—Any person convicted of an offense, or assessed a civil penalty, under section 4 shall be liable for the costs

incurred in the storage, care, and maintenance of any fish or wildlife or plant seized in connection with the violation concerned.

SEC. 6. ø16 U.S.C. 3375¿ ENFORCEMENT.

(a) IN GENERAL.—The provisions of this Act and any regulations issued pursuant thereto shall be enforced by the Secretary,

the Secretary of Transportation, or the Secretary of the Treasury.

Such Secretary may utilize by agreement, with or without reimbursement, the personnel, services, and facilities of any other Federal agency or any State agency or Indian tribe for purposes of enforcing this Act.

(b) POWERS.—Any person authorized under subsection (a) to

enforce this Act may carry firearms; may, when enforcing this Act,

make an arrest without a warrant, in accordance with any guidelines which may be issued by the Attorney General, for any offense
399 LACEY ACT AMENDMENTS OF 1981 Sec. 6

1So in original. The semicolon should be a colon.

under the laws of the United States committed in the person’s

presence, or for the commission of any felony under the laws of the

United States, if the person has reasonable grounds to believe that

the person to be arrested has committed or is committing a felony;

may search and seize, with or without a warrant, in accordance

with any guidelines which may be issued by the Attorney General; 1 Provided, That an arrest for a felony violation of this Act

that is not committed in the presence or view of any such person

and that involves only the transportation, acquisition, receipt, purchase, or sale of fish or wildlife or plants taken or possessed in violation of any law or regulation of any State shall require a warrant;

may make an arrest without a warrant for a misdemeanor violation of this Act if he has reasonable grounds to believe that the person to be arrested is committing a violation in his presence or view;

and may execute and serve any subpena, arrest warrant, search

warrant issued in accordance with rule 41 of the Federal Rules of

Criminal Procedure, or other warrant of civil or criminal process

issued by any officer or court of competent jurisdiction for enforcement of this Act. Any person so authorized, in coordination with

the Secretary of the Treasury, may detain for inspection and inspect any vessel, vehicle, aircraft, or other conveyance or any package, crate, or other container, including its contents, upon the arrival of such conveyance or container in the United States or the

customs waters of the United States from any point outside the

United States or such customs waters, or, if such conveyance or

container is being used for exportation purposes, prior to departure

from the United States or the customs waters of the United States.

Such person may also inspect and demand the production of any

documents and permits required by the country of natal origin,

birth, or reexport of the fish or wildlife. Any fish, wildlife, plant,

property, or item seized shall be held by any person authorized by

the Secretary pending disposition of civil or criminal proceedings,

or the institution of an action in rem for forfeiture of such fish,

wildlife, plants, property, or item pursuant to section 5 of this Act;

except that the Secretary may, in lieu of holding such fish, wildlife,

plant, property, or item, permit the owner or consignee to post a

bond or other surety satisfactory to the Secretary.

(c) DISTRICT COURT JURISDICTION.—The several district courts

of the United States, including the courts enumerated in section

460 of title 28, United States Code, shall have jurisdiction over any

actions arising under this Act. The venue provisions of title 18 and

title 28 of the United States Code shall apply to any actions arising

under this Act. The judges of the district courts of the United

States and the United States magistrates may, within their respective jurisdictions, upon proper oath or affirmation showing probable

cause, issue such warrants or other process as may be required for

enforcement of this Act and any regulations issued thereunder.

(d) REWARDS AND CERTAIN INCIDENTAL EXPENSES.—Beginning

in fiscal year 1983, the Secretary or the Secretary of the Treasury

shall pay, from sums received as penalties, fines, or forfeitures of

property for any violation of this Act or any regulation issued hereunder (1) a reward to any person who furnishes information which

leads to an arrest, a criminal conviction, civil penalty assessment,
Sec. 7 LACEY ACT AMENDMENTS OF 1981 400

1See footnote to section 4(e).

or forfeiture of property for any violation of this Act or any regulation issued hereunder. The amount of the reward, if any, is to be

designated by the Secretary or the Secretary of the Treasury, as

appropriate. Any officer or employee of the United States or any

State or local government who furnishes information or renders

service in the performance of his official duties is ineligible for payment under this subsection, and (2) the reasonable and necessary

costs incurred by any person in providing temporary care for any

fish, wildlife, or plant pending the disposition of any civil or criminal proceeding alleging a violation of this Act with respect to that

fish, wildlife, or plant.

SEC. 7. ø16 U.S.C. 3376¿ ADMINISTRATION.

(a) REGULATIONS.—

(1) The Secretary, after consultation with the Secretary of

the Treasury, is authorized to issue such regulations, except as

provided in paragraph (2), as may be necessary to carry out

the provisions of section 4 and section 5 of this Act.

(2) The Secretaries of the Interior and Commerce shall

jointly promulgate specific regulations to implement the provisions of subsection 3(b) and of this Act for the marking and labeling of containers or packages containing fish or wildlife.

These regulations shall be in accordance with existing commercial practices.

(b) CONTRACT AUTHORITY.—Beginning in fiscal year 1983, to

the extent and in the amounts provided in advance in appropriations Acts, the Secretary may enter into such contracts, leases, cooperative agreements, or other transactions with any Federal or

State agency, Indian tribe, public or private institution, or other

person, as may be necessary to carry out the purposes of this Act.

SEC. 8. ø16 U.S.C. 3377¿ EXCEPTIONS.

(a) The provisions of paragraph (1) of subsection 3(a) of this

Act shall not apply to any activity regulated by a fishery management plan in effect under the Fishery Conservation and Management Act of 1976 (16 U.S.C. 1801 et seq.) 1. (b) The provisions of paragraphs (1), (2)(A), and (3)(A) of subsection 3(a) of this Act shall not apply to—

(1) any activity regulated by the Tuna Convention Act of

1950 (16 U.S.C. 951–961) or the Atlantic Tunas Convention

Act of 1975 (16 U.S.C. 971–971(h)); or

(2) any activity involving the harvesting of highly migratory species (as defined in paragraph (14) of section 3 of the

Fishery Conservation and Management Act of 1976 1) taken on

the high seas (as defined in paragraph (13) of such section 3)

if such species are taken in violation of the laws of a foreign

nation and the United States does not recognize the jurisdiction of the foreign nation over such species.

(c) The provisions of paragraph (2) of subsection 3(a) of this Act

shall not apply to the interstate shipment or transshipment

through Indian country as defined in section 1151 of title 18,

United States Code, or a State of any fish or wildlife or plant legally taken if the shipment is en route to a State in which the fish

or wildlife or plant may be legally possessed.
401 LACEY ACT AMENDMENTS OF 1981 Sec. 9

SEC. 9. ø16 U.S.C. 3378¿ MISCELLANEOUS PROVISIONS.

(a) EFFECT ON POWERS OF STATES.—Nothing in this Act shall

be construed to prevent the several States or Indian tribes from

making or enforcing laws or regulations not inconsistent with the

provisions of this Act.

(b) REPEALS.—The following provisions of law are repealed:

(1) The Act of May 20, 1926 (commonly known as the

Black Bass Act; 16 U.S.C. 851–856).

(2) Section 5 of the Act of May 25, 1900 (16 U.S.C. 667e),

and sections 43 and 44 of title 18, United States Code (commonly known as provisions of the Lacey Act).

(3) Sections 3054 and 3112 of title 18, United States Code.

(c) DISCLAIMERS.—Nothing in this Act shall be construed as—

(1) repealing, superseding, or modifying any provision of

Federal law other than those specified in subsection (b);

(2) repealing, superseding, or modifying any right, privilege, or immunity granted, reserved, or established pursuant to

treaty, statute, or executive order pertaining to any Indian

tribe, band, or community; or

(3) enlarging or diminishing the authority of any State or

Indian tribe to regulate the activities of persons within Indian

reservations.

(d) HUMANE SHIPMENT.—øAmends section 42(c) of title 18,

United States Code¿

(e) REWARD.—øAmends subsection 11(d) of the Endangered

Species Act of 1973¿

* * * * * * *

(g) The Secretary of the Interior is authorized to pay from

agency appropriations the travel expense of newly appointed special agents of the United States Fish and Wildlife Service and the

transportation expense of household goods and personal effects

from place of residence at time of selection to first duty station to

the extent authorized by section 5724 of title 5 for all such special

agents appointed after January 1, 1977.

(h) The Secretary shall identify the funds utilized to enforce

this Act and any regulations thereto as a specific appropriations

item in the Department of the Interior appropriations budget proposal to the Congress.

403

FISH AND WILDLIFE COORDINATION ACT

405

1The first section of Public Law 85–624 (16 U.S.C. 661 note; 72 Stat. 563) provided as follows:

‘‘That the Act of March 10, 1934, as amended, and as further amended by this Act may be cited

as the ‘Fish and Wildlife Coordination Act’.’’.

FISH AND WILDLIFE COORDINATION ACT 1

[Chapter 55, Approved March 10, 1934, 48 Stat. 491]

[Amended through Public Law 89–724, July 9, 1965]

* * * * * * *

AN ACT To promote the conservation of wildlife, fish, and game, and for other

purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø16 U.S.C. 661¿

For the purpose of recognizing the vital contribution of our wildlife

resources to the Nation, the increasing public interest and significance thereof due to expansion of our national economy and other

factors, and to provide that wildlife conservation shall receive equal

consideration and be coordinated with other features of water-resource development programs through the effectual and harmonious planning, development, maintenance, and coordination of

wildlife conservation and rehabilitation for the purposes of this Act

in the United States, its Territories and possessions, the Secretary

of the Interior is authorized (1) to provide assistance to, and cooperate with, Federal, State, and public or private agencies and organizations in the development, protection, rearing, and stocking of

all species of wildlife, resources thereof, and their habitat, in controlling losses of the same from disease or other causes, in minimizing damages from overabundant species, in providing public

shooting and fishing areas, including easements across public lands

for access thereto, and in carrying out other measures necessary to

effectuate the purposes of this Act; (2) to make surveys and investigations of the wildlife of the public domain, including lands and

waters or interests therein acquired or controlled by any agency of

the United States; and (3) to accept donations of land and contributions of funds in furtherance of the purposes of this Act.

SEC. 2. ø16 U.S.C. 662¿ (a) Except as hereafter stated in subsection (h) of this section, whenever the waters of any stream or

other body of water are proposed or authorized to be impounded,

diverted, the channel deepened, or the stream or other body of

water otherwise controlled or modified for any purpose whatever,

including navigation and drainage, by any department or agency of

the United States, or by any public or private agency under Federal permit or license, such department or agency first shall consult with the United States Fish and Wildlife Service, Department

of the Interior, and with the head of the agency exercising administration over the wildlife resources of the particular State wherein
Sec. 2 FISH AND WILDLIFE COORDINATION ACT 406

the impoundment, diversion, or other control facility is to be constructed, with a view to the conservation of wildlife resources by

preventing loss of and damage to such resources as well as providing for the development and improvement thereof in connection

with such water-resource development.

(b) In furtherance of such purposes, the reports and recommendations of the Secretary of the Interior on the wildlife aspects of such projects, and any report of the head of the State agency exercising administration over the wildlife resources of the

State, based on surveys and investigations conducted by the United

States Fish and Wildlife Service and such State agency for the purpose of determining the possible damage to wildlife resources and

for the purpose of determining means and measures that should be

adopted to prevent the loss of or damage to such wildlife resources,

as well as to provide concurrently for the development and improvement of such resources, shall be made an integral part of any

report prepared or submitted by any agency of the Federal Government responsible for engineering surveys and construction of such

projects when such reports are presented to the Congress or to any

agency or person having the authority or the power, by administrative action or otherwise, (1) to authorize the construction of waterresource development projects or (2) to approve a report on the

modification or supplementation of plans for previously authorized

projects, to which this Act applies. Recommendations of the Secretary of the Interior shall be as specific as is practicable with respect to features recommended for wildlife conservation and development, lands to be utilized or acquired for such purposes, the results expected, and shall describe the damage to wildlife attributable to the project and the measures proposed for mitigating or

compensating for these damages. The reporting officers in project

reports of the Federal agencies shall give full consideration to the

report and recommendations of the Secretary of the Interior and to

any report of the State agency on the wildlife aspects of such

projects, and the project plan shall include such justifiable means

and measures for wildlife purposes as the reporting agency finds

should be adopted to obtain maximum overall project benefits.

(c) Federal agencies authorized to construct or operate watercontrol projects are hereby authorized to modify or add to the

structures and operations of such projects, the construction of

which has not been substantially completed on the date of enactment of the Fish and Wildlife Coordination Act, and to acquire

lands in accordance with section 3 of this Act, in order to accommodate the means and measures for such conservation of wildlife resources as an integral part of such projects: Provided, That for

projects authorized by a specific Act of Congress before the date of

enactment of the Fish and Wildlife Coordination Act (1) such modification or land acquisition shall be compatible with the purposes

for which the project was authorized; (2) the cost of such modifications or land acquisition, as means and measures to prevent loss

of and damage to wildlife resources to the extent justifiable, shall

be an integral part of the cost of such projects; and (3) the cost of

such modifications or land acquisition for the development or improvement of wildlife resources may be included to the extent justifiable, and an appropriate share of the cost of any project may be
407 FISH AND WILDLIFE COORDINATION ACT Sec. 3

allocated for this purpose with a finding as to the part of such allocated cost, if any, to be reimbursed by non-Federal interests.

(d) The cost of planning for and the construction or installation

and maintenance of such means and measures adopted to carry out

the conservation purposes of this section shall constitute an integral part of the cost of such projects: Provided, That such cost attributable to the development and improvement of wildlife shall not

extend beyond that necessary for (1) land acquisition, (2) facilities

as specifically recommended in water resource project reports, (3)

modification of the project, and (4) modification of project operations, but shall not include the operation of wildlife facilities.

(e) In the case of construction by a Federal agency, that agency

is authorized to transfer to the United States Fish and Wildlife

Service, out of appropriations or other funds made available for investigations, engineering, or construction, such funds as may be

necessary to conduct all or part of the investigations required to

carry out the purposes of this section.

(f) In addition to other requirements, there shall be included

in any report submitted to Congress supporting a recommendation

for authorization of any new project for the control or use of water

as described herein (including any new division of such project or

new supplemental works on such project) an estimation of the wildlife benefits or losses to be derived therefrom including benefits to

be derived from measures recommended specifically for the development and improvement of wildlife resources, the cost of providing

wildlife benefits (including the cost of additional facilities to be installed or lands to be acquired specifically for that particular phase

of wildlife conservation relating to the development and improvement of wildlife), the part of the cost of joint-use facilities allocated

to wildlife, and the part of such costs, if any, to reimbursed by nonFederal interests.

(g) The provisions of this section shall be applicable with respect to any project for the control or use of water as prescribed

herein, or any unit of such project authorized before or after the

date of enactment of the Fish and Wildlife Coordination Act for

planning or construction, but shall not be applicable to any project

or unit thereof authorized before the date of enactment of the Fish

and Wildlife Coordination Act if the construction of the particular

project or unit thereof has been substantially completed. A project

or unit thereof shall be considered to be substantially completed

when sixty percent or more of the estimated construction cost has

been obligated for expenditure.

(h) The provisions of this Act shall not be applicable to those

projects for the impoundment of water where the maximum surface

area of such impoundments is less than ten acres, nor to activities

for or in connection with programs primarily for land management

and use carried out by Federal agencies with respect to Federal

lands under their jurisdiction.

SEC. 3. ø16 U.S.C. 663¿ (a) Subject to the exceptions prescribed

in section 2(h) of this Act, whenever the waters of any stream or

other body of water are impounded, diverted, the channel deepened, or the stream or other body of water otherwise controlled or

modified for any purpose whatever, including navigation and drainage, by any department or agency of the United States, adequate

provision, consistent with the primary purposes of such impound-
Sec. 3 FISH AND WILDLIFE COORDINATION ACT 408

ment, diversion, or other control, shall be made for the use thereof,

together with any areas of land, water, or interests therein, acquired or administered by a Federal agency in connection therewith, for the conservation, maintenance, and management of wildlife resources thereof, and its habitat thereon, including the development and improvement of such wildlife resources pursuant to the

provisions of section 2 of this Act.

(b) The use of such waters, land, or interests therein for wildlife conservation purposes shall be in accordance with general

plans approved jointly (1) by the head off the particular department or agency exercising primary administration in each instance,

(2) by the Secretary of the Interior, and (3) by the head of the agency exercising the administration of the wildlife resources of the particular State wherein the waters and areas lie. Such waters and

other interests shall be made available, without cost for administration, by such State agency, if the management of the properties

relate to the conservation of wildlife other than migratory birds, or

by the Secretary of the Interior, for administration in such manner

as he may deem advisable, where the particular properties have

value in carrying out the national migratory bird management program: Provided, That nothing in this section shall be construed as

affecting the authority of the Secretary of Agriculture to cooperate

with the States or in making lands available to the States with respect to the management of wildlife and wildlife habitat on lands

administered by him.

(c) When consistent with the purposes of this Act and the reports and findings of the Secretary of the Interior prepared in accordance with section 2, land, waters, and interests therein may be

acquired by Federal construction agencies for the wildlife conservation and development purposes of this Act in connection with a

project as reasonably needed to preserve and assure for the public

benefit the wildlife potentials of the particular project area: Provided, That before properties are acquired for this purpose, the

probable extent of such acquisition shall be set forth, along with

other data necessary for project authorization, in a report submitted to the Congress, or in the case of a project previously authorized, no such properties shall be acquired unless specifically

authorized by Congress, if specific authority for such acquisition is

recommended by the construction agency.

(d) Properties acquired for the purposes of this section shall

continue to be used for such purposes, and shall not become the

subject of exchange or other transactions if such exchange or other

transaction would defeat the initial purpose of their acquisition.

(e) Federal lands acquired or withdrawn for Federal water-resource purposes and made available to the States or to the Secretary of the Interior for wildlife management purposes, shall be

made available for such purposes in accordance with this Act, notwithstanding other provisions of law.

(f) Any lands acquired pursuant to this section by any Federal

agency within the exterior boundaries of a national forest shall,

upon acquisition, be added to and become national forest lands,

and shall be administered as a part of the forest within which they

are situated, subject to all laws applicable to lands acquired under

the provisions of the Act of March 1, 1911 (36 Stat. 961), unless
409 FISH AND WILDLIFE COORDINATION ACT Sec. 5A

1Section 10(b) of Public Law 102–285 (106 Stat. 172) provides as follows:

‘‘(b) UNITED STATES BUREAU OF MINES.—The Bureau of Mines established by the Act of

May 16, 1910 (30 U.S.C. 1), is designated as and shall hereafter be known as the United States

Bureau of Mines.’’.

such lands are acquired to carry out the National Migratory Bird

Management Program. SEC. 4. ø16 U.S.C. 664¿ Such areas as are made available to

the Secretary of the Interior for the purposes of this Act, pursuant

to sections 1 and 3 or pursuant to any other authorization, shall

be administered by him directly or in accordance with cooperative

agreements entered into pursuant to the provisions of the first section of this Act and in accordance with such rules and regulations

for the conservation, maintenance, and management of wildlife, resources thereof, and its habitat thereon, as may be adopted by the

Secretary in accordance with general plans approved jointly by the

Secretary of the Interior and the head of the department or agency

exercising primary administration of such areas: Provided, That

such rules and regulations shall not be inconsistent with the laws

for the protection of fish and game of the States in which such area

is situated (16 U.S.C., sec. 664): Provided further, That lands having value to the National Migratory Bird Management Program

may, pursuant to general plans, be made available without cost directly to the State agency having control over wildlife resources, if

it is jointly determined by the Secretary of the Interior and such

State agency that this would be in the public interest: And provided further, That the Secretary of the Interior shall have the

right to assume the management and administration of such lands

in behalf of the National Migratory Bird Management Program if

the Secretary finds that the State agency has withdrawn from or

otherwise relinquished such management and administration.

SEC. 5. ø16 U.S.C. 665¿ The Secretary of the Interior, through

the Fish an Wildlife Service and the Bureau of Mines, 1 is authorized to make such investigations as he deems necessary to determine the effect of domestic sewage, mine, petroleum, and industrial

wastes, erosion, silt, and other polluting substances on wildlife, and

to make report to the Congress concerning such investigations and

of recommendations for alleviating dangerous and undesirable effects of such pollution. These investigations shall include (1) the determination of standards of water quality for the maintenance of

wildlife; (2) the study of methods of abating and preventing pollution, including methods for the recovery of useful or marketable

products and byproducts of wastes; and (3) the collation and distribution of data on the progress and results of such investigations

for the use on Federal, State, municipal, and private agencies, individuals, organizations, or enterprises.

SEC. 5A. ø16 U.S.C. 665A¿ In the management of existing facilities (including locks, dams, and pools) in the Mississippi River

between Rock Island, Illinois, and Minneapolis, Minnesota, administered by the United States Corps of Engineers of the Department

of the Army, that Department is hereby directed to give full consideration and recognition to the needs of fish and other wildlife resources and their habitat dependent on such waters, without increasing additional liability to the Government, and, to the maximum extent possible without causing damage to levee and drainage districts, adjacent railroads and highways, farm lands, and
Sec. 6 FISH AND WILDLIFE COORDINATION ACT 410

dam structures, shall generally operate and maintain pool levels as

though navigation was carried on throughout the year.

SEC. 6. ø16 U.S.C. 666¿ There is authorized to be appropriated

from time to time, out of any money in the Treasury not otherwise

appropriated, such amounts as may be necessary to carry out the

provisions of this Act and regulations made pursuant thereto, including the construction of such facilities, buildings, and other improvements necessary for economical administration of areas made

available to the Secretary of the Interior under this Act, and the

employment in the city of Washington and elsewhere of such persons and means as the Secretary of the Interior may deem necessary for such purposes.

SEC. 7. ø16 U.S.C. 666a¿ Any person who shall violate any rule

or regulation promulgated in accordance with this Act shall be

guilty of a misdemeanor and upon conviction thereof shall be fined

not more than $500 or imprisoned for not more than one year, or

both.

SEC. 8. ø16 U.S.C. 666b¿ The terms ‘‘wildlife’’ and ‘‘wildlife resources’’ as used herein include birds, fishes, mammals, and all

other classes of wild animals and all types of aquatic and land

vegetation upon which wildlife is dependent.

SEC. 9. ø16 U.S.C. 666c¿ The provisions of this Act shall not

apply to the Tennessee Valley Authority.
411

HIGH SEAS FISHING COMPLIANCE ACT OF 1995

413

HIGH SEAS FISHING COMPLIANCE ACT OF 1995

[Title I of Public Law 104–43, Nov. 3, 1995, 109 Stat. 367]

[Amended through Public Law 106–562, December 23, 2000]

AN ACT To amend the Fishermen’s Protective Act.

* * * * * * *

TITLE I—HIGH SEAS FISHING COMPLIANCE

SEC. 101. ø16 U.S.C. 5501 note¿ SHORT TITLE.

This title may be cited as the ‘‘High Seas Fishing Compliance

Act of 1995’’.

SEC. 102. ø16 U.S.C. 5501¿ PURPOSE.

It is the purpose of this Act—

(1) to implement the Agreement to Promote Compliance

with International Conservation and Management Measures

by Fishing Vessels on the High Seas, adopted by the Conference of the Food and Agriculture Organization of the United

Nations on November 24, 1993; and

(2) to establish a system of permitting, reporting, and regulation for vessels of the United States fishing on the high

seas.

SEC. 103. ø16 U.S.C. 5502¿ DEFINITIONS.

As used in this Act—

(1) The term ‘‘Agreement’’ means the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, adopted by the Conference of the Food and Agriculture Organization

of the United Nations on November 24, 1993.

(2) The term ‘‘FAO’’ means the Food and Agriculture Organization of the United Nations.

(3) The term ‘‘high seas’’ means the waters beyond the territorial sea or exclusive economic zone (or the equivalent) of

any nation, to the extent that such territorial sea or exclusive

economic zone (or the equivalent) is recognized by the United

States.

(4) The term ‘‘high seas fishing vessel’’ means any vessel

of the United States or subject to the jurisdiction of the United

States used or intended for use—

(A) on the high seas;

(B) for the purpose of the commercial exploitation of

living marine resources; and

(C) as a harvesting vessel, as a mother ship, or as any

other support vessel directly engaged in a fishing operation.
Sec. 103 HIGH SEAS FISHING COMPLIANCE ACT OF 1995 414

(5) The term ‘‘international conservation and management

measures’’ means measures to conserve or manage one or more

species of living marine resources that are adopted and applied

in accordance with the relevant rules of international law, as

reflected in the 1982 United Nations Convention on the Law

of the Sea, and that are recognized by the United States. Such

measures may be adopted by global, regional, or sub-regional

fisheries organizations, subject to the rights and obligations of

their members, or by treaties or other international agreements.

(6) The term ‘‘length’’ means—

(A) for any high seas fishing vessel built after July 18,

1982, 96 percent of the total length on a waterline at 85

percent of the least molded depth measured from the top

of the keel, or the length from the foreside of the stem to

the axis of the rudder stock on that waterline, if that is

greater, except that in ships designed with a rake of keel

the waterline on which this length is measured shall be

parallel to the designed waterline; and

(B) for any high seas fishing vessel built before July

18, 1982, registered length as entered on the vessel’s documentation.

(7) The term ‘‘person’’ means any individual (whether or

not a citizen or national of the United States), any corporation,

partnership, association, or other entity (whether or not organized or existing under the laws of any State), and any Federal, State, local, or foreign government or any entity of any

such government.

(8) The term ‘‘Secretary’’ means the Secretary of Commerce.

(9) The term ‘‘vessel of the United States’’ means—

(A) a vessel documented under chapter 121 of title 46,

United States Code, or numbered in accordance with chapter 123 of title 46, United States Code;

(B) a vessel owned in whole or part by—

(i) the United States or a territory, commonwealth, or possession of the United States;

(ii) a State or political subdivision thereof;

(iii) a citizen or national of the United States; or

(iv) a corporation created under the laws of the

United States or any State, the District of Columbia,

or any territory, commonwealth, or possession of the

United States; unless the vessel has been granted the

nationality of a foreign nation in accordance with article 92 of the 1982 United Nations Convention on the

Law of the Sea and a claim of nationality or registry

for the vessel is made by the master or individual in

charge at the time of the enforcement action by an officer or employee of the United States authorized to

enforce applicable provisions of the United States law;

and

(C) a vessel that was once documented under the laws

of the United States and, in violation of the laws of the

United States, was either sold to a person not a citizen of

the United States or placed under foreign registry or a for-
415 HIGH SEAS FISHING COMPLIANCE ACT OF 1995 Sec. 104

eign flag, whether or not the vessel has been granted the

nationality of a foreign nation.

(10) The terms ‘‘vessel subject to the jurisdiction of the

United States’’ and ‘‘vessel without nationality’’ have the same

meaning as in section 3(c) of the Maritime Drug Law Enforcement Act (46 U.S.C. 1903(c)).

SEC. 104. ø16 U.S.C. 5503¿ PERMITTING.

(a) IN GENERAL.—No high seas fishing vessel shall engage in

harvesting operations on the high seas unless the vessel has on

board a valid permit issued under this section.

(b) ELIGIBILITY.—

(1) Any vessel of the United States is eligible to receive a

permit under this section, unless the vessel was previously authorized to be used for fishing on the high seas by a foreign

nation, and

(A) the foreign nation suspended such authorization

because the vessel undermined the effectiveness of international conservation and management measures, and the

suspension has not expired; or

(B) the foreign nation, within the last three years preceding application for a permit under this section, withdrew such authorization because the vessel undermined

the effectiveness of international conservation and management measures.

(2) The restriction in paragraph (1) does not apply if ownership of the vessel has changed since the vessel undermined

the effectiveness of international conservation and management measures, and the new owner has provided sufficient evidence to the Secretary demonstrating that the previous owner

or operator has no further legal, beneficial or financial interest

in, or control of, the vessel.

(3) The restriction in paragraph (1) does not apply if the

Secretary makes a determination that issuing a permit would

not subvert the purposes of the Agreement.

(4) The Secretary may not issue a permit to a vessel unless

the Secretary is satisfied that the United States will be able

to exercise effectively its responsibilities under the Agreement

with respect to that vessel.

(c) APPLICATION.—

(1) The owner or operator of a high seas fishing vessel may

apply for a permit under this section by completing an application form prescribed by the Secretary.

(2) The application form shall contain—

(A) the vessel’s name, previous names (if known), official numbers, and port of record;

(B) the vessel’s previous flags (if any);

(C) the vessel’s International Radio Call Sign (if any);

(D) the names and addresses of the vessel’s owners

and operators;

(E) where and when the vessel was built;

(F) the type of vessel;

(G) the vessel’s length; and

(H) any other information the Secretary requires for

the purposes of implementing the Agreement.
Sec. 105 HIGH SEAS FISHING COMPLIANCE ACT OF 1995 416

1So in law. Section 211 of the Department of Commerce and Related Agencies Appropriations

Act, 1997 (as contained in section 101(a), title I of Division A of Public Law 104–208; 110 Stat.

3009–41) provides:

SEC. 211. (a) Effective 15 days after the enactment of the Sustainable Fisheries Act, section

1 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801) shall be amended to read as follows: ‘‘That this Act may be cited as the ‘Magnuson-Stevens Fishery Conserva- tion and Management Act’.’’

(b) Effective 15 days after the enactment of the Sustainable Fisheries Act, all references to

the Magnuson Fishery Conservation and Management Act shall be redesignated as references

to the Magnuson-Stevens Fishery Conservation and Management Act.

Since such section did not actually amend each occurrence of the short title in law, the former

short title appears here.

(d) CONDITIONS.—The Secretary shall establish such conditions

and restrictions on each permit issued under this section as are

necessary and appropriate to carry out the obligations of the

United States under the Agreement, including but not limited to

the following:

(1) The vessel shall be marked in accordance with the FAO

Standard Specifications for the Marking and Identification of

Fishing Vessels, or with regulations issued under section 305

of the Magnuson Fishery Conservation and Management Act 1

(16 U.S.C. 1855); and

(2) The permit holder shall report such information as the

Secretary by regulation requires, including area of fishing operations and catch statistics. The Secretary shall promulgate

regulations concerning conditions under which information

submitted under this paragraph may be released.

(e) FEES.— (1) The Secretary shall by regulation establish the level of

fees to be charged for permits issued under this section. The

amount of any fee charged for a permit issued under this section shall not exceed the administrative costs incurred in

issuing such permits. The permitting fee may be in addition to

any fee required under any regional permitting regime applicable to high seas fishing vessels.

(2) The fees authorized by paragraph (1) shall be collected

and credited to the Operations, Research and Facilities account

of the National Oceanic and Atmospheric Administration. Fees

collected under this subsection shall be available for the necessary expenses of the National Oceanic and Atmospheric Administration in implementing this Act, and shall remain available until expended.

(f) DURATION.—A permit issued under this section is valid for

5 years. A permit issued under this section is void in the event the

vessel is no longer eligible for United States documentation, such

documentation is revoked or denied, or the vessel is deleted from

such documentation.

SEC. 105. ø16 U.S.C. 5504¿ RESPONSIBILITIES OF THE SECRETARY.

(a) RECORD.—The Secretary shall maintain an automated file

or record of high seas fishing vessels issued permits under section

104, including all information submitted under section 104(c)(2).

(b) INFORMATION TO FAO.—The Secretary, in cooperation with

the Secretary of State and the Secretary of the department in

which the Coast Guard is operating, shall—

(1) make available to FAO information contained in the

record maintained under subsection (a);

(2) promptly notify FAO of changes in such information;
417 HIGH SEAS FISHING COMPLIANCE ACT OF 1995 Sec. 106

1See footnote to section 104(d)(1).

(3) promptly notify FAO of additions to or deletions from

the record, and the reason for any deletion;

(4) convey to FAO information relating to any permit

granted under section 104(b)(3), including the vessel’s identity,

owner or operator, and factors relevant to the Secretary’s determination to issue the permit;

(5) report promptly to FAO all relevant information regarding any activities of high seas fishing vessels that undermine the effectiveness of international conservation and management measures, including the identity of the vessels and

any sanctions imposed; and

(6) provide the FAO a summary of evidence regarding any

activities of foreign vessels that undermine the effectiveness of

international conservation and management measures.

(c) INFORMATION TO FLAG NATIONS.—If the Secretary, in cooperation with the Secretary of State and the Secretary of the department in which the Coast Guard is operating, has reasonable

grounds to believe that a foreign vessel has engaged in activities

undermining the effectiveness of international conservation and

management measures, the Secretary shall—

(1) provide to the flag nation information, including appropriate evidentiary material, relating to those activities; and

(2) when such foreign vessel is voluntarily in a United

States port, promptly notify the flag nation and, if requested

by the flag nation, make arrangements to undertake such lawful investigatory measures as may be considered necessary to

establish whether the vessel has been used contrary to the provisions of the Agreement.

(d) REGULATIONS.—The Secretary, after consultation with the

Secretary of State and the Secretary of the department in which

the Coast Guard is operating, may promulgate such regulations, in

accordance with section 553 of title 5, United States Code, as may

be necessary to carry out the purposes of the Agreement and this

title. The Secretary shall coordinate such regulations with any

other entities regulating high seas fishing vessels, in order to minimize duplication of permit application and reporting requirements.

To the extent practicable, such regulations shall also be consistent

with regulations implementing fishery management plans under

the Magnuson Fishery Conservation and Management Act 1 (16

U.S.C. 1801 et seq.).

(e) NOTICE OF INTERNATIONAL CONSERVATION AND MANAGEMENT MEASURES.—The Secretary, in consultation with the Secretary of State, shall publish in the Federal Register, from time to

time, a notice listing international conservation and management

measures recognized by the United States.

SEC. 106. ø16 U.S.C. 5505¿ UNLAWFUL ACTIVITIES.

It is unlawful for any person subject to the jurisdiction of the

United States—

(1) to use a high seas fishing vessel on the high seas in

contravention of international conservation and management

measures described in section 105(e);
Sec. 107 HIGH SEAS FISHING COMPLIANCE ACT OF 1995 418

(2) to use a high seas fishing vessel on the high seas, unless the vessel has on board a valid permit issued under section 104;

(3) to use a high seas fishing vessel in violation of the conditions or restrictions of a permit issued under section 104;

(4) to falsify any information required to be reported, communicated, or recorded pursuant to this title or any regulation

issued under this title, or to fail to submit in a timely fashion

any required information, or to fail to report to the Secretary

immediately any change in circumstances that has the effect of

rendering any such information false, incomplete, or misleading;

(5) to refuse to permit an authorized officer to board a high

seas fishing vessel subject to such person’s control for purposes

of conducting any search or inspection in connection with the

enforcement of this title or any regulation issued under this

title;

(6) to forcibly assault, resist, oppose, impede, intimidate, or

interfere with an authorized officer in the conduct of any

search or inspection described in paragraph (5);

(7) to resist a lawful arrest or detention for any act prohibited by this section;

(8) to interfere with, delay, or prevent, by any means, the

apprehension, arrest, or detection of another person, knowing

that such person has committed any act prohibited by this section;

(9) to ship, transport, offer for sale, sell, purchase, import,

export, or have custody, control, or possession of, any living

marine resource taken or retained in violation of this title or

any regulation or permit issued under this title; or

(10) to violate any provision of this title or any regulation

or permit issued under this title.

SEC. 107. ø16 U.S.C. 5506¿ ENFORCEMENT PROVISIONS.

(a) DUTIES OF SECRETARIES.—This title shall be enforced by

the Secretary of Commerce and the Secretary of the department in

which the Coast Guard is operating. Such Secretaries may by

agreement utilize, on a reimbursable basis or otherwise, the personnel, services, equipment (including aircraft and vessels), and facilities of any other Federal agency, or of any State agency, in the

performance of such duties. Such Secretaries shall, and the head

of any Federal or State agency that has entered into an agreement

with either such Secretary under this section may (if the agreement so provides), authorize officers to enforce the provisions of

this title or any regulation or permit issued under this title.

(b) DISTRICT COURT JURISDICTION.—The district courts of the

United States shall have exclusive jurisdiction over any case or

controversy arising under the provisions of this title. In the case of

Guam, and any Commonwealth, territory, or possession of the

United States in the Pacific Ocean, the appropriate court is the

United States District Court for the District of Guam, except that

in the case of American Samoa, the appropriate court is the United

States District Court for the District of Hawaii.

(c) POWERS OF ENFORCEMENT OFFICERS.—
419 HIGH SEAS FISHING COMPLIANCE ACT OF 1995 Sec. 108

1So in law. Probably should be ‘‘; and’’.

(1) Any officer who is authorized under subsection (a) to

enforce the provisions of this title may—

(A) with or without a warrant or other process—

(i) arrest any person, if the officer has reasonable

cause to believe that such person has committed an

act prohibited by paragraph (6), (7), (8), or (9) of section 106;

(ii) board, and search or inspect, any high seas

fishing vessel;

(iii) seize any high seas fishing vessel (together

with its fishing gear, furniture, appurtenances, stores,

and cargo) used or employed in, or with respect to

which it reasonably appears that such vessel was used

or employed in, the violation of any provision of this

title or any regulation or permit issued under this

title;

(iv) seize any living marine resource (wherever

found) taken or retained, in any manner, in connection

with or as a result of the commission of any act prohibited by section 106; 1

(v) seize any other evidence related to any violation of any provision of this title or any regulation or

permit issued under this title;

(B) execute any warrant or other process issued by

any court of competent jurisdiction; and

(C) exercise any other lawful authority.

(2) Subject to the direction of the Secretary, a person

charged with law enforcement responsibilities by the Secretary

who is performing a duty related to enforcement of a law regarding fisheries or other marine resources may make an arrest without a warrant for an offense against the United States

committed in his presence, or for a felony cognizable under the

laws of the United States, if he has reasonable grounds to believe that the person to be arrested has committed or is committing a felony.

(d) ISSUANCE OF CITATIONS.—If any authorized officer finds

that a high seas fishing vessel is operating or has been operated

in violation of any provision of this title, such officer may issue a

citation to the owner or operator of such vessel in lieu of proceeding

under subsection (c). If a permit has been issued pursuant to this

title for such vessel, such officer shall note the issuance of any citation under this subsection, including the date thereof and the reason therefor, on the permit. The Secretary shall maintain a record

of all citations issued pursuant to this subsection.

(e) LIABILITY FOR COSTS.—Any person assessed a civil penalty

for, or convicted of, any violation of this Act shall be liable for the

cost incurred in storage, care, and maintenance of any living ma- rine resource or other property seized in connection with the violation.

SEC. 108. ø16 U.S.C. 5507¿ CIVIL PENALTIES AND PERMIT SANCTIONS.

(a) CIVIL PENALTIES.— (1) Any person who is found by the Secretary, after notice

and opportunity for a hearing in accordance with section 554
Sec. 108 HIGH SEAS FISHING COMPLIANCE ACT OF 1995 420

1So in law. The margin beginning with the text ‘‘the Secretary may—’’ through the end probably should be moved 2 ems to left so as to appear flush on the margin for paragraph (1).

of title 5, United States Code, to have committed an act prohibited by section 106 shall be liable to the United States for a

civil penalty. The amount of the civil penalty shall not exceed

$100,000 for each violation. Each day of a continuing violation

shall constitute a separate offense. The amount of such civil

penalty shall be assessed by the Secretary by written notice.

In determining the amount of such penalty, the Secretary shall

take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the

violation, the degree of culpability, any history of prior offenses, and such other matters as justice may require.

(2) The Secretary may compromise, modify, or remit, with

or without conditions, any civil penalty that is subject to imposition or that has been imposed under this section.

(b) PERMIT SANCTIONS.—

(1) In any case in which—

(A) a vessel of the United States has been used in the

commission of an act prohibited under section 106;

(B) the owner or operator of a vessel or any other person who has been issued or has applied for a permit under

section 104 has acted in violation of section 106; or

(C) any amount in settlement of a civil forfeiture imposed on a high seas fishing vessel or other property, or

any civil penalty or criminal fine imposed on a high seas

fishing vessel or on an owner or operator of such a vessel

or on any other person who has been issued or has applied

for a permit under any fishery resource statute enforced by

the Secretary, has not been paid and is overdue, 1 the Secretary may—

(i) revoke any permit issued to or applied for by

such vessel or person under this title, with or without

prejudice to the issuance of subsequent permits;

(ii) suspend such permit for a period of time considered by the Secretary to be appropriate;

(iii) deny such permit; or

(iv) impose additional conditions and restrictions

on such permit.

(2) In imposing a sanction under this subsection, the Secretary shall take into account—

(A) the nature, circumstances, extent, and gravity of

the prohibited acts for which the sanction is imposed; and

(B) with respect to the violator, the degree of culpability, any history of prior offenses, and such other matters

as justice may require.

(3) Transfer of ownership of a high seas fishing vessel, by

sale or otherwise, shall not extinguish any permit sanction

that is in effect or is pending at the time of transfer of ownership. Before executing the transfer of ownership of a vessel, by

sale or otherwise, the owner shall disclose in writing to the

prospective transferee the existence of any permit sanction

that will be in effect or pending with respect to the vessel at

the time of the transfer. The Secretary may waive or com-
421 HIGH SEAS FISHING COMPLIANCE ACT OF 1995 Sec. 108

promise a sanction in the case of a transfer pursuant to court

order.

(4) In the case of any permit that is suspended under this

subsection for nonpayment of a civil penalty or criminal fine,

the Secretary shall reinstate the permit upon payment of the

penalty or fine and interest thereon at the prevailing rate.

(5) No sanctions shall be imposed under this subsection

unless there has been prior opportunity for a hearing on the

facts underlying the violation for which the sanction is imposed, either in conjunction with a civil penalty proceeding

under this section or otherwise.

(c) HEARING.—For the purposes of conducting any hearing

under this section, the Secretary may issue subpoenas for the attendance and testimony of witnesses and the production of relevant

papers, books, and documents, and may administer oaths. Witnesses summoned shall be paid the same fees and mileage that are

paid to witnesses in the courts of the United States. In case of contempt or refusal to obey a subpoena served upon any person pursuant to this subsection, the district court of the United States for

any district in which such person is found, resides, or transacts

business, upon application by the United States and after notice to

such person, shall have jurisdiction to issue an order requiring

such person to appear and give testimony before the Secretary or

to appear and produce documents before the Secretary, or both,

and any failure to obey such order of the court may be punished

by such court as a contempt thereof.

(d) JUDICIAL REVIEW.—Any person against whom a civil penalty is assessed under subsection (a) or against whose vessel a permit sanction is imposed under subsection (b) (other than a permit

suspension for nonpayment of penalty or fine) may obtain review

thereof in the United States district court for the appropriate district by filing a complaint against the Secretary in such court within 30 days from the date of such penalty or sanction. The Secretary

shall promptly file in such court a certified copy of the record upon

which such penalty or sanction was imposed, as provided in section

2112 of title 28, United States Code. The findings and order of the

Secretary shall be set aside by such court if they are not found to

be supported by substantial evidence, as provided in section 706(2)

of title 5, United States Code.

(e) COLLECTION.—

(1) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order, or

after the appropriate court has entered final judgment in favor

of the Secretary, the matter shall be referred to the Attorney

General, who shall recover the amount assessed in any appropriate district court of the United States. In such action the validity and appropriateness of the final order imposing the civil

penalty shall not be subject to review.

(2) A high seas fishing vessel (including its fishing gear,

furniture, appurtenances, stores, and cargo) used in the commission of an act prohibited by section 106 shall be liable in

rem for any civil penalty assessed for such violation under subsection (a) and may be proceeded against in any district court

of the United States having jurisdiction thereof. Such penalty

shall constitute a maritime lien on such vessel that may be re-
Sec. 109 HIGH SEAS FISHING COMPLIANCE ACT OF 1995 422

covered in an action in rem in the district court of the United

States having jurisdiction over the vessel.

SEC. 109. ø16 U.S.C. 5508¿ CRIMINAL OFFENSES.

(a) OFFENSES.—A person is guilty of an offense if the person

commits any act prohibited by paragraph (6), (7), (8), or (9) of section 106.

(b) PUNISHMENT.—Any offense described in subsection (a) is a

class A misdemeanor punishable by a fine under title 18, United

States Code, or imprisonment for not more than one year, or both;

except that if in the commission of any offense the person uses a

dangerous weapon, engages in conduct that causes bodily injury to

any authorized officer, or places any such officer in fear of imminent bodily injury, the offense is a felony punishable by a fine

under title 18, United States Code, or imprisonment for not more

than 10 years, or both.

SEC. 110. ø16 U.S.C. 5509¿ FORFEITURES.

(a) IN GENERAL.—Any high seas fishing vessel (including its

fishing gear, furniture, appurtenances, stores, and cargo) used, and

any living marine resources (or the fair market value thereof)

taken or retained, in any manner, in connection with or as a result

of the commission of any act prohibited by section 106 (other than

an act for which the issuance of a citation under section 107 is a

sufficient sanction) shall be subject to forfeiture to the United

States. All or part of such vessel may, and all such living marine

resources (or the fair market value thereof) shall, be forfeited to the

United States pursuant to a civil proceeding under this section.

(b) JURISDICTION OF DISTRICT COURTS.—Any district court of

the United States shall have jurisdiction, upon application of the

Attorney General on behalf of the United States, to order any forfeiture authorized under subsection (a) and any action provided for

under subsection (d).

(c) JUDGMENT.—If a judgment is entered for the United States

in a civil forfeiture proceeding under this section, the Attorney

General may seize any property or other interest declared forfeited

to the United States, which has not previously been seized pursuant to this title or for which security has not previously been obtained. The provisions of the customs laws relating to—

(1) the seizure, forfeiture, and condemnation of property

for violation of the customs law;

(2) the disposition of such property or the proceeds from

the sale thereof; and

(3) the remission or mitigation of any such forfeiture;

shall apply to seizures and forfeitures incurred, or alleged to have

been incurred, under the provisions of this title, unless such provisions are inconsistent with the purposes, policy, and provisions of

this title.

(d) PROCEDURE.—

(1) Any officer authorized to serve any process in rem that

is issued by a court under section 107(b) shall—

(A) stay the execution of such process; or

(B) discharge any living marine resources seized pursuant to such process;

upon receipt of a satisfactory bond or other security from any

person claiming such property. Such bond or other security
423 HIGH SEAS FISHING COMPLIANCE ACT OF 1995 Sec. 111

shall be conditioned upon such person delivering such property

to the appropriate court upon order thereof, without any impairment of its value, or paying the monetary value of such

property pursuant to an order of such court. Judgment shall be

recoverable on such bond or other security against both the

principal and any sureties in the event that any condition

thereof is breached, as determined by such court.

(2) Any living marine resources seized pursuant to this

title may be sold, subject to the approval of the appropriate

court, for not less than the fair market value thereof. The proceeds of any such sale shall be deposited with such court pending the disposition of the matter involved.

(e) REBUTTABLE PRESUMPTION.—For purposes of this section,

all living marine resources found on board a high seas fishing vessel and which are seized in connection with an act prohibited by

section 106 are presumed to have been taken or retained in violation of this title, but the presumption can be rebutted by an appropriate showing of evidence to the contrary.

SEC. 111. ø16 U.S.C. 5501 note¿ EFFECTIVE DATE.

This title shall take effect 120 days after the date of enactment

of this Act.

* * * * * * *

425

DRIFTNET IMPACT MONITORING, ASSESSMENT, AND

CONTROL ACT OF 1987

427

DRIFTNET IMPACT MONITORING, ASSESSMENT, AND

CONTROL ACT OF 1987

[Public Law 100–220, Dec. 29, 1987, 101 Stat. 1477]

AN ACT To provide congressional approval of the Governing International Fishery

Agreement between the United States and Japan; to implement the provisions of

Annex V to the International Convention for the Prevention of Pollution from

Ships, 1973; to reauthorize the National Sea Grant College Program Act; to improve efforts to monitor, assess, and reduce the adverse impacts of driftnets; and

for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

* * * * * * *

TITLE IV—DRIFTNET IMPACT MONITORING, ASSESSMENT, AND CONTROL

SEC. 4001. ø16 U.S.C. 1822 note¿ SHORT TITLE.

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

SEC. 4002. ø16 U.S.C. 1822 note¿ FINDINGS.

The Congress finds that—

(1) the use of long plastic driftnets is a fishing technique that

may result in the entanglement and death of enormous numbers of target and nontarget marine resources in the waters of

the North Pacific Ocean, including the Bering Sea;

(2) there is a pressing need for detailed and reliable information on the number of marine resources that become entangled

and die in actively fished driftnets and in driftnets that are

lost, abandoned, or discarded; and

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

SEC. 4003. ø16 U.S.C. 1822 note¿ DEFINITIONS.

As used in this title—

(1) DRIFTNET.—The term ‘‘driftnet’’ means a gillnet composed

of a panel of plastic webbing one and one-half miles or more

in length.

(2) DRIFTNET FISHING.—The term ‘‘driftnet fishing’’ means a

fish-harvesting method in which a driftnet is placed in water

and allowed to drift with the currents and winds for the purpose of entangling fish in the webbing.

(3) EXCLUSIVE ECONOMIC ZONE OF THE UNITED STATES.—The

term ‘‘exclusive economic zone of the United States’’ means the
Sec. 4001 DRIFTNET IMPACT MONITORING, ASSESSMENT, & CONTROL ACT 428

1So in law. Section 211 of the Department of Commerce and Related Agencies Appropriations

Act, 1997 (as contained in section 101(a), title I of Division A of Public Law 104–208; 110 Stat.

3009–41) provides:

SEC. 211. (a) Effective 15 days after the enactment of the Sustainable Fisheries Act, section

1 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801) shall be amended to read as follows: ‘‘That this Act may be cited as the ‘Magnuson-Stevens Fishery Conservation and Management Act’.’’

(b) Effective 15 days after the enactment of the Sustainable Fisheries Act, all references to

the Magnuson Fishery Conservation and Management Act shall be redesignated as references

to the Magnuson-Stevens Fishery Conservation and Management Act.

Since such section did not actually amend each occurrence of the short title in law, the former

short title appears here.

zone defined in section 3(6) of the Magnuson Fishery Conservation and Management Act 1 (16 U.S.C. 1802(b)).

(4) MARINE RESOURCES.—The term ‘‘marine resources’’ includes fish, shellfish, marine mammals, seabirds, and other

forms of marine life or waterfowl.

(5) MARINE RESOURCES OF THE UNITED STATES.—The term

‘‘marine resources of the United States’’ means—

(A) marine resources found in, or which breed within,

areas subject to the jurisdiction of the United States, including the exclusive economic zone of the United States;

and

(B) species of fish, wherever found, that spawn in the

fresh or estuarine waters of the United States.

(6) SECRETARY.—The term ‘‘Secretary’’ means the Secretary

of Commerce.

SEC. 4004. ø16 U.S.C. 1822 note¿ MONITORING AGREEMENTS.

(a) NEGOTIATIONS.—The Secretary, through the Secretary of

State and in consultation with the Secretary of the Interior, shall

immediately initiate, negotiations with each foreign government

that conducts, or authorizes its nationals to conduct, driftnet fishing that results in the taking of marine resources of the United

States in waters of the North Pacific Ocean outside of the exclusive

economic zone and territorial sea of any nation, for the purpose of

entering into agreements for statistically reliable cooperative monitoring and assessment of the numbers of marine resources of the

United States killed and retrieved, discarded, or lost by the foreign

government’s driftnet fishing vessels. Such agreements shall provide for—

(1) the use of a sufficient number of vessels from which scientists of the United States and the foreign governments may

observe and gather statistically reliable information; and

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

(b) REPORT.—The Secretary, in consultation with the Secretary of

State, shall provide to the Congress not later than 1 year after the

date of enactment of this Act a full report on the results of negotiations under this section.

SEC. 4005. ø16 U.S.C. 1822 note¿ IMPACT REPORT.

(a) IN GENERAL.—The Secretary shall provide to the Congress

within 1 year after the date of the enactment of this Act, and at

such other times thereafter as the Secretary considers appropriate,

a report identifying the nature, extent, and effects of driftnet fishing in waters of the North Pacific Ocean on marine resources of the
429 DRIFTNET IMPACT MONITORING, ASSESSMENT, & CONTROL ACT Sec. 4001

United States. The report shall include the best available information on—

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

(2) the areas fished;

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

(4) the number of marine resources of the United States

killed by such fishing;

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

(6) any other information the Secretary considers appropriate.

(b) INFORMATION FROM FOREIGN GOVERNMENTS.—The Secretary,

through the Secretary of State, shall—

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

(2) include in a report under this section the information so

provided and an evaluation of the adequacy and reliability of

such information.

SEC. 4006. ø16 U.S.C. 1822 note¿ ENFORCEMENT AGREEMENTS.

(a) NEGOTIATIONS.—The Secretary shall immediately initiate,

through the Secretary of State and in consultation with the Secretary of the Department in which the Coast Guard is operating

negotiations with each foreign government that conducts, or authorizes its nationals to conduct, driftnet fishing that results in the

taking of marine resources of the United States in waters of the

North Pacific Ocean outside of the exclusive economic zone and territorial sea of any nation, for the purpose of entering into agreements for effective enforcement of laws, regulations, and agreements applicable to the location, season, and other aspects of the

operations of the foreign government’s driftnet fishing vessels. Such

agreements shall include measures for—

(1) the effective monitoring and detection of violations;

(2) the collection and presentation of such evidence of violations as may be necessary for the successful prosecution of

such violations by the responsible authorities;

(3) reporting to the United States of penalties imposed by

the foreign governments for violations; and

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

(b) CERTIFICATION FOR PURPOSES OF FISHERMEN’S PROTECTIVE

ACT OF 1967.—If the Secretary, in consultation with the Secretary

of State, determines that a foreign government has failed, within

18 months after the date of the enactment of this Act, to enter into

and implement an agreement under subsection (a) or section

4004(a) that is adequate, the Secretary shall certify such fact to the

President, which certification shall be deemed to be a certification

for the purposes of section 8(a) of the Fishermen’s Protective Act

of 1967 (22 U.S.C. 1978(a)).

SEC. 4007. ø16 U.S.C. 1822 note¿ EVALUATIONS AND RECOMMENDATIONS.

(a) MARKING, REGISTRY, AND IDENTIFICATION SYSTEM.—The Secretary shall evaluate, in consultation with officials of other Federal

agencies and such other persons as may be appropriate, the feasibility of and develop recommendations for the establishment of a
Sec. 4001 DRIFTNET IMPACT MONITORING, ASSESSMENT, & CONTROL ACT 430

driftnet marking, registry, and identification system to provide a

reliable method for the determination of the origin by vessel, of

lost, discarded, or abandoned driftnets and fragments of driftnets.

In conducting such evaluation, the Secretary shall consider the

adequacy of existing driftnet identification systems of foreign nations and the extent to which these systems achieve the objectives

of this title.

(b) ALTERNATIVE DRIFTNET MATERIALS.—The Secretary, in consultation with such other persons as may be appropriate, shall

evaluate the feasibility of, and develop appropriate recommendations for, the use of alternative materials in driftnets for the purpose of increasing the rate of decomposition of driftnets that are

discarded or lost at sea.

(c) DRIFTNET BOUNTY SYSTEM.—The Secretary, in consultation

with such other persons as may be appropriate, shall evaluate the

feasibility of and develop appropriate recommendations for the implementation of a driftnet bounty system to pay persons who retrieve from the exclusive economic zone and deposit with the Secretary lost, abandoned, and discarded driftnet and other plastic

fishing material.

(d) DRIFTNET FISHING VESSEL TRACKING SYSTEM.—The Secretary, in consultation with such other persons as may be appropriate, shall evaluate the feasibility of, and develop appropriate

recommendations for, the establishment of a cooperative driftnet

fishing vessel tracking system to facilitate efforts to monitor the location of driftnet fishing vessels.

(e) REPORT.—The Secretary shall transmit to the Congress not

later than 18 months after the date of the enactment of this Act

a report setting forth—

(1) the evaluations and recommendations developed under

subsections (a), (b), (c), and (d);

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

(3) any need for further research and development efforts

and the estimated cost and time required for completion of

such efforts; and

(4) any need for legislation to provide authority to carry out

such recommendations.

SEC. 4008. ø16 U.S.C. 1822 note¿ CONSTRUCTION WITH OTHER LAWS.

This title shall not serve or be construed to expand or diminish

the sovereign rights of the United States, as stated by Presidential

Proclamation Numbered 5030, dated March 10, 1983, and reflected

in existing law on the date of the enactment of this Act.

SEC. 4009. ø16 U.S.C. 1822 note¿ AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the Department of

Commerce and the Department of State, such sums as may be necessary to carry out the purposes of this title.
431

HIGH SEAS DRIFTNET FISHERIES ENFORCEMENT ACT

433

HIGH SEAS DRIFTNET FISHERIES ENFORCEMENT ACT

[Public Law 102–582, Approved Nov. 2, 1992, 106 Stat. 4900]

[Amended through Public Law 105–258, Oct. 14, 1998]

AN ACT To enhance the effectiveness of the United Nations international driftnet

fishery conservation program.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

SECTION 1. ø16 U.S.C. 1801 note¿ SHORT TITLE.

This Act may be cited as the ‘‘High Seas Driftnet Fisheries Enforcement Act’’.

SEC. 2. ø16 U.S.C. 1826a note¿ FINDINGS AND POLICY.

(a) FINDINGS.—Congress makes the following findings:

(1) Large-scale driftnet fishing on the high seas is highly

destructive to the living marine resources and ocean ecosystems of the world’s oceans, including anadromous fish and

other living marine resources of the United States.

(2) The cumulative effects of large-scale driftnet fishing

pose a significant threat to the marine ecosystem, and slow-reproducing species like marine mammals, sharks, and seabirds

may require many years to recover.

(3) Members of the international community have reviewed the best available scientific data on the impacts of

large-scale pelagic driftnet fishing, and have failed to conclude

that this practice has no significant adverse impacts which

threaten the conservation and sustainable management of living marine resources.

(4) The United Nations, via General Assembly Resolutions

numbered 44–225, 45–197, and most recently 46–215 (adopted

on December 20, 1991), has called for a worldwide moratorium

on all high seas driftnet fishing by December 31, 1992, in all

the world’s oceans, including enclosed seas and semi-enclosed

seas.

(5) The United Nations has commended the unilateral, regional, and international efforts undertaken by members of the

international community and international organizations to

implement and support the objectives of the General Assembly

resolutions.

(6) Operative paragraph (4) of United Nations General Assembly Resolution numbered 46–215 specifically ‘‘encourages

all members of the international community to take measures

individually and collectively to prevent large-scale pelagic

driftnet fishing operations on the high seas of the world’s

oceans and seas’’.
Sec. 2 HIGH SEAS DRIFTNET FISHERIES ENFORCEMENT ACT 434

1So in law. Section 211 of the Department of Commerce and Related Agencies Appropriations

Act, 1997 (as contained in section 101(a), title I of Division A of Public Law 104–208; 110 Stat.

3009–41) provides:

SEC. 211. (a) Effective 15 days after the enactment of the Sustainable Fisheries Act, section

1 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801) shall be amended to read as follows: ‘‘That this Act may be cited as the ‘Magnuson-Stevens Fishery Conservation and Management Act’.’’

(b) Effective 15 days after the enactment of the Sustainable Fisheries Act, all references to

the Magnuson Fishery Conservation and Management Act shall be redesignated as references

to the Magnuson-Stevens Fishery Conservation and Management Act.

Since such section did not actually amend each occurrence of the short title in law, the former

short title appears here.

(7) The United States, in section 307(1)(M) of the Magnuson Fishery Conservation and Management Act 1 (16 U.S.C.

1857(1)(M)), has specifically prohibited the practice of largescale driftnet fishing by United States nationals and vessels

both within the exclusive economic zone of the United States

and beyond the exclusive economic zone of any nation.

(8) The Senate, through Senate Resolution 396 of the One

Hundredth Congress (approved on March 18, 1988), has called

for a moratorium on fishing in the Central Bering Sea and the

United States has taken concrete steps to implement such moratorium through international negotiations.

(9) Despite the continued evidence of a decline in the fishery resources of the Bering Sea and the multiyear cooperative

negotiations undertaken by the United States, the Russian

Federation, Japan, and other concerned fishing nations, some

nations refuse to agree to measures to reduce or eliminate unregulated fishing practices in the waters of the Bering Sea beyond the exclusive economic zones of the United States and the

Russian Federation.

(10) In order to ensure that the global moratorium on

large-scale driftnet fishing called for in United Nations General Assembly Resolution numbered 46–215 takes effect by December 31, 1992, and that unregulated fishing practices in the

waters of the Central Bering Sea are reduced or eliminated,

the United States should take the actions described in this Act

and encourage other nations to take similar action.

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

(1) implement United Nations General Assembly Resolution numbered 46–215, approved unanimously on December

20, 1991, which calls for an immediate cessation to further expansion of large-scale driftnet fishing, a 50 percent reduction

in existing large-scale driftnet fishing effort by June 30, 1992,

and a global moratorium on the use of large-scale driftnets beyond the exclusive economic zone of any nation by December

31, 1992;

(2) bring about a moratorium on fishing in the Central

Bering Sea, or an international conservation and management

agreement to which the United States and the Russian Federation are parties that regulates fishing in the Central Bering

Sea; and

(3) secure a permanent ban on the use of destructive fishing practices, and in particular large-scale driftnets, by persons

or vessels fishing beyond the exclusive economic zone of any

nation.
435 HIGH SEAS DRIFTNET FISHERIES ENFORCEMENT ACT Sec. 101

TITLE I—HIGH SEAS LARGE-SCALE DRIFTNET FISHING

SEC. 101. ø16 U.S.C. 1826a¿ DENIAL OF PORT PRIVILEGES AND SANCTIONS FOR HIGH SEAS LARGE-SCALE DRIFTNET FISHING.

(a) DENIAL OF PORT PRIVILEGES.—

(1) PUBLICATION OF LIST.—Not later than 30 days after the

date of enactment of this Act and periodically thereafter, the

Secretary of Commerce, in consultation with the Secretary of

State, shall publish a list of nations whose nationals or vessels

conduct large-scale driftnet fishing beyond the exclusive economic zone of any nation.

(2) DENIAL OF PORT PRIVILEGES.—The Secretary of the

Treasury shall, in accordance with recognized principles of

international law—

(A) withhold or revoke the clearance required by section 4197 of the Revised Statutes of the United States (46

App. U.S.C. 91) for any large-scale driftnet fishing vessel

that is documented under the laws of the United States or

of a nation included on a list published under paragraph

(1); and

(B) deny entry of that vessel to any place in the

United States and to the navigable waters of the United

States.

(3) NOTIFICATION OF NATION.—Before the publication of a

list of nations under paragraph (1), the Secretary of State shall

notify each nation included on that list regarding—

(A) the effect of that publication on port privileges of

vessels of that nation under paragraph (1); and

(B) any sanctions or requirements, under this Act or

any other law, that may be imposed on that nation if nationals or vessels of that nation continue to conduct largescale driftnet fishing beyond the exclusive economic zone of

any nation after December 31, 1992.

(b) SANCTIONS.—

(1) IDENTIFICATIONS.—

(A) INITIAL IDENTIFICATIONS.—Not later than January

10, 1993, the Secretary of Commerce shall—

(i) identify each nation whose nationals or vessels

are conducting large-scale driftnet fishing beyond the

exclusive economic zone of any nation; and

(ii) notify the President and that nation of the

identification under clause (i).

(B) ADDITIONAL IDENTIFICATIONS.—At any time after

January 10, 1993, whenever the Secretary of Commerce

has reason to believe that the nationals or vessels of any

nation are conducting large-scale driftnet fishing beyond

the exclusive economic zone of any nation, the Secretary of

Commerce shall—

(i) identify that nation; and

(ii) notify the President and that nation of the

identification under clause (i).

(2) CONSULTATIONS.—Not later than 30 days after a nation

is identified under paragraph (1)(B), the President shall enter

into consultations with the government of that nation for the

purpose of obtaining an agreement that will effect the imme-
Sec. 102 HIGH SEAS DRIFTNET FISHERIES ENFORCEMENT ACT 436

1So in law. The margin beginning with the text ‘‘shall direct the Secretary’’ through the end

of this clause probably should be moved 2 ems to left so as to appear flush on the margin for

subparagraph (A).

diate termination of large-scale driftnet fishing by the nationals or vessels of that nation beyond the exclusive economic

zone of any nation.

(3) PROHIBITION ON IMPORTS OF FISH AND FISH PRODUCTS

AND SPORT FISHING EQUIPMENT.—

(A) PROHIBITION.—The President—

(i) upon receipt of notification of the identification

of a nation under paragraph (1)(A); or

(ii) if the consultations with the government of a

nation under paragraph (2) are not satisfactorily concluded within ninety days, 1 shall direct the Secretary

of the Treasury to prohibit the importation into the

United States of fish and fish products and sport fishing equipment (as that term is defined in section 4162

of the Internal Revenue Code of 1986 (26 U.S.C. 4162))

from that nation.

(B) IMPLEMENTATION OF PROHIBITION.—With respect to

an import prohibition directed under subparagraph (A),

the Secretary of the Treasury shall implement such prohibition not later than the date that is forty-five days after

the date on which the Secretary has received the direction

from the President.

(C) PUBLIC NOTICE OF PROHIBITION.—Before the effective date of any import prohibition under this paragraph,

the Secretary of the Treasury shall provide public notice of

the impending prohibition.

(4) ADDITIONAL ECONOMIC SANCTIONS.—

(A) DETERMINATION OF EFFECTIVENESS OF SANCTIONS.—Not later than six months after the date the Secretary of Commerce identifies a nation under paragraph

(1), the Secretary shall determine whether—

(i) any prohibition established under paragraph

(3) is insufficient to cause that nation to terminate

large-scale driftnet fishing conducted by its nationals

and vessels beyond the exclusive economic zone of any

nation; or

(ii) that nation has retaliated against the United

States as a result of that prohibition.

(B) CERTIFICATION.—The Secretary of Commerce shall

certify to the President each affirmative determination

under subparagraph (A) with respect to a nation.

(C) EFFECT OF CERTIFICATION.—Certification by the

Secretary of Commerce under subparagraph (B) is deemed

to be a certification under section 8(a) of the Fishermen’s

Protective Act of 1967 (22 U.S.C. 1978(a)), as amended by

this Act.

SEC. 102. ø16 U.S.C. 1826b¿ DURATION OF DENIAL OF PORT PRIVILEGES

AND SANCTIONS.

Any denial of port privileges or sanction under section 101

with respect to a nation shall remain in effect until such time as

the Secretary of Commerce certifies to the President and the Con-
437 HIGH SEAS DRIFTNET FISHERIES ENFORCEMENT ACT Sec. 202

1See footnote to section 2(a)(7).

gress that such nation has terminated large-scale driftnet fishing

by its nationals and vessels beyond the exclusive economic zone of

any nation.

SEC. 103. REQUIREMENTS UNDER MARINE MAMMAL PROTECTION ACT

OF 1972.

[Amends section 101(a)(2) of the Marine Mammal Protection

Act of 1972]

SEC. 104. ø16 U.S.C. 1826c¿ DEFINITIONS.

In this title, the following definitions apply:

(1) FISH AND FISH PRODUCTS.—The term ‘‘fish and fish

products’’ means any aquatic species (including marine mammals and plants) and all products thereof exported from a nation, whether or not taken by fishing vessels of that nation or

packed, processed, or otherwise prepared for export in that nation or within the jurisdiction thereof.

(2) LARGE-SCALE DRIFTNET FISHING.— (A) IN GENERAL.—Except as provided in subparagraph

(B), the term ‘‘large-scale driftnet fishing’’ means a method

of fishing in which a gillnet composed of a panel or panels

of webbing, or a series of such gillnets, with a total length

of two and one-half kilometers or more is placed in the

water and allowed to drift with the currents and winds for

the purpose of entangling fish in the webbing.

(B) EXCEPTION.—Until January 1, 1994, the term

‘‘large-scale driftnet fishing’’ does not include the use in

the northeast Atlantic Ocean of gillnets with a total length

not to exceed five kilometers if the use is in accordance

with regulations adopted by the European Community

pursuant to the October 28, 1991, decision by the Council

of Fisheries Ministers of the Community.

(3) LARGE-SCALE DRIFTNET FISHING VESSEL.—The term

‘‘large-scale driftnet fishing vessel’’ means any vessel which

is—

(A) used for, equipped to be used for, or of a type

which is normally used for large-scale driftnet fishing; or

(B) used for aiding or assisting one or more vessels at

sea in the performance of large-scale driftnet fishing, including preparation, supply, storage, refrigeration, transportation, or processing.

TITLE II—FISHERIES CONSERVATION PROGRAMS

SEC. 201. IMPORT RESTRICTIONS UNDER FISHERMEN’S PROTECTIVE

ACT OF 1967.

[Amends section 8 of the Fishermen’s Protective Act of 1967].

SEC. 202. ø16 U.S.C. 1861 note¿ ENFORCEMENT.

(a) IN GENERAL.—Not later than six months after the date of

the enactment of this Act, the Secretary of the department in

which the Coast Guard is operating, the Secretary of Commerce,

and the Secretary of Defense shall enter into an agreement under

section 311(a) of the Magnuson Fishery Conservation and Management Act 1 (16 U.S.C. 1861(a)) in order to make more effective the

enforcement of domestic laws and international agreements that
Sec. 203 HIGH SEAS DRIFTNET FISHERIES ENFORCEMENT ACT 438

conserve and manage the living marine resources of the United

States.

(b) TERMS.—The agreement entered into under subsection (a)

shall include—

(1) procedures for identifying and providing the location of

vessels that are in violation of domestic laws or international

agreements to conserve and manage the living marine resources of the United States;

(2) requirements for the use of the surveillance capabilities

of the Department of Defense; and

(3) procedures for communicating vessel locations to the

Secretary of Commerce and the Coast Guard.

SEC. 203. TRADE NEGOTIATIONS AND THE ENVIRONMENT.

It is the sense of the Congress that the President, in carrying

out multilateral, bilateral, and regional trade negotiations, should

seek to—

(1) address environmental issues related to the negotiations;

(2) modify articles of the General Agreement on Tariffs

and Trade (referred to in this section as ‘‘GATT’’) to take into

consideration the national environmental laws of the GATT

Contracting Parties and international environmental treaties;

(3) secure a working party on trade and the environment

within GATT as soon as possible;

(4) take an active role in developing trade policies that

make GATT more responsive to national and international environmental concerns;

(5) include Federal agencies with environmental expertise

during the negotiations to determine the impact of the proposed trade agreements on national environmental law; and

(6) periodically consult with interested parties concerning

the progress of the negotiations.

* * * * * * *
439

INTERJURISDICTIONAL FISHERIES ACT OF 1986

441

1Section 211 of the Department of Commerce and Related Agencies Appropriations Act, 1997

(Division A, title II of P.L. 104–208; 110 Stat. 3009–41) changed (by amendment) the short title

of such Act to the Magnuson-Stevens Fishery and Conservation and Management Act and provided that ‘‘all references to the Magnuson Fishery Conservation and Management Act shall be

redesignated as references to the Magnuson-Stevens Fishery Conservation and Management

Act’’. Since such section did not actually amended each occurrence of the short title in law, the

former short title appears here.

INTERJURISDICTIONAL FISHERIES ACT OF 1986

[Title III of Public Law 99–659, Approved Nov. 14, 1986, 100 Stat. 3731]

[Amended through Public Law 104–297, Oct. 11, 1986]

AN ACT To amend certain provisions of the law regarding the fisheries of the

United States, and for other purposes.

* * * * * * *

TITLE III—INTERJURISDICTIONAL

FISHERIES

SEC. 301. ø16 U.S.C. 4101 note¿ SHORT TITLE.

This title may be cited as the ‘‘Interjurisdictional Fisheries Act

of 1986’’.

SEC. 302. ø16 U.S.C. 4101¿ PURPOSES.

The purposes of this title are—

(1) to promote and encourage State activities in support of

the management of interjurisdictional fishery resources; and

(2) to promote and encourage management of interjurisdictional fishery resources throughout their range.

SEC. 303. ø16 U.S.C. 4102¿ DEFINITIONS.

For the purposes of this title:

(1) The term ‘‘Federal fishery management plan’’ means a

plan developed under the Magnuson Fishery Conservation and

Management Act (16 U.S.C. 1801 et seq.). 1

(2) The term ‘‘fishery resource’’ means finfish, mollusks,

crustaceans, and any other form of marine animal or plant life,

other than marine mammals and birds.

(3) The term ‘‘interjurisdictional fishery resource’’ means—

(A) a fishery resource for which a fishery occurs in waters under the jurisdiction of one or more States and the

exclusive economic zone established by Proclamation Numbered 5030, dated March 10, 1983;

(B) a fishery resource for which there exists an interstate fishery management plan; or
Sec. 304 INTERJURISDICTIONAL FISHERIES ACT OF 1986 442

(C) a fishery resource which migrates between the waters under the jurisdiction of two or more States bordering

on the Great Lakes.

For purposes of applying section 305(a)(3) during fiscal year

1987, a Federal fishery management plan or an interstate fishery management plan for the fishery resource need not be in

existence, but a plan of either kind for that resource must be

in the development process during that year.

(4) The term ‘‘interstate fishery management plan’’ means

a plan for managing fisheries developed and adopted by an

interstate commission.

(5) The term ‘‘interstate commission’’ means a commission

or other administrative body established by an interstate compact.

(6) The term ‘‘interstate compact’’ means a compact that

has been entered into by two or more States, established for

the purposes of conserving and managing interjurisdictional

fishery resources throughout their range, and consented to and

approved by Congress.

(7) The term ‘‘project’’ means a program for research in

support of the management of an interjurisdictional fishery resource or an interstate cooperative fishery management agreement.

(8) The term ‘‘Secretary’’ means the Secretary of Commerce.

(9) The term ‘‘State’’ means any of the several States of the

United States, the Commonwealth of Puerto Rico, American

Samoa, the Virgin Islands, Guam, or the Northern Mariana Islands.

(10) The term ‘‘State agency’’ means any department,

agency, commission, or official of a State authorized under the

laws of the State to regulate commercial fisheries or enforce

laws relating to commercial fisheries.

SEC. 304. ø16 U.S.C. 4103¿ APPORTIONMENT.

(a) TIME WHEN APPORTIONMENTS MADE.—Funds appropriated

under section 308(a) shall be apportioned by the Secretary among

the States on October 1 of each fiscal year, or as soon thereafter

as practicable.

(b) APPORTIONMENT FORMULA.—The amount of funds apportioned to each State shall be determined by the Secretary as the

ratio which the equally weighted average of the volume and value

of fishery resources harvested by domestic commercial fishermen

and received within such State during the 3 most recent calendar

years for which data satisfactory to the Secretary are available

bears to the total equally weighted average of the volume and

value of all fishery resources harvested by domestic commercial

fishermen received within all of the States during those calendar

years.

(c) LIMITATIONS.—(1) No State may receive an apportionment

under subsection (b) for either fiscal year 1987 or fiscal year 1988

which is less than one-half of one percent of the total amount of

funds available for that fiscal year.

(2) For any fiscal year after fiscal year 1988, no State that,

under the apportionment formula in subsection (b), has a ratio of
443 INTERJURISDICTIONAL FISHERIES ACT OF 1986 Sec. 305

one-third of one percent or higher may receive an apportionment

for any fiscal year which is less than one percent of the total

amount of funds available for that fiscal year.

(3) For any fiscal year after fiscal year 1988, no State may receive an apportionment under this section for any fiscal year if that

State’s ratio under the apportionment formula in subsection (b) is

less than one-third of one percent, unless the State—

(A) is signatory to an interstate fishery compact;

(B) has entered into an agreement with the Secretary or

the Secretary of the Interior under which the personnel, services, and equipment of the State and the Federal agency concerned will be made mutually available for the enforcement of

Federal and State laws pertaining to the protection of fishery

resources which are managed under an interstate fishery management plan;

(C) borders one or more of the Great Lakes; or

(D) has entered into an interstate cooperative fishery management agreement and has in effect an interstate fisheries

management or interstate fisheries research program.

(4) No State that, under the apportionment formula in subsection (b), has a ratio of less than one-third of one percent and

meets any of the requirements set forth in paragraph (1) (A), (B),

(C), or (D) may receive an apportionment for any fiscal year which

is less than one-half of one percent of the total amount of funds

available for apportionment for such fiscal year.

(5) No State may receive an apportionment for any fiscal year

under this section which is more than 6 percent of the total amount

of funds available for apportionment for such fiscal year.

(d) UNUSED APPORTIONMENTS.—Any part of an apportionment

for any fiscal year to any State—

(1) that is not obligated during that year;

(2) with respect to which the State notifies the Secretary

that it does not wish to receive that part; or

(3) that is returned to the Secretary by the State,

may not be considered to be apportioned to that State and shall be

added to such funds as are appropriated pursuant to section 308(a)

for the next fiscal year (and shall be treated as having been appropriated for such next year) for apportionment under subsection (a).

Any notification or return of funds referred to in paragraph (2) or

(3) by a State is irrevocable.

SEC. 305. ø16 U.S.C. 4104¿ STATE PROJECTS.

(a) IN GENERAL.—(1) Any State may, through its State agency

or an interstate commission, submit to the Secretary a proposal for

a project which includes full plans, specifications, and cost estimates for such project. The total cost of all items included for engineering, planning, inspection, and unforeseen contingencies in connection with any works to be constructed as part of such a proposed project shall not exceed 10 percent of the total cost of such

works, and shall be paid by the State as a part of its contribution

to the total cost of the works.

(2) No part of any funds appropriated under any authorization

contained in section 308 may be obligated with respect to any

project until the proposal for such project has been submitted

under paragraph (1) and approved by the Secretary. The Secretary,
Sec. 305 INTERJURISDICTIONAL FISHERIES ACT OF 1986 444

before approving any proposal for a project, must evaluate the proposal as to—

(A) the soundness of design;

(B) the possibilities of securing productive results;

(C) the minimization of duplication with other research

projects in support of the management of interjurisdictional

fishery resources and carried out under this title or under any

other law or regulation;

(D) the organization and management of the project;

(E) the methods proposed for monitoring and evaluating

the success or failure of the project;

(F) the consistency of the project with the purposes of this

title specified in section 302; and

(G) such other criteria as the Secretary may prescribe.

(3) The Federal share of the cost of any project conducted

under this title shall not exceed 75 percent of the total estimated

cost of the project, unless—

(A) the State has adopted an interstate fishery management plan for the resource to which the project applies; or

(B) the State has adopted fishery regulations which the

Secretary has determined are consistent with any Federal fishery management plan for the species to which the project applies;

in which case the Federal share shall not exceed 90 percent of the

total estimated cost of the project.

(4)(A) If the Secretary approves or disapproves a proposal for

a project, the Secretary shall promptly give written notification, including, if disapproved, a detailed explanation of the reasons for

the disapproval, to the State agency submitting the proposal or, if

the proposal is submitted through an interstate commission, such

commission and the State.

(B) For the purposes of this title, funds apportioned under this

section to any State shall be treated as having been obligated with

respect to a project during the fiscal year in which the written notification of approval required under subparagraph (A) for the project

proposal is made.

(b) RESTRICTION.—The expenditure of funds under this title

shall be applied only to projects for which a proposal has been approved under subsection (a), except that up to $25,000 each fiscal

year may be obligated for a State to carry out an agreement with

the Secretary or the Secretary of the Interior under which the personnel, services and equipment of the State and the Federal agency

concerned will be made mutually available for the enforcement of

Federal and State laws pertaining to the protection of fishery resources. If otherwise applied, such funds shall be replaced by the

State before the State may receive any additional funds under this

title.

(c) PAYMENT.—When the Secretary determines that a project

carried out under a proposal approved by the Secretary has been

completed, or where the Secretary otherwise deems it appropriate,

the Secretary shall cause to be paid to the proper authority of the

State, or to the official or depository designated by the interstate

commission if the State agency specifies that payment is to be

made to the interstate commission, the Federal share of the
445 INTERJURISDICTIONAL FISHERIES ACT OF 1986 Sec. 307

1The Committee on Merchant Marine and Fisheries of the House of Representatives was abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. The former jurisdiction of such committee is divided among the Committee on Resources, the Committee on

Transportation and Infrastructure, and the Committee on Armed Services of the House of

Representatives.

project. Any payment made to an interstate commission shall be

charged against the apportionment of the State concerned.

SEC. 306. ø16 U.S.C. 4105¿ PROPERTY.

(a) APPLICATION OF FEDERAL AND STATE LAWS.—All work, including the furnishing of labor and materials, needed to complete

any project approved by the Secretary shall be performed in accordance with applicable Federal and State laws under the direct supervision of the State agency, and in accordance with regulations

as the Secretary may prescribe.

(b) TITLE.—Title to all property, real and personal, acquired for

the purposes of completing any project approved by the Secretary

vests in the State.

(c) DISPOSAL.—If a State disposes of any real or personal property acquired under this title, the State shall pay into the Treasury

of the United States the amount of any proceeds resulting from the

property disposed to the extent of and in the same ratio that funds

provided under this title were used in the acquisition of the property. In no case shall the amount paid into the Treasury of the

United States under this section exceed the amount of funds provided by this chapter for the acquisition of the property involved.

SEC. 307. ø16 U.S.C. 4106¿ REPORTS.

After consultation with the States receiving funds under this

title and with any interstate commission involved in carrying out

a project under this title, the Secretary shall submit to the Committee on Merchant Marine and Fisheries 1 of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate not later than 90 days after the end of the

fiscal year 1988, and each second fiscal year occurring after that

fiscal year, a report which contains—

(1) a description of each project and law enforcement effort

receiving funds under this title during the last 2 fiscal years

ending before such report is submitted;

(2) a specification of the total amount of funds from the

Federal Government and the total amount of funds from each

State spent on each project and a law enforcement effort receiving funds under this title during the last 2 fiscal years ending before such report is submitted;

(3) an assessment of each project and law enforcement effort receiving funds under this title during the last 2 fiscal

years ending before such report is submitted to determine

whether such project is furthering the purposes of this title;

and

(4) a statement specifying all funds which have been apportioned pursuant to section 305(a) and are available for obligation by a State or the Secretary but which have not been obligated.
Sec. 308 INTERJURISDICTIONAL FISHERIES ACT OF 1986 446

SEC. 308. ø16 U.S.C. 4107¿ AUTHORIZATION OF APPROPRIATIONS.

(a) GENERAL APPROPRIATIONS.—There are authorized to be appropriated to the Department of Commerce for apportionment to

carry out the purposes of this title—

(1) $3,400,000 for fiscal year 1996; (2) $3,900,000 for fiscal year 1997; (3) $4,400,000 for each of the fiscal years 1998, 1999, and

2000.

(b) ADDITIONAL APPROPRIATIONS.—In addition to the amounts

authorized in subsection (a), there are authorized to be appropriated to the Department of Commerce $65,000,000 for each of the

fiscal years 1994 and 1995, which shall be available in such

amounts as the Secretary may determine appropriate for the purposes of this title; except that—

(1) in providing funds to States under this subsection, the

Secretary shall give a preference to those States regarding

which the Secretary determines there is a commercial fishery

failure or serious disruption affecting future production due to

a fishery resource disaster arising from natural or undetermined causes, and any sums made available under this subsection may be used either by the States or directly by the Secretary in cooperation with the States for any purpose that the

Secretary determines is appropriate to restore the fishery affected by such a failure or to prevent a similar failure in the

future; and

(2) the funds authorized to be appropriated under this subsection shall not be available to the Secretary for use as grants

for chartering fishing vessels; and

(3) the Federal share of the cost of any activity carried out

with an amount appropriated under the authority of this subsection shall be 75 percent of the cost of that activity.

Amounts appropriated under this subsection shall remain available

until expended.

(c) DEVELOPMENT OF MANAGEMENT PLANS.—In addition to the

amounts authorized under subsections (a) and (b), there are authorized to be appropriated to the Department of Commerce

$700,000 for fiscal year 1997, and $750,000 for each of the fiscal

years 1998, 1999, and 2000, to support the efforts of the following

interstate commissions to develop interstate fishery management

plans for interjurisdictional fishery resources:

(1) The commission established by the Atlantic States Marine Fisheries Compact, as consented to and approved by Public Law 77–539 (56 Stat. 267), approved May 4, 1942.

(2) The commission established by the Pacific Marine

Fisheries Compact, as consented to and approved by Public

Law 80–232 (61 Stat. 419), approved July 24, 1947.

(3) The commission established by the Gulf States Marine

Fisheries Compact, as consented to and approved by Public

Law 81–66 (63 Stat. 70), approved May 19, 1949.

(d) ASSISTANCE TO COMMERCIAL FISHERMEN.—(1) In addition to

the amounts authorized under subsections (a), (b), and (c), there

are authorized to be appropriated to the Department of Commerce

$65,000,000 for fiscal year 1992 to enable the Secretary to help persons engaged in commercial fisheries, either by providing assistance directly to those persons or by providing assistance indirectly
447 INTERJURISDICTIONAL FISHERIES ACT OF 1986 Sec. 308

1 Indentation so in law.

through States and local government agencies and nonprofit organizations, for projects or other measures to alleviate harm determined by the Secretary to have been incurred as a direct result of

a fishery resource disaster arising from Hurricane Hugo, Hurricane

Andrew, Hurricane Iniki, or any other natural disaster. Amounts

appropriated under this subsection shall remain available until expended.

(2) The Secretary shall determine the extent, and the beginning and ending dates, of any fishery resource disaster under this

subsection.

(3) Eligibility for direct assistance to a person under this subsection shall be limited to any person that has less than $2,000,000

in net revenues annually from commercial fishing, as determined

by the Secretary.

(4) 1(A) Assistance may not be provided under this subsection as part of a fishing capacity reduction program in a

fishery unless the Secretary determines that adequate conservation and management measures are in place in that fishery.

(B) As a condition of awarding assistance with respect to

a vessel under a fishing capacity reduction program, the Secretary shall—

(i) prohibit the vessel from being used for fishing; and

(ii) require that the vessel be—

(I) scrapped or otherwise disposed of in a manner

approved by the Secretary; or

(II) donated to a nonprofit organization and thereafter used only for purposes of research, education, or

training; or

(III) used for another non-fishing purpose provided the Secretary determines that adequate measures are in place to ensure that the vessel cannot reenter any fishery.

(C) A vessel that is prohibited from fishing under subparagraph (B) shall not be eligible for a fishery endorsement under

section 12108(a) of title 46, United States Code, and any such

endorsement for the vessel shall not be effective.

(5) The Secretary shall establish, after notice and opportunity

for public comment, appropriate limitations, terms, and conditions

for receiving assistance under this subsection.

(6) As used in this subsection, the term ‘‘person’’ means any individual or any corporation, partnership, trust, association, or other

nongovernmental entity.

(7) 1 With respect to funds available for the New England

region, the Secretary shall submit to the Congress by January

1, 1997, with annual updates thereafter as appropriate, a report on the New England fishing capacity reduction initiative

which provides—

(A) the total number of Northeast multispecies permits in each permit category and calculates the maximum

potential fishing capacity of vessels holding such permits

based on the principal gear, gross registered tonnage, en-
Sec. 309 INTERJURISDICTIONAL FISHERIES ACT OF 1986 448

gine horsepower, length, age, and other relevant characteristics;

(B) the total number of days at sea available to the

permitted Northeast multispecies fishing fleet and the

total days at sea weighted by the maximum potential fishing capacity of the fleet;

(C) an analysis of the extent to which the weighted

days at sea are used by the active participants in the fishery and of the reduction in such days as a result of the

fishing capacity reduction program; and

(D) an estimate of conservation benefits (such as reduction in fishing mortality) directly attributable to the

fishing capacity reduction program.

SEC. 309. REPEAL.

The Commercial Fisheries Research and Development Act of

1964 (16 U.S.C. 779 et seq.) is repealed.

SEC. 310. EFFECTIVE DATE.

This title takes effect October 1, 1987.
449

TUNA CONVENTIONS ACT OF 1950

451

TUNA CONVENTIONS ACT OF 1950

[Chapter 907, Sept. 7, 1950, 64 Stat. 777]

[Amended through Public Law 106–562, Dec. 23, 2000]

AN ACT To give effect to the Convention for the Establishment of an International

Commission for the Scientific Investigation of Tuna, signed at Mexico City January 25, 1949, by the United States of America and the United Mexican States,

and the Convention for the Establishment of an Inter-American Tropical Tuna

Commission, signed at Washington May 31, 1949, by the United States of America and the Republic of Costa Rica, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That ø16 U.S.C.

951 note¿ this Act may be cited as the ‘‘Tuna Conventions Act of

1950’’.

SEC. 2. ø16 U.S.C. 951¿ As used in this Act, the term—

(a) ‘‘convention’’ includes (1) the Convention for the Establishment of an International Commission for the Scientific Investigation of Tuna, signed at Mexico City January 25, 1949,

by the United States of America and the United Mexican

States, (2) the Convention for the Establishment of an InterAmerican Tropical Tuna Commission, signed at Washington

May 31, 1949, by the United States of America and the Republic of Costa Rica, or both such conventions, as the context requires;

(b) ‘‘commission’’ includes (1) the International Commission for the Scientific Investigation of Tuna, (2) the InterAmerican Tropical Tuna Commission provided for by the conventions referred to in subsection (a) of this section, or both

such commissions, as the context requires;

(c) ‘‘United States Commissioners’’ means the members of

the commissions referred to in subsection (b) of this section

representing the United States of America and appointed pursuant to the terms of the pertinent convention and section 3

of this Act;

(d) ‘‘person’’ means every individual, partnership, corporation, and association subject to the jurisdiction of the United

States; and

(e) ‘‘United States’’ shall include all areas under the sovereignty of the United States, the Trust Territory of the Pacific

Islands, and the Canal Zone.

SEC. 3. ø16 U.S.C. 952¿ The United States shall be represented

on the two commissions by a total of not more than four United

States Commissioners, who shall be appointed by the President,

serve as such during his pleasure, and receive no compensation for

their services as such Commissioners. Individuals serving as such

Commissioners shall not be considered to be Federal employees

while performing such service, except for purposes of injury com-
Sec. 4 TUNA CONVENTIONS ACT OF 1950 452

1Fishery management functions of the Secretary of the Interior under this Act were transferred to the Secretary of Commerce by Reorganization Plan No. 4 of 1970 (5 U.S.C. App.).

pensation or tort claims liability as provided in chapter 81 of title

5, United States Code, and chapter 171 of title 28, United States

Code. Of such Commissioners—

(a) not more than one shall be a person residing elsewhere

than in a State whose vessels maintain a substantial fishery

in the areas of the conventions;

(b) at least one of the Commissioners who are such legal

residents shall be a person chosen from the public at large, and

who is not a salaried employee of a State or of the Federal

Government;

(c) at least one shall be either the Administrator, or an appropriate officer, of the National Marine Fisheries Service; and

(d) at least one shall be chosen from a nongovernmental

conservation organization.

SEC. 4. ø16 U.S.C. 953¿ GENERAL ADVISORY COMMITTEE AND SCIENTIFIC ADVISORY SUBCOMMITTEE.

(a) APPOINTMENTS; PUBLIC PARTICIPATION; COMPENSATION.—

The Secretary 1, in consultation with the United States Commissioners, shall—

(1) appoint a General Advisory Committee which shall be

composed of not less than 5 nor more than 15 persons with balanced representation from the various groups participating in

the fisheries included under the conventions, and from nongovernmental conservation organizations;

(2) appoint a Scientific Advisory Subcommittee which shall

be composed of not less than 5 nor more than 15 qualified scientists with balanced representation from the public and private sectors, including nongovernmental conservation organizations;

(3) establish procedures to provide for appropriate public

participation and public meetings and to provide for the confidentiality of confidential business data; and

(4) fix the terms of office of the members of the General

Advisory Committee and Scientific Advisory Subcommittee,

who shall receive no compensation for their services as such

members.

(b) FUNCTIONS.—

(1) GENERAL ADVISORY COMMITTEE.—The General Advisory

Committee shall be invited to have representatives attend all

nonexecutive meetings of the United States sections and shall

be given full opportunity to examine and to be heard on all

proposed programs of investigations, reports, recommendations, and regulations of the Commission. The General Advisory Committee may attend all meetings of the international

commissions to which they are invited by such commissions.

(2) SCIENTIFIC ADVISORY SUBCOMMITTEE.—

(A) ADVICE.—The Scientific Advisory Subcommittee

shall advise the General Advisory Committee and the

Commissioners on matters including—

(i) the conservation of ecosystems;
453 TUNA CONVENTIONS ACT OF 1950 Sec. 6

1So in law. See amendment made by section 2 of Public Law 87–814, 76 Stat. 923.

(ii) the sustainable uses of living marine resources

related to the tuna fishery in the eastern Pacific

Ocean; and

(iii) the long-term conservation and management

of stocks of living marine resources in the eastern

tropical Pacific Ocean. (B) OTHER FUNCTIONS AND ASSISTANCE.—The Scientific

Advisory Subcommittee shall, as requested by the General

Advisory Committee, the United States Commissioners, or

the Secretary, perform functions and provide assistance required by formal agreements entered into by the United

States for this fishery, including the International Dolphin

Conservation Program. These functions may include—

(i) the review of data from the Program, including

data received from the Inter-American Tropical Tuna

Commission;

(ii) recommendations on research needs, including

ecosystems, fishing practices, and gear technology research, including the development and use of selective,

environmentally safe and cost-effective fishing gear,

and on the coordination and facilitation of such research;

(iii) recommendations concerning scientific reviews

and assessments required under the Program and engaging, as appropriate, in such reviews and assessments;

(iv) consulting with other experts as needed; and

(v) recommending measures to assure the regular

and timely full exchange of data among the parties to

the Program and each nation’s National Scientific Advisory Committee (or its equivalent).

(3) ATTENDANCE AT MEETINGS.—The Scientific Advisory

Subcommittee shall be invited to have representatives attend

all nonexecutive meetings of the United States sections and the

General Advisory Subcommittee and shall be given full opportunity to examine and to be heard on all proposed programs of

scientific investigation, scientific reports, and scientific recommendations of the commission. Representatives of the Scientific Advisory Subcommittee may attend meetings of the

Inter-American Tropical Tuna Commission in accordance with

the rules of such Commission.

øSection 5 was repealed by section 203(b) of Public Law 92–

471, 86 Stat. 787.¿

SEC. 6. ø16 U.S.C. 955¿ (a) The Secretary of State is authorized to approve or disapprove, on behalf of the United States Government, bylaws and rules, or amendments thereof, adopted by

each commission and submitted for approval of the United States

Government in accordance with the provisions of the conventions,

and, with the concurrence of the Secretary of the Interior,,1 to approve or disapprove the general annual programs of the commissions. The Secretary of State is further authorized to receive, on behalf of the United States Government, reports, requests, recommendations, and other communications of the commissions, and
Sec. 6 TUNA CONVENTIONS ACT OF 1950 454

1See footnote to section 4(a). 2 Commas so in law.

to take appropriate action thereon either directly or by reference to

the appropriate authority.

(b) Regulations recommended by each commission pursuant to

the convention requiring the submission to the commission of

records of operations by boat captains or other persons who participate in the fisheries covered by the convention, upon the concurrent approval of the Secretary of State and the Secretary of the Interior 1,,2 shall be promulgated by the latter and upon publication

in the Federal Register, shall be applicable to all vessels and persons subject to the jurisdiction of the United States.

(c) Regulations required to carry out recommendations of the

commission made pursuant to paragraph 5 of article II of the Convention for the Establishment of an Inter-American Tropical Tuna

Commission shall be promulgated as hereinafter provided by the

Secretary of the Interior 1 upon approval of such recommendations

by the Secretary of State and the Secretary of the Interior 1. The

Secretary of the Interior 1 shall cause to be published in the Federal Register a general notice of proposed rulemaking and shall afford interested persons an opportunity to participate in the rulemaking through (1) submission of written data, views, or arguments, and (2) oral presentation at a public hearing. Such regulations shall be published in the Federal Register and shall be accompanied by a statement of the considerations involved in the

issuance of the regulations. After publication in the Federal Register such regulations shall be applicable to all vessels and persons

subject to the jurisdiction of the United States on such date as the

Secretary of the Interior 1 shall prescribe, but in no event prior to

an agreed date for the application by all countries whose vessels

engage in fishing for species covered by the convention in the regulatory area on a meaningful scale, in terms of effect upon the success of the conservation program, of effective measures for the implementation of the commission’s recommendations applicable to

all vessels and persons subject to their respective jurisdictions. The

Secretary of the Interior 1 shall suspend at any time the application

of any such regulations when, after consultation with the Secretary

of State and the United States Commissioners, he determines that

foreign fishing operations in the regulatory area are such as to constitute a serious threat to the achievement of the objectives of the

commission’s recommendations. The regulations thus promulgated

may include the selection for regulation of one or more of the species covered by the convention; the division of the convention waters into areas; the establishment of one or more open or closed

seasons as to each area; the limitation of the size of the fish and

quantity of the catch which may be taken from each area within

any season during which fishing is allowed; the limitation or prohibition of the incidental catch of a regulated species which may be

retained, taken, possessed, or landed by vessels or persons fishing

for other species of fish; the requiring of such clearance certificates

for vessels as may be necessary to carry out the purposes of the

convention and this Act; and such other measures incidental thereto as the Secretary of the Interior 1 may deem necessary to implement the recommendations of the commission: Provided, That upon
455 TUNA CONVENTIONS ACT OF 1950 Sec. 8

1See footnote to section 4(a).

the promulgation of any such regulations the Secretary of the Interior 1 shall promulgate additional regulations, with the concurrence

of the Secretary of State, which shall become effective simulta- neously with the application of the regulations hereinbefore referred to (1) to prohibit the entry into the United States, from any

country when the vessels of such country are being used in the conduct of fishing operations in the regulatory area in such manner

or in such circumstances as would tend to diminish the effectiveness of the conservation recommendations of the commission, of

fish in any form of those species which are subject to regulation

pursuant to a recommendation of the commission and which were

taken from the regulatory area; and (2) to prohibit entry into the

United States, from any country, of fish in any form of those species which are subject to regulation pursuant to a recommendation

of the commission and which were taken from the regulatory area

by vessels other than those of such country in such manner or in

such circumstances as would tend to diminish the effectiveness of

the conservation recommendations of the commission. In the case

of repeated and flagrant fishing operations in the regulatory area

by the vessels of any country which seriously threaten the achievement of the objectives of the commission’s recommendations, the

Secretary of the Interior 1, with the concurrence of the Secretary of

State, may, in his discretion, also prohibit the entry from such

country of such other species of tuna, in any form, as may be under

investigation by the commission and which were taken in the regulatory area. The aforesaid prohibitions shall continue until the Secretary of the Interior 1 is satisfied that the condition warranting

the prohibition no longer exists, except that all fish in any form of

the species under regulation which were previously prohibited from

entry shall continue to be prohibited from entry.

SEC. 7. ø16 U.S.C. 956¿ Any person authorized to carry out enforcement activities under this Act and any person authorized by

the commissions shall have power without warrant or other process, to inspect, at any reasonable time, catch returns, statistical

records, or other reports as are required by regulations adopted

pursuant to this Act to be made, kept, or furnished.

SEC. 8. ø16 U.S.C. 957¿ (a) It shall be unlawful for any master

or other person in charge of a fishing vessel of the United States

to engage in fishing in violation of any regulation adopted pursuant

to section 6(c) of this Act, or for any person knowingly to ship,

transport, purchase, sell, offer for sale, import, export, or have in

custody, possession, or control any fish taken or retained in violation of such regulations.

(b) It shall be unlawful for the master or any person in charge

of any fishing vessel of the United States or any person on board

such vessel to fail to make, keep, or furnish any catch returns, statistical records, or other reports as are required by regulations

adopted pursuant to this Act to be made, kept, or furnished; or to

fail to stop upon being hailed by a duly authorized official of the

United States; or to refuse to permit the duly authorized officials

of the United States or authorized officials of the commissions to

board such vessel or inspect its catch, equipment, books, documents, records, or other articles or question the persons on board
Sec. 9 TUNA CONVENTIONS ACT OF 1950 456

1See footnote to section 4(a).

in accordance with the provisions of this Act, or the convention, as

the case may be.

(c) It shall be unlawful for any person to import, in violation

of any regulation adopted pursuant to section 6(c) of this Act, from

any country, any fish in any form of those species subject to regulation pursuant to a recommendation of the commission, or any tuna

in any form not under regulation but under investigation by the

commission, during the period such fish have been denied entry in

accordance with the provisions of section 6(c) of this Act. In the

case of any fish as described in this subsection offered for entry

into the United States, the Secretary of the Interior 1 shall require

proof satisfactory to him that such fish is not ineligible for such

entry under the terms of section 6(c) of this Act.

(d) Any person violating any provision of subsection (a) of this

section shall be fined not more than $25,000, and for a subsequent

violation of any provisions of said subsection (a) shall be fined not

more than $50,000.

(e) Any person violating any provision of subsection (b) of this

section shall be fined not more than $1,000, and for a subsequent

violation of any provision of subsection (b) shall be fined not more

than $5,000.

(f) Any person violating any provision of subsection (c) of this

section shall be fined not more than $100,000.

(g) All fish taken or retained in violation of subsection (a) of

this section, or the monetary value thereof, may be forfeited.

(h) All provisions of law relating to the seizure, judicial forfeiture, and condemnation of a cargo for violation of the customs

laws, the disposition of such cargo or the proceeds from the sale

thereof, and the remission or mitigation of such forfeitures shall

apply to seizures and forfeitures incurred, or alleged to have been

incurred, under the provisions of this Act, insofar as such provisions of law are applicable and not inconsistent with the provisions

of this Act.

SEC. 9. ø16 U.S.C. 958¿ (a) In order to provide coordination between the general annual programs of the commissions and programs of other agencies, relating to the exploration, development,

and conservation of fishery resources, the Secretary of State may

recommend to the United States Commissioners that they consider

the relationship of the commissions’ programs to those of such

agencies and when necessary arrange, with the concurrence of such

agencies, for mutual cooperation between the commissions and

such agencies for carrying out their respective programs.

(b) All agencies of the Federal Government are authorized on

request of the commissions to cooperate in the conduct of scientific

and other programs, or to furnish facilities and personnel for the

purpose of assisting the commissions in the performance of their

duties.

(c) The commissions are authorized and empowered to supply

facilities and personnel to existing non-Federal agencies to expedite

research work which in the judgment of the commissions is contributing or will contribute directly to the purposes of the conventions.

SEC. 10. ø16 U.S.C. 959¿ (a) The judges of the United States

district courts and United States commissioners may, within their
457 TUNA CONVENTIONS ACT OF 1950 Sec. 10

1See footnote to section 4(a).

respective jurisdictions, upon proper oath or affirmation showing

probable cause, issue such warrants or other process as may be required for enforcement of this Act and the regulations issued pursuant thereto.

(b) Enforcement of the provisions of this Act and the regulations issued pursuant thereto shall be the joint responsibility of the

United States Coast Guard, the United States Department of the

Interior, and the United States Bureau of Customs. In addition, the

Secretary of the Interior 1 may designate officers and employees of

the States of the United States, of the Commonwealth of Puerto

Rico, and of American Samoa to carry out enforcement activities

hereunder. When so designated, such officers and employees are

authorized to function as Federal law enforcement agents for these

purposes.

(c) Any person authorized to carry out enforcement activities

hereunder shall have the power to execute any warrant or process

issued by any officer or court of competent jurisdiction for the enforcement of this Act.

(d) Such person so authorized shall have the power—

(1) with or without a warrant or other process, to arrest

any persons subject to the jurisdiction of the United States at

any place within the jurisdiction of the United States committing in his presence or view a violation of this Act or the regulations issued thereunder;

(2) with or without a warrant or other process, to search

any vessel subject to the jurisdiction of the United States, and,

if as a result of such search he has reasonable cause to believe

that such vessel or any person on board is engaging in operations in violation of the provisions of this Act or the regulations issued thereunder, then to arrest such person.

(e) Such person so authorized may seize, whenever and wherever lawfully found, all fish taken or retained in violation of the

provisions of this Act or the regulations issued pursuant thereto.

Any fish so seized may be disposed of pursuant to the order of a

court of competent jurisdiction, pursuant to the provisions of subsection (f) of this section or, if perishable, in a manner prescribed

by regulations of the Secretary of the Interior 1.

(f) Notwithstanding the provisions of section 2464 of title 28 of

the United States Code, when a warrant of arrest or other process

in rem is issued in any cause under this section, the marshal or

other officer shall stay the execution of such process, or discharge

any fish seized if the process has been levied, on receiving from the

claimant of the fish a bond or stipulation for the value of the property with sufficient surety to be approved by a judge of the district

court having jurisdiction of the offense, conditioned to deliver the

fish seized, if condemned, without impairment in value or, in the

discretion of the court, to pay its equivalent value in money or otherwise to answer the decree of the court in such cause. Such bond

or stipulation shall be returned to the court and judgment thereon

against both the principal and sureties may be recovered in event

of any breach of the conditions thereof as determined by the court.

In the discretion of the accused, and subject to the direction of the

court, the fish may be sold for not less than its reasonable market
Sec. 11 TUNA CONVENTIONS ACT OF 1950 458

1So in law. Should be ‘‘vessels’’.

value and the proceeds of such sale placed in the registry of the

court pending judgment in the case.

SEC. 11. ø16 U.S.C. 960¿ None of the prohibitions contained in

this Act or in the laws and regulations of the States shall prevent

the commissions from conducting or authorizing the conduct of fishing operations and biological experiments at any time for the purpose of scientific investigations as authorized by the conventions, or

shall prevent the commissions from discharging any of its or their

functions or duties prescribed by the conventions.

SEC. 12. ø16 U.S.C. 961¿ There is hereby authorized to be appropriated from time to time, out of any moneys in the Treasury

not otherwise appropriated, such sums as may be necessary to

carry out the provisions of each convention and of this Act,

including—

(a) contributions to each commission for the United States

share of any joint expenses of the commission and the expenses

of the United States Commissioners and their staff, including

personal services in the District of Columbia and elsewhere;

(b) travel expenses without regard to the Standardized

Government Travel Regulations, as amended, the Travel Expense Act of 1949, or section 10 of the Act of March 3, 1933

(U. S. C., title 5, sec. 73b);

(c) printing and binding without regard to section 11 of the

Act of March 1, 1919 (U. S. C., title 44, sec. 111), or section

3709 of the Revised Statutes (U. S. C., title 41, sec. 5);

(d) stenographic and other services by contract, if deemed

necessary, without regard to section 3709 of the Revised Statutes (U. S. C., title 41, sec. 5); and

(e) purchase, hire, operation, maintenance, and repair of

aircraft, motor vehicles (including passenger-carrying vehicles),

boats and research vessels.

SEC. 13. ø16 U.S.C. 951 note¿ If any provision of this Act or

the application of such provision to any circumstances or persons

shall be held invalid, the validity of the remainder of the Act and

the applicability of such provision to other circumstances or persons shall not be affected thereby.

SEC. 14. ø16 U.S.C. 951 note¿ This Act shall take effect with

respect to each of the conventions upon the entry into force of that

convention, unless such entry into force shall be prior to the date

of approval of this Act in which case this Act shall take effect immediately.

SEC. 15. ø16 U.S.C. 962¿ REDUCTION OF BYCATCH IN THE EASTERN

TROPICAL PACIFIC OCEAN.

The Secretary of State, in consultation with the Secretary of

Commerce and acting through the United States Commissioners,

shall seek, in cooperation with other nations whose vessel 1 fish for

tuna in the eastern tropical Pacific Ocean, to establish standards

and measures for a bycatch reduction program for vessels fishing

for yellowfin tuna in the eastern tropical Pacific Ocean. The bycatch reduction program shall include measures—

(1) to require, to the maximum extent practicable, that sea

turtles and other threatened species and endangered species

are released alive;
459 TUNA CONVENTIONS ACT OF 1950 Sec. 15

(2) to reduce, to the maximum extent practicable, the harvest of nontarget species;

(3) to reduce, to the maximum extent practicable, the mortality of nontarget species; and

(4) to reduce, to the maximum extent practicable, the mortality of juveniles of the target species.

461

ATLANTIC TUNAS CONVENTION ACT OF 1975

463

ATLANTIC TUNAS CONVENTION ACT OF 1975

[Public Law 94–70, Approved Aug. 5, 1975, 89 Stat. 385]

(Amended through Public Law 106–562, Dec. 23, 2000)

AN ACT To give effect to the International Convention for the Conservation of

Atlantic Tunas, signed at Rio de Janeiro May 14, 1966, by the United States of

America and other countries, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø16 U.S.C. 971

note¿ That this Act may be cited as the ‘‘Atlantic Tunas Convention Act of 1975’’.

DEFINITION

SEC. 2. ø16 U.S.C. 971¿ For the purpose of this Act—

(1) The term ‘‘Convention’’ means the International Convention for the Conservation of Atlantic Tunas, signed at Rio

de Janeiro May 14, 1966, including any amendments or protocols which are or become effective for the United States.

(2) The term ‘‘Commission’’ means the International Commission for the Conservation of Atlantic Tunas provided for in

article III of the Convention.

(3) The term ‘‘conservation recommendation’’ means any

recommendation of the Commission made pursuant to Article

VIII of the Convention and acted upon favorably by the Secretary of State under section 5(a) of this Act.

(4) The term ‘‘Council’’ means the Council established

within the International Commission for the Conservation of

Atlantic Tunas pursuant to article V of the Convention.

(5) The term ‘‘exclusive economic zone’’ means an exclusive

economic zone as defined in section 3 of the Magnuson-Stevens

Fishery Conservation and Management Act (16 U.S.C. 1802).

(6) The term ‘‘fishing’’ means the catching, taking, or fishing for, or the attempted catching, taking, or fishing for any

species of fish covered by the Convention, or any activities in

support thereof.

(7) The term ‘‘fishing vessel’’ means any vessel engaged in

catching fish or processing or transporting fish loaded on the

high seas, or any vessel outfitted for such activities.

(8) The term ‘‘Panel’’ means any panel established by the

Commission pursuant to article VI of the Convention.

(9) The term ‘‘person’’ means every individual, partnership,

corporation, and association subject to the jurisdiction of the

United States.

(10) The term ‘‘Secretary’’ means the Secretary of

Commerce.
Sec. 3 ATLANTIC TUNAS CONVENTION ACT OF 1975 464

(11) The term ‘‘State’’ includes each of the States of the

United States, the District of Columbia, the Commonwealth of

Puerto Rico, and the territories and possessions of the United

States.

COMMISSIONERS

SEC. 3. ø16 U.S.C. 971a¿ (a)(1) The United States shall be represented by not more than three Commissioners who shall serve as

delegates of the United States on the Commission, and who may

serve on the Council and Panels of the Commission as provided for

in the Convention. Such Commissioners shall be appointed by and

serve at the pleasure of the President. Not more than one such

Commissioner shall be a salaried employee of any State or political

subdivision thereof, or the Federal Government. Individuals serving as such Commissioners shall not be considered to be Federal

employees while performing such service, except for purposes of injury compensation or tort claims liability as provided in chapter 81

of title 5, United States Code, and chapter 171 of title 28, United

States Code. The Commissioners shall be entitled to select a Chairman to adopt such rules of procedure as they find necessary.

(2) Of the Commissioners appointed under paragraph (1) who

are not governmental employees—

(A) one shall be appointed from among individuals with

knowledge and experience regarding recreational fishing in the

Atlantic Ocean, Gulf of Mexico, or Caribbean Sea; and

(B) one shall be appointed from among individuals with

knowledge and experience regarding recreational fishing in the

Atlantic Ocean, Gulf of Mexico, or Caribbean Sea.

(3)(A) The term of a Commissioner shall be three years.

(B) An individual appointed in accordance with paragraph (2)

shall not be eligible to serve more than two consecutive terms as

a Commissioner.

(b) The Secretary of State, in consultation with the Secretary,

may designate from time to time and for periods of time deemed

appropriate Alternate United States Commissioners to the Commission. Any Alternate United States Commissioner may exercise

at any meeting of the Commission, Council, any Panel, or the advisory committee established pursuant to section 4 of this Act, all

powers and duties of a United States Commissioner in the absence

of any Commissioner appointed pursuant to subsection (a) of this

section for whatever reason. The number of such Alternate United

States Commissioners that may be designated for any such meeting shall be limited to the number of United States Commissioners

appointed pursuant to subsection (a) of this section who will not be

present at such meeting.

(c) The United States Commissioners or Alternate Commissioners, although officers of the United States while so serving,

shall receive no compensation for their services as such Commissioners or Alternate Commissioners.

(d)(1) The Secretary of State shall pay the necessary travel expenses of United States Commissioners, Alternate United States

Commissioners, and authorized advisors in accordance with the

Federal Travel Regulations and sections 5701, 5702, 5704 through

5708, and 5731 of title 5, United States Code.
465 ATLANTIC TUNAS CONVENTION ACT OF 1975 Sec. 4

(2) The Secretary may reimburse the Secretary of State for

amounts expended by the Secretary of State under this subsection.

ADVISORY COMMITTEE

SEC. 4. ø16 U.S.C. 971b¿ (a) There is established an advisory

committee which shall be composed of—

(1) not less than five nor more than twenty individuals appointed by the United States Commissioners who shall select

such individuals from the various groups concerned with the

fisheries covered by the Convention; and

(2) the chairmen (or their designees) of the New England,

Mid-Atlantic, South Atlantic, Caribbean, and Gulf Fishery

Management Councils established under section 302(a) of the

Fishery Conservation and Management Act of 1976 (16 U.S.C.

1852(a)).

Each member of the advisory committee appointed under paragraph (1) shall serve for a term of two years and shall be eligible

for reappointment. Members of the advisory committee may attend

all public meetings of the Commission, Council, or any Panel and

any other meetings to which they are invited by the Commission,

Council, or any Panel. The advisory committee shall be invited to

attend all nonexecutive meetings of the United States Commissioners and at such meetings shall be given opportunity to examine

and to be heard on all proposed programs of investigation, reports,

recommendations, and regulations of the Commission. Members of

the advisory committee shall receive no compensation for their

services as such members. The Secretary and the Secretary of

State may pay the necessary travel expenses of members of the advisory committee in accordance with the Federal Travel Regulations and sections 5701, 5702, 5704 through 5708, and 5731 of title

5, United States Code. (b)(1) A majority of the members of the advisory committee

shall constitute a quorum, but one or more such members designated by the advisory committee may hold meetings to provide

for public participation and to discuss measures relating to the

United States implementation of Commission recommendations.

(2) The advisory committee shall elect a Chairman for a 2-year

term from among its members.

(3) The advisory committee shall meet at appropriate times

and places at least twice a year, at the call of the Chairman or

upon the request of the majority of its voting members, the United

States Commissioners, the Secretary, or the Secretary of State.

Meetings of the advisory committee, except when in executive session, shall be open to the public, and prior notice of meetings shall

be made public in a timely fashion.

(4)(A) The Secretary shall provide to the advisory committee in

a timely manner such administrative and technical support services as are necessary for the effective functioning of the committee.

(B) The Secretary and the Secretary of State shall furnish the

advisory committee with relevant information concerning fisheries

and international fishery agreements.

(5) The advisory committee shall determine its organization,

and prescribe its practices and procedures for carrying out its functions under this Act, the Magnuson-Stevens Fishery Conservation

and Management Act (16 U.S.C. 1801 et seq.), and the Convention.
Sec. 4A ATLANTIC TUNAS CONVENTION ACT OF 1975 466

The advisory committee shall publish and make available to the

public a statement of its organization, practices, and procedures.

(6) The advisory committee shall, to the maximum extent practicable, consist of an equitable balance among the various groups

concerned with the fisheries covered by the Convention and shall

not be subject to the Federal Advisory Committee Act (5 U.S.C.

App.).

SPECIES WORKING GROUPS

SEC. 4A. ø16 U.S.C. 971b–1¿ The United States Commissioners

may establish species working groups for the purpose of providing

advice and recommendations to the Commissioners and the advisory committee on matters relating to the conservation and management of any highly migratory species covered by the Convention. Any species working group shall consist of not more than

seven members of the advisory committee and no more than four

scientific or technical personnel, as considered necessary by the

Commissioner.

SECRETARY OF STATE TO ACT FOR THE UNITED STATES

SEC. 5. ø16 U.S.C. 971c¿ (a) The Secretary of State is authorized to receive on behalf of the United States, reports, requests,

and other communications of the Commission, and to act thereon

directly or by reference to the appropriate authorities. The Secretary of State, with the concurrence of the Secretary and, for matters relating to enforcement, the Secretary of the department in

which the Coast Guard is operating, is authorized to take appropriate action on behalf of the United States with regard to recommendations received from the Commission pursuant to article

VIII of the Convention. The Secretary and, when appropriate, the

Secretary of the department in which the Coast Guard is operating,

shall inform the Secretary of State as to what action he considers

appropriate within five months of the date of the notification of the

recommendation from the Commission, and again within forty-five

days of the additional sixty-day period provided by the Convention

if any objection is presented by another contracting party to the

Convention, or within thirty days of the date of the notification of

an objection made within the additional sixty-day period, whichever date shall be the later. After any notification from the Commission that an objection of the United States is to be considered

as having no effect, the Secretary shall inform the Secretary of

State as to what action he considers appropriate within forty-five

days of the sixty-day period provided by the Convention for reaffirming objections. The Secretary of State shall take steps under

the Convention to insure that a recommendation pursuant to article VIII of the Convention does not become effective for the United

States prior to its becoming effective for all contracting parties conducting fisheries affected by such recommendation on a meaningful

scale in terms of their effect upon the success of the conservation

program, unless he determines, with the concurrence of the Secretary, and, for matters relating to enforcement, the Secretary of

the department in which the Coast Guard is operating, that the

purposes of the Convention would be served by allowing a rec-
467 ATLANTIC TUNAS CONVENTION ACT OF 1975 Sec. 6

ommendation to take effect for the United States at some earlier

time.

(b) The Secretary of State, in consultation with the Secretary

and the Secretary of the department in which the Coast Guard is

operating, is authorized to enter into agreements with any contracting party, pursuant to paragraph 3 of article IX of the Convention, relating to cooperative enforcement of the provisions of the

Convention, recommendations in force for the United States and

such party or parties under the Convention, and regulations adopted by the United States and such contracting party or parties pursuant to recommendations of the Commission. Such agreements

may authorize personnel of the United States to enforce measures

under the Convention and under regulations of another party with

respect to persons under that party’s jurisdiction, and may authorize personnel of another party to enforce measures under the Convention and under United States regulations with respect to persons subject to the jurisdiction of the United States. Enforcement

under such an agreement may not take place within the territorial

seas or exclusive economic zone of the United States. Such agreements shall not subject persons or vessels under the jurisdiction of

the United States to prosecution or assessment of penalties by any

court or tribunal of a foreign country.

ADMINISTRATION

SEC. 6. ø16 U.S.C. 971d¿ (a) The Secretary is authorized and

directed to administer and enforce all of the provisions of the Convention, this Act, and regulations issued pursuant thereto, except

to the extent otherwise provided for in this Act. In carrying out

such functions the Secretary is authorized and directed to adopt

such regulations as may be necessary to carry out the purposes and

objectives of the Convention and this Act, and with the concurrence

of the Secretary of State, he may cooperate with the duly authorized officials of the government of any party to the Convention. In

addition, the Secretary may utilize, with the concurrence of the

Secretary of the department in which the Coast Guard is operating

insofar as such utilization involves enforcement at sea, with or

without reimbursement and by agreement with any other Federal

department or agency, or with any agency of any State, the personnel, services, and facilities of that agency for enforcement purposes with respect to any vessel in the fisheries zone 1, or wherever

found, with respect to any vessel documented under the laws of the

United States, and any vessel numbered or otherwise licensed

under the laws of any State. When so utilized, such personnel of

the States of the United States are authorized to function as Federal law enforcement agents for these purposes, but they shall not

be held and considered as employees of the United States for the

purposes of any laws administered by the Civil Service Commission.

(b) Enforcement activities at sea under the provisions of this

Act for fishing vessels subject to the jurisdiction of the United

States shall be primarily the responsibility of the Secretary of the

department in which the Coast Guard is operating, in cooperation

with the Secretary and the United States Customs Service. The

Secretary after consultation with the Secretary of the department

in which the Coast Guard is operating, shall adopt such regulations
Sec. 6 ATLANTIC TUNAS CONVENTION ACT OF 1975 468

as may be necessary to provide for procedures and methods of enforcement pursuant to article IX of the Convention.

(c)(1)(A) Upon favorable action by the Secretary of State under

section 5(a) of this Act on any recommendation of the Commission

made pursuant to article VIII of the Convention, the Secretary

shall promulgate, pursuant to this subsection, such regulations as

may be necessary and appropriate to carry out such

recommendation.

(B) Not later than June 30, 1991, the Secretary shall promulgate any additional regulations necessary to ensure that the United

States is in full compliance with all recommendations made by the

Commission that have been accepted by the United States and

with other agreements under the Convention between the United

States and any nation which is a party to the Convention.

(C) Regulations promulgated under this paragraph shall, to the

extent practicable, be consistent with fishery management plans

prepared and implemented under the Magnuson-Stevens Fishery

Conservation and Management Act (16 U.S.C. 1801 et seq.).

(2) To promulgate regulations referred to in paragraph (1) of

this subsection, the Secretary shall publish in the Federal Register

a general notice of proposed rulemaking and shall afford interested

persons an opportunity to participate in the rulemaking through

(A) submission of written data, views, or arguments, and (B) oral

presentation at a public hearing. Such regulations shall be published in the Federal Register and shall be accompanied by a statement of the considerations involved in the issuance of the regulations, and by a statement, based on inquiries and investigations,

assessing the nature and effectiveness of the measures for the implementation of the Commission’s recommendations which are

being or will be carried out by countries whose vessels engage in

fishing the species subject to such recommendations within the waters to which the Convention applies. After publication in the Federal Register, such regulations shall be applicable to all vessels and

persons subject to the jurisdiction of the United States on such

date as the Secretary shall prescribe. The Secretary shall suspend

at any time the application of any such regulation when, after consultation with the Secretary of State and the United States Commissioners, he determines that fishing operations in the Convention area of a contracting party for whom the regulations are effective are such as to constitute a serious threat to the achievement

of the Commission’s recommendations.

(3) The regulations required to be promulgated under paragraph (1) of this subsection may—

(A) select for regulation one or more of the species covered

by the Convention;

(B) divide the Convention waters into areas;

(C) establish one or more open or closed seasons as to each

such area;

(D) limit the size of the fish and quantity of the catch

which may be taken from each area within any season during

which fishing is allowed;

(E) limit or prohibit the incidental catch of a regulated

species which may be retained, taken, possessed, or landed by

vessels or persons fishing for other species of fish;
469 ATLANTIC TUNAS CONVENTION ACT OF 1975 Sec. 6

(F) require records of operations to be kept by any master

or other person in charge of any fishing vessel;

(G) require such clearance certificates for vessels as may

be necessary to carry out the purposes of the Convention and

this Act;

(H) require proof satisfactory to the Secretary that any fish

subject to regulation pursuant to a recommendation of the

Commission offered for entry into the United States has not

been taken or retained contrary to the recommendations of the

Commission made pursuant to article VIII of the Convention

which have been adopted as regulations pursuant to this

section;

(I) require any commercial or recreational fisherman to obtain a permit from the Secretary and report the quantity of the

catch of a regulated species;

(J) require that observers be carried aboard fishing vessels

for the purpose of providing statistically reliable scientific data;

and

(K) impose such other requirements and provide for such

other measures as the Secretary may determine necessary to

implement any recommendation of the Convention or to obtain

scientific data necessary to accomplish the purpose of the

Convention;

except that no regulation promulgated under this section may have

the effect of increasing or decreasing any allocation or quota of fish

or fishing mortality level to the United States agreed to pursuant

to a recommendation of the Commission.

(4) Upon the promulgation of regulations provided for in paragraph (3) of this subsection, the Secretary shall promulgate, with

the concurrence of the Secretary of State and pursuant to the procedures prescribed in paragraph (2) of this subsection, additional

regulations which shall become effective simultaneously with the

application of the regulations provided for in paragraph (3) of this

subsection, which prohibit—

(A) the entry into the United States of fish in any form of

those species which are subject to regulation pursuant to a recommendation of the Commission and which were taken from

the Convention area in such manner or in such circumstances

as would tend to diminish the effectiveness of the conservation

recommendations of the Commission; and

(B) the entry into the United States, from any country

when the vessels of such country are being used in the conduct

of fishing operations in the Convention area in such manner or

in such circumstances as would tend to diminish the effectiveness of the conservation recommendations of the Commission,

of fish in any form of those species which are subject to regulation pursuant to a recommendation of the Commission and

which were taken from the Convention area.

(5) In the case of repeated and flagrant fishing operations in

the Convention area by the vessels of any country which seriously

threaten the achievement of the objectives of the Commission’s recommendations, the Secretary with the concurrence of the Secretary

of State, may by regulations promulgated pursuant to paragraph

(2) of this subsection prohibit the entry in any form from such

country of other species covered by the Convention as may be
Sec. 6 ATLANTIC TUNAS CONVENTION ACT OF 1975 470

1Margin so in law.

under investigation by the Commission and which were taken in

the Convention area. Any such prohibition shall continue until the

Secretary is satisfied that the condition warranting the prohibition

no longer exists, except that all fish in any form of the species

under regulation which were previously prohibited from entry shall

continue to be prohibited from entry.

(6) 1 IDENTIFICATION AND NOTIFICATION.—

(A) Not later than July 1, 1996, and annually thereafter, the Secretary, in consultation with the Secretary of

State, the Commissioners, and the advisory committee,

shall—

(i) identify those nations whose fishing vessels are

fishing, or have fished during the preceding calendar

year, within the convention area in a manner or under

circumstances that diminish the effectiveness of a conservation recommendation;

(ii) notify the President and the nation so identified, including an explanation of the reasons therefor;

and

(iii) publish a list of those Nations identified

under clause (i).

(B) In identifying those Nations, the Secretary shall

consider, based on the best available information, whether

those Nations have measures in place for reporting, monitoring, and enforcement, and whether those measures diminish the effectiveness of any conservation recommendation.

(7) 1 CONSULTATION.—Not later than 30 days after a Nation is notified under paragraph (6), the President may enter

into consultations with the Government of that Nation for the

purpose of obtaining an agreement that will—

(A) effect the immediate termination and prevent the

resumption of any fishing operation by vessels of that Nation within the Convention area which is conducted in a

manner or under circumstances that diminish the effectiveness of the conservation recommendation;

(B) when practicable, require actions by that Nation,

or vessels of that Nation, to mitigate the negative impacts

of fishing operations on the effectiveness of the conservation recommendation involved, including but not limited

to, the imposition of subsequent-year deductions for quota

overages; and

(C) result in the establishment, if necessary, by such

Nation of reporting, monitoring, and enforcement measures that are adequate to ensure the effectiveness of conservation recommendations.

(d)(1) It is the sense of the Congress that the Secretary, in consultation with the Secretary of State, should seek support for a recommendation by the Commission to ban large-scale driftnet fishing

(as that term is defined in section 3(16) of the Magnuson-Stevens

Fishery Conservation and Management Act) in the Convention

area.
471 ATLANTIC TUNAS CONVENTION ACT OF 1975 Sec. 7

(2) The Secretary, in consultation with the Secretary of State,

shall request the Commission to adopt recommendations necessary

for the conservation and management of Atlantic swordfish. In

making the request, the Secretary shall seek the establishment of

an international minimum harvest size and a reduction in harvest

levels to the extent necessary to conserve the stock. Until the Commission adopts all the conservation and management measures requested by the Secretary, the Secretary, within 3 months after each

annual meeting of the Commission, shall notify Congress as to the

nature and results of his request. These notifications shall identify

those nations not acting to conserve and manage Atlantic swordfish, and recommend measures which could be taken to achieve effective international conservation and management of the stock.

VIOLATIONS; FINES AND FORFEITURES; APPLICATION OF RELATED

LAWS

SEC. 7. ø16 U.S.C. 971e¿ (a) It shall be unlawful—

(1) for any person in charge of a fishing vessel or any fishing vessel subject to the jurisdiction of the United States to engage in fishing in violation of any regulation adopted pursuant

to section 6 of this Act; or

(2) for any person subject to the jurisdiction of the United

States to ship, transport, purchase, sell, offer for sale, import,

export, or have in custody, possession, or control any fish

which he knows, or should have known, were taken or retained

contrary to the recommendations of the Commission made pursuant to article VIII of the Convention and adopted as regulations pursuant to section 6 of this Act, without regard to the

citizenship of the person or vessel which took the fish.

(b) It shall be unlawful for the master or any person in charge

of any fishing vessel subject to the jurisdiction of the United States

to fail to make, keep, or furnish any catch returns, statistical

records, or other reports as are required by regulations adopted

pursuant to this Act to be made, kept, or furnished by such master

or person.

(c) It shall be unlawful for the master or any person in charge

of any fishing vessel subject to the jurisdiction of the United States

to refuse to permit any person authorized to enforce the provisions

of this Act and any regulations adopted pursuant thereto, to board

such vessel and inspect its catch, equipment, books, documents,

records, or other articles or question the persons onboard in accordance with the provisions of this Act, or the Convention, as the case

may be, or to obstruct such officials in the execution of such duties.

(d) It shall be unlawful for any person to import, in violation

of any regulation adopted pursuant to section 6(c) or (d) of this Act,

from any country, any fish in any form of those species subject to

regulation pursuant to a recommendation of the Commission, or

any fish in any form not under regulation but under investigation

by the Commission, during the period such fish have been denied

entry in accordance with the provisions of section 6(c) or (d) of this

Act. In the case of any fish as described in this subsection offered

for entry in the United States, the Secretary shall require proof

satisfactory to him that such fish is not ineligible for such entry

under the terms of section 6(c) or (d) of this Act.
Sec. 8 ATLANTIC TUNAS CONVENTION ACT OF 1975 472

(e) The civil penalty and permit sanctions of section 308 of the

Magnuson-Stevens Fishery Conservation and Management Act (16

U.S.C. 1858) are hereby made applicable to violations of this section as if they were violations of section 307 of that Act.

(f) All fish taken or retained in violation of subsection (a) of

this section, or the monetary value thereof, may be forfeited.

(g) All provisions of law relating to the seizure, judicial forfeiture, and condemnation of a cargo for violation of the customs

laws, the disposition of such cargo or the proceeds from the sale

thereof, and the remission or mitigation of such forfeitures shall

apply to seizures and forfeitures incurred, or alleged to have been

incurred, under the provisions of this Act, insofar as such provisions of law are applicable and not inconsistent with the provisions

of this Act.

ENFORCEMENT

SEC. 8. ø16 U.S.C. 971f¿ (a) Any person authorized in accordance with the provisions of this Act to enforce the provisions of this

Act and the regulations issued thereunder may—

(1) with or without a warrant, board any vessel subject to

the jurisdiction of the United States and inspect such vessel

and its catch and, if as a result of such inspection, he has reasonable cause to believe that such vessel or any person on

board is engaging in operations in violation of this Act or any

regulations issued thereunder, he may, with or without a warrant or other process, arrest such person;

(2) arrest, with or without a warrant, any person who violates the provisions of this Act or any regulation issued thereunder in his presence or view;

(3) execute any warrant or other process issued by an officer or court of competent jurisdiction; and

(4) seize, whenever and wherever lawfully found, all fish

taken or retained by a vessel subject to the jurisdiction of the

United States in violation of the provisions of this Act or any

regulations issued pursuant thereto. Any fish so seized may be

disposed of pursuant to an order of a court of competent jurisdiction, or, if perishable, in a manner prescribed by regulation

of the Secretary.

(b) To the extent authorized under the convention or by agreements between the United States and any contracting party concluded pursuant to section 5(b) of this Act for international enforcement, the duly authorized officials of such party shall have the authority to carry out the enforcement activities specified in section

8(a) of this Act with respect to persons or vessels subject to the jurisdiction of the United States, and the officials of the United

States authorized pursuant to this section shall have the authority

to carry out the enforcement activities specified in section 8(a) of

this Act with respect to persons or vessels subject to the jurisdiction of such party, except that where any agreement provides for

arrest or seizure of persons or vessels under United States jurisdiction it shall also provide that the person or vessel arrested or

seized shall be promptly handed over to a United States enforcement officer or another authorized United States official.

(c) Notwithstanding the provisions of section 2464 of title 28,

United States Code, when a warrant of arrest or other process in
473 ATLANTIC TUNAS CONVENTION ACT OF 1975 Sec. 9

rem is issued in any cause under this section, the marshal or other

officer shall stay the execution of such process, or discharge any

fish seized if the process has been levied, on receiving from the

claimant of the fish a bond or stipulation for the value of the property with sufficient surety to be approved by a judge of the district

court having jurisdiction of the offense, conditioned to deliver the

fish seized, if condemned, without impairment in value or, in the

discretion of the court, to pay its equivalent value in money or otherwise to answer the decree of the court in such cause. Such bond

or stipulation shall be returned to the court and judgment thereon

against both the principal and sureties may be recovered in event

of any breach of the conditions thereof as determined by the court.

In the discretion of the accused, and subject to the direction of the

court, the fish may be sold for not less than its reasonable market

value at the time of seizure and the proceeds of such sale placed

in the registry of the court pending judgment in the case.

COOPERATION: COMMISSION’S FUNCTIONS NOT RESTRAINED BY THIS

ACT OR STATE LAWS

SEC. 9. ø16 U.S.C. 971g¿ (a) The United States Commissioners,

through the Secretary of State and with the concurrence of the

agency, institution, or organization concerned, may arrange for the

cooperation of agencies of the United States Government, and of

State and private institutions and organizations in carrying out the

provisions of article IV of the Convention.

(b) All agencies of the Federal Government are authorized,

upon the request of the Commission, to cooperate in the conduct of

scientific and other programs, and to furnish facilities and personnel for the purpose of assisting the Commission in carrying out

its duties under the Convention.

(c) None of the prohibitions deriving from this Act, or contained in the laws or regulations of any State, shall prevent the

Commission from conducting or authorizing the conduct of fishing

operations and biological experiments at any time for purposes of

scientific investigation, or shall prevent the Commission from discharging any other duties prescribed by the Convention.

(d)(1) Except as provided in paragraph (2) of this subsection,

nothing in this Act shall be construed so as to diminish or to increase the jurisdiction of any State in the territorial sea of the

United States.

(2) In the event a State does not request a formal hearing and

after notice by the Secretary, the regulations promulgated pursuant to this Act to implement recommendations of the Commission

shall apply within the boundaries of any State bordering on any

Convention area if the Secretary determines that any such State— (A) has not, within a reasonable period of time after the

promulgation of regulations pursuant to this Act, enacted laws

or promulgated regulations which implement any such recommendation of the Commission within the boundaries of such

State; or

(B) has enacted laws or promulgated regulations which (i)

are less restrictive than the regulations promulgated pursuant

to this Act, or (ii) are not effectively enforced.

If a State requests the opportunity for an agency hearing on the

record, the Secretary shall not apply regulations promulgated pur-
Sec. 10 ATLANTIC TUNAS CONVENTION ACT OF 1975 474

1So in law. The heading for section 10 probably should conform with the typesize in the heading to section 11.

suant to this Act within that State’s boundaries unless the hearing

record supports a determination under paragraph (A) or (B). Such

regulations shall apply until the Secretary determines that the

State is effectively enforcing within its boundaries measures which

are not less restrictive than such regulations.

(e) To insure that the purposes of subsection (d) are carried

out, the Secretary shall undertake a continuing review of the laws

and regulations of all States to which subsection (d) applies or may

apply and the extent to which such laws and regulations are

enforced.

AUTHORIZATION OF APPROPRIATIONS 1

SEC. 10. ø16 U.S.C. 971h¿ There are authorized to be appropriated to carry out this Act, including use for payment of the

United States share of the joint expenses of the Commission as provided in Article X of the Convention, the following sums:

(1) For fiscal year 1995, $4,103,000, of which $50,000 are

authorized in the aggregate for the advisory committee established under section 4 and the species working groups established under section 4A, and $2,890,000 are authorized for research activities under this Act and the Act of September 4,

1980 (16 U.S.C. 971i).

(2) For fiscal year 1996, $5,453,000, of which $50,000 are

authorized in the aggregate for such advisory committee and

such working groups, and $4,240,000 are authorized for such

research activities.

(3) For fiscal year 1997, $5,465,000 of which $62,000 are

authorized in the aggregate for such advisory committee and

such working groups, and $4,240,000 are authorized for such

research activities.

(4) For each of fiscal years 1998, 1999, 2000, and 2001,

$5,465,000 of which $75,000 are authorized in the aggregate

for such advisory committee and such working groups, and $4,240,000 are authorized for such research activities.

ANNUAL REPORT

Sec. 11. ø16 U.S.C. 971j¿ Not later than April 1, 1996, and annually thereafter, the Secretary shall prepare and transmit to the

Committee on Resources of the House of Representatives and the

Committee on Commerce, Science, and Transportation of the Senate a report, that—

(1) details for the previous 10-year period the catches and

exports to the United States of highly migratory species (including tunas, swordfish, marlin and sharks) from Nations

fishing on Atlantic stocks of such species that are subject to

management by the Commission;

(2) identifies those fishing Nations whose harvests are inconsistent with conservation and management recommendations of the Commission;

(3) describes reporting requirements established by the

Secretary to ensure that imported fish products are in compliance with all international management measures, including
475 ATLANTIC TUNAS CONVENTION ACT OF 1975 Sec. 13

minimum size requirements, established by the Commission

and other international fishery organizations to which the

United States is a party; and

(4) describes actions taken by the Secretary under section

6.

SAVINGS CLAUSE

SEC. 12. ø16 U.S.C. 971k¿ Nothing in this Act shall have the

effect of diminishing the rights and obligations of any Nation under

Article VIII(3) of the Convention.

SEPARABILITY

SEC. 13. ø16 U.S.C. 971 note¿ If any provision of this Act or

the applications of such provision to any circumstance or persons

shall be held invalid, the validity of the remainder of the Act and

the applicability of such provision to other circumstances or persons shall not be affected thereby.

477

ATLANTIC COASTAL FISHERIES COOPERATIVE

MANAGEMENT ACT

479

ATLANTIC COASTAL FISHERIES COOPERATIVE

MANAGEMENT ACT

[Title VIII of Public Law 103–206, Approved Dec. 20, 1993, 107 Stat. 2419]

[Amended through Public Law 106–555, Dec. 21, 2000]

TITLE VIII—ATLANTIC COASTAL

FISHERIES

SEC. 801. ø16 U.S.C. 5101 note¿ SHORT TITLE.

This title may be cited as the ‘‘Atlantic Coastal Fisheries Cooperative Management Act’’.

SEC. 802. ø16 U.S.C. 5101¿ FINDINGS AND PURPOSE.

(a) FINDINGS.—The Congress finds the following:

(1) Coastal fishery resources that migrate, or are widely

distributed, across the jurisdictional boundaries of two or more

of the Atlantic States and of the Federal Government are of

substantial commercial and recreational importance and economic benefit to the Atlantic coastal region and the Nation.

(2) Increased fishing pressure, environmental pollution,

and the loss and alteration of habitat have reduced severely

certain Atlantic coastal fishery resources.

(3) Because no single governmental entity has exclusive

management authority for Atlantic coastal fishery resources,

harvesting of such resources is frequently subject to disparate,

inconsistent, and intermittent State and Federal regulation

that has been detrimental to the conservation and sustainable

use of such resources and to the interests of fishermen and the

Nation as a whole.

(4) The responsibility for managing Atlantic coastal fisheries rests with the States, which carry out a cooperative program of fishery oversight and management through the Atlantic States Marine Fisheries Commission. It is the responsibility

of the Federal Government to support such cooperative interstate management of coastal fishery resources.

(5) The failure by one or more Atlantic States to fully implement a coastal fishery management plan can affect the status of Atlantic coastal fisheries, and can discourage other

States from fully implementing coastal fishery management

plans.

(6) It is in the national interest to provide for more effective Atlantic State fishery resource conservation and management.

(b) PURPOSE.—The purpose of this title is to support and encourage the development, implementation, and enforcement of ef-
Sec. 803 ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT ACT 480

fective interstate conservation and management of Atlantic coastal

fishery resources.

SEC. 803. ø16 U.S.C. 5102¿ DEFINITIONS.

In this title, the following definitions apply:

(1) The term ‘‘coastal fishery management plan’’ means a

plan for managing a coastal fishery resource, or an amendment

to such plan, prepared and adopted by the Commission, that—

(A) contains information regarding the status of the

resource and related fisheries; and

(B) specifies conservation and management actions to

be taken by the States.

(2) The term ‘‘coastal fishery resource’’ means any fishery,

any species of fish, or any stock of fish that moves among, or

is broadly distributed across, waters under the jurisdiction of

two or more States or waters under the jurisdiction of one or

more States and the exclusive economic zone.

(3) The term ‘‘Commission’’ means the Atlantic States Marine Fisheries Commission established under the interstate

compact consented to and approved by the Congress in Public

Laws 77–539 and 81–721.

(4) The term ‘‘conservation’’ means the restoring, rebuilding, and maintaining of any coastal fishery resource and the

marine environment, in order to assure the availability of

coastal fishery resources on a long-term basis.

(5) The term ‘‘Councils’’ means Regional Fishery Management Councils established under section 302 of the MagnusonStevens Fishery Conservation and Management Act (16 U.S.C.

1852).

(6) The term ‘‘exclusive economic zone’’ means the exclusive economic zone of the United States established by Proclamation Number 5030, dated March 10, 1983. For the purposes

of this title, the inner boundary of that zone is a line coterminous with the seaward boundary of each of the coastal States,

and the outer boundary of that zone is a line drawn in such

a manner that each point on it is 200 nautical miles from the

baseline from which the territorial sea is measured.

(7) The term ‘‘fish’’ means finfish, mollusks, crustaceans,

and all other forms of marine animal life other than marine

mammals and birds.

(8) The term ‘‘fishery’’ means—

(A) one or more stocks of fish that can be treated as

a unit for purposes of conservation and management and

that are identified on the basis of geographical, scientific,

technical, commercial, recreational, or economic characteristics; or

(B) any fishing for such stocks.

(9) The term ‘‘fishing’’ means—

(A) the catching, taking, or harvesting of fish;

(B) the attempted catching, taking, or harvesting of

fish;

(C) any other activity that can be reasonably expected

to result in the catching, taking, or harvesting of fish; or
481 ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT ACT Sec. 804

(D) any operations at sea in support of, or in preparation for, any activity described in subparagraphs (A)

through (C).

Such term does not include any scientific research activity or

the catching, taking, or harvesting of fish in an aquaculture

operation.

(10) The term ‘‘implement and enforce’’ means to enact and

implement laws or regulations as required to conform with the

provisions of a coastal fishery management plan and to assure

compliance with such laws or regulations by persons participating in a fishery that is subject to such plan.

(11) The term ‘‘person’’ means any individual (whether or

not a citizen or national of the United States), any corporation,

partnership, association, or other entity (whether or not organized or existing under the laws of any State), and any Federal, State, local, or foreign government or any entity of any

such government.

(12) The term ‘‘Secretary’’ means the Secretary of Commerce.

(13) The term ‘‘State’’ means Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey,

Pennsylvania, Delaware, Maryland, Virginia, North Carolina,

South Carolina, Georgia, Florida, the District of Columbia, or

the Potomac River Fisheries Commission.

SEC. 804. ø16 U.S.C. 5103¿ STATE-FEDERAL COOPERATION IN ATLANTIC COASTAL FISHERY MANAGEMENT.

(a) FEDERAL SUPPORT FOR STATE COASTAL FISHERIES PRO- GRAMS.—The Secretary in cooperation with the Secretary of the Interior shall develop and implement a program to support the interstate fishery management efforts of the Commission. The program

shall include activities to support and enhance State cooperation in

collection, management, and analysis of fishery data; law enforcement; habitat conservation; fishery research, including biological

and socioeconomic research; and fishery management planning.

(b) FEDERAL REGULATION IN EXCLUSIVE ECONOMIC ZONE.—(1)

In the absence of an approved and implemented fishery management plan under the Magnuson-Stevens Fishery Conservation and

Management Act (16 U.S.C. 1801 et seq.), and after consultation

with the appropriate Councils, the Secretary may implement regulations to govern fishing in the exclusive economic zone that are— (A) compatible with the effective implementation of a

coastal fishery management plan; and

(B) consistent with the national standards set forth in section 301 of the Magnuson-Stevens Fishery Conservation and

Management Act (16 U.S.C. 1851).

The regulations may include measures recommended by the Commission to the Secretary that are necessary to support the provisions of the coastal fishery management plan. Regulations issued

by the Secretary to implement an approved fishery management

plan prepared by the appropriate Councils or the Secretary under

the Magnuson-Stevens Fishery Conservation and Management Act

(16 U.S.C. 1801 et seq.) shall supersede any conflicting regulations

issued by the Secretary under this subsection.

(2) The provisions of sections 307, 308, 309, 310, and 311 of the

Magnuson-Stevens Fishery Conservation and Management Act (16
Sec. 805 ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT ACT 482

U.S.C. 1857, 1858, 1859, 1860, and 1861) regarding prohibited acts,

civil penalties, criminal offenses, civil forfeitures, and enforcement

shall apply with respect to regulations issued under this subsection

as if such regulations were issued under the Magnuson-Stevens

Fishery Conservation and Management Act (16 U.S.C. 1801 et

seq.).

SEC. 805. ø16 U.S.C. 5104¿ STATE IMPLEMENTATION OF COASTAL

FISHERY MANAGEMENT PLANS.

(a) COASTAL FISHERY MANAGEMENT PLANS.—(1) The Commission shall prepare and adopt coastal fishery management plans to

provide for the conservation of coastal fishery resources. In preparing a coastal fishery management plan for a fishery that is located in both State waters and the exclusive economic zone, the

Commission shall consult with appropriate Councils to determine

areas where such coastal fishery management plan may complement Council fishery management plans. The coastal fishery

management plan shall specify the requirements necessary for

States to be in compliance with the plan. Upon adoption of a coastal fishery management plan, the Commission shall identify each

State that is required to implement and enforce that plan.

(2) Within 1 year after the date of enactment of this Act, the

Commission shall establish standards and procedures to govern the

preparation of coastal fishery management plans under this title,

including standards and procedures to ensure that—

(A) such plans promote the conservation of fish stocks

throughout their ranges and are based on the best scientific information available; and

(B) the Commission provides adequate opportunity for

public participation in the plan preparation process, including

at least four public hearings and procedures for the submission

of written comments to the Commission.

(b) STATE IMPLEMENTATION AND ENFORCEMENT.—(1) Each

State identified under subsection (a) with respect to a coastal fishery management plan shall implement and enforce the measures of

such plan within the timeframe established in the plan.

(2) Within 90 days after the date of enactment of this Act, the

Commission shall establish a schedule of timeframes within which

States shall implement and enforce the measures of coastal fishery

management plans in existence before such date of enactment. No

such timeframe shall exceed 12 months after the date on which the

schedule is adopted.

(c) COMMISSION MONITORING OF STATE IMPLEMENTATION AND

ENFORCEMENT.—The Commission shall, at least annually, review

each State’s implementation and enforcement of coastal fishery

management plans for the purpose of determining whether such

State is effectively implementing and enforcing each such plan.

Upon completion of such reviews, the Commission shall report the

results of the reviews to the Secretaries.

SEC. 806. ø16 U.S.C. 5105¿ STATE NONCOMPLIANCE WITH COASTAL

FISHERY MANAGEMENT PLANS.

(a) NONCOMPLIANCE DETERMINATION.—The Commission shall

determine that a State is not in compliance with the provisions of

a coastal fishery management plan if it finds that the State has not
483 ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT ACT Sec. 807

implemented and enforced such plan within the timeframes established under the plan or under section 805.

(b) NOTIFICATION.—Upon making any determination under

subsection (a), the Commission shall within 10 working days notify

the Secretaries of such determination. Such notification shall include the reasons for making the determination and an explicit list

of actions that the affected State must take to comply with the

coastal fishery management plan. The Commission shall provide a

copy of the notification to the affected State.

(c) WITHDRAWAL OF NONCOMPLIANCE DETERMINATION.—After

making a determination under subsection (a), the Commission

shall continue to monitor State implementation and enforcement.

Upon finding that a State has complied with the actions required

under subsection (b), the Commission shall immediately withdraw

its determination of noncompliance. The Commission shall promptly notify the Secretaries of such withdrawal.

SEC. 807. ø16 U.S.C. 5106¿ SECRETARIAL ACTION.

(a) SECRETARIAL REVIEW OF COMMISSION DETERMINATION OF

NONCOMPLIANCE.—Within 30 days after receiving a notification

from the Commission under section 806(b) and after review of the

Commission’s determination of noncompliance, the Secretary shall

make a finding on—

(1) whether the State in question has failed to carry out

its responsibility under section 805; and

(2) if so, whether the measures that the State has failed

to implement and enforce are necessary for the conservation of

the fishery in question.

(b) CONSIDERATION OF COMMENTS.—In making a finding under

subsection (a), the Secretary shall—

(A) give careful consideration to the comments of the State

that the Commission has determined under section 806(a) is

not in compliance with a coastal fishery management plan, and

provide such State, upon request, with the opportunity to meet

with and present its comments directly to the Secretary; and

(B) solicit and consider the comments of the Commission

and the appropriate Councils.

(c) MORATORIUM.—(1) Upon making a finding under subsection

(a) that a State has failed to carry out its responsibility under section 805 and that the measures it failed to implement and enforce

are necessary for conservation, the Secretary shall declare a moratorium on fishing in the fishery in question within the waters of

the noncomplying State. The Secretary shall specify the moratorium’s effective date, which shall be any date within 6 months after

declaration of the moratorium.

(2) If after a moratorium is declared under paragraph (1) the

Secretary is notified by the Commission that the Commission is

withdrawing under section 806(c) the determination of noncompliance, the Secretary shall immediately determine whether the State

is in compliance with the applicable plan. If so, the moratorium

shall be terminated.

(d) IMPLEMENTING REGULATIONS.—The Secretary may issue

regulations necessary to implement this section. Such regulations—
Sec. 807 ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT ACT 484

(1) may provide for the possession and use of fish which

have been produced in an aquaculture operation, subject to applicable State regulations; and

(2) shall allow for retention of fish that are subject to a

moratorium declared under this section and unavoidably taken

as incidental catch in fisheries directed toward menhaden if—

(A) discarding the retained fish is impracticable;

(B) the retained fish do not constitute a significant

portion of the catch of the vessel; and

(C) retention of the fish will not, in the judgment of

the Secretary, adversely affect the conservation of the species of fish retained.

(e) PROHIBITED ACTS DURING MORATORIUM.—During the time

in which a moratorium under this section is in effect, it is unlawful

for any person to—

(1) violate the terms of the moratorium or of any implementing regulation issued under subsection (d);

(2) engage in fishing for any species of fish to which the

moratorium applies within the waters of the State subject to

the moratorium;

(3) land, attempt to land, or possess fish that are caught,

taken, or harvested in violation of the moratorium or of any

implementing regulation issued under subsection (d);

(4) fail to return to the water immediately, with a minimum of injury, any fish to which the moratorium applies that

are taken incidental to fishing for species other than those to

which the moratorium applies, except as provided by regulations issued under subsection (d);

(5) refuse to permit any officer authorized to enforce the

provisions of this title to board a fishing vessel subject to such

person’s control for purposes of conducting any search or inspection in connection with the enforcement of this title;

(6) forcibly assault, resist, oppose, impede, intimidate, or

interfere with any such authorized officer in the conduct of any

search or inspection under this title;

(7) resist a lawful arrest for any act prohibited by this section;

(8) ship, transport, offer for sale, sell, purchase, import, or

have custody, control, or possession of, any fish taken or retained in violation of this title; or

(9) interfere with, delay, or prevent, by any means, the apprehension or arrest of another person, knowing that such

other person has committed any act prohibited by this section.

(f) CIVIL AND CRIMINAL PENALTIES.—(1) Any person who commits any act that is unlawful under subsection (e) shall be liable

to the United States for a civil penalty as provided by section 308

of the Magnuson-Stevens Fishery Conservation and Management

Act (16 U.S.C. 1858).

(2) Any person who commits an act prohibited by paragraph

(5), (6), (7), or (9) of subsection (e) is guilty of an offense punishable

as provided by section 309 (a)(1) and (b) of the Magnuson-Stevens

Fishery Conservation and Management Act (16 U.S.C. 1859 (a)(1)

and (b)).

(g) CIVIL FORFEITURES.—(1) Any vessel (including its gear,

equipment, appurtenances, stores, and cargo) used, and any fish (or
485 ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT ACT Sec. 808

the fair market value thereof) taken or retained, in any manner,

in connection with, or as the result of, the commission of any act

that is unlawful under subsection (e), shall be subject to forfeiture

to the United States as provided in section 310 of the MagnusonStevens Fishery Conservation and Management Act (16 U.S.C.

1860).

(2) Any fish seized pursuant to this title may be disposed of

pursuant to the order of a court of competent jurisdiction or, if perishable, in a manner prescribed in regulation.

(h) ENFORCEMENT.—A person authorized by the Secretary or

the Secretary of the department in which the Coast Guard is operating may take any action to enforce a moratorium declared under

subsection (c) of this section that an officer authorized by the Secretary under section 311(b) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1861(b)) may take to enforce that Act. The Secretary may, by agreement, on a reimbursable basis or otherwise, utilize the personnel, services, equipment

(including aircraft and vessels), and facilities of any other Federal

department or agency and of any agency of a State in carrying out

that enforcement.

SEC. 808. ø16 U.S.C. 5107¿ FINANCIAL ASSISTANCE.

The Secretary and the Secretary of the Interior may provide financial assistance to the Commission and to the States to carry out

their respective responsibilities under this title, including—

(1) the preparation, implementation, and enforcement of

coastal fishery management plans; and

(2) State activities that are specifically required within

such plans.

SEC. 809. STATE PERMITS VALID IN CERTAIN WATERS.

(a) PERMITS.—Notwithstanding any provision of the MagnusonStevens Fishery Conservation and Management Act (16 U.S.C.

1801 et seq.), the Atlantic Coastal Fisheries Cooperative Management Act (16 U.S.C. 5101 et seq.), or any requirement of a fishery

management plan or coastal fishery management plan to the contrary, a person holding a valid license issued by the State of Maine

which lawfully permits that person to engage in commercial fishing

for American lobster may, with the approval of the State of Maine,

engage in commercial fishing for American lobster in the following

areas designated as Federal waters, if such fishing is conducted in

such waters in accordance with all other applicable Federal and

State regulations:

(1) west of Monhegan Island in the area located north of

the line 43° 42′ 08′′ N, 69° 34′ 18′′ W and 43° 42′ 15′′ N,

69° 19′ 18′′ W;

(2) east of Monhegan Island in the area located west of the

line 43° 44′ 00′′ N, 69° 15′ 05′′ W and 43° 48′ 10′′ N,

69° 08′ 01′′ W;

(3) south of Vinalhaven in the area located west of the line

43° 52′ 21′′ N, 68° 39′ 54′′ W and 43° 48′ 10′′ N, 69° 08′ 01′′

W; and

(4) south of Bois Bubert Island in the area located north

of the line 44° 19′ 15′′ N, 67° 49′ 30′′ W and 44° 23′ 45′′ N,

67° 40′ 33′′ W.
Sec. 811 ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT ACT 486

(b) ENFORCEMENT.—The exemption from Federal fishery permitting requirements granted by subsection (a) may be revoked or

suspended by the Secretary in accordance with section 308(g) of the

Magnuson-Stevens Fishery Conservation and Management Act (16

U.S.C. 1858(g)) for violations of such Act or this Act.

SEC. 810. TRANSITION TO MANAGEMENT OF AMERICAN LOBSTER

FISHERY BY COMMISSION.

(a) TEMPORARY LIMITS.—Notwithstanding any other provision

of this Act or of the Magnuson-Stevens Fishery Conservation and

Management Act (16 U.S.C. 1801 et seq.), if no regulations have

been issued under section 804(b) of this Act by December 31, 1997,

to implement a coastal fishery management plan for American lobster, then the Secretary shall issue interim regulations before

March 1, 1998, that will prohibit any vessel that takes lobsters in

the exclusive economic zone by a method other than pots or traps

from landing lobsters (or any parts thereof) at any location within

the United States in excess of—

(1) 100 lobsters (or parts thereof) for each fishing trip of

24 hours or less duration (up to a maximum of 500 lobsters,

or parts thereof, during any 5-day period); or

(2) 500 lobsters (or parts thereof) for a fishing trip of 5

days or longer.

(b) SECRETARY TO MONITOR LANDINGS.—Before January 1,

1998, the Secretary shall monitor, on a timely basis, landings of

American lobster, and, if the Secretary determines that catches

from vessels that take lobsters in the exclusive economic zone by

a method other than pots or traps have increased significantly,

then the Secretary may, consistent with the national standards in

section 301 of the Magnuson-Stevens Fishery Conservation and

Management Act (16 U.S.C. 1801), and after opportunity for public

comment and consultation with the Atlantic States Marine Fisheries Commission, implement regulations under section 804(b) of

this Act that are necessary for the conservation of American lobster.

(c) REGULATIONS TO REMAIN IN EFFECT UNTIL PLAN IMPLEMENTED.—Regulations issued under subsection (a) or (b) shall remain in effect until the Secretary implements regulations under

section 804(b) of this Act to implement a coastal fishery management plan for American lobster.

SEC. 811. AUTHORIZATION OF APPROPRIATIONS.

(a) IN GENERAL.—To carry out this title, there are authorized

to be appropriated $10,000,000 for each of fiscal years 2001

through 2005.

(b) COOPERATIVE STATISTICS PROGRAM.—Amounts authorized

under subsection (a) may be used by the Secretary to support the

Commission’s cooperative statistics program.
487

NORTHWEST ATLANTIC FISHERIES CONVENTION ACT

OF 1995

489

NORTHWEST ATLANTIC FISHERIES CONVENTION ACT

OF 1995

[Public Law 104–43; Approved Nov. 3, 1995; 109 Stat. 377]

[Amended through Public Law 105–384, Nov. 13, 1988]

TITLE II—IMPLEMENTATION OF CONVENTION ON FUTURE

MULTILATERAL COOPERATION IN THE NORTHWEST ATLANTIC FISHERIES

SEC. 201. ø16 U.S.C. 5601 note¿ SHORT TITLE.

This title may be cited as the ‘‘Northwest Atlantic Fisheries

Convention Act of 1995’’.

SEC. 202. ø16 U.S.C. 5601¿ REPRESENTATION OF UNITED STATES

UNDER CONVENTION.

(a) COMMISSIONERS.— (1) APPOINTMENTS, GENERALLY.—The Secretary shall appoint not more than 3 individuals to serve as the representatives of the United States on the General Council and the Fisheries Commission, who shall each—

(A) be known as a ‘‘United States Commissioner to the

Northwest Atlantic Fisheries Organization’’; and

(B) serve at the pleasure of the Secretary.

(2) REQUIREMENTS FOR APPOINTMENTS.— (A) The Secretary shall ensure that of the individuals

serving as Commissioners—

(i) at least 1 is appointed from among representatives of the commercial fishing industry;

(ii) 1 (but no more than 1) is an official of the Government; and

(iii) 1, other than the individual appointed under

clause (ii), is a voting member of the New England

Fishery Management Council.

(B) The Secretary may not appoint as a Commissioner

an individual unless the individual is knowledgeable and

experienced concerning the fishery resources to which the

Convention applies.

(3) TERMS.— (A) The term of an individual appointed as a

Commissioner—

(i) shall be specified by the Secretary at the time

of appointment; and

(ii) may not exceed 4 years.

(B) An individual who is not a Government official

may not serve more than 2 consecutive terms as a Commissioner.

(b) ALTERNATE COMMISSIONERS.—
Sec. 202 NORTHWEST ATLANTIC FISHERIES CONVENTION ACT OF 1995 490

(1) APPOINTMENT.—The Secretary may, for any anticipated

absence of a duly appointed Commissioner at a meeting of the

General Council or the Fisheries Commission, designate an individual to serve as an Alternate Commissioner.

(2) FUNCTIONS.—An Alternate Commissioner may exercise

all powers and perform all duties of the Commissioner for

whom the Alternate Commissioner is designated, at any meeting of the General Council or the Fisheries Commission for

which the Alternate Commissioner is designated.

(c) REPRESENTATIVES.—

(1) APPOINTMENT.—The Secretary shall appoint not more

than 3 individuals to serve as the representatives of the United

States on the Scientific Council, who shall each be known as

a ‘‘United States Representative to the Northwest Atlantic

Fisheries Organization Scientific Council’’.

(2) ELIGIBILITY FOR APPOINTMENT.—

(A) The Secretary may not appoint an individual as a

Representative unless the individual is knowledgeable and

experienced concerning the scientific issues dealt with by

the Scientific Council.

(B) The Secretary shall appoint as a Representative at

least 1 individual who is an official of the Government.

(3) TERM.—An individual appointed as a Representative—

(A) shall serve for a term of not to exceed 4 years, as

specified by the Secretary at the time of appointment;

(B) may be reappointed; and

(C) shall serve at the pleasure of the Secretary.

(d) ALTERNATE REPRESENTATIVES.—

(1) APPOINTMENT.—The Secretary may, for any anticipated

absence of a duly appointed Representative at a meeting of the

Scientific Council, designate an individual to serve as an Alternate Representative.

(2) FUNCTIONS.—An Alternate Representative may exercise

all powers and perform all duties of the Representative for

whom the Alternate Representative is designated, at any meeting of the Scientific Council for which the Alternate Representative is designated.

(e) EXPERTS AND ADVISERS.—The Commissioners, Alternate

Commissioners, Representatives, and Alternate Representatives

may be accompanied at meetings of the Organization by experts

and advisers.

(f) COORDINATION AND CONSULTATION.—

(1) IN GENERAL.—In carrying out their functions under the

Convention, Commissioners, Alternate Commissioners, Representatives, and Alternate Representatives shall—

(A) coordinate with the appropriate Regional Fishery

Management Councils established by section 302 of the

Magnuson Act (16 U.S.C. 1852); and

(B) consult with the committee established under section 208.

(2) RELATIONSHIP TO OTHER LAW.—The Federal Advisory

Committee Act (5 U.S.C. App.) shall not apply to coordination

and consultations under this subsection.
491 NORTHWEST ATLANTIC FISHERIES CONVENTION ACT OF 1995 Sec. 206

SEC. 203. ø16 U.S.C. 5602¿ REQUESTS FOR SCIENTIFIC ADVICE.

(a) RESTRICTION.—The Representatives may not make a request or specification described in subsection (b) (1) or (2), respectively, unless the Representatives have first—

(1) consulted with the appropriate Regional Fishery Management Councils; and

(2) received the consent of the Commissioners for that action.

(b) REQUESTS AND TERMS OF REFERENCE DESCRIBED.—The requests and specifications referred to in subsection (a) are,

respectively—

(1) any request, under Article VII(1) of the Convention,

that the Scientific Council consider and report on a question

pertaining to the scientific basis for the management and conservation of fishery resources in waters under the jurisdiction

of the United States within the Convention Area; and

(2) any specification, under Article VIII(2) of the Convention, of the terms of reference for the consideration of a question referred to the Scientific Council pursuant to Article VII(1)

of the Convention.

SEC. 204. ø16 U.S.C. 5603¿ AUTHORITIES OF SECRETARY OF STATE

WITH RESPECT TO CONVENTION.

The Secretary of State may, on behalf of the Government of

the United States—

(1) receive and transmit reports, requests, recommendations, proposals, and other communications of and to the Organization and its subsidiary organs;

(2) object, or withdraw an objection, to the proposal of the

Fisheries Commission;

(3) give or withdraw notice of intent not to be bound by a

measure of the Fisheries Commission;

(4) object or withdraw an objection to an amendment to

the Convention; and

(5) act upon, or refer to any other appropriate authority,

any other communication referred to in paragraph (1).

SEC. 205. ø16 U.S.C. 5604¿ INTERAGENCY COOPERATION.

(a) AUTHORITIES OF SECRETARY.—In carrying out the provisions of the Convention and this title, the Secretary may arrange

for cooperation with other agencies of the United States, the

States, the New England and the Mid-Atlantic Fishery Management Councils, and private institutions and organizations.

(b) OTHER AGENCIES.—The head of any Federal agency may—

(1) cooperate in the conduct of scientific and other programs, and furnish facilities and personnel, for the purposes of

assisting the Organization in carrying out its duties under the

Convention; and

(2) accept reimbursement from the Organization for providing such services, facilities, and personnel.

SEC. 206. ø16 U.S.C. 5605¿ RULEMAKING.

The Secretary shall promulgate regulations as may be necessary to carry out the purposes and objectives of the Convention

and this title. Any such regulation may be made applicable, as necessary, to all persons and all vessels subject to the jurisdiction of

the United States, wherever located.
Sec. 207 NORTHWEST ATLANTIC FISHERIES CONVENTION ACT OF 1995 492

SEC. 207. ø16 U.S.C. 5606¿ PROHIBITED ACTS AND PENALTIES.

(a) PROHIBITION.—It is unlawful for any person or vessel that

is subject to the jurisdiction of the United States—

(1) to violate any regulation issued under this title or any

measure that is legally binding on the United States under the

Convention;

(2) to refuse to permit any authorized enforcement officer

to board a fishing vessel that is subject to the person’s control

for purposes of conducting any search or inspection in connection with the enforcement of this title, any regulation issued

under this title, or any measure that is legally binding on the

United States under the Convention;

(3) forcibly to assault, resist, oppose, impede, intimidate, or

interfere with any authorized enforcement officer in the conduct of any search or inspection described in paragraph (2);

(4) to resist a lawful arrest for any act prohibited by this

section;

(5) to ship, transport, offer for sale, sell, purchase, import,

export, or have custody, control, or possession of, any fish

taken or retained in violation of this section; or

(6) to interfere with, delay, or prevent, by any means, the

apprehension or arrest of another person, knowing that the

other person has committed an act prohibited by this section.

(b) CIVIL PENALTY.—Any person who commits any act that is

unlawful under subsection (a) shall be liable to the United States

for a civil penalty, or may be subject to a permit sanction, under

section 308 of the Magnuson Act (16 U.S.C. 1858).

(c) CRIMINAL PENALTY.—Any person who commits an act that

is unlawful under paragraph (2), (3), (4), or (6) of subsection (a)

shall be guilty of an offense punishable under section 309(b) of the

Magnuson Act (16 U.S.C. 1859(b)).

(d) CIVIL FORFEITURES.—

(1) IN GENERAL.—Any vessel (including its gear, furniture,

appurtenances, stores, and cargo) used in the commission of an

act that is unlawful under subsection (a), and any fish (or the

fair market value thereof) taken or retained, in any manner,

in connection with or as a result of the commission of any act

that is unlawful under subsection (a), shall be subject to seizure and forfeiture as provided in section 310 of the Magnuson

Act (16 U.S.C. 1860).

(2) DISPOSAL OF FISH.—Any fish seized pursuant to this

title may be disposed of pursuant to the order of a court of

competent jurisdiction or, if perishable, in a manner prescribed

by regulations issued by the Secretary.

(e) ENFORCEMENT.—The Secretary and the Secretary of the department in which the Coast Guard is operating shall enforce the

provisions of this title and shall have the authority specified in section 311 (a), (b)(1), and (c) of the Magnuson Act (16 U.S.C. 1861

(a), (b)(1), and (c)) for that purpose.

(f) JURISDICTION OF COURTS.—The district courts of the United

States shall have exclusive jurisdiction over any case or controversy arising under this section and may, at any time—

(1) enter restraining orders or prohibitions;

(2) issue warrants, process in rem, or other process;
493 NORTHWEST ATLANTIC FISHERIES CONVENTION ACT OF 1995 Sec. 209

(3) prescribe and accept satisfactory bonds or other security; and

(4) take such other actions as are in the interests of justice.

SEC. 208. ø16 U.S.C. 5607¿ CONSULTATIVE COMMITTEE.

(a) ESTABLISHMENT.—The Secretary of State and the Secretary,

shall jointly establish a consultative committee to advise the Secretaries on issues related to the Convention.

(b) MEMBERSHIP.—

(1) The membership of the Committee shall include representatives from the New England and Mid-Atlantic Fishery

Management Councils, the States represented on those Councils, the Atlantic States Marine Fisheries Commission, the fishing industry, the seafood processing industry, and others

knowledgeable and experienced in the conservation and management of fisheries in the Northwest Atlantic Ocean.

(2) TERMS AND REAPPOINTMENT.—Each member of the consultative committee shall serve for a term of two years and

shall be eligible for reappointment.

(c) DUTIES OF THE COMMITTEE.—Members of the consultative

committee may attend—

(1) all public meetings of the General Council or the Fisheries Commission;

(2) any other meetings to which they are invited by the

General Council or the Fisheries Commission; and

(3) all nonexecutive meetings of the United States Commissioners.

(d) RELATIONSHIP TO OTHER LAW.—The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the consultative committee established under this section.

SEC. 209. ø16 U.S.C. 5608¿ ADMINISTRATIVE MATTERS.

(a) PROHIBITION ON COMPENSATION.—A person shall not receive any compensation from the Government by reason of any

service of the person as—

(1) a Commissioner, Alternate Commissioner, Representative, or Alternative Representative;

(2) an expert or adviser authorized under section 202(e); or

(3) a member of the consultative committee established by

section 208.

(b) TRAVEL AND EXPENSES.—The Secretary of State shall, subject to the availability of appropriations, pay all necessary travel

and other expenses of persons described in subsection (a)(1) and of

not more than six experts and advisers authorized under section

202(e) with respect to their actual performance of their official duties pursuant to this title, in accordance with the Federal Travel

Regulations and sections 5701, 5702, 5704 through 5708, and 5731

of title 5, United States Code.

(c) STATUS AS FEDERAL EMPLOYEES.—A person shall not be

considered to be a Federal employee by reason of any service of the

person in a capacity described in subsection (a), except for purposes

of injury compensation and tort claims liability under chapter 81

of title 5, United States Code, and chapter 171 of title 28, United

States Code, respectively.
Sec. 210 NORTHWEST ATLANTIC FISHERIES CONVENTION ACT OF 1995 494

SEC. 210. ø16 U.S.C. 5609¿ DEFINITIONS.

In this title the following definitions apply:

(1) AUTHORIZED ENFORCEMENT OFFICER.—The term ‘‘authorized enforcement officer’’ means a person authorized to enforce this title, any regulation issued under this title, or any

measure that is legally binding on the United States under the

Convention.

(2) COMMISSIONER.—The term ‘‘Commissioner’’ means a

United States Commissioner to the Northwest Atlantic Fisheries Organization appointed under section 202(a).

(3) CONVENTION.—The term ‘‘Convention’’ means the Convention on Future Multilateral Cooperation in the Northwest

Atlantic Fisheries, done at Ottawa on October 24, 1978.

(4) FISHERIES COMMISSION.—The term ‘‘Fisheries Commission’’ means the Fisheries Commission provided for by Articles

II, XI, XII, XIII, and XIV of the Convention.

(5) GENERAL COUNCIL.—The term ‘‘General Council’’ means

the General Council provided for by Article II, III, IV, and V

of the Convention.

(6) MAGNUSON ACT.—The term ‘‘Magnuson Act’’ means the

Magnuson-Stevens Fishery Conservation and Management Act

(16 U.S.C. 1801 et seq.).

(7) ORGANIZATION.—The term ‘‘Organization’’ means the

Northwest Atlantic Fisheries Organization provided for by Article II of the Convention.

(8) PERSON.—The term ‘‘person’’ means any individual

(whether or not a citizen or national of the United States), and

any corporation, partnership, association, or other entity

(whether or not organized or existing under the laws of any

State).

(9) REPRESENTATIVE.—The term ‘‘Representative’’ means a

United States Representative to the Northwest Atlantic Fisheries Scientific Council appointed under section 202(c).

(10) SCIENTIFIC COUNCIL.—The term ‘‘Scientific Council’’

means the Scientific Council provided for by Articles II, VI,

VII, VIII, IX, and X of the Convention.

(11) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of Commerce.

SEC. 211. ø16 U.S.C. 5610¿ AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to carry out this title,

including use for payment as the United States contribution to the

Organization as provided in Article XVI of the Convention,

$500,000 for each fiscal year through fiscal year 2001.

SEC. 212. ø16 U.S.C. 5611¿ ANNUAL REPORT.

The Secretary shall annually report to the Congress on the activities of the Fisheries Commission, the General Council, the Scientific Council, and the consultative committee established under

section 208.

SEC. 213. ø16 U.S.C. 5612¿ QUOTA ALLOCATION PRACTICE.

(a) IN GENERAL.—The Secretary of Commerce, acting through

the Secretary of State, shall promptly seek to establish a new practice for allocating quotas under the Convention that—

(1) is predictable and transparent;
495 NORTHWEST ATLANTIC FISHERIES CONVENTION ACT OF 1995 Sec. 213

(2) provides fishing opportunities for all members of the

Organization; and

(3) is consistent with the Straddling Fish Stocks

Agreement.

(b) REPORT.—The Secretary of Commerce shall include in annual reports under section 212—

(1) a description of the results of negotiations held

pursuant to subsection (a);

(2) an identification of barriers to achieving such a new allocation practice; and

(3) recommendations for any further legislation that is necessary to achieve such a new practice.

(c) DEFINITION.—In this section the term ‘‘Straddling Fish

Stocks Agreement’’ means the United Nations Agreement for the

Implementation of the Provisions of the United Nations Convention

on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly

Migratory Fish Stocks.

497

ATLANTIC SALMON CONVENTION ACT OF 1982

499

1For short title of such Act as the ‘‘Magnuson-Stevens Fishery Conservation and Management

Act’’, see the first section of such Act (16 U.S.C. 1801 note).

ATLANTIC SALMON CONVENTION ACT OF 1982

[Title III of Public Law 97–389, Approved Dec. 29, 1982, 96 Stat. 1951]

[Amended through Public Law 98–44, July 12, 1983]

AN ACT To amend the Commercial Fisheries Research and Development Act of

1964.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

* * * * * * *

TITLE III—NORTH ATLANTIC SALMON TREATY

SEC. 301. ø16 U.S.C. 3601 note¿ This title may be cited as the

‘‘Atlantic Salmon Convention Act of 1982’’.

SEC. 302. ø16 U.S.C. 3601¿ As used in this title, the term—

(1) ‘‘Act of 1976’’ means the Act entitled ‘‘An Act to provide

for the conservation and management of the fisheries, and for

other purposes’’, approved April 13, 1976 1 (16 U.S.C. 1801 et

seq.);

(2) ‘‘Commission’’ means any of the Commissions of the Organization that are established by the Convention;

(3) ‘‘Commissioner’’ means a United States Commissioner

appointed under section 403 of this title;

(4) ‘‘Convention’’ means the Convention for the Conservation of Salmon in the North Atlantic Ocean, signed at Reykjavik, Iceland, on March 2, 1982;

(5) ‘‘Council’’ means the Council established by the Convention;

(6) ‘‘fishing’’ has the same meaning as such term has in

section 3(10) of the Act of 1976 1 (16 U.S.C. 1802(10));

(7) ‘‘Organization’’ means the North Atlantic Salmon Conservation Organization established under the Convention;

(8) ‘‘person’’ has the same meaning as such term has in

section 3(19) of the Act of 1976 1 (16 U.S.C. 1802(19)); and

(9) ‘‘salmon’’ means all species of salmon which migrate in

or into the waters of the Atlantic Ocean north of 36 degrees

north latitude.

SEC. 303. ø16 U.S.C. 3602¿ (a) The United States shall be represented on the Council and Commissions by three United States

Commissioners to be appointed by the President to serve at his

pleasure. Of such Commissioners, one shall be an official of the

United States Government, and two shall be individuals (not officials of the United States Government) who are knowledgeable or
Sec. 304 ATLANTIC SALMON CONVENTION ACT OF 1982 500

1See footnote to section 302(1).

experienced concerning the conservation and management of salm- on of United States origin.

(b) The Secretary of State, in consultation with the Secretary

of Commerce and the Secretary of the Interior, may designate alternate United States Commissioners. In the absence of a Commissioner appointed under subsection (a) of this section, an alternate

Commissioner may exercise at any meeting of the Organization,

the Council, or any Commission all functions of such Commissioner.

(c) Individuals who serve as Commissioners and alternate

Commissioners shall not receive any compensation for such service.

Such individuals shall not be considered to be Federal employees

while performing such service, except for purposes of injury compensation or tort claims liability as provided in chapter 81 of title

5, United States Code, and chapter 171 of title 28, United States

Code.

(d) In carrying out their functions under the Convention, the

Commissioners may consult with the appropriate Regional Fishery

Management Councils established by section 302 of the Act of

1976 1 (16 U.S.C. 1852), and may consult with such other interested parties as they consider appropriate. The Federal Advisory

Committee Act (5 U.S.C. App. 1 et seq.) shall not apply to consultations described in this subsection.

SEC. 304. ø16 U.S.C. 3603¿ (a) The Secretary of State may—

(1) receive, on behalf of the United States, reports, requests, recommendations, proposals, and other communications

of the Organization and its subsidiary organs;

(2) with the concurrence of the Secretary of Commerce and

the Secretary of the Interior, approve, object to, or withdraw

objections to regulatory measures proposed in accordance with

the Convention; and

(3) act upon, or refer to other appropriate authority, any

communication referred to in paragraph (1) of this subsection

other than a proposed regulatory measure.

(b) If the concurrence required under subsection (a)(2) of this

section has not been obtained by the Secretary of State—

(1) regarding the approval of, or the objection to, a proposed regulatory measure within forty-five days after the

measure was received on behalf of the United States; or

(2) regarding the withdrawal of an objection of the United

States to a proposed regulatory measure within forty-five days

after such withdrawal is proposed by the Secretary of State;

the Secretary of State shall submit the matter in disagreement, together with a statement of the opposing positions, to the President

for timely disposition.

SEC. 305. ø16 U.S.C. 3604¿ (a) The Secretary of Commerce, in

cooperation with the Secretary of the Interior and the Secretary of

the department in which the Coast Guard is operating, shall promulgate such regulations pursuant to section 553 of title 5, United

States Code, as may be necessary to carry out the purposes and objectives of the Convention and this title, and to implement regulatory measures that are binding on the United States under the

Convention. Any such regulation may be made applicable, as nec-
501 ATLANTIC SALMON CONVENTION ACT OF 1982 Sec. 309

1See footnote to section 302(1).

essary, to all persons and all vessels subject to the jurisdiction of

the United States, wherever located.

(b) The Secretary of Commerce, in cooperation with the Secretary of the Interior, shall prepare all statements, reports, and notifications required by Articles 14 and 15 of the Convention and

submit such documents to the Secretary of State for transmission

to the Organization.

SEC. 306. ø16 U.S.C. 3605¿ (a) In carrying out the provisions

of the Convention, the Secretary of Commerce, in consultation with

the Secretary of the Interior, may arrange for the cooperation of

agencies of the United States and the States, and of private institu- tions and organizations.

(b) Appropriate agencies of the United States may cooperate in

the conduct of scientific and other programs, and may furnish facilities and personnel for the purposes of assisting the Organization

in carrying out its duties under the Convention. Such agencies may

accept reimbursement from the Organization for providing such

services, facilities, and personnel.

SEC. 307. ø16 U.S.C. 3606¿ (a) It is unlawful for any person,

or any vessel, subject to the jurisdiction of the United States—

(1) to conduct directed fishing for salmon in waters seaward of twelve miles from the baselines from which the

breadths of territorial seas are measured, in waters of the Atlantic Ocean north of 36 degrees north latitude; or

(2) to violate any provision of the Convention or this title,

or of any regulation promulgated under this title.

(b) Any person who commits any act that is unlawful under

subsection (a) of this section shall—

(1) be liable to the United States for a civil penalty under

section 308 of the Act of 1976 1 (16 U.S.C. 1858) to the same

extent as if such act were an act prohibited under section 307

of the Act of 1976 (16 U.S.C. 1857); and

(2) be guilty of an offense under section 309 of the Act of

1976 1 (16 U.S.C. 1859) to the same extent as if such act were

an act prohibited by section 307(1) (D), (E), (F), or (H) of the

Act of 1976 1 (16 U.S.C. 1857(1) (D), (E), (F), or (H)).

(c) Any vessel used, and any fish (or the fair market value

thereof) taken or retained in any manner, in connection with or as

the result of the commission of an act which is unlawful under subsection (a) of this section shall be subject to civil forfeiture under

section 310 of the Act of 1976 1 (16 U.S.C. 1860) to the same extent

as if such vessel was used in, or such fish was taken or retained

in connection with or as the result of, the commission of an act prohibited by section 307 of the Act of 1976 1 (16 U.S.C. 1857).

SEC. 308. ø16 U.S.C. 3607¿ The Secretary of Commerce and

the Secretary of the department in which the Coast Guard is operating shall enforce the provisions of this title and any regulation

issued under this title. For purposes of such enforcement, such provisions and regulations shall be considered to be provisions of the

Act of 1976 1 to which section 311 (a), (b), (c), and (d) of the Act

of 1976 1 (16 U.S.C. 1861 (a), (b), (c), and (d), respectively) apply.

SEC. 309. ø16 U.S.C. 3608¿ There are authorized to be appropriated from time to time such sums as may be necessary for car-
Sec. 309 ATLANTIC SALMON CONVENTION ACT OF 1982 502

rying out the purposes and provisions of the Convention and this

title, including—

(1) necessary travel expenses of the Commissioners and alternate Commissioners in accordance with the Federal Travel

Regulation and sections 5701, 5702, 5704 through 5708, and

5731 of title 5, United States Code; and

(2) the United States contribution to the Organization as

provided in Article 16 of the Convention, not to exceed $50,000

for fiscal year 1983, and not to exceed, for each succeeding fiscal year, the amount assessed by the Organization for the

United States for such year.
503

ATLANTIC STRIPED BASS CONSERVATION ACT

505

ATLANTIC STRIPED BASS CONSERVATION ACT

[Public Law 98–613, Approved Oct. 31, 1984, 98 Stat. 2187; 16 U.S.C. 1851

note]

[Amended through Public Law 106–555, Dec. 21, 2000)

AN ACT To provide for the conservation and management of Atlantic striped bass,

and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Atlantic Striped Bass Conservation Act’’.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS.—The Congress finds and declares the following:

(1) Atlantic striped bass are of historic commercial and recreational importance and economic benefit to the Atlantic

coastal States and to the Nation.

(2) No single government entity has full management authority throughout the range of the Atlantic striped bass.

(3) The population of Atlantic striped bass—

(A) has been subject to large fluctuations due to natural causes, fishing pressure, environmental pollution, loss

and alteration of habitat, inadequacy of fisheries conservation and management practices, and other causes; and

(B) risks potential depletion in the future without effective monitoring and conservation and management

measures.

(4) It is in the national interest to implement effective procedures and measures to provide for effective interjurisdictional conservation and management of this species.

(b) PURPOSE.—It is therefore declared to be the purpose of the

Congress in this Act to support and encourage the development,

implementation, and enforcement of effective interstate action regarding the conservation and management of the Atlantic striped

bass.

SEC. 3. DEFINITIONS.

As used in this Act—

(1) the term ‘‘Magnuson Act’’ means the Magnuson-Stevens

Fishery Conservation and Management Act (16 U.S.C. 1801 et

seq.).

(2) The term ‘‘Atlantic striped bass’’ means members of

stocks or populations of the species Morone saxatilis, which ordinarily migrate seaward of the waters described in

paragraph (3)(A)(i).

(3) The term ‘‘coastal waters’’ means—
Sec. 3 ATLANTIC STRIPED BASS CONSERVATION ACT 506

(A) for each coastal State referred to in paragraph

(4)(A)—

(i) all waters, whether salt or fresh, of the coastal

State shoreward of the baseline from which the

territorial sea of the United States is measured; and

(ii) the waters of the coastal State seaward from

the baseline referred to in clause (i) to the inner

boundary of the exclusive economic zone;

(B) for the District of Columbia, those waters within

its jurisdiction; and

(C) for the Potomac River Fisheries Commission, those

waters of the Potomac River within the boundaries

established by the Potomac River Compact of 1958.

(4) The term ‘‘coastal State’’ means—

(A) Pennsylvania and each State of the United States

bordering on the Atlantic Ocean north of the State of

South Carolina;

(B) the District of Columbia; and

(C) the Potomac River Fisheries Commission

established by the Potomac River Compact of 1958.

(5) The term ‘‘Commission’’ means the Atlantic States Marine Fisheries Commission established under the interstate

compact consented to and approved by the Congress in Public

Laws 77–539 and 81–721.

(6) The term ‘‘exclusive economic zone’’ has the meaning

given such term in section 3(6) of the Magnuson Act (16 U.S.C.

1802(6)).

(7) The term ‘‘fishing ’’ means—

(A) the catching, taking, or harvesting of Atlantic

striped bass, except when incidental to harvesting that occurs in the course of commercial or recreational fish catching activities directed at a species other than Atlantic

striped bass;

(B) the attempted catching, taking, or harvesting of

Atlantic striped bass; and

(C) any operation at sea in support of, or in preparation for, any activity described in subparagraph (A) or (B).

The term does not include any scientific research authorized by

the Federal Government or by any State government.

(8) The term ‘‘moratorium area’’ means the coastal waters

with respect to which a declaration under section 5(a) applies.

(9) The term ‘‘moratorium period’’ means the period beginning on the day on which moratorium is declared under section

5(a) regarding a coastal State and ending on the day on which

the Commission notifies the Secretaries that that State has

taken appropriate remedial action with respect to those matters that were the case of the moratorium being declared.

(10) The term ‘‘Plan’’ means a plan for managing Atlantic

striped bass, or an amendment to such plan, that is prepared

and adopted by the Commission.

(11) The term ‘‘Secretary’’ means the Secretary of

Commerce or a designee of the Secretary of Commerce.

(12) The term ‘‘Secretaries’’ means the Secretary of

Commerce and the Secretary of the Interior or their designees.
507 ATLANTIC STRIPED BASS CONSERVATION ACT Sec. 5

SEC. 4. MONITORING OF IMPLEMENTATION AND ENFORCEMENT BY

COASTAL STATES.

(a) DETERMINATION.—During December of each fiscal year, and

at any other time it deems necessary the Commission shall

determine—

(1) whether each coastal State has adopted all regulatory

measures necessary to fully implement the Plan in its coastal

waters; and

(2) whether the enforcement of the Plan by each coastal

State is satisfactory.

(b) SATISFACTORY STATE ENFORCEMENT.—For purposes of subsection (a)(2), enforcement by a coastal State shall not be considered satisfactory by the Commission if, in its view, the enforcement

is being carried out in such a manner that the implementation of

the Plan within the coastal waters of the State is being, or will

likely be, substantially and adversely affected.

(c) NOTIFICATION OF SECRETARIES.—The Commission shall immediately notify the Secretaries of each negative determination

made by it under subsection (a).

SEC. 5. MORATORIUM.

(a) SECRETARIAL ACTION AFTER NOTIFICATION.—Upon receiving

notice from the Commission under section 4(c) of a negative determination regarding a coastal State, the Secretaries shall determine

jointly, within 30 days, whether that coastal State is in compliance

with the Plan and, if the State is not in compliance, the Secretaries

shall declare jointly a moratorium on fishing for Atlantic striped

bass within the coastal waters of that coastal State. In making

such a determination, the Secretaries shall carefully consider and

review the comments of the Commission and that coastal State in

question.

(b) PROHIBITED ACTS DURING MORATORIUM.—During a

moratorium period, it is unlawful for any person—

(1) to engage in fishing within the moratorium area;

(2) to land, or attempt to land, Atlantic striped bass that

are caught, taken, or harvested in violation of paragraph (1);

(3) to land lawfully harvested Atlantic striped bass within

the boundaries of a coastal State when a moratorium declared

under subsection (a) applies to that State; or

(4) to fail to return to the water Atlantic striped bass to

which the moratorium applies that are caught incidental to

harvesting that occurs in the course of commercial or recreational fish catching activities, regardless of the physical condition of the striped bass when caught.

(c) CIVIL PENALTIES.—

(1) CIVIL PENALTY.—Any person who commits any act that

is unlawful under subsection (b) shall be liable to the United

States for a civil penalty as provided by section 308 of the

Magnuson Act (16 U.S.C. 1858).

(2) CIVIL FORFEITURES.—

(A) IN GENERAL.—Any vessel (including its gear,

equipment, appurtenances, stores, and cargo) used, and

any fish (or the fair market value thereof ) taken or retained, in any manner, in connection with, or as the result

of, the commission of any act that is unlawful under subsection (b) shall be subject to forfeiture to the United
Sec. 6 ATLANTIC STRIPED BASS CONSERVATION ACT 508

1So in law.

States as provided in section 310 of the Magnuson Act (16

U.S.C. 1860).

(B) DISPOSAL OF FISH.—Any fish seized pursuant to

this Act may be disposed of pursuant to the order of a

court of competent jurisdiction, or, if perishable, in a

manner prescribed in regulations.

(d) ENFORCEMENT.—A person authorized by the Secretaries or

the Secretary of the department in which the Coast Guard is operating may take any action to enforce a moratorium declared under

subsection (a) that an officer authorized by the Secretary under

section 311(b) of the Magnuson Act (16 U.S.C. 1861(b)) may take

to enforce that Act (16 U.S.C. 1801 et seq.). The Secretaries may,

by agreement, on a reimbursable basis or otherwise, utilize the personnel, services, equipment (including aircraft and vessels), and facilities of any other Federal department or agency and of any agency of a State in carrying out that enforcement.

(e) REGULATIONS.—The Secretaries may issue regulations to

implement this section.

SEC. 6. CONTINUING STUDIES OF STRIPED BASS POPULATIONS.

(a) IN GENERAL.—For the purposes of carrying out this Act, the

Secretaries shall conduct continuing, comprehensive studies of Atlantic striped bass stocks. These studies shall include, but shall not

be limited to, the following:

(1) Annual stock assessments, using fishery-dependent and

fishery-independent data, for the purposes of extending the

long-term population record generated by the annual striped

bass study conducted by the Secretaries before 1994 and understanding the population dynamics of Atlantic striped bass.

(2) Investigations of the causes of fluctuations in Atlantic

striped bass populations.

(3) Investigations of the effects of water quality, land use,

and other environmental factors on the recruitment, spawning

potential, mortality, and abundance of Atlantic striped

bass populations, including the Delaware River population.

(4) Investigations of—

(A) the interactions between Atlantic striped bass and

other fish, including bluefish, menhaden, mackerel, and

other forage fish or possible competitors, stock assessments of these species, to the extent appropriate; and

(B) the effects of interspecies predation and competition on the recruitment, spawning potential mortality, and

abundance of Atlantic striped bass.

(b) SOCIO-ECONOMIC STUDY.—The Secretaries, in consultation

with with 1 the Atlantic States Marine Fisheries Commission, shall

conduct a study of the socio-economic benefits of the Atlantic

striped bass resource. The Secretaries shall issue a report to the

Congress concerning the findings of this study no later than September 30, 1998.

(c) REPORTS.—The Secretaries shall make biennial reports to

the Congress and to the Commission concerning the progress and

findings of studies conducted under subsection (a) and shall make

those reports public. Such reports shall, to the extent appropriate,
509 ATLANTIC STRIPED BASS CONSERVATION ACT Sec. 9

contain recommendations of actions which could be taken to encourage the sustainable management of Atlantic striped bass.

SEC. 7. AUTHORIZATION OF APPROPRIATIONS; COOPERATIVE AGREEMENTS.

(a) AUTHORIZATION.—For each of fiscal years 2001, 2002, and

2003, there are authorized to be appropriated to carry out this

Act—

(1) $1,000,000 to the Secretary of Commerce; and

(2) $250,000 to the Secretary of the Interior.

(b) COOPERATIVE AGREEMENTS.—The Secretaries may enter

into cooperative agreements with the Atlantic States Marine Fisheries Commission or with States, for the purpose of using amounts

appropriated pursuant to this section to provide financial assistance for carrying out the purposes of this Act.

SEC. 8. PUBLIC PARTICIPATION IN PREPARATION OF MANAGEMENT

PLANS AND AMENDMENTS.

(a) STANDARDS AND PROCEDURES.—In order to ensure the opportunity for public participation in the preparation of management plans and amendments to management plans for Atlantic

striped bass, the Commission shall prepare such plans and amendments in accordance with the standards and procedures established

under section 805(a)(2) of the Atlantic Coastal Fisheries Cooperative Management Act.

(b) APPLICATION.—Subsection (a) shall apply to management

plans and amendments adopted by the Commission after the 6-

month period beginning on the date of enactment of the Atlantic

Striped Bass Conservation Act Amendments of 1997.

SEC. 9. PROTECTION OF STRIPED BASS IN THE EXCLUSIVE ECONOMIC

ZONE.

(a) REGULATION OF FISHING IN EXCLUSIVE ECONOMIC ZONE.—

The Secretary shall promulgate regulations governing fishing for

Atlantic striped bass in the exclusive economic zone that the Secretary determines—

(1) are consistent with the national standards set forth in

section 301 of the Magnuson Act (16 U.S.C. 1851);

(2) are compatible with the Plan and each Federal moratorium in effect on fishing for Atlantic striped bass within the

coastal waters of a coastal State;

(3) ensure the effectiveness of State regulations on fishing

for Atlantic striped bass within the coastal waters of a coastal

State; and

(4) are sufficient to assure the long-term conservation of

Atlantic striped bass populations.

(b) CONSULTATION; PERIODIC REVIEW OF REGULATIONS.—In

preparing regulations under subsection (a), the Secretary shall consult with the Atlantic States Marine Fisheries Commission, the appropriate Regional Fishery Management Councils, and each affected Federal, State, and local government entity. The Secretary

shall periodically review regulations promulgated under subsection

(a), and if necessary to ensure their continued consistency with the

requirements of subsection (a), shall amend those regulations.

(c) APPLICABILITY OF MAGNUSON ACT PROVISIONS.—The provisions of sections 307, 308, 309, 310, and 311 of the Magnuson Act

(16 U.S.C. 1857, 1858, 1859, 1860, and 1861) regarding prohibited
Sec. 9 ATLANTIC STRIPED BASS CONSERVATION ACT 510

acts, civil penalties, criminal offenses, civil forfeitures, and enforcement shall apply with respect to regulations and any plan issued

under subsection (a) of this section as if such regulations or plan

were issued under the Magnuson Act.
511

CENTRAL, WESTERN, AND SOUTH PACIFIC FISHERIES

DEVELOPMENT ACT

513

CENTRAL, WESTERN, AND SOUTH PACIFIC FISHERIES

DEVELOPMENT ACT

[Public Law 92–444, Approved Sept. 29, 1972, 86 Stat. 744]

[Amended through Public Law 101–627, Nov. 28, 1990]

AN ACT To authorize a program for the development of tuna and other latent

fisheries resources in the Central, Western, and South Pacific Ocean.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That ø16 U.S.C.

758e note¿ this Act may be cited as the ‘‘Central, Western, and

South Pacific Fisheries Development Act’’.

SEC. 2. ø16 U.S.C. 758e¿ The Secretary of Commerce (hereafter

referred to in this Act as the ‘‘Secretary’’) is authorized to carry

out, directly or by contract, with the Pacific Fisheries Development

Foundation or other agency or organization, a program for the development of the tuna and other latent fisheries resources of the

Central, Western, and South Pacific Ocean. The program shall include, but not be limited to, exploration for, and stock assessment

of, tuna and other fish; improvement of harvesting techniques; gear

development; biological resource monitoring; and an economic evaluation of the potential for tuna and other fisheries in such area.

SEC. 3. ø16 U.S.C. 758e–1¿ In carrying out the purposes of this

Act, the Secretary shall consult, and may otherwise cooperate, with

the Secretary of the Interior, the Secretary of State, the State of

Hawaii and other affected States, the governments of American

Samoa and Guam, the Office of the High Commissioner of the

Trust Territory of the Pacific Islands, the Commonwealth of the

Northern Mariana Islands, educational institutions, the commercial

fishing industry, and all appropriate member nations of a South

Pacific regional fishery agency (hereinafter referred to in this Act

as the ‘‘agency’’), if such an agency is formed.

SEC. 4. ø16 U.S.C. 758e–1a¿ In addition to the authority granted in section 2, the Secretary, in consultation with representatives

of all interested member nations of the agency, and those parties

set forth in section 3, may establish in accordance with section 2,

a cooperative program for the development of tuna and other latent

fisheries resources of the Central, Western, and South Pacific

Ocean to be submitted to the President and the Congress within

one year following official formation of the agency. The Secretary

shall make available to all interested member nations of the agency

the results and findings of research or development projects carried

out under this Act.

øSEC. 5. Repealed by sec. 102 of P.L. 99–386 (100 Stat. 821).¿

SEC. 6. ø16 U.S.C. 758e–3¿ The Secretary shall prescribe such

regulations as may be necessary to carry out the purposes of this

Act. Any contract entered into pursuant to section 2 of this Act
Sec. 7 CENTRAL, WESTERN, & SOUTH PACIFIC FISHERIES DEV. ACT 514

1The amendment made by P.L. 101–627 which directed the amendment to be made to section

7 was carried out to section 8 to reflect the probable intent of Congress and the renumbering

of section 7 as 8 by P.L. 95–295.

shall be subject to such terms and conditions as the Secretary

deems necessary and appropriate to protect the interests of the

United States.

SEC. 7. ø16 U.S.C. 758e–4¿ As used in this Act, the term ‘‘Central, Western, and South Pacific Ocean’’ means that area of the Pacific Ocean between latitudes 30 degrees north to 30 degrees south

and from longitudes 120 degrees east to 130 degrees west.

SEC. 8. ø16 U.S.C. 758e–5¿ There is authorized to be appropriated for the period beginning July 1, 1973, and ending June 30,

1976, the sum of $3,000,000, and for the period beginning July 1,

1976, and ending September 30, 1979, the sum of $4,000,000, and

for each of the fiscal years 1980, 1981, 1982, 1983, 1984, 1985,

1986, 1987, 1988,1 1989, 1990, 1991, 1992, 1993, 1994, and 1995,

the sum of $5,000,000, to carry out the purposes of this Act. Sums

appropriated pursuant to this section shall remain available until

expended.
515

NORTHERN PACIFIC HALIBUT ACT OF 1982

517

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 302(a)(1) of Public Law 102–251 amends section 2(c) to read as

follows:

‘‘(c) ‘Exclusive economic zone’ means the zone established by Proclamation Numbered 5030,

dated March 10, 1983. For purposes of applying this Act, the inner boundary of that zone is

a line coterminous with the seaward boundary of each of the coastal States.’’.

Section 302(a)(2) of such Public Law adds at the end of section 2 the following:

‘‘(h) ‘Special areas’ means the areas referred to as eastern special areas in Article 3(1) of the

Agreement between the United States of America and the Union of Soviet Socialist Republics

on the Maritime Boundary, signed June 1, 1990; in particular, the term refers to those areas

east of the maritime boundary, as defined in that Agreement, that lie within 200 nautical miles

of the baselines from which the breadth of the territorial sea of Russia is measured but beyond

200 nautical miles of the baselines from which the breadth of the territorial sea of the United

States is measured.’’. 2Section 211 of the Department of Commerce and Related Agencies Appropriations Act, 1997

(Division A, title II of P.L. 104–208; 110 Stat. 3009–41) changed (by amendment) the short title

of such Act to the Magnuson-Stevens Fishery and Conservation and Management Act and provided that ‘‘all references to the Magnuson Fishery Conservation and Management Act shall be

redesignated as references to the Magnuson-Stevens Fishery Conservation and Management

Act’’. Since such section did not actually amend each occurrence of the short title in law, the

former short title appears here.

NORTHERN PACIFIC HALIBUT ACT OF 1982

[Public Law 97–176, Approved May 17, 1982, 96 Stat. 78]

[Amended through Public Law 102–251, Mar. 9, 1992]

AN ACT To give effect to the Protocol Amending the Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, signed

at Washington, March 29, 1979.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That ø16 U.S.C.

773 note¿ this Act may be cited as the ‘‘Northern Pacific Halibut

Act of 1982’’.

SEC. 2. ø16 U.S.C. 773¿ As used in this Act the term:

(a) ‘‘Convention’’ means the Convention between the United

States of America and Canada for the Preservation of the Halibut

Fishery of the Northern Pacific Ocean and Bering Sea, signed at

Ottawa, Canada on March 2, 1953, as amended by the Protocol

Amending the Convention, signed at Washington March 29, 1979,

and includes the regulations promulgated thereunder.

(b) ‘‘Commission’’ means the International Pacific Halibut

Commission provided for by article III of the Convention.

(c) 1 ‘‘Fishery conservation zone’’ means the fishery conservation zone of the United States established by section 101 of the

Magnuson Fishery Conservation and Management Act of 1976 2 (16

U.S.C. 1801 et seq.).

(d) ‘‘Convention waters’’ means the maritime areas off the west

coast of the United States and Canada described in article I of the

Convention.

(e) ‘‘Halibut’’ means fish of the species Hippoglossus stenolepis

inhabiting Convention waters.
Sec. 3 NORTHERN PACIFIC HALIBUT ACT OF 1982 518

(f) ‘‘Fishing vessel’’ means—

(1) any vessel engaged in catching fish in Convention waters or in processing or transporting fish loaded in Convention

waters;

(2) any vessel outfitted to engage in any activity described

in paragraph (1); or

(3) any vessel in normal support of any vessel described in

paragraph (1) or (2).

(g) ‘‘Secretary’’ means the Secretary of Commerce.

SEC. 3. ø16 U.S.C. 773a¿ (a) The United States shall be represented on the Commission by three United States Commissioners

to be appointed by the President and to serve at his pleasure. The

Commissioners shall receive no compensation for their services as

Commissioners. Each United States Commissioner shall be appointed for a term of office not to exceed 2 years, but is eligible for

reappointment. Any United States Commissioner may be appointed

for a term of less than 2 years if such appointment is necessary to

ensure that the terms of office of not more than two Commissioners

will expire in any 1 year. A vacancy among the United States Commissioners shall be filled by the President in the manner in which

the original appointment was made, but any Commissioner appointed to fill a vacancy occurring before the expiration of the term

for which the Commissioner’s predecessor was appointed shall be

appointed only for the remainder of such term. Of the

Commissioners—

(1) one shall be an official of the National Oceanic and Atmospheric Administration; and

(2) two shall be knowledgeable or experienced concerning

the Northern Pacific halibut fishery; of these, one shall be a

resident of Alaska and the other shall be a nonresident of Alaska. Of the three commissioners described in paragraphs (1)

and (2), one shall be a voting member of the North Pacific

Fishery Management Council.

(3) Commissioners shall not be considered Federal employees except for the purposes of injury compensation or tort

claims liability as provided in section 8101 of title 5, United

States Code, et seq. and section 2671 of title 28, United States

Code, et seq. Section 3(a) shall take effect on the 90th day after

the date of enactment of the Act.

(b) The Secretary of State, in consultation with the Secretary,

may designate from time to time alternate United States Commissioners to the Commission. An Alternate United States Commissioner may exercise, at any meeting of the Commission, all powers

and duties of a United States Commissioner in the absence of a

duly designated Commissioner for whatever reason. The number of

such alternate United States Commissioners that may be designated for any such meeting shall be limited to the number of authorized United States Commissioners that will not be present.

SEC. 4. ø16 U.S.C. 773b¿ The Secretary of State, with the concurrence of the Secretary, may accept or reject, on behalf of the

United States, recommendations made by the Commission in accordance with article III of the Convention and paragraphs 14 and

15 of the annex to the Convention.

SEC. 5. ø16 U.S.C. 773c¿ (a) The Secretary shall have general

responsibility to carry out the Convention and this Act.
519 NORTHERN PACIFIC HALIBUT ACT OF 1982 Sec. 7

1See footnote 2 to section 2(c).

(b) In fulfilling this responsibility, the Secretary—

(1) shall, in consultation with the Secretary of the department in which the Coast Guard is operating, adopt such regulations as may be necessary to carry out the purposes and objectives of the Convention and this Act; and

(2) may, with the concurrence of the Secretary of State, cooperate with the duly authorized officials of the Government of

Canada.

(c) The Regional Fishery Management Council having authority for the geographic area concerned may develop regulations governing the United States portion of Convention waters, including

limited access regulations, applicable to nationals or vessels of the

United States, or both, which are in addition to, and not in conflict

with regulations adopted by the Commission. Such regulations

shall only be implemented with the approval of the Secretary, shall

not discriminate between residents of different States, and shall be

consistent with the limited entry criteria set forth in section

303(b)(6) of the Magnuson Fishery Conservation and Management

Act 1. If it becomes necessary to allocate or assign halibut fishing

privileges among various United States fishermen, such allocation

shall be fair and equitable to all such fishermen, based upon the

rights and obligations in existing Federal law, reasonably calculated to promote conservation, and carried out in such manner

that no particular individual, corporation, or other entity acquires

an excessive share of the halibut fishing privileges: Provided, That

the Regional Council may provide for the rural coastal villages of

Alaska the opportunity to establish a commercial halibut fishery in

areas in the Bering Sea to the north of 56 degrees north latitude

during a 3 year development period.

SEC. 6. ø16 U.S.C. 773d¿ Any agency of the Federal Government is authorized upon request of the Commission, to cooperate

in the conduct of scientific and other programs, and to furnish on

a reimbursable basis, facilities and personnel for the purposes of

assisting the Commission in carrying out its duties under the Convention. Such agency may accept reimbursement from the Commission.

SEC. 7. ø16 U.S.C. 773e¿ It is unlawful—

(a) for any person subject to the jurisdiction of the United

States—

(1) to violate any provision of the Convention, this Act or

any regulation adopted under this Act;

(2) to refuse to permit any enforcement officer to board a

fishing vessel subject to such person’s control for purposes of

conducting any search or inspection in connection with the enforcement of the Convention, this Act or any regulation adopted under this Act;

(3) to forcibly assault, resist, oppose, impede, intimidate or

interfere with any enforcement officer in the conduct of any

search or inspection described in paragraph (2);

(4) to resist a lawful arrest or detention for any act prohibited by this section;

(5) to ship, transport, offer for sale, sell, purchase, import,

export or have custody, control or possession of, any fish taken
Sec. 8 NORTHERN PACIFIC HALIBUT ACT OF 1982 520

1So in law. Probably should be ‘‘; and’’. 2 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 302(b) of Public Law 102–251 amends section 7(b) by striking

‘‘fishery conservation zone’’ and inserting ‘‘exclusive economic zone or special areas’’.

or retained in violation of the Convention, this Act, or any regulation adopted under this Act; or

(6) to interfere with, delay or prevent, by any means, the

apprehension, arrest or detention of another person, knowing

that such person has committed any act prohibited by this section.1

(b) for any foreign fishing vessel, and for the owner or operator

of any foreign fishing vessel, to engage in fishing for halibut in the

fishery conservation zone 2, unless such fishing is authorized by,

and conducted in accordance with the Convention, this Act and regulations adopted under this Act.

SEC. 8. ø16 U.S.C. 773f¿ (a) Any person who is found by the

Secretary, after notice and opportunity for a hearing in accordance

with section 554 of title 5, United States Code, to have committed

an act prohibited by section 7 shall be liable to the United States

for a civil penalty. The amount of the civil penalty shall not exceed

$25,000 for each violation. Each day of a continuing violation shall

constitute a separate offense. The amount of such civil penalty

shall be assessed by the Secretary, or his designee, by written notice. In determining the amount of such penalty, the Secretary

shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violation, the degree of culpability, and history of prior offenses, ability

to pay, and such other matters as justice may require.

(b) Any person against whom a civil penalty is assessed under

subsection (a) may obtain review thereof in the appropriate court

of the United States by filing a notice of appeal in such court within 30 days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the Secretary and the

Attorney General. The Secretary shall promptly file in such court

a certified copy of the record upon which such violation was found

or such penalty imposed, in accordance with rules prescribed pursuant to section 2112 of title 28, United States Code. The findings

and order of the Secretary shall be set aside by such court if they

are not found to be supported by substantial evidence, as provided

in section 706(2) of title 5, United States Code.

(c) If any person fails to pay an assessment of a civil penalty

after it has become a final and unappealable order, or after the appropriate court has entered final judgment in favor of the Secretary, the Secretary shall refer the matter to the Attorney General

of the United States, who shall recover the amount assessed in any

appropriate district court of the United States. In such action, the

validity and appropriateness of the final order imposing the civil

penalty shall not be subject to review.

(d) The Secretary may compromise, modify, or remit, with or

without conditions, any civil penalty which is subject to imposition

or which has been imposed under this section.

SEC. 9. ø16 U.S.C. 773g¿ (a) A person is guilty of any offense

if he commits an act prohibited by section 7(a) (2), (3), (4), or (6);

or section 7(b).
521 NORTHERN PACIFIC HALIBUT ACT OF 1982 Sec. 10

(b) Any offense described in subsection (a) is punishable by a

fine of not more than $50,000 or imprisonment for not more than

6 months, or both; except that if in the commission of any offense

the person uses a dangerous weapon, engages in conduct that

causes bodily injury to any officer authorized to enforce the provisions of this Act, or places any such officer in fear of imminent bodily injury the offense is punishable by a fine of not more than

$100,000, or imprisonment for not more than 10 years or both.

(c) There is Federal jurisdiction over any offense described in

this section.

SEC. 10. ø16 U.S.C. 773h¿ (a) Any fishing vessel (including its

fishing gear, furniture, appurtenances, stores, and cargo) used, and

any fish taken or retained, in any manner, in connection with or

as a result of the commission of any act prohibited by section 7

shall be subject to forfeiture to the United States. All or part of

such vessel may, and all such fish shall, be forfeited to the United

States pursuant to a civil proceeding under this section.

(b) Any district court of the United States shall have jurisdiction, upon application by the Attorney General on behalf of the

United States, to order any forfeiture authorized under subsection

(a) and any action provided for under subsection (d).

(c) If a judgment is entered for the United States in a civil forfeiture proceeding under this section, the Attorney General may

seize any property or other interest declared forfeited to the United

States, which has not previously been seized pursuant to this Act

or for which security has not previously been obtained under subsection (d). The provisions of the customs laws relating to—

(1) the disposition of forfeited property;

(2) the proceeds from the sale of forfeited property;

(3) the remission or mitigation of forfeitures; and

(4) the compromise of claims;

shall apply to any forfeiture ordered, and to any case in which forfeiture is alleged to be authorized, under this section, unless such

provisions are inconsistent with the purposes, policy, and provisions of this Act. The duties and powers imposed upon the Commissioner of Customs or other persons under such provisions shall,

with respect to this Act, be performed by officers or other persons

designated for such purpose by the Secretary.

(d)(1) Any officer authorized to serve any process in rem which

is issued by a court having jurisdiction under section 11(d) shall—

(A) stay the execution of such process; or

(B) discharge any fish seized pursuant to such process;

upon the receipt of a satisfactory bond or other security from any

person claiming such property. Such bond or other security shall be

conditioned upon such person delivering such property to the appropriate court upon order thereof, without any impairment of its

value, or paying the monetary value of such property pursuant to

an order of such court. Judgment shall be recoverable on such bond

or other security against both the principal and any sureties in the

event that any condition thereof is breached, as determined by such

court.

(2) Any fish seized pursuant to this Act may be disposed of

pursuant to the order of a court of competent jurisdiction or, if perishable, in a manner prescribed by regulations of the Secretary or
Sec. 11 NORTHERN PACIFIC HALIBUT ACT OF 1982 522

the Secretary of the department in which the Coast Guard is operating.

(e) For purposes of this section, it shall be a rebuttable presumption that all fish found on board a fishing vessel which is

seized in connection with an act prohibited by section 7 were taken

or retained in violation of the Convention and this Act.

SEC. 11. ø16 U.S.C. 773i¿ (a) The Convention, this Act, and

any regulation adopted under this Act, shall be enforced by the

Secretary and the Secretary of the department in which the Coast

Guard is operating. Such Secretaries may, by agreement, on a reimbursable basis or otherwise, utilize the personnel, services,

equipment (including aircraft and vessels), and facilities of any

other Federal agency, and of any State agency, in the performance

of such duties.

(b) Any officer who is authorized by the Secretary, the Secretary of the department in which the Coast Guard is operating,

or the head of any Federal or State agency which has entered into

an agreement with such Secretaries under subsection (a) to enforce

the Convention, this Act or any regulation adopted under this Act

may—

(1) with or without a warrant or other process—

(A) arrest any person, if he has reasonable cause to believe that such person has committed an act prohibited by

section 7;

(B) board, and search or inspect, any fishing vessel

which is subject to this Act;

(C) at reasonable times enter, and search or inspect,

shoreside facilities in which fish taken subject to this Act

are processed, packed or held;

(D) seize any fishing vessel (together with its fishing

gear, furniture, appurtenances, stores, and cargo) used or

employed in, or with respect to which it reasonably appears that such vessel was used or employed in, an act

prohibited by section 7;

(E) seize any fish (wherever found) taken or retained

in the course of an act prohibited by section 7, or the proceeds of the sale of such fish; and

(F) seize any other evidence related to an act prohibited by section 7;

(2) execute any warrant or other process issued by any

court of competent jurisdiction; and

(3) exercise any other lawful authority.

(c) If any officer authorized to enforce this Act (as provided for

in this section) finds that a fishing vessel is operating or has been

operated in the commission of an act prohibited by section 7, such

officer may, in accordance with regulations issued jointly by the

Secretary and the Secretary of the department in which the Coast

Guard is operating, issue a citation to the owner or operator of

such vessel in lieu of proceeding under subsection (b). If a permit

has been issued pursuant to this Act for such vessel, such officer

shall note the issuance of any citation under this subsection, including the date thereof and the reason therefor, on the permit.

The Secretary shall maintain a record of all citations issued pursuant to this subsection.
523 NORTHERN PACIFIC HALIBUT ACT OF 1982 Sec. 12

1So in law. Probably should be ‘‘subpoena’’.

(d) The district courts of the United States shall have exclusive

jurisdiction over any case or controversy arising under this Act.

Any such court may, at any time—

(1) enter restraining orders or prohibitions;

(2) issue warrants, process in rem or other process;

(3) prescribe and accept satisfactory bonds or other security; and

(4) take such other actions as are in the interest of justice.

(e) When requested by the appropriate authorities of Canada,

officers or employees of the Coast Guard, the National Oceanic and

Atmospheric Administration or any other agency of the United

States may be directed to attend as a witness, and to produce such

available records and files or duly certified copies thereof as may

be necessary for the prosecution in Canada of any violation of the

Convention or any Canadian law relating to the enforcement thereof.

(f)(1) In cooperation with such other agencies as may be appropriate, the Secretary may conduct or cause to be conducted such

law enforcement investigations as are deemed necessary to carry

out the purposes of this Act.

(2) For the purpose of all investigations which, in the opinion

of the Secretary, are necessary and proper for the enforcement of

this Act, the Secretary or any officer designated by him is empowered to administer oaths and affirmations, subpena 1 witnesses,

take evidence, and require the production of any books, papers, or

other documents which the Secretary deems relevant or material to

the inquiry. Such attendance of witnesses and the production of

such documentary evidence may be required from any place in the

United States at any designated place or hearing.

(3) Process of the Secretary may be served by anyone duly authorized by him either—

(A) by delivering a copy thereof to the individual to be

served, or to a member of the partnership to be served, or the

president, secretary, or other executive officer or a director of

the corporation to be served; or the agent designated for service of process;

(B) by leaving a copy thereof at the residence or the principal office or place of business of such individual, partnership,

or corporation; or

(C) by mailing a copy thereof by registered or certified mail

addressed to such individual, partnership, or corporation at his

or its residence or principal office or place of business. The

verified return by the individual so serving such complaint,

order, or other process setting forth the manner of service shall

be proof of same, and the returned post office receipt for such

complaint, order, or other process mailed by registered or certified mail shall be proof of the service of the same.

SEC. 12. ø16 U.S.C. 773j¿ There is hereby authorized to be appropriated for fiscal year 1983 and beyond, such sums as may be

necessary for carrying out the Convention and this Act, including—

(a) necessary travel expenses of the United States Commissioners or alternate Commissioners; and
Sec. 13 NORTHERN PACIFIC HALIBUT ACT OF 1982 524

(b) the United States share of the joint expenses of the

Commission: Provided, That the Commissioners shall not, with

respect to commitments concerning the United States share of

the joint expenses of the Commission, be subject to section

262(b) of title 22, United States Code, insofar as it limits the

authority of United States representatives to international organizations with respect to such commitments.

SEC. 13. ø16 U.S.C. 773k¿ There are hereby authorized to be

appropriated such sums as may be necessary for the Secretary of

State to provide for fiscal year 1983 and beyond, by contract, grant,

or otherwise, facilities for office and any other necessary space for

the Commission. Such facilities shall be located on or near the campus of the University of Washington in the State of Washington

and shall be provided without regard to the cost-sharing provisions

in the Convention.

SEC. 14. The Northern Pacific Halibut Act of 1937, as amended

(50 Stat. 325, 67 Stat. 494, 79 Stat. 902), is repealed as of the 90th

day after the date of enactment of this Act.
525

NORTH PACIFIC ANADROMOUS STOCKS CONVENTION

ACT OF 1992

527

NORTH PACIFIC ANADROMOUS STOCKS CONVENTION

ACT OF 1992

[Public Law 102–567, Approved Oct. 29, 1992, 106 Stat. 4309]

[Amended through Public Law 106–562, Dec. 23, 2000]

AN ACT To authorize appropriations for the National Oceanic and Atmospheric

Administration, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

TITLE VIII—NORTH PACIFIC ANADROMOUS STOCKS

CONVENTION

SEC. 801. ø16 U.S.C. 5001 note¿ SHORT TITLE.

This title may be cited as the ‘‘North Pacific Anadromous

Stocks Act of 1992’’.

SEC. 802. ø16 U.S.C. 5001¿ PURPOSE.

It is the purpose of this title to implement the Convention for

the Conservation of Anadromous Stocks in the North Pacific Ocean,

signed in Moscow, February 11, 1992.

SEC. 803. ø16 U.S.C. 5002¿ DEFINITIONS.

As used in this title, the term—

(1) ‘‘Anadromous stocks’’ means stocks of species listed in

the Annex to the Convention that migrate into the Convention

area.

(2) ‘‘Anadromous fish’’ means fish of the species listed in

the Annex to the Convention that migrate into the Convention

area.

(3) ‘‘Authorized officer’’ means a law enforcement official

authorized to enforce this title under section 809(a).

(4) ‘‘Commission’’ means the North Pacific Anadromous

Fish Commission provided for by article VIII of the Convention.

(5) ‘‘Convention’’ means the Convention for the Conservation of Anadromous Stocks of the North Pacific Ocean, signed

in Moscow, February 11, 1992.

(6) ‘‘Convention area’’ means the waters of the North Pacific Ocean and its adjacent seas, north of 33 degrees North

Latitude, beyond 200 nautical miles from the baselines from

which the breadth of the territorial sea is measured.

(7) ‘‘Directed fishing’’ means fishing targeted at a particular species or stock of fish.

(8) ‘‘Ecologically related species’’ means living marine species which are associated with anadromous stocks found in the

Convention area, including, but not restricted to, both predators and prey of anadromous fish.
Sec. 804 N. PACIFIC ANADROMOUS STOCKS CONVENTION ACT OF 1992 528

(9) ‘‘Enforcement officer’’ means a law enforcement official

authorized by any Party to enforce this title.

(10) ‘‘Exclusive economic zone’’ means the zone established

by Proclamation Numbered 5030, dated March 10, 1983. For

purposes of applying this title, the inner boundary of that zone

is a line coterminous with the seaward boundary of each of the

coastal States.

(11) ‘‘Fish’’ means finfish, mollusks, crustaceans, and all

other forms of marine animal and plant life other than marine

mammals and birds.

(12) ‘‘Fishing’’ means—

(A) the catching, taking, or harvesting of fish, or any

other activity that can reasonably be expected to result in

the catching, taking, or harvesting of fish; or

(B) any operation at sea in preparation for or in direct

support of any activity described in subparagraph (A).

(13) ‘‘Fishing vessel’’ means—

(A) any vessel engaged in catching fish within the

Convention area or in processing or transporting fish loaded in the Convention area;

(B) any vessel outfitted to engage in any activity described in subparagraph (A);

(C) any vessel supporting a vessel described in subparagraph (A) or (B).

(14) ‘‘Incidental taking’’ means catching, taking, or harvesting a species or stock of fish while conducting directed fishing for another species or stock of fish.

(15) ‘‘Party’’ means Canada, Japan, the Russian Federation, the United States, and any other nation that may accede

to the Convention.

(16) ‘‘Secretary’’ means the Secretary of State.

(17) ‘‘United States Section’’ means the United States

Commissioners of the Commission.

SEC. 804. ø16 U.S.C. 5003¿ UNITED STATES COMMISSIONERS.

(a) COMMISSIONERS.—The United States shall be represented

on the Commission by not more than three United States Commissioners to be appointed by and serve at the pleasure of the President. Each United States Commissioner shall be appointed for a

term of office not to exceed 4 years, but is eligible for reappointment. Individuals serving as such Commissioners shall not be considered to be Federal employees while performing such service, except for purposes of injury compensation or tort claims liability as

provided in chapter 81 of title 5, United States Code, and chapter

171 of title 28, United States Code. Of the Commissioners—

(1) one shall be an official of the United States Government;

(2) one shall be a resident of the State of Alaska; and

(3) one shall be a resident of the State of Washington.

An individual is not eligible for appointment under paragraph (2)

or (3) as a Commissioner unless the individual is knowledgeable or

experienced concerning the anadromous stocks and ecologically related species of the North Pacific Ocean.

(b) ALTERNATE COMMISSIONERS.—The Secretary, in consultation with the Secretary of Commerce, may designate from time to
529 N. PACIFIC ANADROMOUS STOCKS CONVENTION ACT OF 1992 Sec. 805

time Alternate United States Commissioners to the Commission.

An Alternate United States Commissioner may exercise all designated powers and duties of a United States Commissioner in the

absence of a duly designated Commissioner for whatever reason.

The number of such Alternate United States Commissioners that

may be designated for any such meeting shall be limited to the

number of authorized United States Commissioners that will not

be present.

(c) UNITED STATES SECTION.—The United States Section, in

consultation with the Advisory Panel established in section 805,

shall identify and recommend to the Commission research needs

and priorities for anadromous stocks and ecologically related species subject to the Convention, and oversee the United States research programs involving such fisheries, stocks, and species.

(d) COMPENSATION.—United States Commissioners and Alternate United States Commissioners shall receive no compensation

for their services as Commissioners and Alternate Commissioners.

SEC. 805. ø16 U.S.C. 5004¿ ADVISORY PANEL.

(a) ESTABLISHMENT OF PANEL.—An Advisory Panel to the

United States Section is established. The Advisory Panel shall be

composed of the following:

(1) The Commissioner of the Alaska Department of Fish

and Game.

(2) The Director of the Washington Department of

Fisheries.

(3) One representative of the Pacific States Marine Fisheries Commission, designated by the Executive Director of that

commission.

(4) Eleven members (six of whom shall be residents of the

State of Alaska and five of whom shall be residents of the

State of Washington), appointed by the Secretary, in consultation with the Secretary of Commerce, from among a slate of 12

persons nominated by the Governor of Alaska and a slate of 10

persons nominated by the Governor of Washington.

(b) QUALIFICATIONS.—Persons appointed to the Advisory Panel

shall be individuals who are knowledgeable or experienced concerning anadromous stocks and ecologically related species. In submitting a slate of nominees pursuant to subsection (a)(4), the Governors of Alaska and Washington shall seek to represent the broad

range of parties interested in anadromous stocks and ecologically

related species, and at a minimum shall include on each slate at

least one representative of commercial salmon fishing interests and

of environmental interests concerned with protection of living marine resources.

(c) LIMITATION ON SERVICE.—Any person appointed to the Advisory Panel pursuant to subsection (a)(4) shall serve for a term not

to exceed 4 years, and may not serve more than two consecutive

terms.

(d) FUNCTIONS.—The Advisory Panel shall be invited to all

nonexecutive meetings of the United States Section and at such

meetings shall be granted the opportunity to examine and to be

heard on all proposed programs of study and investigation, reports,

and recommendations of the United States Section.
Sec. 806 N. PACIFIC ANADROMOUS STOCKS CONVENTION ACT OF 1992 530

(e) COMPENSATION AND EXPENSES.—The members of the Advisory Panel shall receive no compensation or travel expenses for

their services as such members.

SEC. 806. ø16 U.S.C. 5005¿ COMMISSION RECOMMENDATIONS.

The Secretary, with the concurrence of the Secretary of Commerce, may accept or reject, on behalf of the United States, recommendations made by the Commission in accordance with article

IX of the Convention.

SEC. 807. ø16 U.S.C. 5006¿ ADMINISTRATION AND ENFORCEMENT OF

CONVENTION.

(a) RESPONSIBILITIES.—The Secretary of Commerce shall be responsible for administering provisions of the Convention, this title,

and regulations issued under this title. The Secretary, in consultation with the Secretary of Commerce and the Secretary of Transportation, shall be responsible for coordinating the participation of

the United States in the Commission.

(b) CONSULTATION AND COOPERATION.—In carrying out such

functions, the Secretary of Commerce—

(1) shall, in consultation with the Secretary of Transportation and the United States Section, issue such regulations as

may be necessary to carry out the purposes and objectives of

the Convention and this title; and

(2) may, with the concurrence of the Secretary, cooperate

with the authorized officials of the government of any Party.

SEC. 808. ø16 U.S.C. 5007¿ COOPERATION WITH OTHER AGENCIES.

(a) IN GENERAL.—Any agency of the Federal Government is authorized, upon request of the Commission, to cooperate in the conduct of scientific and other programs, and to furnish, on a reimbursable basis, facilities and personnel for the purpose of assisting

the Commission in carrying out its duties under the Convention.

Such agency may accept reimbursement from the Commission.

(b) FUNCTIONS OF SECRETARY OF COMMERCE.—In carrying out

the provisions of the Convention and this title, the Secretary of

Commerce may arrange for cooperation with agencies of the United

States, the States, private institutions and organizations, and

agencies of the government of any Party, to conduct scientific and

other programs, and may execute such memoranda as may be necessary to reflect such agreements.

SEC. 809. ø16 U.S.C. 5008¿ ENFORCEMENT PROVISIONS.

(a) DUTIES OF SECRETARIES OF COMMERCE AND TRANSPORTATION.—This title shall be enforced by the Secretary of Commerce

and the Secretary of Transportation. Such Secretaries may by

agreement utilize, on a reimbursable basis or otherwise, the personnel, services, equipment (including aircraft and vessels), and facilities of any other Federal agency, including all elements of the

Department of Defense, and of any State agency, in the performance of such duties. Such Secretaries shall, and the head of any

Federal or State agency that has entered into an agreement with

either such Secretary under the preceding sentence may (if the

agreement so provides), authorize officers to enforce the provisions

of the Convention, this title, and regulations issued under this title.

Any such agreement or contract entered into pursuant to this sec-
531 N. PACIFIC ANADROMOUS STOCKS CONVENTION ACT OF 1992 Sec. 809

1So in law. Probably should include ‘‘and’’ after the semicolon. 2So in law. Probably should be ‘‘if’’.

tion shall be effective only to such extent or in such amounts as

are provided in advance in appropriations Acts.

(b) DISTRICT COURT JURISDICTION.—The district courts of the

United States shall have exclusive jurisdiction over any case or

controversy arising under the provisions of this title.

(c) POWERS OF ENFORCEMENT OFFICERS.—Authorized officers

may, shoreward of the outer boundary of the exclusive economic

zone, or during hot pursuit from the zone—

(1) with or without a warrant or other process—

(A) arrest any person, if the officer has reasonable

cause to believe that such person has committed an act

prohibited by section 810;

(B) board, and search or inspect, any fishing vessel

subject to the provisions of the Convention and this title;

(C) seize any fishing vessel (together with its fishing

gear, furniture, appurtenances, stores, and cargo) used or

employed in, or with respect to which it reasonably appears that such vessel was used or employed in, the violation of any provision of the Convention, this title, or regulations issued under this title;

(D) seize any fish (wherever found) taken or retained

in violation of any provision referred to in subparagraph

(C); 1

(E) seize any other evidence related to any violation of

any provision referred to in subparagraph (C);

(2) execute any warrant or other process issued by any

court of competent jurisdiction; and

(3) exercise any other lawful authority.

(d) ADDITIONAL POWERS.—(1) An authorized officer may in the

Convention area—

(A) board a vessel of any Party that reasonably can be believed to be engaged in directed fishing for, incidental taking

of, or processing of anadromous fish, and, without warrant or

process, inspect equipment, logs, documents, catch, and other

articles, and question persons, on board the vessel, for the purpose of carrying out the provisions of the Convention, this title,

or any regulation issued under this title; and

(B) If 2 any such vessel or person on board is actually engaged in operations in violation of any such provision, or there

is reasonable ground to believe any person or vessel was obviously so engaged before the boarding of such vessel by the

authorized officer, arrest or seize such person or vessel and

further investigate the circumstance if necessary.

If an authorized officer, after boarding and investigation, has reasonable cause to believe that any such fishing vessel or person engaged in operations in violation of any provision referred to in subparagraph (A), the officer shall deliver the vessel or person as

promptly as practicable to the enforcement officers of the appropriate Party, in accordance with the provisions of the Convention.

(2) When requested by the appropriate authorities of a Party,

an authorized officer may be directed to attend as a witness, and

to produce such available records and files or duly certified copies
Sec. 810 N. PACIFIC ANADROMOUS STOCKS CONVENTION ACT OF 1992 532

thereof as may be necessary, for the prosecution by that Party of

any violation of the provisions of the Convention or any law of that

Party relating to the enforcement thereof.

SEC. 810. ø16 U.S.C. 5009¿ UNLAWFUL ACTIVITIES.

It is unlawful for any person or fishing vessel subject to the jurisdiction of the United States—

(1) to fish for any anadromous fish in the Convention area;

(2) to retain on board any anadromous fish taken incidentally in a fishery directed at nonanadromous fish in the Convention area;

(3) to fail to return immediately to the sea any anadromous fish taken incidentally in a fishery directed at nonanadromous fish in the Convention area;

(4) to ship, transport, offer for sale, sell, purchase, import,

export, or have custody, control, or possession of, any anadromous fish taken or retained in violation of the Convention,

this title, or any regulation issued under this title;

(5) to refuse to permit any enforcement officer to board a

fishing vessel subject to such person’s control for purposes of

conducting any search or inspection in connection with the enforcement of the Convention, this title, or any regulation

issued under this title;

(6) to forcibly assault, resist, oppose, impede, intimidate, or

interfere with any enforcement officer in the conduct of any

search or inspection described in paragraph (5);

(7) to resist a lawful arrest or detection for any act prohibited by this section;

(8) to interfere with, delay, or prevent, by any means, the

apprehension, arrest, or detection of another person, knowing

that such person has committed any act prohibited by this section; or

(9) to violate any provision of the Convention, this title, or

any regulation issued under this title.

SEC. 811. ø16 U.S.C. 5010¿ PENALTIES.

(a) CIVIL PENALTIES.—(1) Any person who is found by the Secretary of Commerce, after notice and opportunity for a hearing in

accordance with section 554 of title 5, United States Code, to have

committed an act prohibited by section 810 shall be liable to the

United States for a civil penalty. The amount of the civil penalty

shall not exceed $100,000 for each violation. Each day of a continuing violation shall constitute a separate offense. The amount of

such civil penalty shall be assessed by the Secretary of Commerce,

or the Secretary’s designee, by written notice. In determining the

amount of such penalty, the Secretary of Commerce shall take into

account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violation, the degree of culpability, any history of prior offenses, ability to pay, and

such other matters as justice may require.

(2) Any person against whom a civil penalty is assessed under

paragraph (1) may obtain review thereof in the appropriate court

of the United States by filing a complaint in such court within 30

days from the date of such order and by simultaneously serving a

copy of such complaint by certified mail on the Secretary of Commerce, the Attorney General, and the appropriate United States
533 N. PACIFIC ANADROMOUS STOCKS CONVENTION ACT OF 1992 Sec. 811

1So in law. Probably should be ‘‘Code’’.

Attorney. The Secretary of Commerce shall promptly file in such

court a certified copy of the record upon which such violation was

found or such penalty imposed, as provided in section 2112 of title

28, United States Code. The findings and order of the Secretary of

Commerce shall be set aside by such court if they are not found

to be supported by substantial evidence, as provided in section

706(2) of title 5, United States Code.

(3) If any person fails to pay an assessment of a civil penalty

after it has become a final and unappealable order, or after the appropriate court has entered final judgment in favor of the Secretary

of Commerce, the matter shall be referred to the Attorney General,

who shall recover the amount assessed in any appropriate district

court of the United States. In such action, the validity and appropriateness of the final order imposing the civil penalty shall not be

subject to review.

(4) A fishing vessel (including its fishing gear, furniture, appurtenances, stores, and cargo) used in the commission of an act

prohibited by section 810 shall be liable in rem for any civil penalty

assessed for such violation under paragraph (1) and may be proceeded against in any district court of the United States having jurisdiction thereof. Such penalty shall constitute a maritime lien on

such vessel that may be recovered in an action in rem in the district court of the United States having jurisdiction over the vessel.

(5) The Secretary of Commerce may compromise, modify, or

remit, with or without conditions, any civil penalty that is subject

to imposition or that has been imposed under this section.

(6) For the purposes of conducting any hearing under this section, the Secretary of Commerce may issue subpoenas for the attendance and testimony of witnesses and the production of relevant

papers, books, and documents, and may administer oaths. Witnesses summoned shall be paid the same fees and mileage that are

paid to witnesses in the courts of the United States. In case of contempt or refusal to obey a subpoena served upon any person pursuant to this paragraph, the district court of the United States for

any district in which such person is found, resides, or transacts

business, upon application by the United States and after notice to

such person, shall have jurisdiction to issue an order requiring

such person to appear and give testimony before the Secretary of

Commerce or to appear and produce documents before the Secretary of Commerce, or both, and any failure to obey such order of

the court may be punished by such court as a contempt thereof.

(b) OFFENSES.—(1) A person is guilty of an offense if the person

commits any act prohibited by section 810 (5), (6), (7), or (8).

(2) Any offense described in paragraph (1) is a class A misdemeanor punishable by a fine under title 18, United States code 1,

or imprisonment for not more than 6 months, or both; except that

if in the commission of any offense the person uses a dangerous

weapon, engages in conduct that causes bodily injury to any enforcement officer, or places any such officer in fear of imminent

bodily injury, the offense is a felony punishable by a fine under

title 18, United States Code, or imprisonment for not more than 10

years, or both.
Sec. 812 N. PACIFIC ANADROMOUS STOCKS CONVENTION ACT OF 1992 534

1So in law. Probably should be ‘‘If’’.

(c) FORFEITURE.—(1) Any fishing vessel (including its fishing

gear, furniture, appurtenances, stores, and cargo) used, and any

fish (or a fair market value thereof) taken or retained, in any manner, in connection with or as a result of the commission of any act

prohibited by section 810 shall be subject to forfeiture to the

United States. All or part of such vessel may, and all such fish

shall, be forfeited to the United States pursuant to a civil proceeding under this section.

(2) Any district court of the United States shall have jurisdiction, upon application of the Attorney General on behalf of the

United States, to order any forfeiture authorized under paragraph

(1) and any action provided for under paragraph (4).

(3) if 1 a judgment is entered for the United States in a civil

forfeiture proceeding under this section, the Attorney General may

seize any property or other interest declared forfeited to the United

States, which has not previously been seized pursuant to this title

or for which security has not previously been obtained. The provisions of the customs laws relating to—

(A) the seizure, forfeiture, and condemnation of property

for violation of the customs law;

(B) the disposition of such property or the proceeds from

the sale thereof; and

(C) the remission or mitigation of any such forfeiture;

shall apply to seizures and forfeitures incurred, or alleged to have

been incurred, under the provisions of this title, unless such provisions are inconsistent with the purposes, policy, and provisions of

this title.

(4)(A) Any officer authorized to serve any process in rem that

is issued by a court having jurisdiction under section 809(b) shall—

(i) stay the execution of such process; or

(ii) discharge any fish seized pursuant to such process;

upon receipt of a satisfactory bond or other security from any person claiming such property. Such bond or other security shall be

conditioned upon such person delivering such property to the appropriate court upon order thereof, without any impairment of its

value, or paying the monetary value of such property pursuant to

an order of such court. Judgment shall be recoverable on such bond

or other security against both the principal and any sureties in the

event that any condition thereof is breached, as determined by such

court.

(B) Any fish seized pursuant to this title may be sold, subject

to the approval and direction of the appropriate court, for not less

than the fair market value thereof. The proceeds of any such sale

shall be deposited with such court pending the disposition of the

matter involved.

(5) For purposes of this section, it shall be a rebuttable presumption that all fish found on board a fishing vessel and which

is seized in connection with an act prohibited by section 810 were

taken or retained in violation of the Convention and this title.

SEC. 812. ø16 U.S.C. 5011¿ FUNDING REQUIREMENTS.

(a) AUTHORIZATION.—There are authorized to be appropriated

from time to time such sums as may be necessary for carrying out
535 N. PACIFIC ANADROMOUS STOCKS CONVENTION ACT OF 1992 Sec. 814

the purposes and provisions of the Convention and this title,

including—

(1) necessary travel expenses of the United States Commissioners or Alternate Commissioners; and

(2) the United States’ share of the joint expenses of the

Commission.

(b) RESEARCH.—Such funds as shall be made available to the

Secretary of Commerce for research and related activities shall be

expended to carry out the program of the Commission in accordance with the recommendations of the United States Section and

to carry out other research and observer programs pursuant to the

Convention.

SEC. 813. ø16 U.S.C. 5012¿ DISPOSITION OF PROPERTY.

The Secretary shall dispose of any United States property held

by the International North Pacific Fisheries Commission on the

date of its termination in a manner that would further the purposes of this title.

SEC. 814. REPEAL OF THE NORTH PACIFIC FISHERIES ACT OF 1954.

The Act of August 12, 1954 (16 U.S.C. 1021–1035) is repealed.

537

PACIFIC SALMON TREATY ACT OF 1985

539

1So in law. Section 211 of the Department of Commerce and Related Agencies Appropriations

Act, 1997 (as contained in section 101(a), title I of Division A of Public Law 104–208; 110 Stat.

3009–41) provides:

SEC. 211. (a) Effective 15 days after the enactment of the Sustainable Fisheries Act, section

1 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801) shall be amended to read as follows: ‘‘That this Act may be cited as the ‘Magnuson-Stevens Fishery Conservation and Management Act’.’’

(b) Effective 15 days after the enactment of the Sustainable Fisheries Act, all references to

the Magnuson Fishery Conservation and Management Act shall be redesignated as references

to the Magnuson-Stevens Fishery Conservation and Management Act.

Since such section did not actually amend each occurrence of the short title in law, the former

short title appears here.

PACIFIC SALMON TREATY ACT OF 1985

[Public Law 99–5, Approved Mar. 15, 1985, 99 Stat. 7]

[Amended through Public Law 106–554, Dec. 21, 2000]

AN ACT To give effect to the Treaty Between the Government of the United States

of America and the Government of Canada Concerning Pacific Salmon, signed at

Ottawa, January 28, 1985.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That ø16 U.S.C.

3631 note¿ this Act may be cited as the ‘‘Pacific Salmon Treaty Act

of 1985’’.

SEC. 2. ø16 U.S.C. 3631¿ DEFINITIONS.

As used in this title, unless the context otherwise requires, the

term—

(a) ‘‘Commission’’ means the Pacific Salmon Commission

established by the Treaty;

(b) ‘‘enhancement’’ means manmade improvements to natural habitats, or the application of artificial fish culture technology, that will lead to the increase of salmon stocks;

(c) ‘‘Magnuson Act’’ means the Act entitled ‘‘the Magnuson

Fishery Conservation and Management Act,’’ 1 as approved

April 13, 1976, and as later amended (16 U.S.C. section 1801

et seq.);

(d) ‘‘Panel’’ means any of the Panels established by the

Treaty;

(e) ‘‘person’’ means any individual (whether or not a citizen

or national of the United States), any corporation, partnership,

association, or other entity (whether or not organized or existing under the laws of any State);

(f) ‘‘salmon’’ means any anadromous species of the family

Salmonidae and genus Oncorhynchus, commonly known as Pacific salmon, including but not limited to:

Popular names Scientific name

Chinook or King Salmon ...................... Oncorhynchus tshawytscha

Coho or Silver Salmon ......................... Oncorhynchus kisutch

Pink or Humpback ............................... Oncorhynchus gorbuscha
Sec. 3 PACIFIC SALMON TREATY ACT OF 1985 540

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, with authority to prescribe implementing regulations effective March 9,

1992, but with no such regulation to be effective until the date on which the Agreement enters

into force for the United States, section 306(a) of the Flower Garden National Marine Sanctuary

(P.L. 102–251; 106 Stat. 66) amends section 2 by redesignating subsections (h) through (j) as

subsections (i) through (k) and inserts after subsection (g) the following new subsection:

‘‘(h) ‘Special areas’ means the areas referred to as eastern special areas in Article 3(1) of the

Agreement between the United States of America and the Union of Soviet Socialist Republics

on the Maritime Boundary, signed June 1, 1990; in particular, the term refers to those areas

east of the maritime boundary, as defined in that Agreement, that lie within 200 nautical miles

of the baselines from which the breadth of the territorial sea of Russia is measured but beyond

200 nautical miles of the baselines from which the breadth of the territorial sea of the United

States is measured.’’. 2So in original. Probably should read ‘‘State of Oregon or Washington’’.

Popular names Scientific name

Chum or Dog Salmon ........................... Oncorhynchus keta

Sockeye or Red Salmon ........................ Oncorhynchus nerka

and shall also include Steelhead (Salmo gairdneri);

(g) ‘‘Secretary’’ means the Secretary of Commerce;

(h) 1 ‘‘Treaty’’ means the Treaty between the Government

of the United States of America and the Government of Canada Concerning Pacific Salmon, signed at Ottawa, January 28,

1985;

(i) 1 ‘‘treaty Indian tribe’’ means any of the federally recognized Indian tribes of the Columbia River basin, Washington

coast or Puget Sound areas having reserved fishing rights to

salmon stocks subject to the Treaty under treaties with the

United States Government; and

(j) 1 ‘‘United States Section’’ means the four United States

Commissioners appointed by the President pursuant to this

title.

SEC. 3. ø16 U.S.C. 3632¿ UNITED STATES SECTION.

(a) COMMISSIONERS.—The United States shall be represented

on the Commission by four United States Commissioners who are

knowledgeable or experienced concerning Pacific salmon, to be appointed by and serve at the pleasure of the President. Of these, one

shall be an official of the United States Government who shall be

a nonvoting member of the United States Section; one shall be a

resident of the State of Alaska and shall be appointed from a list

of at least six qualified individuals nominated by the Governor of

that State; one shall be a resident of the States of Oregon,2 or

Washington and shall be appointed from a list of at least six qualified individuals nominated by the Governors of those States; and

one shall be appointed from a list of at least six qualified individuals nominated by the treaty Indian tribes of the States of Idaho,

Oregon or Washington. Two of the initial appointments shall be for

two-year terms; all other appointments shall be for four-year terms.

Each Commissioner is eligible for reappointment. Any individual

appointed to fill a vacancy occurring prior to the expiration of any

term of office shall be appointed for the remainder of that term.

Unless otherwise agreed, the chairmanship of the United States

Section shall rotate annually among all four members with the

order of rotation determined by lot at the first meeting.

(b) ALTERNATE COMMISSIONERS.—The Secretary of State, in

consultation with the Secretary and the Secretary of the Interior,

shall designate an Alternate Commissioner for each Commissioner
541 PACIFIC SALMON TREATY ACT OF 1985 Sec. 3

from the respective lists referred to in section 3(a), and may designate an Alternate Commissioner for the Federal Commissioner.

In the absence of a Commissioner, the Alternate Commissioner

may exercise all functions of such Commissioner at any meeting of

the Commission or of the United States Section. Alternate Commissioners are eligible for reappointment and may attend all meetings

of the United States Section.

(c) SOUTHERN PANEL.—The United States shall be represented

on the southern Panel by six Panel members, of whom—

(1) one shall be an official of the United States Government, with salmon fishery management responsibility and expertise;

(2) one shall be an official of the State of Oregon, with

salmon fishery management responsibility and expertise;

(3) one shall be an official of the State of Washington, with

salmon fishery management responsibility and expertise;

(4) two shall be appointed from a list submitted by the

treaty Indian tribes of individuals with salmon fishery management responsibility and expertise; and

(5) one shall be appointed from the commercial or recreational sector who is knowledgeable and experienced in the

salmon fisheries for which the southern Panel is responsible.

(d) NORTHERN PANEL.—The United States shall be represented

on the northern Panel by six Panel members, of whom—

(1) one shall be an official of the United States Government, with salmon fishery management responsibility and expertise;

(2) one shall be an official of the State of Alaska, with

salmon fishery management responsibility and expertise; and

(3) four shall be individuals knowledgeable and experienced in the salmon fisheries for which the northern Panel is

responsible.

(e) FRASER RIVER PANEL.—The United States shall be represented on the Fraser River Panel by four Panel members, of

whom—

(1) one shall be an official of the United States Government, with salmon fishery management responsibility and expertise;

(2) one shall be an official of the State of Washington, with

salmon fishery management responsibility and expertise;

(3) one shall be appointed from a list submitted by the

treaty Indian tribes of individuals with salmon fishery management responsibility and expertise for the fisheries for which

the Fraser River Panel is responsible; and

(4) one shall be appointed from the commercial sector of

the salmon fishing industry concerned with fisheries for which

the Fraser River Panel is responsible.

(f) The United States shall be represented on the

Transboundary Panel by seven panel members, of whom—

(1) one shall be an official of the United States Government, with salmon fishery management responsibility and expertise;

(2) one shall be an official of the State of Alaska, with

salmon fishery management responsibility and expertise; and
Sec. 3 PACIFIC SALMON TREATY ACT OF 1985 542

(3) five shall be individuals knowledgeable and experienced

in the salmon fisheries for which the Transboundary Panel is

responsible.

(g) PANEL APPOINTMENTS.—Panel members described in subsections (c)(2), (c)(3), (d)(2), and (e)(2) shall be appointed by the

Governor of the applicable State. Panel members described in subsections (c)(4) and (e)(3) shall be appointed by the Secretary of the

Interior from lists of nominations provided by the appropriate trea- ty Indian tribes. All other Panel members shall be appointed by the

Secretary: Provided, That at least one member of the northern

Panel shall be a voting member of the North Pacific Fishery Management Council, at least one member of the southern Panel shall

be a voting member of the Pacific Fishery Management Council;

and the Panel members described in subsections (c)(5), (d)(3), and

(e)(4) shall be appointed from lists of nominations provided by the

Governors of the applicable States. For the northern, southern, and

Fraser River panels, the appointing authorities listed above may

also designate an alternate Panel member, meeting the same qualifications and having the same term of office, to service in the absence of a Panel member appointed under this subsection. Panel

members and alternate Panel members, other than the southern

Panel member described in subsection (c)(5), shall serve four-year

terms; except that the Secretary of State shall designate one-half

of the initial appointments to each Panel as serving two-year

terms. The southern Panel member described in subsection (c)(5)

and the corresponding alternate shall each be appointed for oneyear terms; the first such member shall be appointed from the commercial sector and an alternate shall be appointed from the recreational sector, with the alternate succeeding to the member position in the subsequent year; thereafter the member and alternate

positions shall rotate between the commercial and recreational sectors on an annual basis. Any individual appointed to fill a vacancy

occurring prior to the expiration of any term of office shall be appointed for the remainder of that term. Panel members and alternates shall be eligible for reappointment and may attend all meetings of the relevant United States Panel Section.

(h) VOTING REQUIREMENTS.—(1) Except as provided in paragraph (2), the United States Section shall operate with the objective of attaining consensus decisions in the development and exercise of its single vote within the Commission. A decision of the

United States Section shall be taken when there is no dissenting

vote.

(2) A decision of the United States Section with respect to any

salmon fishery regime covered by chapter 1 or 2 (except paragraph

4 of chapter 2) of Annex IV to the Pacific Salmon Treaty of 1985

shall be taken upon the affirmative vote of the United States Commissioner appointed from the list submitted by the Governor of

Alaska pursuant to subsection (a). A decision of the United States

Section with respect to any salmon fishery regime covered by chapter 4, 5 (except paragraph 2(b) of chapter 5), or 6 of the Pacific

Salmon Treaty of 1985 shall be taken upon the affirmative vote of

both the United States Commissioner appointed from the list submitted by the Governors of Washington and Oregon pursuant to

subsection (a) and the United States Commissioner appointed from

the list submitted by the treaty Indian tribes of the State of Idaho,
543 PACIFIC SALMON TREATY ACT OF 1985 Sec. 3

1So in law. Paragraph (2), as amended by section 623(c) of H.R. 3421 as introduced in the

106th Congress and enacted into law by section 1000(a)(1) of P.L. 106–113, does not have a period at the end.

Oregon, or Washington pursuant to subsection (a). Before a decision of the United States Section is made under this paragraph,

the voting Commissioner or Commissioners shall consult with the

Commissioner who is an official of the United States Government

under subsection (a) 1

(3) All decisions and recommendations of the United States

Section of the northern, southern, and transboundary Panels shall

require the concurring vote of a majority of the United States

Panel members present and voting, except that decisions and recommendations of the southern Panel shall require the concurring

vote of the members designated in subsections (c)(2) and (c)(3) and

one of those members designated in subsection (c)(4).

(4) All decisions and recommendations of the United States

Section of the Fraser River Panel shall require the concurring vote

of all United States Panel members present and voting, except that

orders referred to in article VI(6) of the Treaty may be agreed to

on the basis of a majority, provided that the Panel members representing the State and Tribal fishery management authorities concur.

(5) All decisions and recommendations of any joint Panel shall

require the concurring votes of each Panel under the voting rules

specified in paragraphs (2) and (3).

(6) To assist in the resolution of disputes affecting decisions of

the United States Section or of the United States Panel sections,

a three-person Conciliation Board may be established. The members of the Conciliation Board shall be selected by the United

States Section as follows: each non-Federal Commissioner shall

submit a list of no fewer than three qualified nominees; one person

shall be selected from each list by consensus decision of the Federal

Commissioner and the other two non-Federal Commissioners. The

Conciliation Board shall operate under such bylaws as may be established by the United States Section.

(7) In any matter where the Fraser River Panel is unable to

act because the United States Fraser River Panel members have

been unable to reach a decision in accordance with paragraph (3)

of this subsection, and upon a determination by the Chairman of

the United States Section that an action of the Panel is required,

the United States Section shall act for the United States Panel

members in the Fraser River Panel.

(8) In any matter where the Secretary of State determines that

the United States is in jeopardy of not fulfilling its international

obligations under the Treaty, the Secretary of State shall so certify

to the United States Section. Such certification shall include the

reasons for such determination and shall specify the date by which

a decision by the United States Section is desired. If the United

States Section has not reached a decision by the date specified, the

Secretary of State, after consultation with the Secretary and the

Secretary of the Interior, shall report on the matter to the President.

(i) CONSULTATION.—In carrying out their functions under the

Treaty, the Commissioners and Panel members may consult with

such other interested parties as they consider appropriate. The
Sec. 4 PACIFIC SALMON TREATY ACT OF 1985 544

Federal Advisory Committee Act (5 U.S.C. App. 1 et seq.) shall not

apply.

SEC. 4. ø16 U.S.C. 3633¿ AUTHORITY AND RESPONSIBILITY.

(a) The Secretary of State is authorized to—

(1) receive and transmit, on behalf of the United States,

reports, requests, recommendations, proposals, and other communications of and to the Commission and Panels;

(2) in consultation with the Secretary and the Secretary of

the Interior, approve, disapprove, object to, or withdraw objections to fishery regimes, including enhancement programs and

Fraser River Panel regulations proposed in accordance with

the Treaty, on the condition that the United States shall be obligated to carry out such regimes or regulations only to the extent that funds are made available for such purposes in appropriation Acts; and

(3) act upon, or refer to other appropriate authority, any

communication referred to in paragraph (1) of this subsection

other than a proposed fishery regime or Fraser River Panel

regulation.

(b) Recommendations of the Commission on fishery regimes or

Fraser River Panel regulations approved by the Secretary of State

pursuant to subsection (a)(2) shall be forwarded immediately to the

States of Alaska, Oregon, Washington, and Idaho and to the treaty

Indian tribes, as appropriate. In the exercise of their general fishery management authority, the States and treaty Indian tribes

may adopt corresponding laws, regulations, or orders within their

respective jurisdictions.

(c) In cooperation with the appropriate Regional Fishery Management Councils, States and treaty Indian tribes, the Secretary

shall prepare, as appropriate, all statements, reports, and information required by the Treaty and submit such documents to the Sec- retary of State, who shall transmit them to the Commission.

SEC. 5. ø16 U.S.C. 3634¿ INTERAGENCY COOPERATION.

(a) In carrying out the provisions of the Treaty and this title,

the Secretary, in consultation with the Secretary of the Interior,

may arrange for cooperation with agencies of the United States, the

States, treaty Indian tribes, private institutions and organizations,

and may execute such memoranda as may be necessary to reflect

such agreements.

(b) Agencies of the United States may cooperate in the conduct

of scientific and other programs, and may furnish facilities and personnel, for the purposes of assisting the Commission and Panels in

carrying out their responsibilities under the Treaty. Such agencies

may accept reimbursement from the Commission for providing such

services, facilities, and personnel.

SEC. 6. ø16 U.S.C. 3635¿ PREEMPTION.

If any State or treaty Indian tribe has taken any action, or

omitted to take any action, the results of which place the United

States in jeopardy of not fulfilling its international obligations

under the Treaty, or any fishery regime or Fraser River Panel regulation adopted thereunder, the Secretary shall inform the State or

tribe of the manner in which the action or inaction places the

United States in jeopardy of not fulfilling its international obligations under the Treaty, of any remedial action which would relieve
545 PACIFIC SALMON TREATY ACT OF 1985 Sec. 7

1 Effective upon the date on which the Agreement between the United States and the Union

of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force

for the United States, section 306(b) of the Flower Garden National Marine Sanctuary (P.L.

102–251; 106 Stat. 66) amends subsection (a) by inserting ‘‘and special areas’’ after ‘‘Exclusive

Economic Zone’’. 2So in law. Probably should refer to the National Environmental Policy Act of 1969.

this concern, and of the intention to promulgate Federal regulations if such remedial actions are not undertaken within fifteen

days unless an earlier action is required to avoid violation of

United States Treaty obligations. Should United States action be

required to meet Treaty obligations to Canada in respect to treaty

Indian fisheries conducted in terminal areas subject to the continuing jurisdiction of a United States district court, such action

shall be taken within the framework of such court jurisdiction.

Otherwise, regulations may be promulgated by the Secretary pursuant to section 7(a) of this title which shall supersede any State

or treaty Indian tribal law, regulation or order determined by the

Secretary to place the United States in jeopardy of not fulfilling its

international obligations under the Treaty. Timely notice of all

such determinations shall be disseminated by electronic media and

shall be published in local newspapers in the major fishing ports

affected and in the Federal Register. In order to enable the United

States to fulfill its obligations under article IV(7) of the Treaty, the

States of Alaska, Idaho, Oregon and Washington and the treaty Indian tribes shall advise the Secretary of all pertinent laws or regulations pertaining to the harvest of Pacific salmon, together with

such amendments thereto as may be adopted from time to time.

SEC. 7. ø16 U.S.C. 3636¿ RULEMAKING.

(a) The Secretary, in consultation with the Secretary of the Interior, the Secretary of the Department in which the Coast Guard

is operating and the appropriate Regional Fishery Management

Council, shall promulgate such regulations as may be necessary to

carry out the United States international obligations under the

Treaty and this title, pursuant to section 6, as well as conforming

amendatory regulations applicable to the United States Exclusive

Economic Zone 1. Any such regulation may be made applicable, as

necessary, to all persons and all vessels subject to the jurisdiction

of the United States, wherever located. Such regulations as are

necessary and appropriate to carry out obligations of the United

States under the Treaty involve a foreign affairs function, and as

such shall not be subject to sections 4 through 8 of the Administrative Procedure Act (5 U.S.C. 553–557), or the National Environmental Policy Act 2 (42 U.S.C. 4321 et seq.).

(b) The Secretary, in cooperation with the Regional Fishery

Management Councils, States, and treaty Indian tribes, may promulgate regulations applicable to nationals or vessels of the United

States, or both, which are in addition to, and not in conflict with,

fishery regimes and Fraser River Panel regulations adopted under

the Treaty. Such regulations shall not discriminate between residents of different States.

(c) Regulations promulgated by the Secretary under this title

shall be subject to judicial review by the district courts of the

United States to the extent authorized by, and in accordance with,

chapter 7 of title 5, United States Code; except that section 705 of

such title is not applicable, and the appropriate court shall only set
Sec. 8 PACIFIC SALMON TREATY ACT OF 1985 546

1So in law. Probably should be ‘‘this Act’’. 2So in law. Probably should be ‘‘paragraph (2)’’.

aside any such regulation on a ground specified in section 706(2)

(A), (B), (C), or (D) of such title. A civil action filed pursuant to this

section shall be assigned for hearing at the earliest possible date,

shall take precedence over other matters pending on the docket of

the United States district court at that time, and shall be expedited

in every way by such court and any appellate court.

SEC. 8. ø16 U.S.C. 3637¿ PROHIBITED ACTS AND PENALTIES.

(a) It is unlawful for any person or vessel subject to the jurisdiction of the United States—

(1) to violate any provision of this title, or of any regulation adopted hereunder, or of any Fraser River Panel regulation approved by the United States under the Treaty;

(2) to refuse to permit any officer authorized to enforce the

provisions of this title to board a fishing vessel subject to such

person’s control for purposes of conducting any search or inspection in connection with the enforcement of this title 1;

(3) to forcibly assault, resist, oppose, impede, intimidate, or

interfere with any such authorized officer in the conduct of any

search or inspection described in subparagraph (2) 2;

(4) to resist a lawful arrest for any act prohibited by this

section;

(5) to ship, transport, offer for sale, sell, purchase, import,

export, or have custody, control, or possession of, any fish

taken or retained in violation of this title 2; or

(6) to interfere with, delay, or prevent, by any means, the

apprehension or arrest of another person, knowing that such

other person has committed any act prohibited by this section.

(b) Any person who commits any act that is unlawful under

subsection (a) of this section shall be liable to the United States for

a civil penalty as provided by section 308 of the Magnuson Act (16

U.S.C. 1858).

(c) Any person who commits an act that is unlawful under

paragraph (2), (3), (4), or (6) of subsection (a) of this section shall

be guilty of an offense punishable as provided by section 309(b) of

the Magnuson Act (16 U.S.C. 1859(b)).

(d)(1) Any vessel (including its gear, furniture, appurtenances,

stores, and cargo) used in the commission of an act which is prohibited under subsection (a) of this section, and any fish (or the fair

market value thereof) taken or retained, in any manner, in connection with or as a result of the commission of any act which is prohibited by subsection (a) of this section, shall be subject to forfeiture as provided by section 310 of the Magnuson Act (16 U.S.C.

1860).

(2) Any fish seized pursuant to this title may be disposed of

pursuant to the order of a court of competent jurisdiction or, if perishable, in a manner prescribed by regulation of the Secretary.

(e) The Secretary and the Secretary of the Department in

which the Coast Guard is operating shall enforce the provisions of

this title 2 and shall have the authority provided by subsections 311

(a), (b)(1), and (c) of the Magnuson Act (16 U.S.C. 1861 (a), (b)(1),

and (c)).
547 PACIFIC SALMON TREATY ACT OF 1985 Sec. 11

(f) The district courts of the United States shall have exclusive

jurisdiction over any case or controversy arising under this section

and may, at any time— (1) enter restraining orders or prohibitions;

(2) issue warrants, process in rem, or other process;

(3) prescribe and accept satisfactory bonds or other security; and

(4) take such other actions as are in the interest of justice.

SEC. 9. ø16 U.S.C. 3638¿ GENERAL STANDARD.

All actions taken under sections 3(g), 4, 6, and 7 shall—

(a) take into account the best scientific information available;

(b) result in measures necessary and appropriate for the

conservation, management, utilization and development of the

Pacific salmon resource, with due consideration of social and

economic concerns; and

(c) be consistent with United States obligations under the

Treaty, domestic Indian treaties and other applicable law.

SEC. 10. ø16 U.S.C. 3639¿ ADVISORY COMMITTEE.

(a) The United States Section shall appoint an advisory committee of not less than twelve but not more than twenty members

who are knowledgeable and experienced with respect to fisheries

subject to the Treaty. One-half the membership of the committee

shall be residents of the State of Alaska and one member shall be

a resident of the State of Idaho. Each member shall serve a term

of two years and shall be eligible for reappointment.

(b) Members of the advisory committee may attend all public

meetings of the Commission and Panels and all nonexecutive sessions of the United States Section and United States Panel sections. At nonexecutive meetings of the United States Section and

United States Panel sections, members of the advisory committee

shall be given the opportunity to examine and to be heard on any

nonadministrative matter under consideration.

(c) The members of the advisory committee shall receive no

compensation for their services as such members.

(d) The Chairman of the United States Section shall call a

meeting of the advisory committee at least one time each year.

SEC. 11. ø16 U.S.C. 3640¿ ADMINISTRATIVE MATTERS.

(a) Commissioners and Alternate Commissioners who are not

State or Federal employees shall receive compensation at the daily

rate of GS–18 of the General Schedule when engaged in the actual

performance of duties for the United States Section or for the Commission.

(b) Panel Members and Alternate Panel Members who are not

State or Federal employees shall receive compensation at the daily

rate of GS–16 of the General Schedule when engaged in the actual

performance of duties for the United States Section or for the Commission.

(c) Travel and other necessary expenses shall be paid for all

United States Commissioners, Alternate Commissioners, Panel

Members, Alternate Panel Members, members of the Joint Technical Committee, and members of the Advisory Committee when

engaged in the actual performance of duties for the United States

Section or for the Commission.
Sec. 12 PACIFIC SALMON TREATY ACT OF 1985 548

1So in law. Probably should be ‘‘chapter 171’’. 2See footnote 1 to section 8(a)(2).

(d) Except for officials of the United States Government, such

individuals shall not be considered to be Federal employees while

engaged in the actual performance of duties for the United States

Section or for the Commission, except for the purposes of injury

compensation or tort claims liability as provided in chapter 81 of

title 5, United States Code, and chapter 71 1 of title 28, United

States Code.

SEC. 12. ø16 U.S.C. 3641¿ AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated from time to time

such sums as may be necessary for carrying out the purposes and

provisions of the Treaty and this title 2 including—

(a) necessary travel expenses of the Commissioners, Panel

members, alternate Commissioners, alternate Panel members,

United States members of joint technical committees established under article IV of the Treaty, and advisory committee

members in accordance with the Federal Travel Regulations

and sections 5701, 5702, 5704 through 5708, and 5731 of title

5, United States Code;

(b) the United States share of the joint expenses of the

Commission: Provided, That the United States Commissioners

and Panel members and alternates shall not, with respect to

commitments concerning the United States share of the joint

expenses of the Organization, be subject to section 262b of title

22, United States Code, insofar as it limits the authority of

United States representatives to international organizations

with respect to such commitments;

(c) amounts for research, enhancement, and other activities necessary to carry out the purposes of the Treaty and this

title 2; and

(d) such amounts as may be due to settle accounts upon

termination of the International Pacific Salmon Fisheries Commission.

SEC. 13. ø16 U.S.C. 3642¿ REPEALER.

The Sockeye Salmon or Pink Salmon Fishing Act of July 29,

1947 (16 U.S.C. 776–776f), as amended by the Act of July 11, 1957,

sections 1–3, is repealed, effective December 31, 1985. The Secretary of State shall dispose of any United States property held by

the International Pacific Salmon Fisheries Commission on the date

of its termination in a manner which would further the purposes

of this title 2.

SEC. 14. ø16 U.S.C. 3643¿ SAVINGS.

This title 2 shall not be interpreted or applied so as to affect

or modify rights established in existing Indian treaties and other

existing Federal laws, including the Order entered in Confederated

Tribes and Bands of the Yakima Indian Nation v. Baldrige, Civil

No. 80–342 (WD WASH.). This section shall not be interpreted or

applied so as to affect or modify any rights or obligations of the

United States pursuant to the Treaty.
549 PACIFIC SALMON TREATY ACT OF 1985 Sec. 15

SEC. 15. ø16 U.S.C. 3644¿ RESTRICTION ON SPENDING AUTHORITY.

New spending authority or authority to enter into contracts

provided in this Act shall be effective only to such extent, or in

such amounts, as are provided in advance in appropriation Acts.

551

SOUTH PACIFIC TUNA ACT OF 1988

553

SOUTH PACIFIC TUNA ACT OF 1988

[Public Law 100–330, June 7, 1988, 102 Stat. 591]

[Amended through Public Law 104–43, Nov. 3, 1995]

AN ACT To implement the Treaty on Fisheries Between the Governments of

Certain Pacific Island States and the Government of the United States of America.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That ø16 U.S.C.

973 note¿ this Act may be cited as the ‘‘South Pacific Tuna Act of

1988’’.

SEC. 2. ø16 U.S.C. 973¿ DEFINITIONS.

As used in this Act—

(1) The term ‘‘Administrator’’ means the individual or organization designated by the Pacific Island Parties to act on

their behalf under the Treaty and notified to the United States

Government.

(2) The term ‘‘Authorized Officer’’ means any officer who is

authorized by the Secretary, or the Secretary of the department in which the Coast Guard is operating, or the head of

any Federal or State agency which has entered into an enforcement agreement with the Secretary under section 10(a) of this

Act.

(3) The term ‘‘Authorized Party Officer’’ means any officer

authorized by a Pacific Island Party to enforce the provisions

of the Treaty.

(4) The term ‘‘applicable national law’’ means any provision of law of a Pacific Island Party which is described in paragraph 1(a) of Annex I of the Treaty.

(5) The term ‘‘Closed Area’’ means any of the closed areas

identified in Schedule 2 of Annex I of the Treaty.

(6) The term ‘‘fishing’’ means—

(A) searching for, catching, taking, or harvesting fish;

(B) attempting to search for, catch, take, or harvest

fish;

(C) engaging in any other activity which can reasonably be expected to result in the locating, catching, taking,

or harvesting of fish;

(D) placing, searching for, or recovering fish aggregating devices or associated electronic equipment such as

radio beacons;

(E) any operations at sea directly in support of, or in

preparation for, any activity described in this paragraph;

or

(F) aircraft use, relating to the activities described in

this paragraph except for flights in emergencies involving
Sec. 3 SOUTH PACIFIC TUNA ACT OF 1988 554

1So in law. Section 211 of the Department of Commerce and Related Agencies Appropriations

Act, 1997 (as contained in section 101(a), title I of Division A of Public Law 104–208; 110 Stat.

3009–41) provides:

SEC. 211. (a) Effective 15 days after the enactment of the Sustainable Fisheries Act, section

1 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801) shall be amendthe health or safety of crew members or the safety of a

vessel.

(7) The term ‘‘fishing vessel’’ or ‘‘vessel’’ means any boat,

ship, or other craft which is used for, equipped to be used for,

or of a type normally used for commercial fishing, and which

is documented under the laws of the United States.

(8) The term ‘‘Licensing Area’’ means all waters in the

Treaty Area except for—

(A) those waters subject to the jurisdiction of the

United States in accordance with international law;

(B) those waters within Closed Areas; and

(C) those waters within Limited Areas closed to fishing.

(9) The term ‘‘licensing period’’ means the period of validity of licenses issued in accordance with the Treaty.

(10) The term ‘‘Limited Area’’ means any area so identified

in Schedule 3 of Annex I of the Treaty.

(11) The term ‘‘operator’’ means any person who is in

charge of, directs or controls a vessel, including the owner,

charterer, and master.

(12) The term ‘‘Pacific Island Party’’ means a Pacific Island

nation which is a party to the Treaty.

(13) The term ‘‘Party’’ means a nation which is a party to

the Treaty.

(14) The term ‘‘person’’ means any individual (whether or

not a citizen or national of the United States), any corporation,

partnership, association, or other entity (whether or not organized or existing under the laws of any State), and any Federal, State, local, or foreign government or any entity of any

such government.

(15) The term ‘‘Secretary’’ means the Secretary of Commerce, or the designee of the Secretary of Commerce.

(16) The term ‘‘State’’ means each of the several States,

the District of Columbia, the Commonwealths of Puerto Rico

and the Northern Mariana Islands, American Samoa, the Virgin Islands, Guam, and any other Commonwealth, territory, or

possession of the United States.

(17) The term ‘‘Treaty’’ means the Treaty on Fisheries Between the Governments of Certain Pacific Island States and

the Government of the United States of America, signed in

Port Moresby, Papua New Guinea, April 2, 1987, and its Annexes, Schedules, and implementing agreements.

(18) The term ‘‘Treaty Area’’ means the area so described

in paragraph 1(k) of Article 1 of the Treaty.

SEC. 3. ø16 U.S.C. 973a¿ APPLICATION TO OTHER LAWS.

The seizure by a Pacific Island Party of a vessel of the United

States shall not be determined to be a seizure described in section

205(a)(4)(C) of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1825(a)(4)(C)) 1 or section 2 of the Fishermen’s
555 SOUTH PACIFIC TUNA ACT OF 1988 Sec. 5

ed to read as follows: ‘‘That this Act may be cited as the ‘Magnuson-Stevens Fishery Conservation and Management Act’.’’

(b) Effective 15 days after the enactment of the Sustainable Fisheries Act, all references to

the Magnuson Fishery Conservation and Management Act shall be redesignated as references

to the Magnuson-Stevens Fishery Conservation and Management Act.

Since such section did not actually amend each occurrence of the short title in law, the former

short title appears here.

Protective Act of 1967 (22 U.S.C. 1972) if the seizure is found by

the Secretary of State to be in accordance with the provisions of the

Treaty.

SEC. 4. ø16 U.S.C. 973b¿ REGULATIONS.

The Secretary of Commerce, with the concurrence of the Secretary of State and after consultation with the Secretary of the department in which the Coast Guard is operating, shall issue regulations as may be necessary to carry out the purposes and objectives of the Treaty and this Act. These regulations shall be made

applicable as necessary to all persons and vessels subject to the jurisdiction of the United States, wherever located.

SEC. 5. ø16 U.S.C. 973c¿ PROHIBITED ACTS.

(a) Except as provided in section 6 of this Act, it is unlawful

for any person subject to the jurisdiction of the United States—

(1) to violate any provision of this Act or any regulation or

order issued pursuant to this Act;

(2) to use a vessel for fishing in violation of an applicable

national law;

(3) who has entered into a fishing arrangement under

paragraph 3 of Article 3 of the Treaty, to violate the terms and

conditions of such fishing arrangement if the Secretary of State

has decided under section 18 of this Act that Article 4 and

paragraph 6 of Article 5 of the Treaty shall apply to the arrangement;

(4) to use a vessel for fishing in any Limited Area in violation of any requirement in Schedule 3 of Annex I of the Treaty;

(5) to use a vessel for fishing in any Closed Area;

(6) to falsify any information required to be reported, notified, communicated, or recorded pursuant to a requirement of

this Act, or to fail to submit any required information, or to fail

to report to the Secretary immediately any change in circumstances which has the effect of rendering any such information false, incomplete, or misleading;

(7) to intentionally destroy evidence which could be used

to determine if a violation of this Act or the Treaty has occurred;

(8) to refuse to permit any Authorized Officer or Authorized Party Officer to board a fishing vessel for purposes of conducting a search or inspection in connection with the enforcement of this Act or the Treaty;

(9) to refuse to comply with the instructions of an Authorized Officer or Authorized Party Officer relating to fishing activities under the Treaty;

(10) to forcibly assault, resist, oppose, impede, intimidate,

or interfere with—

(A) any Authorized Officer or Authorized Party Officer

in the conduct of a search or inspection in connection with

the enforcement of this Act or the Treaty; or
Sec. 5 SOUTH PACIFIC TUNA ACT OF 1988 556

(B) an observer in the conduct of observer duties

under the Treaty;

(11) to resist a lawful arrest for any act prohibited by this

section;

(12) to interfere with, delay, or prevent, by any means, the

apprehension or arrest of another person, knowing that such

other person has committed any act prohibited by this section;

or

(13) to ship, transport, offer for sale, sell, purchase, import,

export, or have custody, control, or possession of, any fish

taken or retained in violation of this Act or any regulation, permit, or the Treaty, with the knowledge that the fish were so

taken or retained.

(b) Except as provided in section 6 of this Act, it is unlawful

for any person subject to the jurisdiction of the United States when

in the Licensing Area—

(1) to use a vessel to fish unless validly licensed as required by the Administrator;

(2) to use a vessel for directed fishing for southern bluefin

tuna or for fishing for any kinds of fish other than tunas, except that fish may be caught as an incidental by-catch;

(3) to use a vessel for fishing by any method other than

the purse-seine method;

(4) to use any vessel to engage in fishing after the revocation of its license, or during the period of suspension of an applicable license;

(5) to operate a vessel in such a way as to disrupt or in

any other way adversely affect the activities of traditional and

locally based fishermen and fishing vessels;

(6) to use a vessel to fish in a manner inconsistent with

an order issued by the Secretary under section 11 of this Act;

or

(7) except for circumstances involving force majeure and

other emergencies involving the health or safety of crew members or the safety of the vessel, to use an aircraft in association

with the fishing activities of a vessel unless it is identified in

the license application for the vessel, or any amendment thereto.

SEC. 6. ø16 U.S.C. 973d¿ EXCEPTIONS.

(a) The prohibitions of section 5 of this Act and the licensing

requirements of section 9 of this Act shall not apply to fishing for

albacore tuna by vessels using the trolling method outside of the

200 nautical mile fisheries zones of the Pacific Island Parties.

(b) The prohibitions of section 5 (a)(4), (a)(5), and (b)(3) of this

Act shall not apply to fishing under the terms and conditions of an

arrangement which has been reached under paragraph 3 of Article

3 of the Treaty and which, pursuant to a decision by the Secretary

of State under section 18 of this Act, is covered by Article 4 and

paragraph 6 of Article 5 of the Treaty.

SEC. 7. ø16 U.S.C. 973e¿ CRIMINAL OFFENSES.

(a) A person is guilty of a criminal offense if he or she commits

any act prohibited by section 5(a) (8), (10), (11), or (12) of this Act.

(b) Any offense described in subsection (a) of this section is

punishable by a fine of not more than $50,000, or imprisonment for
557 SOUTH PACIFIC TUNA ACT OF 1988 Sec. 8

1So in law. The word ‘‘Code’’ probably should not appear.

not more than 6 months, or both; except that if in the commission

of any such offense the person uses a dangerous weapon, engages

in conduct that causes bodily injury to any Authorized Officer, Authorized Party Officer, or observer under the Treaty in the conduct

of their duties, or places any such Authorized Officer, Authorized

Party Officer, or observer in fear of imminent bodily injury, the offense is punishable by a fine of not more then $100,000 or imprisonment for not more than 10 years, or both.

(c) The district courts of the United States shall have jurisdiction over any offense described in this section.

SEC. 8. ø16 U.S.C. 973f¿ CIVIL PENALTIES.

(a) Any person who is found by the Secretary, after notice and

an opportunity for a hearing in accordance with section 554 of title

5, United States Code, to have committed an act prohibited by section 5 of this Act, shall be liable to the United States Code 1 for a

civil penalty. Before issuing a notice of violation, the Secretary

shall consult with the Secretary of State. The amount of the civil

penalty shall be determined in accordance with considerations set

forth in the Treaty and shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed,

and with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. Except for those acts prohibited by section 5(a)

(4), (5), (7), (8), (10), (11), and (12), and section 5(b) (1), (2), (3), and

(7) of this Act, the amount of the civil penalty shall not exceed

$250,000 for each violation. Upon written notice, the Secretary of

State shall have the right to participate in any proceeding initiated

to assess a civil penalty for violation of this Act.

(b) Any person against whom a civil penalty is assessed under

subsection (a) of this section may obtain review thereof in the

United States district court for the appropriate district by filing a

complaint in such court within 30 days from the date of the order

and by simultaneously serving a copy of the complaint by certified

mail on the Secretary, the Attorney General of the United States,

and the appropriate United States Attorney. The Secretary shall

promptly file in the court a certified copy of the record upon which

the violation was found or the penalty imposed. The findings and

order of the Secretary shall be set aside or modified by the court

if they are not found to be supported by substantial evidence, as

provided in section 706(2) of title 5, United States Code.

(c) Except as provided in subsection (g) of this section, if any

person fails to pay an assessment of a civil penalty after it has become a final and unappealable order, or after the appropriate court

has entered final judgment in favor of the Secretary, the Secretary

shall refer the matter to the Attorney General of the United States,

who shall recover the amount assessed in any appropriate district

court of the United States.

(d) Except as provided in subsection (g) of this section, a fishing vessel (including its fishing gear, furniture, appurtenances,

stores, and cargo) used in the commission of an act prohibited by

section 5 of this Act shall be liable in rem for any civil penalty assessed for the violation under section 8 of this Act and may be proceeded against in any district court of the United States having ju-
Sec. 9 SOUTH PACIFIC TUNA ACT OF 1988 558

risdiction thereof. The penalty shall constitute a maritime lien on

the vessel which may be recovered in an action in rem in the district court of the United States having jurisdiction over the vessel.

(e) The Secretary, after consultation with the Secretary of

State, may compromise, modify, or remit, with or without conditions, any civil penalty which is subject to imposition or which has

been imposed under this section.

(f) For the purposes of conducting any hearing under this section, the Secretary may issue subpoenas for the attendance and

testimony of witnesses and the production of relevant papers,

books, and documents, and may administer oaths. Witnesses summoned shall be paid the same fees and mileage that are paid to

witnesses in the courts of the United States. In case of contempt

or refusal to obey a subpoena served upon a person pursuant to

this subsection, the district court of the United States for any district in which the person is found, resides, or transacts business,

upon application by the United States and after notice to the person, shall have jurisdiction to issue an order requiring the person

to appear and give testimony before the Secretary or to appear and

produce documents before the Secretary, or both, and any failure

to obey the order of the court may be punished by the court as a

contempt thereof.

(g) If a vessel used in a violation of section 5(a)(1), (2), (3), (4),

(5), (6), (7), (8), (9), or (13) or section 5(b) of this Act for which a

civil penalty has been assessed—

(1) had a valid license under the Treaty at the time of the

violation, and

(2) within 60 days after the penalty assessment has become final, leaves and remains outside of the Licensing Area,

all Limited Areas closed to fishing, and all Closed Areas until

the final penalty has been paid,

there shall be no referral to the Attorney General under subsection

(c) of this section or in rem action under subsection (d) of this section in connection with such civil penalty.

SEC. 9. ø16 U.S.C. 973g¿ LICENSES.

(a) Licenses to fish in the Licensing Area, to be issued by the

Administrator in accordance with the Treaty, may be requested

from the Secretary by operators of vessels, under procedures established by the Secretary. The license application shall designate an

agent for the service of legal process to be located in Port Moresby,

Papua New Guinea. The applicant shall ensure that the designated

agent for service of process, acting on behalf of the license holder,

will receive and respond to any legal process issued in accordance

with the Treaty and will, within 21 days after notification, travel

if necessary for this purpose to any Pacific Island Party at no expense to that Party.

(b) Except as provided in subsections (e), (f), and (g) of this section, the Secretary shall forward a vessel license application to the

Secretary of State for transmittal to the Administrator whenever

such application is in accordance with application procedures established by the Secretary, includes a complete application form as required by Annex II of the Treaty, and is accompanied by the required license fee.
559 SOUTH PACIFIC TUNA ACT OF 1988 Sec. 9

1So in law. Should include ‘‘and’’ after the semicolon. 2So in law. Probably should be ‘‘Act of 1972’’. 3So in law. Probably should be a comma. 4So in law. Probably should be ‘‘Treaty’’.

(c)(1) In the initial year of implementation, fees for the first 40

vessel licenses shall be at least $50,000 each, for any 10 vessel licenses in addition to the first 40 shall be $60,000 each, and for vessel licenses in addition to the first 50 shall be in accordance with

Annex II of the Treaty.

(2) After such initial year, fees for vessel licenses shall be paid

in accordance with fee schedules established under Annex II of the

Treaty and published by the Secretary.

(d) Licenses shall be valid for the licensing period specified by

the Administrator.

(e) The Secretary may establish a system of allocating licenses

in the event more applications are received than there are licenses

available.

(f) For the initial year of implementation, license fees totaling

at least $1,750,000 must be received by the Secretary before any

license applications will be forwarded to the Secretary of State for

transmittal to the Administrator.

(g) The Secretary, in consultation with the Secretary of State,

may determine that a license application should not be forwarded

to the Administrator for one of the following reasons:

(1) where the application is not in accordance with the

Treaty or the procedures established by the Secretary;

(2) where the owner or charterer is the subject of proceedings under the bankruptcy laws of the United States, unless reasonable financial assurances have been provided to the

Secretary;

(3) where the owner or charterer has not established to the

satisfaction of the Secretary that the fishing vessel is fully insured against all risks and liabilities normally provided in

maritime liability insurance; 1

(4) where the owner or charterer has not paid any penalty

which has become final, assessed by the Secretary in accordance with this Act.

(h) Notwithstanding the requirements of—

(1) section 1 of the Act of August 26, 1983 (97 Stat. 587;

46 U.S.C. 12108);

(2) the general permit issued on December 1, 1980, to the

American Tunaboat Association under section 104(h)(1) of the

Marine Mammal Protection Act 2 (16 U.S.C. 1374(h)(1)); and

(3) sections 104(h)(2) and 306(a) of the Marine Mammal

Protection Act 2 (16 U.S.C. 1374(h)(2) and 1416(a))— 3

any vessel documented under the laws of the United States as of

the date of enactment of the Fisheries Act of 1995 for which a license has been issued under subsection (a) may fish for tuna in the

Treaty Area, including those waters subject to the jurisdiction of

the United States in accordance with international law, subject to

the provisions of the treaty 4 and this Act, provided that no such

vessel fishing in the Treaty Area intentionally deploys a purse

seine net to encircle any dolphin or other marine mammal in the

course of fishing under the provisions of the Treaty or this Act.
Sec. 10 SOUTH PACIFIC TUNA ACT OF 1988 560

SEC. 10. ø16 U.S.C. 973h¿ ENFORCEMENT.

(a) The provisions of this Act shall be enforced by the Secretary

in cooperation with the Secretary of State. The Secretary, after con- sultation with the Secretary of State, may by agreement, on a reimbursable basis or otherwise, utilize the personnel, services,

equipment (including aircraft and vessels), and facilities of any

other Federal agency and of any State agency in the performance

of these duties.

(b)(1) The Secretary shall, at the request of a Pacific Island

Party made to the Secretary of State, fully investigate any alleged

infringement of the Treaty involving a vessel of the United States,

and report as soon as practicable, and in any case within 2 months,

to that Party through the Secretary of State on any action taken

or proposed by the Secretary in regard to the alleged infringement.

(2) Upon commencement of an investigation under paragraph

(1) of this subsection, the Secretary shall notify the operator of any

vessel concerned regarding—

(A) the nature of the investigation;

(B) the right of the operator to submit comments, information, or evidence bearing on the investigation and to receive,

upon the operator’s timely written request to the Secretary, an

opportunity to present such comments, information, or evidence orally to the Secretary or the Secretary’s representative

within 30 days after receipt of such notification.

(c)(1) Prior to instituting any legal proceedings under this Act

for any action which involves an alleged infringement of the Treaty

in waters within the jurisdiction of a Pacific Island Party, the Secretary, through the Secretary of State, shall notify the Pacific Island Party in accordance with paragraph 8 of Article 4 of the Treaty that the proceedings will be instituted. Such notice shall include

a statement of the facts believed to show an infringement of the

Treaty and the nature of the proposed proceedings, including any

proposed charges and any proposed penalties. The Secretary shall

not institute such proceedings if the Pacific Island Party objects

within 30 days after the effective date of the notice under Article

10 of the Treaty.

(2) The Pacific Island Party exercising jurisdiction over the waters involved in such a legal proceeding shall be promptly notified

by the Secretary, through the Secretary of State, concerning the

outcome of the proceeding.

(d)(1) Any Authorized Officer may—

(A) with or without a warrant or other process—

(i) arrest any person, if he has reasonable cause to believe that the person has committed any act subject to

prosecution under section 7 of this Act;

(ii) board, and search or inspect, any fishing vessel

which is subject to the provisions of this Act; or

(iii) seize samples of fish or items for evidence (other

than the vessel or its fishing gear or equipment) related to

any violation of any provision of this Act;

(iv) order a vessel into the most convenient port of the

United States for investigation when an investigation has

been requested by a Pacific Island Party in accordance

with the Treaty and when such an order is necessary to

gather information for such an investigation;
561 SOUTH PACIFIC TUNA ACT OF 1988 Sec. 11

(B) execute any warrant or other process issued by any

court of competent jurisdiction;

(C) exercise any other lawful authority; and

(D) investigate alleged violations of the Treaty to the same

extent authorized to investigate alleged violations of this Act.

(2) To the extent possible, Authorized Officers shall exercise

their powers under paragraph (1)(A) (ii), (iii), and (iv) of this subsection so as not to interfere unduly with the lawful operation of

the vessel.

(3) Nothing in this Act shall be construed to limit the enforcement of this or other applicable Federal laws under section 89 of

title 14, United States Code.

(e) The district courts of the United States shall have exclusive

jurisdiction over any case or controversy arising under the provisions of this Act.

SEC. 11. ø16 U.S.C. 973i¿ FINDINGS BY THE SECRETARY.

(a) Following any investigation conducted in accordance with

section 10(b) of this Act, the Secretary, with the concurrence of the

Secretary of State, and upon the request of the Pacific Island Party

concerned, may order a fishing vessel which has not submitted to

the jurisdiction of that Pacific Island Party to leave immediately

the Licensing Area, all Limited Areas, and all Closed Areas upon

making a finding—

(1) that the fishing vessel—

(A) while fishing in the Licensing Area did not have

a license under the Treaty to fish in the Licensing Area,

and that under paragraph 2 of Article 3 of the Treaty,

such fishing is not authorized to be conducted in the Licensing Area without a license;

(B) was involved in any incident in which an Authorized Officer, Authorized Party Officer, or observer was allegedly assaulted with resultant bodily harm, physically

threatened, forcefully resisted, refused boarding, or subjected to physical intimidation or physical interference in

the performance of duties as authorized by this Act or the

Treaty;

(C) has not made full payment within 60 days of any

amount due as a result of a final judgment or other final

determination deriving from a violation in waters within

the Treaty Area of a Pacific Island Party; or

(D) was not represented by an agent for service of

process in accordance with the Treaty; or

(2) that there is probable cause to believe that the fishing

vessel—

(A) was used in violation of section 5 (a)(4), (a)(5),

(b)(2), or (b)(3) of this Act;

(B) used an aircraft in violation of section 5(b)(7); or

(C) was involved in an incident in which section 5(a)(7)

was violated.

(b) Upon being advised by the Secretary of State that proper

notification to Parties has been made under paragraph 7 of Article

5 of the Treaty that a Pacific Island Party is investigating an alleged infringement of the Treaty by a vessel in waters under the

jurisdiction of such Pacific Island Party, the Secretary shall order
Sec. 12 SOUTH PACIFIC TUNA ACT OF 1988 562

1 ‘‘Freedom of Information Act’’ is the popular name for section 552 of title 5, United States

Code.

the vessel to leave such waters until the Secretary of State notifies

the Secretary that such order is no longer necessary.

(c) The Secretary shall rescind any order issued on the basis

of a finding under subsection (a)(1) (C) or (D) of this section as soon

as the Secretary determines that the facts underlying the finding

do not apply.

(d) No order issued in accordance with this section is subject

to judicial review.

(e) Upon a request by the Secretary, the Attorney General

shall commence a civil action for appropriate relief, including permanent or temporary injunction, to enforce any order issued by the

Secretary under this section.

SEC. 12. ø16 U.S.C. 973j¿ REPORTING.

(a) Holders of licenses shall comply with the reporting requirements of part 4 of Annex I to the Treaty.

(b) Information provided by license holders in Schedules 5 and

6 of Annex I of the Treaty shall be provided to the Secretary for

transmittal to the Administrator and to an entity designated by the

license holder. Such information thereafter shall not be released

and shall be maintained as confidential by the Secretary, including

information requested under the Freedom of Information Act 1, unless disclosure is required under court order or unless the information is essential for an enforcement action under section 5, 10(b),

10(c), or 11 of this Act, or any other proper law enforcement action.

SEC. 13. ø16 U.S.C. 973k¿ CLOSED AREA STOWAGE REQUIREMENTS.

At all times while a vessel is in a Closed Area, the fishing gear

of the vessel shall be stowed in such a manner as not to be readily

available for fishing. In particular, the boom shall be lowered as far

as possible so that the vessel cannot be used for fishing, but so that

the skiff is accessible for use in emergency situations; the helicopter, if any, shall be tied down; and launches shall be secured.

SEC. 14. ø16 U.S.C. 973l¿ OBSERVERS.

(a) The operator and each member of the crew of a vessel shall

allow and assist any individual identified as an observer under the

Treaty by the Pacific Island Parties—

(1) to board the vessel for scientific, compliance, monitoring and other functions at the point and time notified by the

Pacific Island Parties to the Secretary;

(2) without interfering unduly with the lawful operation of

the vessel, to have full access to and use of facilities and equipment on board the vessel which the observer may determine

are necessary to carry out observer duties; have full access to

the bridge, fish on board, and areas which may be used to hold,

process, weigh, and store fish; remove samples; have full access

to the vessel’s records, including its log and documentation for

the purpose of inspection and copying; and gather any other information relating to fisheries in the Licensing Area;

(3) to disembark at the point and time notified by the Pacific Island Parties to the Secretary; and

(4) to carry out observer duties safely.
563 SOUTH PACIFIC TUNA ACT OF 1988 Sec. 19

(b) The operator shall provide any such observer, while on

board the vessel, at no expense to the Pacific Island Parties, with

food, accommodation, and medical facilities of such reasonable

standard as may be acceptable to the Pacific Island Party whose

representative is serving as the observer.

(c) The operator of any vessel from which any fish taken in the

Licensing Area is unloaded shall allow, or arrange for, and assist

any individual so authorized by the Pacific Island Parties to have

full access to any place where such fish is unloaded, to remove

samples, and to gather any other information relating to fisheries

in the Licensing Area.

SEC. 15. ø16 U.S.C. 973m¿ TECHNICAL ASSISTANCE.

The United States tuna industry shall provide $250,000 annually in technical assistance, including provision of assistance by

technicians, in response to requests coordinated through the Administrator. The Secretary of State shall designate an entity to coordinate the provision of such technical assistance as provided by

the United States tuna industry and to provide an annual report

to the Secretary of State regarding the provision of such technical

assistance.

SEC. 16. ø16 U.S.C. 973n¿ ARBITRATION.

In the event of a dispute requiring the establishment of an arbitral tribunal under Article 6 of the Treaty, the Secretary of State,

in consultation with the Secretary, shall appoint the arbitrator to

be appointed by the United States under paragraph 3 of that Article, and shall represent the United States in reaching agreement

under such paragraph with each Pacific Island Party involved concerning the appointment of the presiding arbitrator of the tribunal.

SEC. 17. ø16 U.S.C. 973o¿ DISPOSITION OF FEES, PENALTIES, FORFEITURES, AND OTHER MONEYS.

To the extent required by Article 4 of the Treaty, an amount

equivalent to the total value of any fine, penalty, or other amount

collected as a result of any action, judicial or otherwise, taken pursuant to sections 7 and 8 of this Act shall be paid by the United

States through the Secretary of State to the Administrator as soon

as reasonably possible following the date that such amount is collected.

SEC. 18. ø16 U.S.C. 973p¿ ADDITIONAL AGREEMENTS.

Within 30 days after the Secretary of State’s receipt of notice

from a Pacific Island Party that it has concluded an arrangement

pursuant to paragraph 3 of Article 3 of the Treaty, the Secretary

of State shall consult with the Secretary concerning whether the

procedures of Article 4 and paragraph 6 of Article 5 of the Treaty

should be made applicable to such arrangement. At the conclusion

of the consultations the Pacific Island Party and all other persons

agreeing to the arrangement shall be notified by the Secretary of

State of the resulting decision.

SEC. 19. ø16 U.S.C. 973q¿ SECRETARY OF STATE TO ACT FOR THE

UNITED STATES.

The Secretary of State is authorized to receive on behalf of the

United States reports, requests, and other communications from

the Administrator and to act thereon directly or by reference to the

appropriate authorities. The Secretary of State, after consultations
Sec. 20 SOUTH PACIFIC TUNA ACT OF 1988 564

with the Secretary, may accept or reject, on behalf of the United

States, changes or amendments to Annex I of the Treaty and its

Schedules and Annex II to the Treaty and its Schedules.

SEC. 20. ø16 U.S.C. 973r¿ AUTHORIZATION OF APPROPRIATIONS.

(a) There are authorized to be appropriated for fiscal years

1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, and

2002, such sums as may be necessary for carrying out the purposes

and provisions of the Treaty and this Act including—

(1) for fiscal years 1992, 1993, 1994, 1995, 1996, 1997,

1998, 1999, 2000, 2001, and 2002, an amount not to exceed

$350,000 annually to the Department of Commerce for administrative expenses; and

(2) for fiscal years 1992, 1993, 1994, 1995, 1996, 1997,

1998, 1999, 2000, 2001, and 2002, an amount not to exceed

$50,000 annually to the Department of State for administrative expenses.

(b) Funds appropriated for the purposes of the Treaty may be

used notwithstanding any of the provisions of the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.) or of any appropriations

Act that imposes restrictions on the maintenance or use of cash

transfer assistance, which are inconsistent with the provisions of

the Treaty.

SEC. 21. ø16 U.S.C. 973 note¿ EFFECTIVE DATE.

(a) Except as provided in subsection (b) of this section, this Act

shall be effective on the date on which the Treaty enters into force

for the United States.

(b)(1) The authority to promulgate regulations pursuant to this

Act shall be effective on the date of enactment of this Act.

(2) Any regulation promulgated pursuant to this Act shall not

be effective before the date on which the Treaty enters into force

for the United States.
565

EASTERN PACIFIC TUNA LICENSING ACT OF 1984

567

EASTERN PACIFIC TUNA LICENSING ACT OF 1984

[Public Law 98–445, Approved Oct. 4, 1984, 98 Stat. 1715]

AN ACT To implement the Eastern Pacific Ocean Tuna Fishing Agreement, signed

in San Jose, Costa Rica, March 15, 1983.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That ø16 U.S.C.

972 note¿ this Act may be cited as the ‘‘Eastern Pacific Tuna Licensing Act of 1984’’.

SEC. 2. ø16 U.S.C. 972¿ DEFINITIONS.

As used in this Act—

(1) The term ‘‘Agreement’’ means the Eastern Pacific

Ocean Tuna Fishing Agreement, signed in San Jose, Costa

Rica, March 15, 1983.

(2) The term ‘‘Agreement Area’’ means the area within a

perimeter determined as follows: From the point on the mainland where the parallel of 40 degrees north latitude intersects

the coast westward along the parallel of 40 degrees north latitude to 40 degrees north latitude by 125 degrees west longitude, thence southerly along the meridian of 125 degrees

west longitude to 20 degrees north latitude by 125 degrees

west longitude, thence easterly along the parallel of 20 degrees

north latitude to 20 degrees north latitude by 120 degrees west

longitude, thence southerly along the meridian of 120 degrees

west longitude to 5 degrees north latitude by 120 degrees west

longitude, thence easterly along the parallel of 5 degrees north

latitude to 5 degrees north latitude by 110 degrees west longitude, thence southerly along the meridian of 110 degrees

west longitude to 10 degrees south latitude by 110 degrees

west longitude, thence easterly along the parallel of 10 degrees

south latitude to 10 degrees south latitude by 90 degrees west

longitude, thence southerly along the meridian of 90 degrees

west longitude to 30 degrees south latitude by 90 degrees west

longitude, thence easterly along the parallel of 30 degrees

south latitude to the point on the mainland where the parallel

intersects the coast; but the Agreement Area does not include

the zones within twelve nautical miles of the baseline from

which the breadth of territorial sea is measured and the zones

within two hundred nautical miles of the baselines of Coastal

States not signatories to the Agreement, measured from the

same baseline.

(3) The term ‘‘designated species of tuna’’ means yellowfin

tuna, Thunnus albacares (Bonnaterre, 1788); bigeye tuna,

Thunnus obesus (Lowe, 1839); albacore tuna, Thunnus

alalunga (Bonnaterre, 1788); northern bluefin tuna, Thunnus

thynnus (Linnaeus, 1758); southern bluefin tuna, Thunnus
Sec. 3 EASTERN PACIFIC TUNA LICENSING ACT OF 1984 568

1So in law. Probably should include a comma. 2So in law. The comma probably should be a semicolon. 3So in law. Probably should be ‘‘Auxis’’.

maccoyil (Castelnau, 1872); skipjack tuna, Katsuwonus pelamis

(Linnaeus 1 1578); black skipjack, Euthynnus Lineatus

(Kishinouye 1 1920); kawakawa, Euthynnus affinis (Cantor,

1849); bullet tuna, Auxis rochei (Risso, 1810), 2 frigate tuna,

Ausix 3 thazard (Lacepede, 1800); eastern Pacific bonito, Sarda

chiliensis (Cuvier in Cuvier and Valenciennes, 1831); and IndoPacific bonito, Sarda orientalis (Temminck and Schlegel, 1844).

(4) The term ‘‘Council’’ means the body consisting of the

representatives from each Contracting Party to the Agreement

which is a Coastal State of the eastern Pacific Ocean or a

member of the Inter-American Tropical Tuna Commission at

the time of entry into force of the Agreement.

SEC. 3. ø16 U.S.C. 972a¿ UNITED STATES REPRESENTATION ON THE

COUNCIL.

(a) The Secretary of State—

(1) shall appoint a United States representative to the

Council; and

(2) may appoint not more than three alternate United

States representatives to the Council.

(b) An individual is not eligible for appointment as, or to serve

as, the United States representative under subsection (a)(1) unless

the individual is an officer or employee of the United States Government.

(c) An individual is not entitled to compensation for serving as

the United States representative or an alternate United States representative.

(d) While away from home or a regular place of business in the

performance of service as the United States representative or an

alternate United States representative, an individual is entitled to

travel expenses, including per diem in lieu of subsistence, in the

same manner as individuals employed intermittently in Government service are allowed expenses under section 5703(b) of title 5

of the United States Code.

SEC. 4. ø16 U.S.C. 972b¿ SECRETARY OF STATE TO ACT FOR THE

UNITED STATES.

The Secretary of State shall receive, on behalf of the United

States Government, reports, requests, recommendations and other

communications of the Council, and, in consultation with the Secretary of Commerce, shall act directly thereon or by reference to

the appropriate authorities.

SEC. 5. ø16 U.S.C. 972c¿ APPLICATION TO OTHER LAWS.

(a) Notwithstanding section 4 of the Fishermen’s Protective Act

of 1967 (22 U.S.C. 1874), such Act applies with respect to a seizure

by a Contracting Party to the Agreement of a vessel of the United

States within the Agreement Area for violation of the Agreement

if the Secretary of State determines that the violation is not of such

seriousness as to diminish the effectiveness of the Agreement.

(b) The seizure by a Contracting Party to the Agreement of a

vessel of the United States shall not be considered to be a seizure

described in section 205(a)(4)(C) of the Magnuson Fishery Con-
569 EASTERN PACIFIC TUNA LICENSING ACT OF 1984 Sec. 8

1So in law. Section 211 of the Department of Commerce and Related Agencies Appropriations

Act, 1997 (as contained in section 101(a), title I of Division A of Public Law 104–208; 110 Stat.

3009–41) provides:

SEC. 211. (a) Effective 15 days after the enactment of the Sustainable Fisheries Act, section

1 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801) shall be amended to read as follows: ‘‘That this Act may be cited as the ‘Magnuson-Stevens Fishery Conservation and Management Act’.’’

(b) Effective 15 days after the enactment of the Sustainable Fisheries Act, all references to

the Magnuson Fishery Conservation and Management Act shall be redesignated as references

to the Magnuson-Stevens Fishery Conservation and Management Act.

Since such section did not actually amend each occurrence of the short title in law, the former

short title appears here.

servation and Management Act 1 (16 U.S.C. 1825(a)(4)(C)) if the

seizure is consistent with the Agreement.

SEC. 6. ø16 U.S.C. 972d¿ DISPOSITION OF FEES.

All fees accruing to the United States under Article III of the

Agreement shall be deposited into the Treasury of the United

States.

SEC. 7. ø16 U.S.C. 972e¿ REGULATIONS.

The Secretary of Commerce, in cooperation with the Secretary

of State and the Secretary of the department in which the Coast

Guard is operating, shall issue such regulations as may be necessary to carry out the purposes and objectives of the Agreement

and this Act. Regulations may be made applicable as necessary to

all persons and vessels subject to the jurisdiction of the United

States, wherever located. Regulations concerning the conservation

of a designated species of tuna may be issued only to implement

conservation recommendations made by the Council under Article

3(D) of the Agreement.

SEC. 8. ø16 U.S.C. 972f¿ PROHIBITED ACTS.

(a) It is unlawful for any person subject to the jurisdiction of

the United States—

(1) to engage in fishing for a designated species of tuna

within the Agreement Area unless issued a license under the

Agreement authorizing such fishing;

(2) to engage in fishing for a designated species of tuna

within the Agreement area in contravention of regulations promulgated by the Secretary of Commerce under the Agreement;

(3) knowingly to ship, transport, purchase, sell, offer for

sale, export, or have in custody, possession, or control any designated species of tuna taken or retained in violation of regulations issued under section 7;

(4) to fail to make, keep, or furnish any catch return, statistical record, or other report required by regulations issued

under section 7;

(5) being a person in charge of a vessel of the United

States, to fail to stop upon being hailed by an authorized official of the United States, or to refuse to permit officials of the

United States to board the vessel or inspect its catch, equipment, books, documents, records, or other articles, or to question individuals on board; or

(6) to import from any country, in violation of any regulation issued under section 7, any designated species of tuna.

(b) Any person who is convicted of violating— (1) subsection (a)(1), (a)(2), or (a)(3) shall be fined or assessed a civil penalty not more than $25,000, and for a subse-
Sec. 9 EASTERN PACIFIC TUNA LICENSING ACT OF 1984 570

quent violation shall be fined or assessed a civil penalty not

more than $50,000;

(2) subsection (a)(4) or (a)(5) shall be fined or assessed a

civil penalty not more than $5,000, and for a subsequent violation shall be fined or assessed a civil penalty not more than

$5,000; or

(3) subsection (a)(6) shall be fined or assessed a civil penalty not more than $100,000.

(c) All designated species of tuna taken or retained in violation

of subsection (a) (1), (2), (3), or (6), or the monetary value thereof,

is subject to forfeiture.

(d) All provisions of law relating to the seizure, judicial forfeiture, and condemnation of a cargo for violation of the customs

laws, the disposition of such cargo or the proceeds from the sale

thereof, and the remission or mitigation of such forfeitures shall

apply to seizures and forfeitures incurred, or alleged to have been

incurred, under this Act, insofar as such provisions of law are applicable and not inconsistent with the provisions of this Act.

SEC. 9. ø16 U.S.C. 972g¿ ENFORCEMENT.

(a) The judges of the United States district courts and United

States magistrates may, within their respective jurisdictions, upon

proper oath or affirmation showing probable cause, issue such warrants or other process as may be required for enforcement of this

Act and the regulations issued under section 7.

(b) The enforcement of this Act and the regulations issued

under section 7 shall be the joint responsibility of the department

in which the Coast Guard is operating, the Department of Commerce, and the United States Customs Service. In addition, the

Secretary of Commerce may designate officers and employees of the

States of the United States, of the Commonwealth of Puerto Rico,

and of American Samoa to carry out enforcement activities under

this section. When so designated, such officers and employees may

function as Federal law enforcement agents for these purposes.

(c) An individual authorized to carry out enforcement activities

under this section has power to execute any warrant or process

issued by any officer or court of competent jurisdiction for the enforcement of this Act.

(d) An individual so authorized to carry out enforcement activities under this section has power—

(1) with or without a warrant or other process, to arrest

any person subject to the jurisdiction of the United States at

any place within the jurisdiction of the United States committing in his presence or view a violation of this Act or the regulations issued under section 7;

(2) with or without a warrant or other process, to search

any vessel subject to the jurisdiction of the United States, and,

if, as a result of the search he has reasonable cause to believe

that such vessel or any individual on board is engaging in operations in violation of this Act or any regulation issued thereunder to arrest such person.

(e) An individual authorized to enforce this Act may seize,

whenever or wherever lawfully found, all species of designated

tuna taken or retained in violation of this Act or the regulations

issued under section 7. Any species to seized may be disposed of
571 EASTERN PACIFIC TUNA LICENSING ACT OF 1984 Sec. 10

pursuant to the order of a court of competent jurisdiction, under

subsection (f) of this section or, if perishable, in a manner prescribed by regulations of the Secretary of Commerce.

(f) Notwithstanding the provisions of section 2464 of title 28,

United States Code, when a warrant of arrest or other process in

rem is issued in any cause under this section, the marshal or other

officer shall stay the execution of such process, or discharge any

species of designated tuna seized if the process has been levied, on

receiving from the claimant of the species a bond or stipulation for

the value of the property with sufficient surety to be approved by

a judge of the district court having jurisdiction of the offense, conditioned to deliver the species seized, if condemned, without impairment in value or, in the discretion of the court, to pay its equivalent value in money or otherwise to answer the decree of the court

in such cause. Such bond or stipulation shall be returned to the

court and judgment thereon against both the principal and sureties

may be recovered in event of any breach of the conditions thereof

as determined by the court. In the discretion of the accused, and

subject to the direction of the court, the species may be sold for not

less than its reasonable market value and the proceeds of such sale

placed in the registry of the court pending judgment in the case.

SEC. 10. ø16 U.S.C. 972h¿ AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated for fiscal years after

fiscal year 1984 such sums as may be necessary to carry out this

Act.

573

AMERICAN FISHERIES ACT

575

1This Act reflects amendments made through Public Law 107–20 (enacted July 24, 2001). 2This title was enacted as part of division C of Public Law 105–277 (112 Stat. 2681–616).

AMERICAN FISHERIES ACT 1

[Public Law 105–277, Approved Oct. 21, 1998, 112 Stat. 2681–616]

(Amended through Public Law 107–20, July 24, 2001)

AN ACT making omnibus consolidated and emergency appropriations for the fiscal

year ending September 30, 1999, and for other purposes.

TITLE II—FISHERIES 2

Subtitle I—Fishery Endorsements

SEC. 201. ø46 U.S.C. 2101 note¿ SHORT TITLE.

This title may be cited as the ‘‘American Fisheries Act’’.

SEC. 202. STANDARD FOR FISHERY ENDORSEMENTS.

ø(a) STANDARD.—Made amendments to section 12102(c) of title

46, United States Code.¿

ø(b) PREFERRED MORTGAGE.—Made amendments to section

31322(a) of title 46, United States Code.¿

SEC. 203. ENFORCEMENT OF STANDARD.

(a) ø46 U.S.C. 12102 note¿ EFFECTIVE DATE.—The amendments made by section 202 shall take effect on October 1, 2001.

(b) ø46 U.S.C. 12102 note¿ REGULATIONS.—Final regulations to

implement this subtitle shall be published in the Federal Register

by April 1, 2000. Letter rulings and other interim interpretations

about the effect of this subtitle and amendments made by this subtitle on specific vessels may not be issued prior to the publication

of such final regulations. The regulations to implement this subtitle

shall prohibit impermissible transfers of ownership or control,

specify any transactions which require prior approval of an implementing agency, identify transactions which do not require prior

agency approval, and to the extent practicable, minimize disruptions to the commercial fishing industry, to the traditional financing arrangements of such industry, and to the opportunity to form

fishery cooperatives.

(c) ø46 U.S.C. 12102 note¿ VESSELS MEASURING 100 FEET AND

GREATER.—(1) The Administrator of the Maritime Administration

shall administer section 12102(c) of title 46, United States Code, as

amended by this subtitle, with respect to vessels 100 feet or greater

in registered length. The owner of each such vessel shall file a

statement of citizenship setting forth all relevant facts regarding

vessel ownership and control with the Administrator of the Maritime Administration on an annual basis to demonstrate compliance
Sec. 203 AMERICAN FISHERIES ACT 576

1So in law. Probably should be a comma.

with such section. Regulations to implement this subsection shall

conform to the extent practicable with the regulations establishing

the form of citizenship affidavit set forth in part 355 of title 46,

Code of Federal Regulations, as in effect on September 25, 1997,

except that the form of the statement under this paragraph shall

be written in a manner to allow the owner of each such vessel to

satisfy any annual renewal requirements for a certificate of documentation for such vessel and to comply with this subsection and

section 12102(c) of title 46, United States Code, as amended by this

Act, and shall not be required to be notarized.

(2) After October 1, 2001, transfers of ownership and control of

vessels subject to section 12102(c) of title 46, United States Code,

as amended by this Act, which are 100 feet or greater in registered

length, shall be rigorously scrutinized for violations of such section,

with particular attention given to leases, charters, mortgages, financing, and similar arrangements, to the control of persons not eligible to own a vessel with a fishery endorsement under section

12102(c) of title 46, United States Code, as amended by this Act,

over the management, sales, financing, or other operations of an

entity, and to contracts involving the purchase over extended periods of time of all, or substantially all, of the living marine resources harvested by a fishing vessel.

(d) ø46 U.S.C. 12102 note¿ VESSELS MEASURING LESS THAN 100

FEET.—The Secretary of Transportation shall establish such requirements as are reasonable and necessary to demonstrate compliance with section 12102(c) of title 46, United States Code, as

amended by this Act, with respect to vessels measuring less than

100 feet in registered length, and shall seek to minimize the administrative burden on individuals who own and operate such vessels.

(e) ø46 U.S.C. 12102 note¿ ENDORSEMENTS REVOKED.—The

Secretary of Transportation shall revoke the fishery endorsement of

any vessel subject to section 12102(c) of title 46, United States

Code, as amended by this Act, whose owner does not comply with

such section.

ø(f) PENALTY.—Made an amendment to section 12122 of title

46, United States Code.¿

(g) CERTAIN VESSELS.—The vessels EXCELLENCE (United

States official number 967502), GOLDEN ALASKA (United States

official number 651041), OCEAN PHOENIX (United States official

number 296779), NORTHERN TRAVELER (United States official

number 635986), and NORTHERN VOYAGER (United States official number 637398) (or a replacement vessel for the NORTHERN

VOYAGER that complies with paragraphs (2), (5), and (6) of section 208(g) of this Act) shall be exempt from section 12102(c), as

amended by this Act, until such time after October 1, 2001 1 as

more than 50 percent of the interest owned and controlled in the

vessel changes, provided that the vessel maintains eligibility for a

fishery endorsement under the federal law that was in effect the

day before the date of the enactment of this Act, and unless, in the

case of the NORTHERN TRAVELER or the NORTHERN VOYAGER (or such replacement), the vessel is used in any fishery

under the authority of a regional fishery management council other
577 AMERICAN FISHERIES ACT Sec. 205

than the New England Fishery Management Council or Mid-Atlantic Fishery Management Council established, respectively, under

subparagraphs (A) and (B) of section 302(a)(1) of the MagnusonStevens Fishery Conservation and Management Act (16 U.S.C.

1852(a)(1) (A) and (B)), or in the case of the EXCELLENCE,

GOLDEN ALASKA, or OCEAN PHOENIX, the vessel is used to

harvest any fish.

SEC. 204. REPEAL OF OWNERSHIP SAVINGS CLAUSE.

(a) REPEAL.—Section 7(b) of the Commercial Fishing Industry

Vessel Anti-Reflagging Act of 1987 (Public Law 100–239; 46 U.S.C.

12102 note) is hereby repealed.

(b) ø46 U.S.C. 12102 note¿ EFFECTIVE DATE.—Subsection (a)

shall take effect on October 1, 2001.

Subtitle II—Bering Sea Pollock Fishery

SEC. 205. ø16 U.S.C. 1851 note¿ DEFINITIONS.

As used in this subtitle—

(1) the term ‘‘Bering Sea and Aleutian Islands Management Area’’ has the same meaning as the meaning given for

such term in part 679.2 of title 50, Code of Federal Regulations, as in effect on October 1, 1998;

(2) the term ‘‘catcher/processor’’ means a vessel that is

used for harvesting fish and processing that fish;

(3) the term ‘‘catcher vessel’’ means a vessel that is used

for harvesting fish and that does not process pollock onboard;

(4) the term ‘‘directed pollock fishery’’ means the fishery

for the directed fishing allowances allocated under paragraphs

(1), (2), and (3) of section 206(b);

(5) the term ‘‘harvest’’ means to commercially engage in

the catching, taking, or harvesting of fish or any activity that

can reasonably be expected to result in the catching, taking, or

harvesting of fish;

(6) the term ‘‘inshore component’’ means the following categories that process groundfish harvested in the Bering Sea

and Aleutian Islands Management Area:

(A) shoreside processors, including those eligible under

section 208(f); and

(B) vessels less than 125 feet in length overall that

process less than 126 metric tons per week in roundweight equivalents of an aggregate amount of pollock and

Pacific cod;

(7) the term ‘‘Magnuson-Stevens Act’’ means the Magnuson-Stevens Fishery Conservation and Management Act (16

U.S.C. 1801 et seq.);

(8) the term ‘‘mothership’’ means a vessel that receives and

processes fish from other vessels in the exclusive economic

zone of the United States and is not used for, or equipped to

be used for, harvesting fish;

(9) the term ‘‘North Pacific Council’’ means the North Pacific Fishery Management Council established under section

302(a)(1)(G) of the Magnuson-Stevens Act (16 U.S.C.

1852(a)(1)(G));

(10) the term ‘‘offshore component’’ means all vessels not

included in the definition of ‘‘inshore component’’ that process
Sec. 206 AMERICAN FISHERIES ACT 578

groundfish harvested in the Bering Sea and Aleutian Islands

Management Area;

(11) the term ‘‘Secretary’’ means the Secretary of Commerce; and

(12) the term ‘‘shoreside processor’’ means any person or

vessel that receives unprocessed fish, except catcher/processors,

motherships, buying stations, restaurants, or persons receiving

fish for personal consumption or bait.

SEC. 206. ø16 U.S.C. 1851 note¿ ALLOCATIONS.

(a) POLLOCK COMMUNITY DEVELOPMENT QUOTA.—Effective

January 1, 1999, 10 percent of the total allowable catch of pollock

in the Bering Sea and Aleutian Islands Management Area shall be

allocated as a directed fishing allowance to the western Alaska

community development quota program established under section

305(i) of the Magnuson-Stevens Act (16 U.S.C. 1855(i)).

(b) INSHORE/OFFSHORE.—Effective January 1, 1999, the remainder of the pollock total allowable catch in the Bering Sea and

Aleutian Islands Management Area, after the subtraction of the allocation under subsection (a) and the subtraction of allowances for

the incidental catch of pollock by vessels harvesting other groundfish species (including under the western Alaska community development quota program) shall be allocated as directed fishing allowances as follows—

(1) 50 percent to catcher vessels harvesting pollock for

processing by the inshore component;

(2) 40 percent to catcher/processors and catcher vessels

harvesting pollock for processing by catcher/processors in the

offshore component; and

(3) 10 percent to catcher vessels harvesting pollock for

processing by motherships in the offshore component.

SEC. 207. ø16 U.S.C. 1851 note¿ BUYOUT.

(a) FEDERAL LOAN.—Under the authority of sections 1111 and

1112 of title XI of the Merchant Marine Act, 1936 (46 U.S.C. App.

1279f and 1279g) and notwithstanding the requirements of section

312 of the Magnuson-Stevens Act (16 U.S.C. 1861a), the Secretary

shall, subject to the availability of appropriations for the cost of the

direct loan, provide up to $75,000,000 through a direct loan obligation for the payments required under subsection (d).

(b) INSHORE FEE SYSTEM.—Notwithstanding the requirements

of section 304(d) or 312 of the Magnuson-Stevens Act (16 U.S.C.

1854(d) and 1861a), the Secretary shall establish a fee for the repayment of such loan obligation which—

(1) shall be six-tenths (0.6) of one cent for each pound

round-weight of all pollock harvested from the directed fishing

allowance under section 206(b)(1); and

(2) shall begin with such pollock harvested on or after January 1, 2000, and continue without interruption until such

loan obligation is fully repaid; and

(3) shall be collected in accordance with section

312(d)(2)(C) of the Magnuson-Stevens Act (16 U.S.C.

1861a(d)(2)(C)) and in accordance with such other conditions as

the Secretary establishes.

(c) FEDERAL APPROPRIATION.—Under the authority of section

312(c)(1)(B) of the Magnuson-Stevens Act (16 U.S.C.
579 AMERICAN FISHERIES ACT Sec. 207

1861a(c)(1)(B)), there are authorized to be appropriated $20,000,000 for the payments required under subsection (d).

(d) PAYMENTS.—Subject to the availability of appropriations for

the cost of the direct loan under subsection (a) and funds under

subsection (c), the Secretary shall pay by not later than December

31, 1998—

(1) up to $90,000,000 to the owner or owners of the catcher/processors listed in paragraphs (1) through (9) of section

209, in such manner as the owner or owners, with the concurrence of the Secretary, agree, except that—

(A) the portion of such payment with respect to the

catcher/processor listed in paragraph (1) of section 209

shall be made only after the owner submits a written certification acceptable to the Secretary that neither the

owner nor a purchaser from the owner intends to use such

catcher/processor outside of the exclusive economic zone of

the United States to harvest any stock of fish (as such

term is defined in section 3 of the Magnuson-Stevens Act

(16 U.S.C. 1802)) that occurs within the exclusive economic

zone of the United States; and

(B) the portion of such payment with respect to the

catcher/processors listed in paragraphs (2) through (9) of

section 209 shall be made only after the owner or owners

of such catcher/processors submit a written certification

acceptable to the Secretary that such catcher/processors

will be scrapped by December 31, 2000 and will not, before

that date, be used to harvest or process any fish; and

(2)(A) if a contract has been filed under section 210(a) by

the catcher/processors listed in section 208(e), $5,000,000 to

the owner or owners of the catcher/processors listed in paragraphs (10) through (14) of such section in such manner as the

owner or owners, with the concurrence of the Secretary, agree;

or

(B) if such a contract has not been filed by such date,

$5,000,000 to the owners of the catcher vessels eligible under

section 208(b) and the catcher/processors eligible under paragraphs (1) through (20) of section 208(e), divided based on the

amount of the harvest of pollock in the directed pollock fishery

by each such vessel in 1997 in such manner as the Secretary

deems appropriate,

except that any such payments shall be reduced by any obligation

to the federal government that has not been satisfied by such

owner or owners of any such vessels.

(e) PENALTY.—If the catcher/processor under paragraph (1) of

section 209 is used outside of the exclusive economic zone of the

United States to harvest any stock of fish that occurs within the

exclusive economic zone of the United States while the owner who

received the payment under subsection (d)(1)(A) has an ownership

interest in such vessel, or if the catcher/processors listed in paragraphs (2) through (9) of section 209 are determined by the Secretary not to have been scrapped by December 31, 2000 or to have

been used in a manner inconsistent with subsection (d)(1)(B), the

Secretary may suspend any or all of the federal permits which

allow any vessels owned in whole or in part by the owner or owners

who received payments under subsection (d)(1) to harvest or proc-
Sec. 208 AMERICAN FISHERIES ACT 580

ess fish within the exclusive economic zone of the United States

until such time as the obligations of such owner or owners under

subsection (d)(1) have been fulfilled to the satisfaction of the Secretary.

(f) PROGRAM DEFINED; MATURITY.—For the purposes of section

1111 of the Merchant Marine Act, 1936 (46 U.S.C. App. 1279f), the

fishing capacity reduction program in this subtitle shall be within

the meaning of the term ‘‘program’’ as defined and used in such

section. Notwithstanding section 1111(b)(4) of such Act (46 U.S.C.

App. 1279f(b)(4)), the debt obligation under subsection (a) of this

section may have a maturity not to exceed 30 years.

(g) FISHERY CAPACITY REDUCTION REGULATIONS.—The Secretary of Commerce shall by not later than October 15, 1998 publish proposed regulations to implement subsections (b), (c), (d), and

(e) of section 312 of the Magnuson-Stevens Act (16 U.S.C. 1861a)

and sections 1111 and 1112 of title XI of the Merchant Marine Act,

1936 (46 U.S.C. App. 1279f and 1279g).

SEC. 208. ø16 U.S.C. 1851 note¿ ELIGIBLE VESSELS AND PROCESSORS.

(a) CATCHER VESSELS ONSHORE.—Effective January 1, 2000,

only catcher vessels which are—

(1) determined by the Secretary—

(A) to have delivered at least 250 metric tons of pollock; or

(B) to be less than 60 feet in length overall and to

have delivered at least 40 metric tons of pollock,

for processing by the inshore component in the directed pollock

fishery in any one of the years 1996 or 1997, or between January

1, 1998 and September 1, 1998;

(2) eligible to harvest pollock in the directed pollock fishery

under the license limitation program recommended by the

North Pacific Council and approved by the Secretary; and

(3) not listed in subsection (b),

shall be eligible to harvest the directed fishing allowance under

section 206(b)(1) pursuant to a federal fishing permit.

(b) CATCHER VESSELS TO CATCHER/PROCESSORS.—Effective

January 1, 1999, only the following catcher vessels shall be eligible

to harvest the directed fishing allowance under section 206(b)(2)

pursuant to a federal fishing permit:

(1) AMERICAN CHALLENGER (United States official

number 633219);

(2) FORUM STAR (United States official number 925863);

(3) MUIR MILACH (United States official number

611524);

(4) NEAHKAHNIE (United States official number 599534);

(5) OCEAN HARVESTER (United States official number

549892);

(6) SEA STORM (United States official number 628959);

(7) TRACY ANNE (United States official number 904859);

and

(8) any catcher vessel—

(A) determined by the Secretary to have delivered at

least 250 metric tons and at least 75 percent of the pollock

it harvested in the directed pollock fishery in 1997 to
581 AMERICAN FISHERIES ACT Sec. 208

catcher/processors for processing by the offshore component; and

(B) eligible to harvest pollock in the directed pollock

fishery under the license limitation program recommended

by the North Pacific Council and approved by the Secretary.

(c) CATCHER VESSELS TO MOTHERSHIPS.—Effective January 1,

2000, only the following catcher vessels shall be eligible to harvest

the directed fishing allowance under section 206(b)(3) pursuant to

a federal fishing permit:

(1) ALEUTIAN CHALLENGER (United States official

number 603820);

(2) ALYESKA (United States official number 560237);

(3) AMBER DAWN (United States official number 529425);

(4) AMERICAN BEAUTY (United States official number

613847);

(5) CALIFORNIA HORIZON (United States official number 590758);

(6) MAR-GUN (United States official number 525608);

(7) MARGARET LYN (United States official number

615563);

(8) MARK I (United States official number 509552);

(9) MISTY DAWN (United States official number 926647);

(10) NORDIC FURY (United States official number

542651);

(11) OCEAN LEADER (United States official number

561518);

(12) OCEANIC (United States official number 602279);

(13) PACIFIC ALLIANCE (United States official number

612084);

(14) PACIFIC CHALLENGER (United States official number 518937);

(15) PACIFIC FURY (United States official number

561934);

(16) PAPADO II (United States official number 536161);

(17) TRAVELER (United States official number 929356);

(18) VESTERAALEN (United States official number

611642);

(19) WESTERN DAWN (United States official number

524423); and

(20) any vessel—

(A) determined by the Secretary to have delivered at

least 250 metric tons of pollock for processing by

motherships in the offshore component of the directed pollock fishery in any one of the years 1996 or 1997, or between January 1, 1998 and September 1, 1998;

(B) eligible to harvest pollock in the directed pollock

fishery under the license limitation program recommended

by the North Pacific Council and approved by the Secretary; and

(C) not listed in subsection (b).

(d) MOTHERSHIPS.—Effective January 1, 2000, only the following motherships shall be eligible to process the directed fishing

allowance under section 206(b)(3) pursuant to a federal fishing permit:
Sec. 208 AMERICAN FISHERIES ACT 582

(1) EXCELLENCE (United States official number 967502);

(2) GOLDEN ALASKA (United States official number

651041); and

(3) OCEAN PHOENIX (United States official number

296779).

(e) CATCHER/PROCESSORS.—Effective January 1, 1999, only the

following catcher/processors shall be eligible to harvest the directed

fishing allowance under section 206(b)(2) pursuant to a federal fishing permit:

(1) AMERICAN DYNASTY (United States official number

951307);

(2) KATIE ANN (United States official number 518441);

(3) AMERICAN TRIUMPH (United States official number

646737);

(4) NORTHERN EAGLE (United States official number

506694);

(5) NORTHERN HAWK (United States official number

643771);

(6) NORTHERN JAEGER (United States official number

521069);

(7) OCEAN ROVER (United States official number

552100);

(8) ALASKA OCEAN (United States official number

637856);

(9) ENDURANCE (United States official number 592206);

(10) AMERICAN ENTERPRISE (United States official

number 594803);

(11) ISLAND ENTERPRISE (United States official number

610290);

(12) KODIAK ENTERPRISE (United States official number 579450);

(13) SEATTLE ENTERPRISE (United States official number 904767);

(14) US ENTERPRISE (United States official number

921112);

(15) ARCTIC STORM (United States official number

903511);

(16) ARCTIC FJORD (United States official number

940866);

(17) NORTHERN GLACIER (United States official number

663457);

(18) PACIFIC GLACIER (United States official number

933627);

(19) HIGHLAND LIGHT (United States official number

577044);

(20) STARBOUND (United States official number 944658);

and

(21) any catcher/processor not listed in this subsection and

determined by the Secretary to have harvested more than

2,000 metric tons of the pollock in the 1997 directed pollock

fishery and determined to be eligible to harvest pollock in the

directed pollock fishery under the license limitation program

recommended by the North Pacific Council and approved by

the Secretary, except that catcher/processors eligible under this

paragraph shall be prohibited from harvesting in the aggregate
583 AMERICAN FISHERIES ACT Sec. 208

a total of more than one-half (0.5) of a percent of the pollock

apportioned for the directed pollock fishery under section

206(b)(2).

Notwithstanding section 213(a), failure to satisfy the requirements

of section 4(a) of the Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987 (Public Law 100–239; 46 U.S.C. 12108 note)

shall not make a catcher/processor listed under this subsection ineligible for a fishery endorsement.

(f) SHORESIDE PROCESSORS.—(1) Effective January 1, 2000 and

except as provided in paragraph (2), the catcher vessels eligible

under subsection (a) may deliver pollock harvested from the directed fishing allowance under section 206(b)(1) only to—

(A) shoreside processors (including vessels in a single geographic location in Alaska State waters) determined by the

Secretary to have processed more than 2,000 metric tons

round-weight of pollock in the inshore component of the directed pollock fishery during each of 1996 and 1997; and

(B) shoreside processors determined by the Secretary to

have processed pollock in the inshore component of the directed pollock fishery in 1996 or 1997, but to have processed

less than 2,000 metric tons round-weight of such pollock in

each year, except that effective January 1, 2000, each such

shoreside processor may not process more than 2,000 metric

tons round-weight from such directed fishing allowance in any

year.

(2) Upon recommendation by the North Pacific Council, the

Secretary may approve measures to allow catcher vessels eligible

under subsection (a) to deliver pollock harvested from the directed

fishing allowance under section 206(b)(1) to shoreside processors

not eligible under paragraph (1) if the total allowable catch for pollock in the Bering Sea and Aleutian Islands Management Area increases by more than 10 percent above the total allowable catch in

such fishery in 1997, or in the event of the actual total loss or constructive total loss of a shoreside processor eligible under paragraph (1)(A).

(g) REPLACEMENT VESSELS.—In the event of the actual total

loss or constructive total loss of a vessel eligible under subsections

(a), (b), (c), (d), or (e), the owner of such vessel may replace such

vessel with a vessel which shall be eligible in the same manner

under that subsection as the eligible vessel, provided that—

(1) such loss was caused by an act of God, an act of war,

a collision, an act or omission of a party other than the owner

or agent of the vessel, or any other event not caused by the

willful misconduct of the owner or agent;

(2) the replacement vessel was built in the United States

and if ever rebuilt, was rebuilt in the United States;

(3) the fishery endorsement for the replacement vessel is

issued within 36 months of the end of the last year in which

the eligible vessel harvested or processed pollock in the directed pollock fishery;

(4) if the eligible vessel is greater than 165 feet in registered length, of more than 750 gross registered tons, or has

engines capable of producing more than 3,000 shaft horsepower, the replacement vessel is of the same or lesser registered length, gross registered tons, and shaft horsepower;
Sec. 209 AMERICAN FISHERIES ACT 584

(5) if the eligible vessel is less than 165 feet in registered

length, of fewer than 750 gross registered tons, and has engines incapable of producing less than 3,000 shaft horsepower,

the replacement vessel is less than each of such thresholds and

does not exceed by more than 10 percent the registered length,

gross registered tons or shaft horsepower of the eligible vessel;

and

(6) the replacement vessel otherwise qualifies under federal law for a fishery endorsement, including under section

12102(c) of title 46, United States Code, as amended by this

Act.

(h) ELIGIBILITY DURING IMPLEMENTATION.—In the event the

Secretary is unable to make a final determination about the eligibility of a vessel under subsection (b)(8) or subsection (e)(21) before

January 1, 1999, or a vessel or shoreside processor under subsection (a), subsection (c)(21), or subsection (f) before January 1,

2000, such vessel or shoreside processor, upon the filing of an application for eligibility, shall be eligible to participate in the directed pollock fishery pending final determination by the Secretary

with respect to such vessel or shoreside processor.

(i) ELIGIBILITY NOT A RIGHT.—Eligibility under this section

shall not be construed—

(1) to confer any right of compensation, monetary or otherwise, to the owner of any catcher vessel, catcher/processor,

mothership, or shoreside processor if such eligibility is revoked

or limited in any way, including through the revocation or limitation of a fishery endorsement or any federal permit or license;

(2) to create any right, title, or interest in or to any fish

in any fishery; or

(3) to waive any provision of law otherwise applicable to

such catcher vessel, catcher/processor, mothership, or shoreside

processor.

SEC. 209. ø16 U.S.C. 1851 note¿ LIST OF INELIGIBLE VESSELS.

Effective December 31, 1998, the following vessels shall be permanently ineligible for fishery endorsements, and any claims (including relating to catch history) associated with such vessels that

could qualify any owners of such vessels for any present or future

limited access system permit in any fishery within the exclusive

economic zone of the United States (including a vessel moratorium

permit or license limitation program permit in fisheries under the

authority of the North Pacific Council) are hereby extinguished:

(1) AMERICAN EMPRESS (United States official number

942347);

(2) PACIFIC SCOUT (United States official number

934772);

(3) PACIFIC EXPLORER (United States official number

942592);

(4) PACIFIC NAVIGATOR (United States official number

592204);

(5) VICTORIA ANN (United States official number

592207);

(6) ELIZABETH ANN (United States official number

534721);
585 AMERICAN FISHERIES ACT Sec. 210

(7) CHRISTINA ANN (United States official number

653045);

(8) REBECCA ANN (United States official number

592205); and

(9) BROWNS POINT (United States official number

587440).

SEC. 210. ø16 U.S.C. 1851 note¿ FISHERY COOPERATIVE LIMITATIONS.

(a) PUBLIC NOTICE.—(1) Any contract implementing a fishery

cooperative under section 1 of the Act of June 25, 1934 (15 U.S.C.

521) in the directed pollock fishery and any material modifications

to any such contract shall be filed not less than 30 days prior to

the start of fishing under the contract with the North Pacific Council and with the Secretary, together with a copy of a letter from a

party to the contract requesting a business review letter on the

fishery cooperative from the Department of Justice and any response to such request. Notwithstanding section 402 of the Magnuson-Stevens Act (16 U.S.C. 1881a) or any other provision of law,

but taking into account the interest of parties to any such contract

in protecting the confidentiality of proprietary information, the

North Pacific Council and Secretary shall—

(A) make available to the public such information about

the contract, contract modifications, or fishery cooperative the

North Pacific Council and Secretary deem appropriate, which

at a minimum shall include a list of the parties to the contract,

a list of the vessels involved, and the amount of pollock and

other fish to be harvested by each party to such contract; and

(B) make available to the public in such manner as the

North Pacific Council and Secretary deem appropriate information about the harvest by vessels under a fishery cooperative

of all species (including bycatch) in the directed pollock fishery

on a vessel-by-vessel basis.

(b) CATCHER VESSELS ONSHORE.—

(1) CATCHER VESSEL COOPERATIVES.—Effective January 1,

2000, upon the filing of a contract implementing a fishery cooperative under subsection (a) which—

(A) is signed by the owners of 80 percent or more of

the qualified catcher vessels that delivered pollock for

processing by a shoreside processor in the directed pollock

fishery in the year prior to the year in which the fishery

cooperative will be in effect; and

(B) specifies, except as provided in paragraph (6), that

such catcher vessels will deliver pollock in the directed pollock fishery only to such shoreside processor during the

year in which the fishery cooperative will be in effect and

that such shoreside processor has agreed to process such

pollock,

the Secretary shall allow only such catcher vessels (and catcher

vessels whose owners voluntarily participate pursuant to paragraph (2)) to harvest the aggregate percentage of the directed fishing allowance under section 206(b)(1) in the year in which the fishery cooperative will be in effect that is equivalent to the aggregate

total amount of pollock harvested by such catcher vessels (and by

such catcher vessels whose owners voluntarily participate pursuant

to paragraph (2)) in the directed pollock fishery for processing by
Sec. 210 AMERICAN FISHERIES ACT 586

the inshore component during 1995, 1996, and 1997 relative to the

aggregate total amount of pollock harvested in the directed pollock

fishery for processing by the inshore component during such years

and shall prevent such catcher vessels (and catcher vessels whose

owners voluntarily participate pursuant to paragraph (2)) from harvesting in aggregate in excess of such percentage of such directed

fishing allowance.

(2) VOLUNTARY PARTICIPATION.—Any contract implementing a fishery cooperative under paragraph (1) must allow

the owners of other qualified catcher vessels to enter into such

contract after it is filed and before the calender year in which

fishing will begin under the same terms and conditions as the

owners of the qualified catcher vessels who entered into such

contract upon filing.

(3) QUALIFIED CATCHER VESSEL.—For the purposes of this

subsection, a catcher vessel shall be considered a ‘‘qualified

catcher vessel’’ if, during the year prior to the year in which

the fishery cooperative will be in effect, it delivered more pollock to the shoreside processor to which it will deliver pollock

under the fishery cooperative in paragraph (1) than to any

other shoreside processor.

(4) CONSIDERATION OF CERTAIN VESSELS.—Any contract implementing a fishery cooperative under paragraph (1) which

has been entered into by the owner of a qualified catcher vessel eligible under section 208(a) that harvested pollock for processing by catcher/processors or motherships in the directed pollock fishery during 1995, 1996, and 1997 shall, to the extent

practicable, provide fair and equitable terms and conditions for

the owner of such qualified catcher vessel.

(5) OPEN ACCESS.—A catcher vessel eligible under section

208(a) the catch history of which has not been attributed to a

fishery cooperative under paragraph (1) may be used to deliver

pollock harvested by such vessel from the directed fishing allowance under section 206(b)(1) (other than pollock reserved

under paragraph (1) for a fishery cooperative) to any of the

shoreside processors eligible under section 208(f). A catcher

vessel eligible under section 208(a) the catch history of which

has been attributed to a fishery cooperative under paragraph

(1) during any calendar year may not harvest any pollock apportioned under section 206(b)(1) in such calendar year other

than the pollock reserved under paragraph (1) for such fishery

cooperative.

(6) TRANSFER OF COOPERATIVE HARVEST.—A contract implementing a fishery cooperative under paragraph (1) may,

notwithstanding the other provisions of this subsection, provide for up to 10 percent of the pollock harvested under such

cooperative to be processed by a shoreside processor eligible

under section 208(f) other than the shoreside processor to

which pollock will be delivered under paragraph (1).

(c) CATCHER VESSELS TO CATCHER/PROCESSORS.—Effective January 1, 1999, not less than 8.5 percent of the directed fishing allowance under section 206(b)(2) shall be available for harvest only by

the catcher vessels eligible under section 208(b). The owners of

such catcher vessels may participate in a fishery cooperative with

the owners of the catcher/processors eligible under paragraphs (1)
587 AMERICAN FISHERIES ACT Sec. 210

through (20) of the section 208(e). The owners of such catcher vessels may participate in a fishery cooperative that will be in effect

during 1999 only if the contract implementing such cooperative establishes penalties to prevent such vessels from exceeding in 1999

the traditional levels harvested by such vessels in all other fisheries in the exclusive economic zone of the United States.

(d) CATCHER VESSELS TO MOTHERSHIPS.— (1) PROCESSING.—Effective January 1, 2000, the authority

in section 1 of the Act of June 25, 1934 (48 Stat. 1213 and

1214; 15 U.S.C. 521 et seq.) shall extend to processing by

motherships eligible under section 208(d) solely for the purposes of forming or participating in a fishery cooperative in the

directed pollock fishery upon the filing of a contract to implement a fishery cooperative under subsection (a) which has been

entered into by the owners of 80 percent or more of the catcher

vessels eligible under section 208(c) for the duration of such

contract, provided that such owners agree to the terms of the

fishery cooperative involving processing by the motherships.

(2) VOLUNTARY PARTICIPATION.—Any contract implementing a fishery cooperative described in paragraph (1) must

allow the owners of any other catcher vessels eligible under

section 208(c) to enter such contract after it is filed and before

the calendar year in which fishing will begin under the same

terms and conditions as the owners of the catcher vessels who

entered into such contract upon filing.

(e) EXCESSIVE SHARES.—

(1) HARVESTING.—No particular individual, corporation, or

other entity may harvest, through a fishery cooperative or otherwise, a total of more than 17.5 percent of the pollock available to be harvested in the directed pollock fishery.

(2) PROCESSING.—Under the authority of section 301(a)(4)

of the Magnuson-Stevens Act (16 U.S.C. 1851(a)(4)), the North

Pacific Council is directed to recommend for approval by the

Secretary conservation and management measures to prevent

any particular individual or entity from processing an excessive share of the pollock available to be harvested in the directed pollock fishery. In the event the North Pacific Council

recommends and the Secretary approves an excessive processing share that is lower than 17.5 percent, any individual or

entity that previously processed a percentage greater than

such share shall be allowed to continue to process such percentage, except that their percentage may not exceed 17.5 percent (excluding pollock processed by catcher/processors that

was harvested in the directed pollock fishery by catcher vessels

eligible under 208(b)) and shall be reduced if their percentage

decreases, until their percentage is below such share. In recommending the excessive processing share, the North Pacific

Council shall consider the need of catcher vessels in the directed pollock fishery to have competitive buyers for the pollock harvested by such vessels.

(3) REVIEW BY MARITIME ADMINISTRATION.—At the request

of the North Pacific Council or the Secretary, any individual or

entity believed by such Council or the Secretary to have exceeded the percentage in either paragraph (1) or (2) shall submit such information to the Administrator of the Maritime Ad-
Sec. 211 AMERICAN FISHERIES ACT 588

ministration as the Administrator deems appropriate to allow

the Administrator to determine whether such individual or entity has exceeded either such percentage. The Administrator

shall make a finding as soon as practicable upon such request

and shall submit such finding to the North Pacific Council and

the Secretary. For the purposes of this subsection, any entity

in which 10 percent or more of the interest is owned or controlled by another individual or entity shall be considered to be

the same entity as the other individual or entity.

(f) LANDING TAX JURISDICTION.—Any contract filed under subsection (a) shall include a contract clause under which the parties

to the contract agree to make payments to the State of Alaska for

any pollock harvested in the directed pollock fishery which is not

landed in the State of Alaska, in amounts which would otherwise

accrue had the pollock been landed in the State of Alaska subject

to any landing taxes established under Alaska law. Failure to in- clude such a contract clause or for such amounts to be paid shall

result in a revocation of the authority to form fishery cooperatives

under section 1 of the Act of June 25, 1934 (15 U.S.C. 521 et seq.).

(g) PENALTIES.—The violation of any of the requirements of

this subtitle or any regulation or permit issued pursuant to this

subtitle shall be considered the commission of an act prohibited by

section 307 of the Magnuson-Stevens Act (16 U.S.C. 1857), and sections 308, 309, 310, and 311 of such Act (16 U.S.C. 1858, 1859,

1860, and 1861) shall apply to any such violation in the same manner as to the commission of an act prohibited by section 307 of such

Act (16 U.S.C. 1857). In addition to the civil penalties and permit

sanctions applicable to prohibited acts under section 308 of such

Act (16 U.S.C. 1858), any person who is found by the Secretary,

after notice and an opportunity for a hearing in accordance with

section 554 of title 5, United States Code, to have violated a requirement of this section shall be subject to the forfeiture to the

Secretary of Commerce of any fish harvested or processed during

the commission of such act.

SEC. 211. ø16 U.S.C. 1851 note¿ PROTECTIONS FOR OTHER FISHERIES;

CONSERVATION MEASURES.

(a) GENERAL.—The North Pacific Council shall recommend for

approval by the Secretary such conservation and management

measures as it determines necessary to protect other fisheries

under its jurisdiction and the participants in those fisheries, including processors, from adverse impacts caused by this Act or fishery cooperatives in the directed pollock fishery.

(b) CATCHER/PROCESSOR RESTRICTIONS.—

(1) GENERAL.—The restrictions in this subsection shall

take effect on January 1, 1999 and shall remain in effect thereafter except that they may be superceded (with the exception

of paragraph (4)) by conservation and management measures

recommended after the date of the enactment of this Act by the

North Pacific Council and approved by the Secretary in accordance with the Magnuson-Stevens Act.

(2) BERING SEA FISHING.—The catcher/processors eligible

under paragraphs (1) through (20) of section 208(e) are hereby

prohibited from, in the aggregate—

(A) exceeding the percentage of the harvest available

in the offshore component of any Bering Sea and Aleutian
589 AMERICAN FISHERIES ACT Sec. 211

Islands groundfish fishery (other than the pollock fishery)

that is equivalent to the total harvest by such catcher/processors and the catcher/processors listed in section 209 in

the fishery in 1995, 1996, and 1997 relative to the total

amount available to be harvested by the offshore component in the fishery in 1995, 1996, and 1997;

(B) exceeding the percentage of the prohibited species

available in the offshore component of any Bering Sea and

Aleutian Islands groundfish fishery (other than the pollock

fishery) that is equivalent to the total of the prohibited

species harvested by such catcher/processors and the

catcher/processors listed in section 209 in the fishery in

1995, 1996, and 1997 relative to the total amount of prohibited species available to be harvested by the offshore

component in the fishery in 1995, 1996, and 1997; and

(C) fishing for Atka mackerel in the eastern area of

the Bering Sea and Aleutian Islands and from exceeding

the following percentages of the directed harvest available

in the Bering Sea and Aleutian Islands Atka mackerel

fishery—

(i) 11.5 percent in the central area; and

(ii) 20 percent in the western area.

(3) BERING SEA PROCESSING.—The catcher/processors eligible under paragraphs (1) through (20) of section 208(e) are

hereby prohibited from—

(A) processing any of the directed fishing allowances

under paragraphs (1) or (3) of section 206(b); and

(B) processing any species of crab harvested in the

Bering Sea and Aleutian Islands Management Area.

(4) GULF OF ALASKA.—The catcher/processors eligible

under paragraphs (1) through (20) of section 208(e) are hereby

prohibited from—

(A) harvesting any fish in the Gulf of Alaska;

(B) processing any groundfish harvested from the portion of the exclusive economic zone off Alaska known as

area 630 under the fishery management plan for Gulf of

Alaska groundfish; or

(C) processing any pollock in the Gulf of Alaska (other

than as bycatch in non-pollock groundfish fisheries) or

processing, in the aggregate, a total of more than 10 percent of the cod harvested from areas 610, 620, and 640 of

the Gulf of Alaska under the fishery management plan for

Gulf of Alaska groundfish.

(5) FISHERIES OTHER THAN NORTH PACIFIC.—The catcher/

processors eligible under paragraphs (1) through (20) of section

208(e) and motherships eligible under section 208(d) are hereby prohibited from harvesting fish in any fishery under the authority of any regional fishery management council established

under section 302(a) of the Magnuson-Stevens Act (16 U.S.C.

1852(a)) other than the North Pacific Council, except for the

Pacific whiting fishery, and from processing fish in any fishery

under the authority of any such regional fishery management

council other than the North Pacific Council, except in the Pacific whiting fishery, unless the catcher/processor or

mothership is authorized to harvest or process fish under a
Sec. 211 AMERICAN FISHERIES ACT 590

fishery management plan recommended by the regional fishery

management council of jurisdiction and approved by the Secretary.

(6) OBSERVERS AND SCALES.—The catcher/processors eligible under paragraphs (1) through (20) of section 208(e) shall—

(A) have two observers onboard at all times while

groundfish is being harvested, processed, or received from

another vessel in any fishery under the authority of the

North Pacific Council; and

(B) weigh its catch on a scale onboard approved by the

National Marine Fisheries Service while harvesting

groundfish in fisheries under the authority of the North

Pacific Council.

This paragraph shall take effect on January 1, 1999 for catcher/processors eligible under paragraphs (1) through (20) of section 208(e) that will harvest pollock allocated under section

206(a) in 1999, and shall take effect on January 1, 2000 for all

other catcher/processors eligible under such paragraphs of section 208(e).

(c) CATCHER VESSEL AND SHORESIDE PROCESSOR RESTRIC- TIONS.—(1) REQUIRED COUNCIL RECOMMENDATIONS.—By not later

than July 1, 1999, the North Pacific Council shall recommend

for approval by the Secretary conservation and management

measures to—

(A) prevent the catcher vessels eligible under subsections (a), (b), and (c) of section 208 from exceeding in

the aggregate the traditional harvest levels of such vessels

in other fisheries under the authority of the North Pacific

Council as a result of fishery cooperatives in the directed

pollock fishery; and

(B) protect processors not eligible to participate in the

directed pollock fishery from adverse effects as a result of

this Act or fishery cooperatives in the directed pollock fishery.

If the North Pacific Council does not recommend such conservation and management measures by such date, or if the

Secretary determines that such conservation and management

measures recommended by the North Pacific Council are not

adequate to fulfill the purposes of this paragraph, the Secretary may by regulation restrict or change the authority in

section 210(b) to the extent the Secretary deems appropriate,

including by preventing fishery cooperatives from being formed

pursuant to such section and by providing greater flexibility

with respect to the shoreside processor or shoreside processors

to which catcher vessels in a fishery cooperative under section

210(b) may deliver pollock.

(2) BERING SEA CRAB AND GROUNDFISH.—

(A) Effective January 1, 2000, the owners of the

motherships eligible under section 208(d) and the shoreside processors eligible under section 208(f) that receive

pollock from the directed pollock fishery under a fishery

cooperative are hereby prohibited from processing, in the

aggregate for each calendar year, more than the percentage of the total catch of each species of crab in directed
591 AMERICAN FISHERIES ACT Sec. 211

fisheries under the jurisdiction of the North Pacific Council

than facilities operated by such owners processed of each

such species in the aggregate, on average, in 1995, 1996,

1997. For the purposes of this subparagraph, the term ‘‘facilities’’ means any processing plant, catcher/processor,

mothership, floating processor, or any other operation that

processes fish. Any entity in which 10 percent or more of

the interest is owned or controlled by another individual or

entity shall be considered to be the same entity as the

other individual or entity for the purposes of this subparagraph.

(B) Under the authority of section 301(a)(4) of the

Magnuson-Stevens Act (16 U.S.C. 1851(a)(4)), the North

Pacific Council is directed to recommend for approval by

the Secretary conservation and management measures to

prevent any particular individual or entity from harvesting

or processing an excessive share of crab or of groundfish

in fisheries in the Bering Sea and Aleutian Islands Management Area.

(C) The catcher vessels eligible under section 208(b)

are hereby prohibited from participating in a directed fishery for any species of crab in the Bering Sea and Aleutian

Islands Management Area unless the catcher vessel harvested crab in the directed fishery for that species of crab

in such Area during 1997 and is eligible to harvest such

crab in such directed fishery under the license limitation

program recommended by the North Pacific Council and

approved by the Secretary. The North Pacific Council is directed to recommend measures for approval by the Secretary to eliminate latent licenses under such program,

and nothing in this subparagraph shall preclude the Council from recommending measures more restrictive than

under this paragraph. (3) FISHERIES OTHER THAN NORTH PACIFIC.—

(A) By not later than July 1, 2000, the Pacific Fishery

Management Council established under section

302(a)(1)(F) of the Magnuson-Stevens Act (16 U.S.C.

1852(a)(1)(F)) shall recommend for approval by the Secretary conservation and management measures to protect

fisheries under its jurisdiction and the participants in

those fisheries from adverse impacts caused by this Act or

by any fishery cooperatives in the directed pollock fishery.

(B) If the Pacific Council does not recommend such

conservation and management measures by such date, or

if the Secretary determines that such conservation and

management measures recommended by the Pacific Council are not adequate to fulfill the purposes of this paragraph, the Secretary may by regulation implement adequate measures including, but not limited to, restrictions

on vessels which harvest pollock under a fishery cooperative which will prevent such vessels from harvesting Pacific groundfish, and restrictions on the number of processors eligible to process Pacific groundfish.

(d) BYCATCH INFORMATION.—Notwithstanding section 402 of

the Magnuson-Stevens Act (16 U.S.C. 1881a), the North Pacific
Sec. 212 AMERICAN FISHERIES ACT 592

1Paragraph (6) of section 3027(a) of Public Law 106–31 (113 Stat. 101) amends this paragraph

by striking ‘‘title’’ and inserting ‘‘subtitle’’. The amendment was not executed, because it did not

specify which occurence of the word ‘‘title’’ to strike.

Council may recommend and the Secretary may approve, under

such terms and conditions as the North Pacific Council and Secretary deem appropriate, the public disclosure of any information

from the groundfish fisheries under the authority of such Council

that would be beneficial in the implementation of section 301(a)(9)

or section 303(a)(11) of the Magnuson-Stevens Act (16 U.S.C.

1851(a)(9) and 1853(a)(11)).

(e) COMMUNITY DEVELOPMENT LOAN PROGRAM.—Under the authority of title XI of the Merchant Marine Act, 1936 (46 U.S.C.

App. 1271 et seq.), and subject to the availability of appropriations,

the Secretary is authorized to provide direct loan obligations to

communities eligible to participate in the western Alaska community development quota program established under 304(i) of the

Magnuson-Stevens Act (16 U.S.C. 1855(i)) for the purposes of purchasing all or part of an ownership interest in vessels and shoreside processors eligible under subsections (a), (b), (c), (d), (e), or (f)

of section 208. Notwithstanding the eligibility criteria in section

208(a) and section 208(c), the LISA MARIE (United States official

number 1038717) shall be eligible under such sections in the same

manner as other vessels eligible under such sections.

SEC. 212. RESTRICTION ON FEDERAL LOANS.

øMade amendments to section 302(b) of the Fisheries Financing Act (46 U.S.C. 1274 note).¿

SEC. 213. ø16 U.S.C. 1851 note¿ DURATION.

(a) GENERAL.—Except as otherwise provided in this title, the

provisions of this title shall take effect upon the date of the enactment of this Act. Sections 206, 208, and 210 shall remain in effect

until December 31, 2004, and shall be repealed on such date, except that the North Pacific Council may recommend and the Secretary may approve conservation and management measures as

part of a fishery management plan under the Magnuson-Stevens

Act to give effect to the measures in such sections thereafter.

(b) EXISTING AUTHORITY.—Except for the measures required by

this subtitle, nothing in this subtitle shall be construed to limit the

authority of the North Pacific Council or the Secretary under the

Magnuson-Stevens Act.

(c) CHANGES TO FISHERY COOPERATIVE LIMITATIONS AND POLLOCK CDQ ALLOCATION.—The North Pacific Council may recommend and the Secretary may approve conservation and management measures in accordance with the Magnuson-Stevens Act—

(1) that supersede the provisions of this title 1, except for

sections 206 and 208, for conservation purposes or to mitigate

adverse effects in fisheries or on owners of fewer than three

vessels in the directed pollock fishery caused by this title 1 or

fishery cooperatives in the directed pollock fishery, provided

such measures take into account all factors affecting the fisheries and are imposed fairly and equitably to the extent practicable among and within the sectors in the directed pollock

fishery;

(2) that supersede the allocation in section 206(a) for any

of the years 2002, 2003, and 2004, upon the finding by such
593 AMERICAN FISHERIES ACT Sec. 213

1So in law. See amendment made by section 2202(e)(1)(A) of Public Law 107–20, 115 Stat.

170.

Council that the western Alaska community development

quota program for pollock has been adversely affected by the

amendments in this subtitle; or

(3) that supersede the criteria required in paragraph (1) of

section 210(b) to be used by the Secretary to set the percentage

allowed to be harvested by catcher vessels pursuant to a fishery cooperative under such paragraph.

(d) REPORT TO CONGRESS.—Not later than October 1, 2000, the

North Pacific Council shall submit a report to the Secretary and to

Congress on the implementation and effects of this Act, including

the effects on fishery conservation and management, on bycatch

levels, on fishing communities, on business and employment practices of participants in any fishery cooperatives, on the western

Alaska community development quota program, on any fisheries

outside of the authority of the North Pacific Council, and such

other matters as the North Pacific Council deems appropriate.

(e) REPORT ON FILLET PRODUCTION.—Not later than June 1,

2000, the General Accounting Office shall submit a report to the

North Pacific Council, the Secretary, and the Congress on whether

this Act has negatively affected the market for fillets and fillet

blocks, including through the reduction in the supply of such fillets

and fillet blocks. If the report determines that such market has

been negatively affected, the North Pacific Council shall recommend measures for the Secretary’s approval to mitigate any negative effects.

(f) SEVERABILITY.—If any provision of this title, an amendment

made by this title, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional,

the remainder of this title, the amendments made by this title, and

the application of the provisions of such to any person or circumstance shall not be affected thereby.

(g) INTERNATIONAL AGREEMENTS.—In the event that any provision of section 12102(c) or section 31322(a) of title 46, United

States Code, as amended by this Act, is determined to be inconsistent with an existing international agreement relating to foreign

investment to which the United States is a party with respect to

the owner or mortgagee on of 1 a vessel with a fishery endorsement,

such provision shall not apply to that owner or mortgagee with respect to their ownership or mortgage interest in such vessel on that

date to the extent of any such inconsistency. The provisions of section 12102(c) and section 31322(a) of title 46, United States Code,

as amended by this Act, shall apply to all subsequent owners and

mortgagees of such vessel, and shall apply, notwithstanding the

preceding sentence, to the owner on of 1 such vessel if any ownership interest in that owner is transferred to or otherwise acquired

by a foreign individual or entity after or if the percentage of foreign

ownership in the vessel is increased after the effective date of this

subsection.

595

YUKON RIVER SALMON ACT OF 1995

597

YUKON RIVER SALMON ACT OF 1995

[Title VII of Public Law 104–430, Approved Nov. 3, 1995, 109 Stat. 392]

[Amended through Public Law 104–430, Nov. 3, 1995]

AN ACT To amend the Fishermen’s Protective Act.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

* * * * * * *

TITLE VII—YUKON RIVER SALMON ACT

SEC. 701. ø16 U.S.C. 5701 note¿ SHORT TITLE.

This title may be cited as the ‘‘Yukon River Salmon Act of

1995’’.

SEC. 702. ø16 U.S.C. 5701¿ PURPOSES.

It is the purpose of this title—

(1) to implement the interim agreement for the conservation of salmon stocks originating from the Yukon River in Canada agreed to through an exchange of notes between the Government of the United States and the Government of Canada

on February 3, 1995;

(2) to provide for representation by the United States on

the Yukon River Panel established under such agreement; and

(3) to authorize to be appropriated sums necessary to carry

out the responsibilities of the United States under such agreement.

SEC. 703. ø16 U.S.C. 5702¿ DEFINITIONS.

As used in this title—

(1) The term ‘‘Agreement’’ means the interim agreement

for the conservation of salmon stocks originating from the

Yukon River in Canada agreed to through an exchange of notes

between the Government of the United States and the Government of Canada on February 3, 1995.

(2) The term ‘‘Panel’’ means the Yukon River Panel established by the Agreement.

(3) The term ‘‘Yukon River Joint Technical Committee’’

means the technical committee established by paragraph C.2 of

the Memorandum of Understanding concerning the Pacific

Salmon Treaty between the Government of the United States

and the Government of Canada recorded January 28, 1985.

SEC. 704. ø16 U.S.C. 5703¿ PANEL.

(a) REPRESENTATION.—The United States shall be represented

on the Panel by six individuals, of whom—

(1) one shall be an official of the United States Government with expertise in salmon conservation and management;
Sec. 705 YUKON RIVER SALMON ACT OF 1995 598

1So in original. Probably should be ‘‘subsection’’.

(2) one shall be an official of the State of Alaska with expertise in salmon conservation and management; and

(3) four shall be knowledgeable and experienced with regard to the salmon fisheries on the Yukon River.

(b) APPOINTMENTS.—Panel members shall be appointed as follows:

(1) The Panel member described in subsection (a)(1) shall

be appointed by the Secretary of State.

(2) The Panel member described in subsection (a)(2) shall

be appointed by the Governor of Alaska.

(3) The Panel members described in subsection (a)(3) shall

be appointed by the Secretary of State from a list of at least

3 individuals nominated for each position by the Governor of

Alaska. The Governor of Alaska may consider suggestions for

nominations provided by organizations with expertise in Yukon

River salmon fisheries. The Governor of Alaska may make appropriate nominations to allow for, and the Secretary of State

shall appoint, at least one member under subsection (a)(3) who

is qualified to represent the interests of Lower Yukon River

fishing districts, and at least one member who is qualified to

represent the interests of Upper Yukon River fishing districts.

At least one of the Panel members under subsection (a)(3) shall

be an Alaska Native.

(c) ALTERNATES.—The Secretary of State may designate an alternate Panel member for each Panel member the Secretary ap- points under subsections 1 (b)(1) and (3), who meets the same qualifications, to serve in the absence of the Panel member. The Governor of the State of Alaska may designate an alternative Panel

member for the Panel member appointed under subsection (b)(2),

who meets the same qualifications, to serve in the absence of that

Panel member.

(d) TERM LENGTH.—Panel members and alternate Panel members shall serve four-year terms. Any individual appointed to fill a

vacancy occurring before the expiration of any term shall be appointed for the remainder of that term.

(e) REAPPOINTMENT.—Panel members and alternate Panel

members shall be eligible for reappointment.

(f) DECISIONS.—Decisions by the United States section of the

Panel shall be made by the consensus of the Panel members appointed under paragraphs (2) and (3) of subsection (a).

(g) CONSULTATION.—In carrying out their functions under the

Agreement, Panel members may consult with such other interested

parties as they consider appropriate.

SEC. 705. ø16 U.S.C. 5704¿ ADVISORY COMMITTEE.

(a) APPOINTMENTS.—The Governor of Alaska may appoint an

Advisory Committee of not less than eight, but not more than

twelve, individuals who are knowledgeable and experienced with

regard to the salmon fisheries on the Yukon River. At least 2 of the

Advisory Committee members shall be Alaska Natives. Members of

the Advisory Committee may attend all meetings of the United

States section of the Panel, and shall be given the opportunity to

examine and be heard on any matter under consideration by the

United States section of the Panel.
599 YUKON RIVER SALMON ACT OF 1995 Sec. 709

(b) COMPENSATION.—The members of such Advisory Committee

shall receive no compensation for their services.

(c) TERM LENGTH.—Advisory Committee members shall serve

two-year terms. Any individual appointed to fill a vacancy occurring before the expiration of any term shall be appointed for the

remainder of that term.

(d) REAPPOINTMENT.—Advisory Committee members shall be

eligible for reappointment.

SEC. 706. ø16 U.S.C. 5705¿ EXEMPTION.

The Federal Advisory Committee Act (5 U.S.C. App.) shall not

apply to the Panel, the Yukon River Joint Technical Committee, or

the Advisory Committee created under section 705 of this title.

SEC. 707. ø16 U.S.C. 5706¿ AUTHORITY AND RESPONSIBILITY.

(a) RESPONSIBLE MANAGEMENT ENTITY.—The State of Alaska

Department of Fish and Game shall be the responsible management entity for the United States for the purposes of the Agreement.

(b) EFFECT OF DESIGNATION.—The designation under subsection (a) shall not be considered to expand, diminish, or change

the management authority of the State of Alaska or the Federal

Government with respect to fishery resources.

(c) RECOMMENDATIONS OF PANEL.—In addition to recommendations made by the Panel to the responsible management entities in

accordance with the Agreement, the Panel may make recommendations concerning the conservation and management of salmon originating in the Yukon River to the Department of the Interior, Department of Commerce, Department of State, North Pacific Fishery

Management Council, and other Federal or State entities as appropriate. Recommendations by the Panel shall be advisory in nature.

SEC. 708. ø16 U.S.C. 5707¿ CONTINUATION OF AGREEMENT.

In the event that the Treaty between Canada and the United

States of America concerning Pacific Salmon, signed at Ottawa,

January 28, 1985, terminates prior to the termination of the Agreement, and the functions of the Panel are assumed by the ‘‘Yukon

River Salmon Commission’’ referenced in the Agreement, the provisions of this title which apply to the Panel shall thereafter apply

to the Yukon River Salmon Commission, and the other provisions

of this title shall remain in effect.

SEC. 709. ø16 U.S.C. 5708¿ ADMINISTRATIVE MATTERS.

(a) Panel members and alternate Panel members who are not

State or Federal employees shall receive compensation at the daily

rate of GS–15 of the General Schedule when engaged in the actual

performance of duties.

(b) Travel and other necessary expenses shall be paid for all

Panel members, alternate Panel members, United States members

of the Joint Technical Committee, and members of the Advisory

Committee when engaged in the actual performance of duties.

(c) Except for officials of the United States Government, individuals described in subsection (b) shall not be considered to be

Federal employees while engaged in the actual performance of duties, except for the purposes of injury compensation or tort claims
Sec. 710 YUKON RIVER SALMON ACT OF 1995 600

1So in original. Probably should be chapter ‘‘171’’. 2So in original. Probably should be section ‘‘262b’’.

liability as provided in chapter 81 of title 5, United States Code,

and chapter 71 1 of title 28, United States Code.

SEC. 710. ø16 U.S.C. 5709¿ AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated $4,000,000 for each

fiscal year for carrying out the purposes and provisions of the

Agreement and this title including—

(1) necessary travel expenses of Panel members, alternate

Panel members, United States members of the Joint Technical

Committee, and members of the Advisory Committee in accordance with Federal Travel Regulations and sections 5701, 5702,

5704 through 5708, and 5731 of title 5, United States Code;

(2) the United States share of the joint expenses of the

Panel and the Joint Technical Committee: Provided, That

Panel members and alternate Panel members shall not, with

respect to commitments concerning the United States share of

the joint expenses, be subject to section 262(b) 2 of title 22,

United States Code, insofar as it limits the authority of United

States representatives to international organizations with respect to such commitments;

(3) not more than $3,000,000 for each fiscal year to the Department of the Interior and to the Department of Commerce

for survey, restoration, and enhancement activities related to

Yukon River salmon; and

(4) $400,000 in each of fiscal years 1996, 1997, 1998, and

1999 to be contributed to the Yukon River Restoration and Enhancement Fund and used in accordance with the

Agreement.
601

CENTRAL BERING SEA FISHERIES ENFORCEMENT ACT

OF 1992

603

1So in law. Section 211 of the Department of Commerce and Related Agencies Appropriations

Act, 1997 (as contained in section 101(a), title I of Division A of Public Law 104–208; 110 Stat.

3009–41) provides:

SEC. 211. (a) Effective 15 days after the enactment of the Sustainable Fisheries Act, section

1 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801) shall be amended to read as follows: ‘‘That this Act may be cited as the ‘Magnuson-Stevens Fishery Conservation and Management Act’.’’

(b) Effective 15 days after the enactment of the Sustainable Fisheries Act, all references to

the Magnuson Fishery Conservation and Management Act shall be redesignated as references

to the Magnuson-Stevens Fishery Conservation and Management Act.

Since such section did not actually amend each occurrence of the short title in law, the former

short title appears here.

CENTRAL BERING SEA FISHERIES ENFORCEMENT ACT

OF 1992

[Title III of Public Law 102–582, Approved Nov. 2, 1992, 106 Stat. 4900]

TITLE III—FISHERIES ENFORCEMENT IN CENTRAL BERING

SEA

SEC. 301. ø16 U.S.C. 1823 note¿ SHORT TITLE.

This title may be cited as the ‘‘Central Bering Sea Fisheries

Enforcement Act of 1992’’.

SEC. 302. ø16 U.S.C. 1823 note¿ PROHIBITION APPLICABLE TO UNITED

STATES VESSELS AND NATIONALS.

(a) PROHIBITION.—Vessels and nationals of the United States

are prohibited from conducting fishing operations in the Central

Bering Sea and the Central Sea of Okhotsk, except where such

fishing operations are conducted in accordance with an international fishery agreement to which the United States and the

Russian Federation are parties.

(b) CIVIL PENALTIES AND PERMIT SANCTIONS.—A violation of

this section shall be subject to civil penalties and permit sanctions

under section 308 of the Magnuson Fishery Conservation and Management Act 1 (16 U.S.C. 1858).

SEC. 303. ø16 U.S.C. 1823 note¿ PORT PRIVILEGES DENIAL FOR FISHING

IN CENTRAL BERING SEA.

(a) DENIAL OF PORT PRIVILEGES.—The Secretary of the Treasury shall, after December 31, 1992, in accordance with recognized

principles of international law—

(1) withhold or revoke the clearance required by section

4197 of the Revised Statutes of the United States (46 App.

U.S.C. 91) for any fishing vessel documented under the laws of

a nation that is included on a list published under subsection

(b); and

(2) deny entry of such fishing vessel to any place in the

United States and to the navigable waters of the United

States.
Sec. 304 CENTRAL BERING SEA FISHERIES ENFORCEMENT ACT OF 1992 604

1See footnote to section 302(b).

(b) PUBLICATION OF LIST.—Not later than forty-five days after

the date of enactment of this Act, the Secretary of Commerce, in

consultation with the Secretary of State and the Secretary of the

department in which the Coast Guard is operating, shall publish

in the Federal Register a list of nations whose nationals or vessels

conduct fishing operations in the Central Bering Sea, except where

such fishing operations are in accordance with an international

fishery agreement to which the United States and the Russian Federation are parties. The Secretary shall publish as an addendum to

the list the name of each vessel documented under the laws of each

listed nation which conducts fishing operations in the Central Bering Sea. A revised list shall be published whenever the list is no

longer accurate, except that a nation may not be removed from the

list unless—

(1) the nationals and vessels of that nation have not conducted fishing operations in the Central Bering Sea for the

previous ninety days and the nation has committed, through a

bilateral agreement with the United States or in any other

manner acceptable to the Secretary of Commerce, not to permit

its nationals or vessels to resume such fishing operations; or

(2) the nationals and vessels of that nation are conducting

fishing operations in the Central Bering Sea that are in accordance with an international fishery agreement to which the

United States and the Russian Federation are parties.

(c) NOTIFICATION OF NATION.—Before the publication of a list

of nations under subsection (b), the Secretary of State shall notify

each nation included on that list and explain the requirement to

deny the port privileges of fishing vessels of that nation under subsection (a) as a result of such publication.

SEC. 304. ø16 U.S.C. 1823 note¿ DURATION OF PORT PRIVILEGES DENIAL.

Any denial of port privileges under section 303 with respect to

any fishing vessel of a nation shall remain in effect until such nation is no longer listed under section 303(b).

SEC. 305. ø16 U.S.C. 1823 note¿ RESTRICTION ON FISHING IN UNITED

STATES EXCLUSIVE ECONOMIC ZONE.

(a) REGULATIONS.—Within one hundred and eighty days after

the date of enactment of this Act, after notice and public comment,

the Secretary of Commerce shall issue regulations, under the Magnuson Fishery Conservation and Management Act 1 (16 U.S.C. 1801

et seq.) and any other applicable law, to prohibit—

(1) any permitted fishing vessel from catching, taking, or

harvesting fish in a fishery under the geographical authority

of the North Pacific Fishery Management Council if such vessel is owned or controlled by any person that also owns or controls a fishing vessel that is listed on the addendum under section 303(b);

(2) any processing facility from receiving any fish caught,

taken, or harvested in a fishery under the geographical authority of the North Pacific Fishery Management Council if such

facility is owned or controlled by any person that also owns or

controls a fishing vessel that is listed on the addendum under

section 303(b); and
605 CENTRAL BERING SEA FISHERIES ENFORCEMENT ACT OF 1992 Sec. 306

(3) any permitted fishing vessel from delivering fish

caught, taken, or harvested in a fishery under the geographic

authority of the North Pacific Fishery Management Council to

a processing facility that is owned or controlled by any person

that also owns or controls a fishing vessel that is listed on the

addendum under section 303(b).

(b) REQUIREMENT FOR SUBMISSION OF DOCUMENTS.—The Secretary of Commerce shall require under any regulations issued

under subsection (a) the submission of any affidavits, financial

statements, corporate agreements, and other documents that the

Secretary of Commerce determines, after notice and public comment, are necessary to ensure that all vessels and processing facilities are in compliance with this section.

(c) APPEALS; DURATION OF PROHIBITIONS.—The regulations

issued under subsection (a) shall—

(1) establish procedures for a person to appeal a decision

to impose a prohibition under subsection (a) on a vessel or

processing facility owned or controlled by that person; and

(2) specify procedures for the removal of any prohibition

imposed on a vessel or processing facility under subsection

(a)—

(A) upon publication of a revised list under section

303(b), and a revised addendum which does not include a

fishing vessel owned or controlled by the person who also

owns or controls the vessel or facility to which the prohibition applies; or

(B) on the date that is ninety days after such person

terminates ownership and control in fishing vessels that

are listed on the addendum under section 303(b).

SEC. 306. ø16 U.S.C. 1823 note¿ DEFINITIONS.

In this title, the following definitions apply:

(1) CENTRAL BERING SEA.—The term ‘‘Central Bering Sea’’

means the central Bering Sea area which is more than two

hundred nautical miles seaward of the baselines from which

the breadth of the territorial seas of the United States and the

Russian Federation are measured.

(2) CENTRAL SEA OF OKHOTSK.—The term ‘‘Central Sea of

Okhotsk’’ means the Central Sea of Okhotsk area which is

more than two hundred nautical miles seaward of the baseline

from which the breadth of the territorial sea of the Russian

Federation is measured.

(3) FISHING VESSEL.—The term ‘‘fishing vessel’’ means any

vessel which is used for—

(A) catching, taking, or harvesting fish; or

(B) aiding or assisting one or more vessels at sea in

the performance of fishing operations, including preparation, supply, storage, refrigeration, transportation, or processing.

(4) OWNS OR CONTROLS.—When used in reference to a vessel or processing facility—

(A) the term ‘‘owns’’ means holding legal title to the

vessel or processing facility; and

(B) the term ‘‘controls’’ includes an absolute right to

direct the business of the person owning the vessel or proc-
Sec. 307 CENTRAL BERING SEA FISHERIES ENFORCEMENT ACT OF 1992 606

1See footnote to section 302(b).

essing facility, to limit the actions of or replace the chief

executive officer (by whatever title), a majority of the

board of directors, or any general partner (as applicable) of

such person, to direct the transfer or operations of the vessel or processing facility, or otherwise to exercise authority

over the business of such person, but the term does not include the right simply to participate in those activities of

such person or the right to receive a financial return, such

as interest or the equivalent of interest, on a loan or other

financing obligation.

(5) PERMITTED FISHING VESSEL.—The term ‘‘permitted fishing vessel’’ means any fishing vessel that is subject to a permit

issued by the Secretary of Commerce under the Magnuson

Fishery Conservation and Management Act 1 (16 U.S.C. 1801

et seq.).

(6) PERSON.—The term ‘‘person’’ means any individual

(whether or not a citizen of the United States), any corporation, partnership, association, cooperative, or other entity

(whether or not organized under the laws of any State), and

any State, local, or foreign government, or any entity of such

government or the Federal Government.

(7) PROCESSING FACILITY.—The term ‘‘processing facility’’

means any fish processing establishment or fish processing

vessel that receives unprocessed fish.

SEC. 307. ø16 U.S.C. 1823 note¿ TERMINATION.

This title shall cease to have force and effect after the date

that is seven years after the date of enactment of this Act, except

that any proceeding with respect to violations of section 302 occurring prior to such termination date shall be conducted as if that

section were still in effect.
607

GREAT LAKES FISHERY ACT OF 1956

609

1So in law. Probably should be followed by ‘‘a’’.

GREAT LAKES FISHERY ACT OF 1956

[Chapter 358, Approved June 4, 1956, 70 Stat. 242]

[Amended through Public Law 106–562, Dec. 23, 2000]

AN ACT To give effect to the Convention on Great Lakes Fisheries signed at

Washington September 10, 1954, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That ø16 U.S.C.

931 note¿ this Act may be cited as the ‘‘Great Lakes Fishery Act

of 1956.’’

SEC. 2. ø16 U.S.C. 931¿ As used in this Act, the term—

(a) ‘‘Convention’’ means the Convention on Great Lakes Fisheries between the United States of America and Canada signed at

Washington September 10, 1954;

(b) ‘‘Commission’’ means the Great Lakes Fishery Commission

provided for by article II of the convention;

(c) ‘‘United States Section’’ means the United States Commissioners on the Commission;

(d) ‘‘Great Lakes State’’ means any of the following States: Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, or Wisconsin;

(e) ‘‘Great Lakes’’ means any of the following bodies of water:

Lake Ontario (including the Saint Lawrence River from Lake Ontario to the forty-fifth parallel of latitude), Lake Erie, Lake Huron

(including Lake Saint Clair), Lake Michigan, or Lake Superior.

SEC. 3. ø16 U.S.C. 932¿ (a)(1) The United States shall be represented on the Commission by 4 Commissioners who shall be appointed by the President and who may not receive compensation for

service as Commissioners. Of the Commissioners—

(A) 1 shall be an official of the United States Government;

and

(B) 3 shall be individuals who reside in different Great

Lakes States and who are knowledgeable regarding the fisheries of the Great Lakes, except that 1 of them must also be

an official of 1 Great Lakes State.

(2) The President shall appoint an alternate Commissioner

who shall perform the duties of a Commissioner—

(A) until a vacancy referred to in subsection (b)(3) is filled;

and

(B) in the event of the absence of a Commissioner from

any meeting of the United States Section or the Commission.

(3) Individuals serving as such Commissioners shall not be considered to be Federal employees while performing such service, except for purposes of injury compensation or tort claims liability as
Sec. 4 GREAT LAKES FISHERY ACT OF 1956 610

provided in chapter 81 of title 5, United States Code, and chapter

171 of title 28, United States Code.

(b)(1) Except as provided in paragraph (2), the term of office

of Commissioners appointed under subsection (a)(1)(B) is 6 years.

(2) Of the Commissioners first appointed under subsection

(a)(1)(B) after the date of the enactment of this subsection, 1 shall

be appointed for a term of 2 years, 1 shall be appointed for a term

of 4 years, and 1 shall be appointed for a term of 6 years.

(3) Whenever a vacancy occurs among Commissioners appointed under subsection (a)(1)(B), the President shall appoint an

individual to fill that vacancy for the remainder of the applicable

term.

SEC. 4. ø16 U.S.C. 933¿ (a) The United States Section shall appoint an advisory committee for each of the Great Lakes, upon

which committee each State bordering on the lake may be represented by not more than four members. In making such appointments, the United States Section shall make its selection for each

State from a list proposed by the Governor of that State; and shall

give due consideration to the interests of—

(1) State agencies having jurisdiction over fisheries;

(2) the commercial fishing industry of the lake;

(3) the sports fishing of the lake; and

(4) the public at large. (b) A member of the advisory committee for one lake may also

be a member of the advisory committee for one or more other lakes.

(c) The members of the advisory committees shall receive no

compensation from the Government of the United States for their

services as such members. Not more than five members of all the

committees, designated by the committees and approved by the

United States Section, may be paid by the Government of the

United States for transportation expenses and per diem incident to

attendance at each meeting of the Commission or of the United

States Section.

(d) The members of the advisory committee for each lake shall

be invited to attend all nonexecutive meetings of the United States

Section relating to that lake and at such meetings shall be granted

opportunity to examine and be heard on all proposed recommendations, programs, and activities relating to that lake.

øSection 5 was repealed by section 203(a) of Public Law 92–

471, 86 Stat. 787¿

SEC. 6. ø16 U.S.C. 935¿ In order to carry out the obligations

of the United States under the Convention, the United States Section is authorized—

(a) to acquire any real property, or any interest therein, by

purchase, exchange, gift, dedication, condemnation, or otherwise;

(b) to construct, operate, and maintain any project or

works designed to facilitate compliance with the provisions of

the Convention relating to the sea lamprey control program;

and

(c) to enter into contract or agreement with any State or

other public agency or private agency or individual for the construction, operation, or maintenance of any such project or

works.
611 GREAT LAKES FISHERY ACT OF 1956 Sec. 14

1So in law. Probably should be ‘‘those’’.

SEC. 7. ø16 U.S.C. 936¿ The Secretary of the Interior is authorized, upon the request of the United States Section—

(a) to transfer to the United States Section any lamprey

control project or works under his jurisdiction now existing or

now under construction; and

(b) to act for or on behalf of the United States Section in

the exercise of the powers granted by this Act.

SEC. 8. ø16 U.S.C. 937¿ The United States Section shall, for

the purposes of these 1 provisions of title 28, U.S.C., Judiciary and

Judicial Procedure, relating to claims against the United States

and tort claims procedure, be deemed to be an agency of the United

States.

SEC. 9. ø16 U.S.C. 938¿ At least thirty days before approving

a proposal to utilize a lamprey control measure or install a device

in any stream, the United States Section shall cause notice of such

proposal to be sent to the official agency having jurisdiction over

fisheries in each of the States through which the stream flows.

SEC. 10. ø16 U.S.C. 939¿ The Secretary of State shall upon the

receipt from the Commission of any recommendation of a conservation measure made in accordance with article IV of the Convention

transmit a copy of the recommendation with his comments thereon

to the Governor of each Great Lakes State for consideration and

such action as may be found to be appropriate. The Secretary of

State shall also inform such other public agencies as he may deem

appropriate.

SEC. 11. ø16 U.S.C. 939a¿ Any agency of the United States

Government is authorized to cooperate with the United States Section in the conduct of research programs and related activities and,

on a reimbursable or other basis, to enter into agreements with the

United States Section for the purpose of assisting it in carrying out

the program for the control of lamprey populations.

SEC. 12. ø16 U.S.C. 939b¿ Nothing in this Act shall be construed as preventing any of the Great Lakes States from making

or enforcing laws or regulations within their respective jurisdictions so far as such laws or regulations do not conflict with the

Convention or this Act.

SEC. 13. ø16 U.S.C. 939c¿ There is hereby authorized to be appropriated from time to time such sums as may be necessary for

carrying out the purposes and provisions of the Convention and

this Act.

SEC. 14. ø16 U.S.C. 931 note¿ If any provision of this Act or

the application of such provision to any circumstances or persons

shall be held invalid, the validity of the remainder of the Act and

the applicability of such provision to other circumstances or persons shall not be affected thereby.

613

ATLANTIC MARINE LIVING RESOURCES CONVENTION

615

ANTARCTIC MARINE LIVING RESOURCES CONVENTION

ACT OF 1984

[Title III of Public Law 98–623, Approved Nov. 8, 1984, 98 Stat. 3398]

[Amended through Public Law 98–623, Nov. 8, 1984]

AN ACT To approve governing international fishery agreements with Iceland and

the EEC; to establish national standards for artificial reefs; to implement the Convention on the Conservation of Antarctic Marine Living Resources; and for other

purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

* * * * * * *

TITLE III—ANTARCTIC MARINE LIVING RESOURCES

CONVENTION

SEC. 301. ø16 U.S.C. 2431 note¿ SHORT TITLE.

This title may be cited as the ‘‘Antarctic Marine Living Resources Convention Act of 1984’’.

SEC. 302. ø16 U.S.C. 2431¿ FINDINGS AND PURPOSE.

(a) FINDINGS.—The Congress finds that—

(1) the Convention on the Conservation of Antarctic Marine Living Resources establishes international mechanisms

and creates legal obligations necessary for the protection and

conservation of Antarctic marine living resources;

(2) the Convention incorporates an innovative ecosystem

approach to the management of Antarctic marine living resources, including standards designed to ensure the health of

the individual populations and species and to maintain the

health of the Antarctic marine ecosystem as a whole;

(3) the Convention serves important United States environmental and resource management interests;

(4) the Convention represents an important contribution to

United States long term legal and political objectives of maintenance of Antarctica as an area of peaceful international cooperation;

(5) United States basic and directed research programs

concerning the marine living resources of the Antarctic are essential to achieve the United States goal of effective implementation of the objectives of the Convention; and

(6) the United States has important security, economic,

and environmental interests in developing and maintaining a

fleet of icebreaking vessels capable of operating effectively in

the heavy ice regions of Antarctica.

(b) PURPOSE.—The purpose of this title is to provide the legislative authority necessary to implement, with respect to the United
Sec. 303 ANTARCTIC MARINE LIVING RESOURCES CONVENTION 616

1So in original. Probably should be a comma.

States, the Convention on the Conservation of Antarctic Marine

Living Resources.

SEC. 303. ø16 U.S.C. 2432¿ DEFINITIONS.

For purposes of this title—

(1) ANTARCTIC CONVERGENCE.—The term ‘‘Antarctic Convergence’’ means a line joining the following points along the

parallels of latitude and meridians of longitude: 50 degrees

south, 0 degrees; 50 degrees south, 30 degrees east; 45 degrees

south, 30 degrees east; 45 degrees south, 80 degrees east; 55

degrees south, 80 degrees east; 55 degrees south, 150 degrees

east; 60 degrees south, 150 degrees east; 60 degrees south; 1 50

degrees west; 50 degrees south, 50 degrees west; and 50 degrees south, 0 degrees.

(2) ANTARCTIC MARINE LIVING RESOURCES.—The term ‘‘Antarctic marine living resources’’ means the population of finfish,

molluscs, crustaceans and all other species of living organisms,

including birds, found south of the Antarctic Convergence.

(3) COMMISSION.—The term ‘‘Commission’’ means the Commission for the Conservation of Antarctic Marine Living Resources established pursuant to article VII of the Convention.

(4) CONVENTION.—The term ‘‘Convention’’ means the Convention on the Conservation of Antarctic Marine Living Resources, done at Canberra, Australia, May 7, 1980, and entered

into force with respect to the United States on April 7, 1982.

(5) HARVESTING OR OTHER ASSOCIATED ACTIVITIES.—The

terms ‘‘harvesting’’ and ‘‘harvesting or other associated activities’’ mean—

(A) the harassing, molesting, harming, pursuing, hunting, shooting, wounding, killing, trapping, or capturing of

Antarctic marine living resources;

(B) attempting to engage in any activity set forth in

subparagraph (A);

(C) any other activity which can reasonably be expected to result in any activity described in subparagraph

(A); and

(D) any operations at sea in support of, or in preparation for, any activity described in subparagraphs (A)

through (C).

(6) HARVEST.—The term ‘‘harvest’’ means to engage in harvesting or other associated activities.

(7) IMPORT.—The term ‘‘import’’ means to land on, bring

into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United

States, whether or not such landing constitutes an importation

within the meaning of the customs laws of the United States.

(8) PERSON.—The term ‘‘person’’ means an individual, partnership, corporation, trust, association, and any other entity

subject to the jurisdiction of the United States.

(9) SCIENTIFIC COMMITTEE.—The term ‘‘Scientific Committee’’ means the Scientific Committee for the Conservation of

Antarctic Marine Living Resources established pursuant to article XIV of the Convention.
617 ANTARCTIC MARINE LIVING RESOURCES CONVENTION Sec. 305

(10) VESSEL OF THE UNITED STATES.—The term ‘‘vessel of

the United States’’ means—

(A) a vessel documented under chapter 121 of title 46,

United States Code, or a vessel numbered as provided in

chapter 123 of that title;

(B) a vessel owned in whole or in part by—

(i) the United States or a territory, commonwealth, or possession of the United States;

(ii) a State or political subdivision thereof;

(iii) a citizen or national of the United States; or

(iv) a corporation created under the laws of the

United States or any State, the District of Columbia,

or any territory, commonwealth, or possession of the

United States;

unless the vessel has been granted the nationality of a foreign nation in accordance with Article 5 of the 1958 Convention on the High Seas; and

(C) a vessel that was once documented under the laws

of the United States and, in violation of the laws of the

United States, was either sold to a person not a citizen of

the United States or placed under foreign registry or a foreign flag, whether or not the vessel has been granted the

nationality of a foreign nation in accordance with Article

5 of the 1958 Convention on the High Seas.

(11) VESSEL SUBJECT TO THE JURISDICTION OF THE UNITED

STATES.—The term ‘‘vessel subject to the jurisdiction of the

United States’’ includes a vessel without nationality or a vessel

assimilated to a vessel without nationality, in accordance with

paragraph (2) of Article 6 of the 1958 Convention on the High

Seas.

SEC. 304. ø16 U.S.C. 2433¿ REPRESENTATIVES.

(a) REPRESENTATIVE TO THE COMMISSION.—The Secretary of

State, with the concurrence of the Secretary of Commerce and the

Director of the National Science Foundation, shall appoint an officer or employee of the United States as the United States representative to the Commission.

(b) REPRESENTATIVE TO THE SCIENTIFIC COMMITTEE.—The Secretary of Commerce and the Director of the National Science Foundation, with the concurrence of the Secretary of State, shall designate the United States representative to the Scientific Committee.

(c) COMPENSATION.—The United States representatives to the

Commission and the Scientific Committee shall receive no additional compensation by reason of their services as such representatives.

SEC. 305. ø16 U.S.C. 2434¿ CONSERVATION MEASURES; SYSTEM OF OBSERVATION AND INSPECTION.

(a) CONSERVATION MEASURES.—(1) The Secretary of State, with

the concurrence of the Secretary of Commerce and the Director of

the National Science Foundation, is authorized—

(A) to decide on behalf of the United States whether

the United States is unable to accept or can no longer accept a conservation measure adopted by the Commission

pursuant to article IX of the Convention, and
Sec. 306 ANTARCTIC MARINE LIVING RESOURCES CONVENTION 618

(B) to notify the Commission of any such decision in

accordance with article IX of the Convention.

(2) The Secretary of State shall—

(A) publish in the Federal Register, if practicable,

timely notice of each proposed decision under paragraph

(1) and invite written public comment regarding it; and

(B) publish in the Federal Register notice of each notification made to the Commission under paragraph (1).

(b) SYSTEM OF OBSERVATION AND INSPECTION.—The Secretary

of State, with the concurrence of the Secretary of Commerce, the

Director of the National Science Foundation and the Secretary of

the department in which the Coast Guard is operating, is authorized to agree on behalf of the United States to the establishment

of a system of observation and inspection, and to interim arrangements pending establishment of such a system, pursuant to article

XXIV of the Convention.

(c) COMMUNICATIONS FROM THE COMMISSION.—The Secretary

of State is further authorized to receive, on behalf of the United

States Government, reports, requests, and other communications

from the Commission and to take appropriate action on them, either directly or by reference to the appropriate authority.

SEC. 306. ø16 U.S.C. 2435¿ UNLAWFUL ACTIVITIES.

It is unlawful for any person—

(1) to engage in harvesting or other associated activities in

violation of the provisions of the Convention or in violation of

a conservation measure in force with respect to the United

States pursuant to article IX of the Convention;

(2) to violate any regulation promulgated under this title;

(3) to ship, transport, offer for sale, sell, purchase, import,

export, or have custody, control or possession of, any Antarctic

marine living resource (or part or product thereof) which he

knows, or reasonably should have known, was harvested in

violation of a conservation measure in force with respect to the

United States pursuant to article IX of the Convention or in

violation of any regulation promulgated under this title, without regard to the citizenship of the person that harvested, or

vessel that was used in the harvesting of, the Antarctic marine

living resource (or part or product thereof);

(4) to refuse to permit any authorized officer or employee

of the United States to board a vessel of the United States or

a vessel subject to the jurisdiction of the United States for purposes of conducting any search or inspection in connection with

the enforcement of the Convention, this title, or any regulations promulgated under this title;

(5) to assault, resist, oppose, impede, intimidate, or interfere with any authorized officer or employee of the United

States in the conduct of any search or inspection described in

paragraph (4);

(6) to resist a lawful arrest or detention for any act prohibited by this section; or

(7) to interfere with, delay, or prevent, by any means, the

apprehension, arrest, or detention of another person, knowing

that such other person has committed any act prohibited by

this section.
619 ANTARCTIC MARINE LIVING RESOURCES CONVENTION Sec. 308

SEC. 307. ø16 U.S.C. 2436¿ REGULATIONS.

The Secretary of Commerce, after consultation with the Secretary of State, the Secretary of the department in which the Coast

Guard is operating, and the heads of other appropriate departments or agencies of the United States, shall promulgate such regulations as are necessary and appropriate to implement the provisions of this title.

SEC. 308. ø16 U.S.C. 2437¿ CIVIL PENALTIES.

(a) ASSESSMENT OF PENALTIES.—(1) Any person who is found

by the Secretary of Commerce, after notice and opportunity for a

hearing in accordance with subsection (b), to have committed any

act prohibited by section 306 shall be liable to the United States

for a civil penalty. The amount of the civil penalty shall not exceed

$5,000 for each violation unless the prohibited act was knowingly

committed, in which case the amount of the civil penalty shall not

exceed $10,000 for each violation. Each day of a continuing violation shall constitute a separate violation for purposes of this subsection. The amount of any civil penalty shall be assessed by the

Secretary of Commerce by written notice. In determining the

amount of such penalty, the Secretary of Commerce shall take into

account the nature, circumstances, extent, and gravity of the prohibited acts committed, and, with respect to the person committing

the violation, the degree of culpability, any history of prior offenses,

ability to pay, and such other matters as justice may require, to the

extent that such information is reasonably available to the Secretary.

(2) The Secretary of Commerce may compromise, modify, or

remit, with or without conditions, any civil penalty which is subject

to imposition or which has been imposed under this section, until

such time as the matter is referred to the Attorney General under

subsection (c) of this section.

(b) HEARINGS.—Hearings for the assessment of civil penalties

under subsection (a) shall be conducted in accordance with section

554 of title 5, United States Code. For the purposes of conducting

any such hearing, the Secretary of Commerce may issue subpoenas

for the attendance and testimony of witnesses and the production

of relevant papers, books, and documents, and may administer

oaths. Witnesses summoned shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States.

In case of contumacy or refusal to obey a subpoena served upon

any person pursuant to this subsection, the district court of the

United States for any district in which such person is found, resides, or transacts business, upon application by the Attorney General of the United States and after notice to such person, shall

have jurisdiction to issue an order requiring such person to appear

and give testimony before the Secretary of Commerce or to appear

and produce documents before the Secretary of Commerce, or both,

and any failure to obey such order of the court may be punished

by such court as a contempt thereof.

(c) REVIEW OF CIVIL PENALTY.—Any person against whom a

civil penalty is assessed under subsection (a) of this section may

obtain review thereof in the appropriate district court of the United

States by filing a notice of appeal in such court within 30 days

from the date of such order and by simultaneously sending a copy

of such notice by certified mail to the Secretary of Commerce, the
Sec. 309 ANTARCTIC MARINE LIVING RESOURCES CONVENTION 620

Attorney General, and the appropriate United States Attorney. The

Secretary of Commerce shall promptly refer the matter to the Attorney General of the United States, who shall file in such court

a certified copy of the record upon which the violation was found

or such penalty imposed, as provided in section 2112 of title 28,

United States Code. The court shall set aside the findings and

order of the Secretary if the findings and order are found to be unsupported by substantial evidence, as provided in section 706(2)(E)

of title 5, United States Code.

(d) RECOVERY OF CIVIL PENALTIES.—The Attorney General of

the United States may seek to recover in any appropriate district

court of the United States (1) any civil penalty imposed under this

section that has become a final and unappealable order and has

been referred to the Attorney General by the Secretary of Commerce or (2) any final judgment rendered under this section in

favor of the United States by an appropriate Court.

(e) PENALTIES UNDER OTHER LAWS.—The assessment of a civil

penalty under subsection (a) for any act shall not be deemed to preclude the assessment of a civil penalty for such act under any other

law.

SEC. 309. ø16 U.S.C. 2438¿ CRIMINAL OFFENSES.

(a) OFFENSES.—A person is guilty of an offense if that person

commits any act prohibited by paragraph (4), (5), (6), or (7) of section 306.

(b) PUNISHMENT.—Any offense described in subsection (a) is

punishable by a fine of $50,000, or imprisonment for not more than

ten years, or both.

(c) OFFENSES UNDER OTHER LAWS.—A conviction under subsection (a) for any act shall not be deemed to preclude a conviction

for such act under any other law.

SEC. 310. ø16 U.S.C. 2439¿ ENFORCEMENT.

(a) RESPONSIBILITY.—The provisions of this title shall be enforced by the Secretary of Commerce and the Secretary of the department in which the Coast Guard is operating. Such Secretaries

may utilize by agreement, on a reimbursable basis or otherwise,

the personnel, services, and facilities of any other department or

agency of the United States in the performance of such duties.

(b) POWERS OF AUTHORIZED OFFICERS AND EMPLOYEES.—Any

officer or employee of the United States who is authorized (by the

Secretary of Commerce, the Secretary of the department in which

the Coast Guard is operating, or the head of any department or

agency of the United States which has entered into an agreement

with either Secretary under subsection (a)) to enforce the provisions of this title and of any regulation promulgated under this

title may, in enforcing such provisions—

(1) secure, execute, and serve any order, warrant, subpoena, or other process, which is issued under the authority of

the United States;

(2) search without warrant any person, place, vehicle or

aircraft subject to the jurisdiction of the United States where

there are reasonable grounds to believe that a person has committed or is attempting to commit an act prohibited by section

306;
621 ANTARCTIC MARINE LIVING RESOURCES CONVENTION Sec. 310

1So in original. Probably should be ‘‘or’’.

(3) with or without a warrant board and search or inspect

any vessel of the United States or vessel subject to the jurisdiction of the United States;

(4) seize without warrant—

(A) any evidentiary item where there are reasonable

grounds to believe that a person has committed or is attempting to commit an act prohibited by section 306,

(B) any Antarctic marine living resources (or part of 1

product thereof) with respect to which such an act is committed,

(C) any vessel of the United States (including its gear,

furniture, appurtenances, stores, and cargo), any vessel

subject to the jurisdiction of the United States (including

its gear, furniture, appurtenances, stores, and cargo), and

any vehicle, aircraft, or other means of transportation subject to the jurisdiction of the United States used in connection with such an act, and

(D) any guns, traps, nets, or equipment used in connection with such an act;

(5) offer and pay rewards for services or information which

may lead to the apprehension of persons violating such provisions;

(6) make inquiries, and administer to, or take from, any

person an oath, affirmation, or affidavit, concerning any matter

which is related to the enforcement of such provisions;

(7) in coordination with the Secretary of the Treasury, detain for inspection and inspect any package, crate, or other

container, including its contents, and all accompanying documents, upon importation into, or exportation from, the United

States;

(8) make an arrest with or without a warrant with respect

to any act prohibited by paragraph (4), (5), (6), or (7) of section

306 if such officer or employee has reasonable grounds to believe that the person to be arrested is committing such act in

his or her presence or view or has committed such act;

(9) exercise enforcement powers conferred on such officer

or employee under a system of observation and inspection, or

interim arrangements pending the establishment of such a system, which the Secretary of State has agreed to on behalf of

the United States pursuant to section 305(b); and

(10) exercise any other authority which such officer or employee is permitted by law to exercise.

(c) SEIZURE.—Subject to the succeeding provisions of this subsection, any property or item seized pursuant to subsection (b)

shall be held by any officer or employee of the United States, who

is authorized by the Secretary of Commerce or the Secretary of the

department in which the Coast Guard is operating, pending the

disposition of civil or criminal proceedings concerning the violation

relating to the property or item, or the institution of an action in

rem for the forfeiture of such property or item. Such authorized officer or employee may, upon the order of a court of competent jurisdiction, either release such seized property or item to the wild or

destroy such property or item, when the cost of maintenance of the
Sec. 311 ANTARCTIC MARINE LIVING RESOURCES CONVENTION 622

property or item pending the disposition of the case is greater than

the legitimate market value of the property or item. Such authorized officer or employee and all officers or employees acting by or

under his or her direction shall be indemnified from any penalties

or actions for damages for so releasing or destroying such property

or item. Such authorized officer or employee may, in lieu of holding

such property or item, permit the owner or consignee thereof to

post a bond or other satisfactory surety.

(d) FORFEITURE.—(1) Any Antarctic marine living resource (or

part or product thereof) with respect to which an act prohibited by

section 306 is committed, any vessel of the United States (including

its gear, furniture, appurtenances, stoves, and cargo), vessel subject

to the jurisdiction of the United States (including its gear, furniture, appurtenances, stoves, and cargo), or vessel, vehicle, or aircraft or other means of transportation subject to the jurisdiction of

the United States, which is used in connection with an act prohibited by section 306, and all guns, traps, nets, and other equipment

used in connection with such act, shall be subject to forfeiture to

the United States.

(2) Upon the forfeiture to the United States of any property or

item described in paragraph (1), or upon the abandonment or waiver of any claim to any such property or item, it shall be disposed

of by the Secretary of Commerce, or the Secretary of the department in which the Coast Guard is operating, as the case may be,

in such a manner, consistent with the purposes of this title, as may

be prescribed by regulation.

(e) APPLICATION OF CUSTOMS LAWS.—All provisions of law relating to the seizure, forfeiture, and condemnation of property (including vessels) for violation of the customs laws, the disposition of

such property or the proceeds from the sale thereof, and the remission or mitigation of such forfeiture, shall apply to the seizures and

forfeitures incurred, or alleged to have been incurred, and the compromise of claims, under the provisions of this title, insofar as such

provisions of law are applicable and not inconsistent with the provisions of this title; except that all powers, rights, and duties conferred or imposed by the customs laws upon any officer or employee

of the Customs Service may, for the purposes of this title, also be

exercised or performed by the Secretary of Commerce or the Secretary of the department in which the Coast Guard is operating,

or by such officers or employees of the United States as each Secretary may designate.

SEC. 311. ø16 U.S.C. 2440¿ JURISDICTION OF COURTS.

The district courts of the United States shall have exclusive jurisdiction over any case or controversy arising under the provisions

of this title or of any regulation promulgated under this title.

SEC. 312. ø16 U.S.C. 2441¿ FEDERAL AGENCY COOPERATION.

(a) RESPONSIBILITIES.—(1) For the purpose of carrying out the

policies and objectives of the Convention or to implement any decision of the Commission—

(A) the Director of the National Science Foundation, in

consultation with the Secretary of State and the heads of other

appropriate departments and agencies of the United States,

shall continue to support basic research investigations of the
623 ANTARCTIC MARINE LIVING RESOURCES CONVENTION Sec. 312

1So in original. Probably should be ‘‘(2)’’.

Antarctic marine ecosystem as a part of the United States Antarctic Program;

(B) the Secretary of Commerce, in consultation with the

Director of the National Science Foundation, the Secretary of

State and the heads of other appropriate Federal agencies,

shall design and conduct the program of directed scientific research as set forth in paragraph 2 1 supplemental to and coordinated with the United States Antarctic Program; and

(C) the Secretary of Commerce and the Director of the National Science Foundation, in consultation with the Secretary

of State, may furnish facilities and personnel to the Commission in order to assist the Commission in carrying out its functions.

(2)(A) The Secretary of Commerce, in consultation with the

Secretary of State, the Director of the National Science Foundation,

and other appropriate Federal officials, shall prepare a plan, which

shall be updated annually, for conducting the directed research

program required under paragraph (1)(B) for each period of three

consecutive fiscal years occurring during the period beginning on

October 1, 1985, and ending on September 30, 1991. The plan

shall—

(i) describe priority directed research needs for the implementation of the Convention;

(ii) identify which of those needs are to be fulfilled by the

United States; and

(iii) specify the design of the research referred to in paragraph (1)(B) and the funds, personnel, and facilities required

for the research, including, in particular, the need for the cost

of enhanced ship capacity.

(B) In preparing the plan referred to in subparagraph (A), the

Secretary of Commerce shall take into account, in addition to any

other matters the Secretary considers appropriate, the possibilities

of securing productive results, the minimization of duplication, and

the methods for monitoring and evaluating a project.

(C) The Secretary of Commerce shall submit to the Congress

each year the plan required under subparagraph (A). That part of

the plan covering fiscal years 1986 through 1988 shall be submitted not later than October 1, 1985. That part of the plan covering each 3-fiscal-year period thereafter shall be submitted not

later than the February 1 occurring before the beginning of the

first fiscal year covered by that part of the plan.

(b) CONSULTATION WITH OTHER AGENCIES.—In carrying out

their functions under this section, the Secretary of State, the Secretary of Commerce, and the Director of the National Science Foundation shall consult, as appropriate, with the Marine Mammal

Commission and with other departments and agencies of the

United States.

(c) ICEBREAKING.—The Department of Transportation shall facilitate planning for the design, procurement, maintenance, deployment, and operation of icebreakers needed to provide a platform for

Antarctic research. All funds necessary to support icebreaking operations, except for recurring incremental costs associated with
Sec. 313 ANTARCTIC MARINE LIVING RESOURCES CONVENTION 624

specific projects, shall be allocated to the United States Coast

Guard.

SEC. 313. ø16 U.S.C. 2442¿ RELATIONSHIP TO EXISTING TREATIES AND

STATUTES.

(a) IN GENERAL.—Nothing in this Act shall be construed as

contravening or superseding (1) the provisions of any international

treaty, convention, or agreement, if such treaty, convention or

agreement is in force with respect to the United States on the date

of the enactment of this title, or (2) the provisions of any statute

which implements any such treaty, convention, or agreement.

Nothing in this title shall be construed as contravening or superseding the provisions of any statute enacted before the date of the

enactment of this title which may otherwise apply to Antarctic marine living resources.

(b) APPLICATION OF MORE RESTRICTIVE PROVISIONS.—Nothing

in this section shall be construed to prevent the application of provisions of the Convention, conservation measures adopted by the

Commission pursuant to article IX of the Convention, or regulations promulgated under this title, which are more restrictive than

the provisions of, measures adopted under, or regulations promulgated under, the treaties or statutes described in subsection (a).

SEC. 314. ø16 U.S.C. 2443¿ AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated, out of any moneys in

the Treasury not otherwise appropriated, such sums as may be necessary for carrying out the provisions of this title, including, but

not limited to—

(1) necessary travel expenses of the United States representatives referred to in section 304, alternate United States

representatives, and authorized advisers and experts, in accordance with sections 5701 through 5708, 5731, and 5733 of

title 5, United States Code, and the regulations issued under

those sections;

(2) the United States contribution to the budget of the

Commission as provided in article XIX of the Convention; and

(3) the directed research program and the furnishing of facilities and personnel to the Commission referred to in section

312.

SEC. 315. ø16 U.S.C. 2444¿ SEVERABILITY.

If any provision of this title or the application of this title to

any person or circumstance is held invalid, neither the remainder

of this title nor the application of that provision to other persons

or circumstances shall be affected thereby.
625

NATIONAL AQUACULTURE ACT OF 1980

627

NATIONAL AQUACULTURE ACT OF 1980

[Public Law 96–362, Approved Sept. 26, 1980, 94 Stat. 1198]

[Amended through Public Law 105–185, June 23, 1998]

AN ACT To provide for the development of aquaculture in the United States and

for other purposes

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That this Act may

be cited as the ‘‘National Aquaculture Act of 1980’’.

FINDINGS, PURPOSE, AND POLICY

SEC. 2. ø16 U.S.C. 2801¿ (a) FINDINGS.—Congress finds the following:

(1) The harvest of certain species of fish and shellfish exceeds levels of optimum sustainable yield, thereby making it

more difficult to meet the increasing demand for aquatic food.

(2) To satisfy the domestic market for aquatic food, the

United States imports more than 50 per centum of its fish and

shellfish, but this dependence on imports adversely affects the

national balance of payments and contributes to the uncertainty of supplies.

(3) Although aquaculture currently contributes approximately 13 percent of world seafood production, less than 6 percent of current United States seafood production results from

aquaculture. Domestic aquaculture production, therefore, has

the potential for significant growth.

(4) Aquaculture production of aquatic plants can provide

sources for food, industrial materials, pharmaceuticals, and energy, and can assist in the control and abatement of pollution.

(5) The rehabilitation and enhancement of fish and shellfish resources are desirable applications of aquaculture technology.

(6) The principal responsibility for the development of

aquaculture in the United States must rest with the private

sector.

(7) Despite its potential, the development of aquaculture in

the United States has been inhibited by many scientific, economic, legal, and production factors, such as inadequate credit,

diffused legal jurisdiction, the lack of management information, the lack of supportive Government policies, and lack of reliable supplies of seed stock.

(8) Many areas of the United States are suitable for aquaculture, but are subject to land-use or water-use management

policies that do not adequately consider the potential for aquaculture and may inhibit the development of aquaculture.
Sec. 3 NATIONAL AQUACULTURE ACT OF 1980 628

(b) PURPOSE.—It is the purpose of this Act to promote aquaculture in the United States by—

(1) declaring a national aquaculture policy;

(2) establishing and implementing a national aquaculture

development plan;

(3) establishing the Department of Agriculture as the lead

Federal agency with respect to the coordination and dissemination of national aquaculture information by designating the

Secretary of Agriculture as the permanent chairman of the coordinating group and by establishing a National Aquaculture

Information Center within the Department of Agriculture; and

(4) encouraging aquaculture activities and programs in

both the public and private sectors of the economy;

that will result in increased aquaculture production, the coordination of domestic aquaculture efforts, the conservation and enhancement of aquatic resources, the creation of new industries and job

opportunities, and other national benefits.

(c) POLICY.—Congress declares that aquaculture has the potential for reducing the United States trade deficit in fisheries products, for augmenting existing commercial and recreational fisheries

and for producing other renewable resources, thereby assisting the

United States in meeting its future food needs and contributing to

the solution of world resource problems. It is, therefore, in the national interest, and it is the national policy, to encourage the development of aquaculture in the United States.

DEFINITIONS

SEC. 3. ø16 U.S.C. 2802¿ As used in this Act, unless the context otherwise requires—

(1) The term ‘‘aquaculture’’ means the propagation and

rearing of aquatic species in controlled or selected environments, including, but not limited to, ocean ranching (except

private ocean ranching of Pacific salmon for profit in those

States where such ranching is prohibited by law).

(2) The term ‘‘aquaculture facility’’ means any land, structure, or other appurtenance that is used for aquaculture and

is located in any State. Such term includes, but is not limited

to, any laboratory, hatchery, rearing pond, raceway, pen, incubator, or other equipment used in aquaculture.

(3) The term ‘‘aquatic species’’ means any species of finfish,

mollusk, crustacean, or other aquatic invertebrate, amphibian,

reptile, or aquatic plant.

(4) The term ‘‘coordinating group’’ means the interagency

aquaculture coordinating group established by section 6.

(5) The term ‘‘person’’ means any individual who is a citizen or national of the United States or of any State, any Indian tribe, any institution of higher education, and any corporation, partnership, association or other entity (including,

but not limited to, any community development corporation,

producer cooperative, or fishermen’s cooperative) organized or

existing under the laws of any State.

(6) The term ‘‘Plan’’ means the National Aquaculture Development Plan required to be established under section 4.
629 NATIONAL AQUACULTURE ACT OF 1980 Sec. 4

1Section 238 of the American Fisheries Promotion Act (Public Law 96–561; 94 Stat. 3301)

changed (by amendment) the short title of such Act to the Magnuson Fishery Conservation and

Management Act and provided that ‘‘all references to the Fishery Conservation and Management Act of 1976 shall be redesignated as references to the Magnuson Fishery Conservation and

Management Act’’. Subsequently, section 211 of the Department of Commerce and Related Agencies Appropriations Act, 1997 (Division A, title II of P.L. 104–208; 110 Stat. 3009–41) changed

(by amendment) the short title of such Act to the Magnuson-Stevens Fishery and Conservation

and Management Act and provided that ‘‘all references to the Magnuson Fishery Conservation

and Management Act shall be redesignated as references to the Magnuson-Stevens Fishery Conservation and Management Act’’. Since neither renaming provision actually amended each occurrence of either short title in law, the former short title appears here.

(7) The term ‘‘Secretaries’’ means the Secretary of Agriculture, the Secretary of Commerce, and the Secretary of the

Interior.

(8) The term ‘‘Secretary’’ means the Secretary of Agriculture.

(9) The term ‘‘State’’ means any of the several States, the

District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands of the United States, Guam,

the Commonwealth of the Northern Mariana Islands, and the

Trust Territory of the Pacific Islands, or any other territory or

possession of the United States.

NATIONAL AQUACULTURE DEVELOPMENT PLAN

SEC. 4. ø16 U.S.C. 2803¿ (a) IN GENERAL.—(1) Within eighteen

months after the date of the enactment of this Act, the Secretaries

shall establish the National Aquaculture Development Plan.

(2) In developing the Plan, and revisions thereto under subsection (d), beginning not later than six months after the date of

enactment of this Act, the Secretary shall consult with the Secretary of Commerce and the Secretary of the Interior, other appropriate Federal officers, States, regional fishery management councils established under section 302 of the Fishery Conservation and

Management Act of 1976 (16 U.S.C. 1852), 1 and representatives of

the acquaculture industry. In addition, the Secretary shall give interested persons and organizations an opportunity to comment during the development of the Plan.

(b) CONTENTS OF PLAN.—The plan shall—

(1) identify aquatic species that the Secretaries determine

to have significant potential for culturing on a commercial or

other basis;

(2) recommend actions to be taken by the public and private sectors (which may include, but are not limited to, research and development, technical assistance, demonstration,

extension education, and training activities) that are necessary

to achieve such potential;

(3) address, after taking into account the status of aquaculture regarding the aquatic species concerned—

(A) aquaculture facility design and operation,

(B) water quality management,

(C) use of waste products (including thermal

effluents),

(D) nutrition and the development of economical feeds

including natural food sources,

(E) life history, genetics, physiology, pathology, and

disease control (including research regarding organisms
Sec. 4 NATIONAL AQUACULTURE ACT OF 1980 630

that may not be harmful to fish and shellfish, but are injurious to humans),

(F) processing and market development,

(G) production management and quality control, and

(H) the development of adequate supplies of seed

stock;

(4) include, where appropriate, research programs on the

effect of aquaculture on estuarine and other water areas and

on the management of such areas for aquaculture;

(5) include, where appropriate, programs to analyze, and

formulate proposed resolutions of, the legal or regulatory constraints that may affect aquaculture; and

(6) include such other research and development, technical

assistance, demonstration, extension education, and training

programs as the Secretary deems necessary or appropriate to

carry out this Act.

In formulating the Plan, the Secretary shall, to the extent practicable, take into account any significant action that (i) has been,

or is proposed to be, undertaken by any other Federal department

or agency, any State agency, or any person, and (ii) may affect the

implementation of the Plan.

(c) ACTIONS AND IMPLEMENTATION.—The Plan shall specify—

(1) with respect to those actions that the Secretary determines should be undertaken, the period of time within which

each such action should be completed, in order to implement

the Plan; and

(2) with respect to each such action which of the Secretaries, acting individually, jointly, or collectively, has the responsibility for implementing the action.

The specifications of Secretarial responsibilities under paragraph

(2) for implementing actions shall be determined on the basis of—

(A) the responsibilities conferred on the respective Secretaries by law or by any executive action having the effect of

law (including, but not limited to, Reorganization Plan Numbered 4 of 1970);

(B) the experience, expertise, and other appropriate resources that the department of each such Secretary may have

with respect to the action required under the activity concerned; and

(C) the concurrence of the Secretaries.

(d) REVISION OF PLAN.—The Secretaries shall undertake periodic reviews of the operation and effectiveness of the Plan. If as a

result of any such review, or the aquaculture assessment required

under subsection (e), the Secretaries determine that—

(1) any aquatic species not currently identified in the Plan

has significant potential for aquaculture;

(2) any action specified in the Plan is not being accomplished on a successful and timely basis; or

(3) any action specified in the Plan should be terminated

because its objectives have been achieved or its projected benefits do not warrant further support;

the Secretaries shall appropriately amend the Plan.

(e) CONTINUING AQUACULTURE ASSESSMENT.—The Secretaries,

through the coordinating group, shall undertake a continuing as-
631 NATIONAL AQUACULTURE ACT OF 1980 Sec. 5

1See footnote 1 to section 4(a)(2).

sessment of aquaculture in the United States for the purpose of

maintaining, on a continuing basis—

(1) a complete profile of the aquacultural industry with respect to the incidence, size, and status of commercial

aquacultural enterprises;

(2) the identification of the private and public institutions

and organizations involved in aquacultural research, extension,

credit, and market development;

(3) the identification of the various aquatic species being

cultured and a description of the status of commercial development of each of those species;

(4) to the extent practicable, the identification of

aquacultural production regions, species, and markets that

have significant potential for development;

(5) a catalog describing all Federal programs and activities

that directly or indirectly encourage, support, or assist aquaculture; and

(6) the identification of the economic, physical, legal, institutional, and social constraints that inhibit the development of

aquaculture in the United States.

FUNCTIONS AND POWERS OF SECRETARIES

SEC. 5. ø16 U.S.C. 2804¿ (a) MANDATORY FUNCTIONS.—In implementing the Plan, the Secretaries shall—

(1) provide advisory, educational, and technical assistance

(including training) with respect to aquaculture to interested

persons, and in providing such assistance, shall, to the maximum extent practicable, avoid duplication of similar assistance provided by other Federal departments and agencies and

by State agencies;

(2) consult and cooperate with interested persons, Federal

departments and agencies, State agencies, and regional fishery

management councils, established under section 302 of the

Fishery Conservation and Management Act of 1976 1 (16

U.S.C. 1852);

(3) encourage the implementation of aquaculture technology in the rehabilitation and enhancement of publicly

owned fish and shellfish stocks (including rehabilitation and

enhancement by private commercial aquacultural enterprises;

and

(4) prescribe such regulations as may be necessary to carry

out the Plan.

(b) DISCRETIONARY FUNCTIONS.—In implementing the Plan, the

Secretaries may—

(1) for the purposes of assessing the biological, technical,

and economic feasibility of any aquaculture system—

(A) conduct tests of the system, and, if necessary to

demonstrate its feasibility, construct, operate, and maintain developmental aquaculture facilities for testing laboratory results, and

(B) conduct such other tests or analyses as may be

necessary;
Sec. 5 NATIONAL AQUACULTURE ACT OF 1980 632

1So in law.

(2) develop methods to enhance seed stocks of aquatic species; and

(3) conduct such other tests or analyses or take such other

actions as the Secretaries deem necessary or appropriate.

(c) INFORMATION SERVICES.—(1) In addition to performing such

other mandatory functions under this Act—

(A) the Secretaries shall collect and analyze scientific,

technical, legal, and economic information relating to aquaculture, including acreages, water use, production, marketing,

culture techniques, and other relevant matters;

(B) the Secretary shall—

(i) establish, within the Department of Agriculture, a

National Aquaculture Information Center that shall serve

as a repository for the information generated under subparagraph (A) and other provisions of this Act and shall,

on a request basis, make that information available to the

public,

(ii) arrange with foreign nations for the exchange of

information relating to aquaculture and support a translation service, and

(iii) conduct a study of the extent to which the United

States aquaculture industry has access to relevant Federal

programs which assist the agricultural sector by December

31, 1986;

(C) the Secretary of Commerce shall conduct a study, and

report to Congress thereon by December 31, 1987, to determine

whether existing capture fisheries could be adversely affected

by competition from products produced by commercial

aquacultural enterprises and include in such study an assessment of any adverse effect, by species and by geographical region, on such fisheries and recommend measures to ameliorate

any such effect; and

(D) the Secretary of the Interior, in consultation with the

Secretary of Commerce, shall undertake a study, and report to

Congress thereon by December 31, 1987, to identify exotic species introduced into the United States waters as a result of

aquaculture activities, and to determine the potential benefits

and impacts of the introduction of exotic species.

(2) Any production information submitted to the Secretaries

under paragraph (1)(A) shall be confidential and may only be disclosed if required under court order. The Secretaries shall preserve

such confidentiality. The Secretaries may release or make public

any information in any aggregate or summary form that does not

directly disclose the identity, business transactions, or trade secrets

of any person who submits such information

(d) BIENNIAL REPORT.—The Secretary through the coordinating

group and in consultation with the Secretary of Commerce and the

Secretary of the Interior,, 1 shall prepare on a biennial basis, and

submit to Congress, a report on the status of aquaculture in the

United States. Such report shall contain a description and evaluation of the actions undertaken with respect to the Plan during the

reporting period, an explanation of any revisions made to the Plan

during the reporting period, and such other comments and rec-
633 NATIONAL AQUACULTURE ACT OF 1980 Sec. 6

ommendations as the Secretary deems appropriate. The report required by this subsection shall be submitted to the Congress not

late than February 1, 1988.

COORDINATION OF NATIONAL ACTIVITIES REGARDING AQUACULTURE

SEC. 6. ø16 U.S.C. 2805¿ (a) ESTABLISHMENT.—There is established within the Office of Science and Technology Policy an interagency aquaculture coordinating group that shall, subject to subsection (f), operate as a Joint Subcommittee on Aquaculture of the

Federal Coordinating Council on Science, Engineering, and Technology (hereinafter in this section referred to as the ‘‘Federal Council’’) established by Executive Order 12039, dated February 24,

1978. The coordinating group shall be composed of the following

members or their designees:

(1) The Secretary of Agriculture, who shall be the permanent chairman of the coordinating group.

(2) The Secretary of Commerce.

(3) The Secretary of the Interior.

(4) The Secretary of Energy.

(5) The Secretary of Health and Human Services.

(6) The Administrator of the Environmental Protection

Agency.

(7) The Chief of Engineers.

(8) The Administrator of the Small Business Administration.

(9) The Administrator of the Agency for International Development.

(10) The Chairman of the Tennessee Valley Authority,

(11) The Director of the National Science Foundation.

(12) The Governor of the Farm Credit Administration.

(13) The heads of such other Federal agencies as are

deemed appropriate by the Director of the Office of Science and

Technology Policy (hereinafter in this section referred to as the

‘‘Director’’), after consultation with the coordinating group.

(b) PURPOSE AND FUNCTIONS.—The purpose of the coordinating

group is to increase the overall effectiveness and productivity of

Federal aquaculture research, transfer, and assistance programs.

In fulfilling this purpose the coordinating group shall—

(1) review the national needs for aquaculture research,

transfer, and assistance;

(2) assess the effectiveness and adequacy of Federal efforts

to meet those national needs;

(3) undertake planning, coordination, and communication

among Federal agencies engaged in the science, engineering,

and technology of aquaculture;

(4) collect, compile, and disseminate information on aquaculture;

(5) encourage joint programs among Federal agencies in

areas of mutual interest; and

(6) recommend to the Federal Council specific actions on

issues, problems, plans, and programs in aquaculture.

(c) REPORTS.—The coordinating group shall regularly report to

the chairman of the Federal Council on the coordinating group’s activities and on recommendations concerning Federal policies and

programs related to aquaculture.
Sec. 7 NATIONAL AQUACULTURE ACT OF 1980 634

(d) FEDERAL CONSISTENCY.—Each Federal department and

agency that has functions or responsibilities with respect to aquaculture or has jurisdiction over any activity that affects, or that

may affect, the achievement of the purpose and policy of this Act,

shall, in consultation with the coordinating group and to the maximum extent practicable, perform such function, responsibility, or

activity in a manner that is consistent with the purpose and policy

of this Act.

(e) FUNCTIONS IF FEDERAL COUNCIL TERMINATED.—If at any

time after the date of the enactment of this Act, the functions of

the Federal Council are by executive action terminated or transferred to an agency other than the Office of Science and Technology

Policy, the coordinating group shall carry out its purpose under the

direction of the Director. In that event, the recommendations of the

coordinating group referred to in subsection (b)(6) and the reports

required under subsection (c) shall be made to the Director.

CONTRACTS AND GRANTS

SEC. 7. ø16 U.S.C. 2806¿ (a) IN GENERAL.—The Secretaries

may each carry out any action that such Secretary is responsible

for implementing under the Plan through grants to, or contracts

with, any person, any other Federal department or agency, any

State agency, or any regional commission.

(b) TERMS AND CONDITIONS.—Any contract entered into, or any

grant made, under subsection (a) shall contain such terms and conditions as the Secretary concerned shall by regulation prescribe as

being necessary or appropriate to protect the interests of the

United States. No contract may be entered into, and no grant may

be made under subsection (a), for any purpose that is in violation

of any applicable State or local law.

(c) LIMITATION.—The amount of any grant made under subsection (a) may not exceed an amount equal to one-half the estimated cost of the project for which the grant is made.

(d) AUDIT.—Each recipient of a grant or contract under this

section shall make available to the Secretary concerned and to the

Comptroller General of the United States, for purposes of audit and

examination, any book, document, paper, or record that is pertinent

to the funds received under such grant or contract.

CAPITAL REQUIREMENTS FOR AQUACULTURE

SEC. 8. ø16 U.S.C. 2807¿ (a) CAPITAL REQUIREMENTS STUDY.—

The Secretaries through the coordinating group, shall conduct within twelve months after the date of enactment of this Act, a study

of the capital requirements of the United States aquaculture industry. The study shall—

(1) document and analyze any capital constraints that affect the development of aquaculture in the United States; and

(2) evaluate the role that appropriate Federal financial assistance does or could play in filling gaps in the normal credit

market with respect to aquaculture.

The study will identify the capital needs of the United States aquaculture industry, with emphasis on the needs that are not being

filled either in normal credit channels or through government programs for direct loans, loan guarantees, disaster loans, and insur-
635 NATIONAL AQUACULTURE ACT OF 1980 Sec. 10

ance. Upon its completion, the Secretaries shall submit the results

of the study to Congress.

(b) CAPITAL REQUIREMENTS PLAN.—Based on the results of the

Capital Requirement Study conducted under subsection (a), and

within six months of the completion of the study, the Secretaries

shall formulate a plan for acting on the study’s findings. The plan

shall include: (1) those Federal actions, if any, found to be necessary to meet financial needs unmet through normal credit channels and existing Federal programs; and (2) recommendations, if

any, for legislative actions. Upon completion, the plan shall be submitted to Congress.

REGULATORY CONSTRAINTS ON AQUACULTURE

SEC. 9. ø16 U.S.C. 2808¿ (a) REGULATORY CONSTRAINTS

STUDY.—The Secretaries, through the coordinating group, shall

conduct, within twelve months after the date of enactment of this

Act, a study of the State and Federal regulatory restrictions to

aquaculture development in the United States. The study shall—

(1) include a literature review and a descriptive list identifying the parameters of the issue;

(2) identify and list relevant current and pending Federal

regulations restricting the development of commercial aquaculture operations;

(3) identify and list relevant current State regulations restricting the development of commercial aquaculture operations in five States selected randomly in five separate geographic regions of the United States.

(4) conduct case studies of ten commercial aquaculture operations in the United States representing a wide range of marine and fresh water species to determine the practical effects

of regulatory restrictions on aquaculture; and

(5) develop a flow-chart time line using the information obtained by means of paragraphs (1) through (4) to identify those

regulations and restrictions that could have the most detrimental effect in establishing commercial aquaculture operations in the United States.

Upon completion of the study, the Secretaries shall submit its results to Congress.

(b) REGULATORY CONSTRAINTS PLAN.—Based on the results of

the Regulatory Constraints Study conducted under subsection (a),

and within six months of the study’s completion, the Secretaries

shall formulate a plan for acting on the study’s findings. The plan

will contain specific steps the Federal Government can take to remove unnecessarily burdensome regulatory barriers to the initiation and operation of commercial aquaculture ventures. Upon its

completion, the Secretaries shall submit the plan to Congress.

AUTHORIZATIONS FOR APPROPRIATIONS

SEC. 10. ø16 U.S.C. 2809¿ For purposes of carrying out the

provisions of this Act, there are authorized to be appropriated—

(1) to the Department of Agriculture, $1,000,000 for each

of fiscal years 1991 through 2002;

(2) to the Department of Commerce, $1,000,000 for each of

fiscal years 1991 through 2002; and
Sec. 11 NATIONAL AQUACULTURE ACT OF 1980 636

(3) to the Department of Interior, $1,000,000 for each of

fiscal years 1991 through 2002.

Funds authorized by this section shall be in addition to, and not

in lieu of, funds authorized by any other Act.

DISCLAIMER

SEC. 11. ø16 U.S.C. 2810¿ Nothing in this Act shall be construed to amend, repeal, or otherwise modify the authority of any

Federal officer, department, or agency to perform any function, responsibility, or activity authorized under any other provision of

law.