I

103D CONGRESS

2D SESSION H. R. 4404

To amend the Magnuson Fishery Conservation and Management Act to promote the long-term sustainability of marine fisheries, and for other

purposes.

IN THE HOUSE OF REPRESENTATIVES

MAY 12, 1994

Mr. GILCHREST (for himself, Mr. SHAYS, Mr. RAVENEL, and Ms. FURSE) introduced the following bill; which was referred to the Committee on Merchant Marine and Fisheries

A BILL

To amend the Magnuson Fishery Conservation and Management Act to promote the long-term sustainability of

marine fisheries, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Marine Fish Conserva5 tion Amendments of 1994’’.
2

•HR 4404 IH

1 TITLE I—AMENDMENTS TO MAG2 NUSON FISHERY CONSERVA3 TION AND MANAGEMENT ACT

4 SEC. 101. AMENDMENTS TO MAGNUSON FISHERY CON5 SERVATION AND MANAGEMENT ACT.

6 Except as otherwise expressly provided, whenever in

7 this title an amendment or repeal is expressed in terms

8 of an amendment to, or repeal of, a section or other provi9 sion, the reference shall be considered to be made to a

10 section or other provision of the Magnuson Fishery Con11 servation and Management Act (16 U.S.C. 1801 et seq.).

12 SEC. 102. FINDINGS AND POLICY.

13 (a) FINDINGS.—(1) Section 2(a)(2) (16 U.S.C.

14 1801(a)(2)) is amended by striking ‘‘and’’ at the end of

15 clause (A), and by inserting before the period at the end

16 the following: ‘‘and, (C) losses of essential fishery habitats

17 have diminished the ability of stocks of fish to survive.’’.

18 (2) Section 2(a)(6) (16 U.S.C. 1801(a)(6)) is amend19 ed by inserting after ‘‘to insure conservation,’’ the follow20 ing: ‘‘to provide long-term protection for essential fishery

21 habitats,’’.

22 (3) Section 2(a) (16 U.S.C. 1801(a)) is amended by

23 adding at the end the following new paragraph:

24 ‘‘(9) The greatest long-term threat to the viabil25 ity of commercial and recreational fisheries of the
3

•HR 4404 IH

1 United States is the continuing loss of essential fish2 ery habitat. Increased attention must be given to the

3 protection of these habitats to conserve and manage

4 the fishery resources of the United States.’’.

5 (b) POLICY.—(1) Section 2(c)(3) (16 U.S.C.

6 1801(c)(3)) is amended by inserting after ‘‘practical meas7 ures that’’ the following: ‘‘reduce bycatch to insignificant

8 levels approaching zero and’’.

9 (2) Section 2(c) (16 U.S.C. 1801(c)) is amended by

10 striking ‘‘and’’ after the semicolon in paragraph (5), by

11 striking the period at the end of paragraph (6) and insert12 ing ‘‘; and’’, and by adding at the end the following new

13 paragraph:

14 ‘‘(7) to ensure to the maximum extent prac15 ticable that all State and Federal actions are con16 sistent with the conservation and management of

17 fisheries under this Act.’’.

18 SEC. 103. DEFINITIONS.

19 Section 3 (16 U.S.C. 1802) is amended—

20 (1) by redesignating paragraphs (2) through

21 (5) as paragraphs (3) through (6) respectively, by

22 redesignating the second paragraph (6) through

23 paragraph (21) as paragraphs (8) through (23), re24 spectively, by redesignating the second paragraph

25 (22) through paragraph (26) as paragraphs (25)
4

•HR 4404 IH

1 through (29), respectively, and by redesignating the

2 second paragraph (27) through paragraph (32) as

3 paragraphs (31) through (36), respectively;

4 (2) by inserting after paragraph (1) the follow5 ing new paragraph:

6 ‘‘(2) The term ‘bycatch’ means the incidental

7 catch, take, or harvest of—

8 ‘‘(A) marine mammals, birds, turtles, or

9 fish that are not the target species of the fish10 ery in which a fishing vessel is engaged,

11 ‘‘(B) any fish discarded or lost during fish12 ing operations, or

13 ‘‘(C) fish of the same species as the target

14 species of the fishery in which a fishing vessel

15 is engaged and the harvest of which is prohib16 ited by conservation and management measures

17 promulgated under a fishery management plan

18 in effect under title III.’’;

19 (3) by inserting after paragraph (6), as redesig20 nated by paragraph (1) of this subsection the follow21 ing new paragraph:

22 ‘‘(7) The term ‘essential fishery habitat’ means

23 an area which includes physical or biological features

24 which (A) are essential to the conservation and man-
5

•HR 4404 IH

1 agement of a fishery, and (B) may require special

2 management considerations or protection.’’.

3 (4) in paragraph (9), as redesignated by para4 graph (1) of this subsection, by inserting ‘‘, turtles,’’

5 after ‘‘marine mammals’’;

6 (5) in paragraph (23), as redesignated by para7 graph (1) of this subsection, by inserting ‘‘biologi8 cal,’’ before ‘‘or ecological factor’’, and by inserting

9 before the period the following: ‘‘, except that no

10 economic or social factor may be applied under this

11 paragraph to increase the amount described in this

12 paragraph above maximum sustainable yield, com13 promise ecological integrity, lead to or prolong

14 overfishing, or impede recovery from overfishing’’;

15 (6) by inserting after paragraph (23); as redes16 ignated by paragraph (1) of this subsection, the fol17 lowing new paragraph:

18 ‘‘(24) The term ‘overfishing’ means a level or a

19 rate of fishing that either jeopardizes the capacity of

20 a fish species, population, or population complex to

21 provide maximum sustainable yield on a continuing

22 basis or compromises ecological integrity.’’; and

23 (7) by inserting after paragraph (29), as redes24 ignated by paragraph (1) of this subsection, the fol25 lowing new paragraph:
6

•HR 4404 IH

1 ‘‘(30) The term ‘target species’ means the spe2 cies or species groups for which a fishing vessel is

3 fishing.’’.

4 SEC. 104. HIGHLY MIGRATORY SPECIES.

5 Section 102 (16 U.S.C. 1812) is amended by striking

6 ‘‘utilization’’ and inserting ‘‘yield’’.

7 SEC. 105. NATIONAL STANDARDS.

8 (a) ACHIEVING OPTIMUM YIELD.—Section 301(a)(1)

9 (16 U.S.C. 1851(a)(1)) is amended by striking ‘‘for the

10 United States fishing industry’’.

11 (b) MARGIN OF SAFETY.—Section 301(a) (16 U.S.C.

12 1851(a)) is amended by redesignating paragraphs (3)

13 through (7) as (4) through (8), respectively, and by insert14 ing after paragraph (2) the following new paragraph:

15 ‘‘(3) In order to account for inadequacies in

16 data, uncertainties in the best available scientific in17 formation, and unpredictable variations and fluctua18 tions in fish populations and catches, and to provide

19 for the ecological needs of the species that interact

20 within a management unit, conservation and man21 agement measures shall provide an adequate margin

22 of safety to act as a buffer against overfishing.’’.

23 (c) REDUCTION OF BYCATCH.—Section 301(a) (16

24 U.S.C. 1851(a)) is amended by adding at the end the fol25 lowing new paragraph:
7

•HR 4404 IH

1 ‘‘(9) Conservation and management measures

2 shall reduce bycatch to the lowest level practicable

3 and avoid unnecessary waste of fish.’’.

4 (d) GUIDELINES.—Section 301(b) (16 U.S.C.

5 1851(b)) is amended by striking ‘‘advisory guidelines

6 which shall not have the force and effect of law’’ and in7 serting ‘‘guidelines,’’.

8 SEC. 106. REGIONAL FISHERY MANAGEMENT COUNCILS.

9 (a) VOTING MEMBERS.—Section 302(b) (16 U.S.C.

10 1852(b)) is amended—

11 (1) in paragraph (2)(B) by adding at the end

12 the following:

13 ‘‘In addition, the Secretary, in making appointments

14 under this section, shall ensure that no fewer than 25 per15 cent of the appointed members of each Council are persons

16 selected for their fisheries expertise, as demonstrated by

17 university, environmental organization, or other nonuser

18 group affiliation and by past actions and accomplish19 ments.’’; and

20 (2) in paragraph (5) in the first sentence by in21 serting before the period at the end the following:

22 ‘‘or if the Secretary makes a written determination,

23 including a statement of the reasons for such deter24 mination, that the member has violated conflict of

25 interest provisions of subsection (k)’’.
8

•HR 4404 IH

1 (b) TRANSACTION OF BUSINESS.—Section 302(e)

2 (16 U.S.C. 1852(e)) is amended by redesignating para3 graphs (2) through (4) as paragraphs (3) through (5), re4 spectively, and inserting after paragraph (1) the following

5 new paragraph:

6 ‘‘(2) Each decision of the Council shall be re7 corded through a roll call vote such that the vote of

8 individual members is registered and forwarded with

9 the decision to the Secretary for review under sec10 tion 304.’’.

11 (c) FISHERY HABITAT CONCERNS.—Section 302(i)

12 (16 U.S.C. 1852(i)) is amended—

13 (1) in paragraph (1) by striking ‘‘and’’ after

14 the semicolon in subparagraph (A), by redesignating

15 subparagraph (B) as subparagraph (C); and by in16 serting after subparagraph (A) the following new

17 subparagraph:

18 ‘‘(B) may request that the Secretary initi19 ate consultation under section 305(e)(4) con20 cerning any such activity which may affect the

21 essential fishery habitat of a fishery under its

22 jurisdiction which is designated in a fishery

23 management plan which is in effect under sec24 tion 304; and’’; and
9

•HR 4404 IH

1 (2) in paragraph (2) by striking ‘‘In the case of

2 a comment or recommending under paragraph

3 (1)(C), the response’’ and inserting ‘‘The response’’,

4 by inserting ‘‘, avoiding,’’ after ‘‘mitigating’’, and by

5 adding at the end the following: ‘‘In the case of a

6 response or decision that is inconsistent with the

7 Council’s recommendations, the Federal agency shall

8 explain its reasons for not following the rec9 ommendations and how its actions are consistent

10 with the conservation and management of the fish11 ery concerned.’’.

12 (d) DISCLOSURE OF FINANCIAL INTEREST.—Section

13 302(k) (16 U.S.C. 1852(k)) is amended—

14 (1) in the heading by inserting ‘‘AND RECUSAL’’

15 before the period at the end;

16 (2) in paragraph (2) by striking subparagraph

17 (B) and inserting the following:

18 ‘‘(B) the spouse, child, grandchild, parent,

19 sibling, or partner of that individual;’’;

20 (3) in paragraph (5) by striking ‘‘and’’ after

21 the semicolon in subparagraph (A), by striking the

22 period at the end of subparagraph (B), and inserting

23 ‘‘; and’’, and by adding at the end, the following new

24 subparagraph:
10

•HR 4404 IH

1 ‘‘(C) be kept on file with the Secretary for

2 use in reviewing Council actions under section

3 304 and made available for public inspection at

4 reasonable hours.’’;

5 (4) in paragraph (6) by striking ‘‘prescribed

6 under’’ and all that follows through the end of the

7 paragraph and inserting ‘‘prescribed under this sub8 section may be treated as cause for the invalidation

9 of that action if the vote of that individual was nec10 essary for approval of that action under subsection

11 (e).’’; and

12 (5) by amending paragraph (7) to read as fol13 lows:

14 ‘‘(7) A Council member holding a financial interest

15 requiring disclosure under this subsection shall recuse him

16 or herself from voting on or participating in all Council

17 actions that would affect such financial interest. Council

18 members and the public may submit to the Secretary for

19 review under section 304, in writing, a challenge to any

20 vote of a Council member that is alleged to have been

21 made in violation of this paragraph.’’.

22 SEC. 107. CONTENTS OF FISHERY MANAGEMENT PLANS.

23 (a) REQUIRED PROVISIONS.—Section 303(a) (16

24 U.S.C. 1853(a)) is amended as follows:
11

•HR 4404 IH

1 (1) Paragraph (1)(A) is amended by inserting

2 before the semicolon at the end the following: ‘‘in3 cluding its essential fishery habitat’’.

4 (2) Paragraph (2) is amended by inserting after

5 ‘‘location,’’ the following: ‘‘its essential habitat,’’.

6 (3) Paragraph (7) is amended by striking

7 ‘‘readily available’’, and by inserting before the semi8 colon at the end the following: ‘‘, including the ef9 fects of fishing gear and practices used in that fish10 ery on the habitat of the fishery or other fisheries

11 under the Council’s jurisdiction’’.

12 (4) Paragraph (8) is amended by striking

13 ‘‘and’’ after the semicolon, paragraph (9) is amend14 ed by striking the period and inserting a semicolon,

15 and the following new paragraphs are added at the

16 end:

17 ‘‘(10) specify an objective definition of

18 overfishing for each fish species or population in19 volved in the fishery (as described pursuant to para20 graph (2)), which is developed or expressed in terms

21 of a minimum level of spawning biomass, maximum

22 level or rate of fishing mortality, or other measur23 able standard designed to ensure the maintenance of

24 the fish species or population’s abundance, age

25 structure, sex ratio, and size structure so as to pre-
12

•HR 4404 IH

1 serve its capacity to provide maximum sustainable

2 yield and maintain ecological integrity;

3 ‘‘(11) in the case of any fishery management

4 plan or amendment for a fishery for which a deter5 mination has been made by the Council or the Sec6 retary that such fishery is overfished, contain a re7 covery plan which will establish measures for re8 building the fish species, population, or population

9 complex in accordance with specifications for a re10 covery plan set forth in section 304(h)(2);

11 ‘‘(12) specify allowable gear types for the fish12 ery;

13 ‘‘(13) require the use of gear types which mini14 mize bycatch and associated mortality;

15 ‘‘(14) include provisions that—

16 ‘‘(A) require that observers be stationed on

17 fishing vessels engaged in the catching, taking,

18 or harvesting of fish and on fish processing ves19 sels that are vessels of the United States and

20 are fishing for or processing species under the

21 jurisdiction of the Council having authority over

22 the geographical area to which the plan applies

23 for purposes of collecting data necessary for the

24 conservation and management and scientific un-
13

•HR 4404 IH

1 derstanding of any fisheries under the jurisdic2 tion of the Council; and

3 ‘‘(B) are reasonably calculated to—

4 ‘‘(i) ensure the gathering by observers sta5 tioned on vessels pursuant to subparagraph (A),

6 of reliable data that is necessary for the con7 servation and management and scientific under8 standing of the fisheries covered by the plan;

9 ‘‘(ii) be fair and equitable to all fishing

10 vessels and fish processing vessels that are ves11 sels of the United States and that participate in

12 fisheries covered by the plan;

13 ‘‘(iii) be consistent with other applicable

14 laws; and

15 ‘‘(iv) take into consideration the operating

16 requirements of the fisheries and the safety of

17 observers and fishermen;

18 ‘‘(15) establish a system of fees to pay for the

19 costs of implementing the plan;

20 ‘‘(16) assess the bycatch of all gear types used

21 in the fishery; require through regulation provisions

22 to measure bycatch and associated mortality; develop

23 regulations such as seasonal, time, and area clo24 sures, gear modifications, and others to reduce

25 bycatch and associated mortality; specify the best
14

•HR 4404 IH

1 available technology that reduces bycatch; and evalu2 ate the bycatch of all new gear types and methods

3 before they can be allowed in the fishery; and

4 ‘‘(17) contain conservation and management

5 measures to minimize or eliminate the adverse im6 pacts of fishing gear and practices on habitat for

7 fish.’’.

8 (b) REVIEW OF EXISTING PLANS BY SECRETARY

9 REGARDING OVERFISHING DEFINITION.—

10 (1) REVIEW AND DETERMINATION OF COMPLI11 ANCE.—Not later than 90 days after the date of the

12 enactment of this Act, the Secretary of Commerce

13 shall—

14 (A) review each fishery management plan

15 in effect under title III of the Magnuson Fish16 ery Conservation and Management Act;

17 (B) determine whether the plan contains a

18 definition (or definitions) of overfishing in com19 pliance with section 303(a)(10) of that Act, as

20 amended by subsection (a) of this section; and

21 (C) if the Secretary determines that the

22 plan does not contain such a definition, notify

23 the Regional Fishery Management Council hav24 ing authority over the geographical area to
15

•HR 4404 IH

1 which the plan applies regarding that deter2 mination.

3 (2) PREPARATION OF AMENDMENT.—Not later

4 than 180 days after receiving notification from the

5 Secretary of Commerce under paragraph (1) with re6 spect to a fishery management plan, a Regional

7 Fishery Management Council shall prepare and sub8 mit to the Secretary an amendment to the plan to

9 add to the plan a definition of overfishing in accord10 ance with section 303(a)(10) of the Magnuson Fish11 ery Conservation and Management Act, as amended

12 by subsection (a) of this section, in accordance with

13 procedures and requirements applicable to an

14 amendment under that Act.

15 SEC. 108. ACTIONS BY THE SECRETARY WITH RESPECT TO

16 FISHERY MANAGEMENT PLANS.

17 Section 304(a)(2) (16 U.S.C. 1854(a)(2)) is amended

18 in subparagraph (B) by striking ‘‘and’’ after the semi19 colon, in subparagraph (C) by striking the period and in20 serting ‘‘; and’’, and by adding at the end of paragraph

21 (2) the following:

22 ‘‘(D) evaluate whether any violation of sec23 tion 302(k) occurred with respect to the prepa24 ration of the plan or amendment that is the

25 subject of the review.’’.
16

•HR 4404 IH

1 (b) REVIEW BY SECRETARY.—Section 304(b) (16

2 U.S.C. 1854(b)) is amended—

3 (1) in paragraph (2) in the first sentence by in4 serting before the comma the following: ‘‘or with the

5 best scientific information presented to the Council

6 by scientists participating in the plan development

7 process’’;

8 (2) by redesignating paragraph (3) as para9 graph (4); and

10 (3) by inserting after paragraph (2) the follow11 ing:

12 ‘‘(3) If the Secretary determines that a Council

13 member voted in violation of section 302(k) in any

14 Council action related to the preparation of the plan

15 or amendment, the Secretary shall disapprove the

16 action if that vote was necessary for approval of the

17 action.’’.

18 (c) PREPARATION BY SECRETARY.—(1) PREPARA19 TION REQUIRED.—Section 304(c)(1) (16 U.S.C.

20 1854(c)(1)) is amended—

21 (A) in the material preceding subparagraph

22 (A), by striking ‘‘may’’ and inserting ‘‘shall’’, and by

23 inserting after ‘‘management plan,’’ the following:

24 ‘‘including a recovery plan if necessary,’’;
17

•HR 4404 IH

1 (B) in subparagraph (A) by striking ‘‘or’’ after

2 the semicolon;

3 (C) by redesignating subparagraph (B) as sub4 paragraph (E);

5 (D) in subparagraph (E) (as redesignated by

6 paragraph (3) of this subsection) by striking ‘‘such

7 plan or amendment’’ and inserting ‘‘a plan or

8 amendment submitted by a Council’’; and

9 (E) by inserting after subparagraph (A) the fol10 lowing new subparagraphs:

11 ‘‘(B) the appropriate Council fails to develop

12 and submit to the Secretary a recovery plan as re13 quired under subsection (h), within the time speci14 fied therein;

15 ‘‘(C)(i) the Secretary determines under sub16 section (e)(4) that a fish species, population, or pop17 ulation complex is overfished,

18 ‘‘(ii) no fishery management plan or required

19 part thereof, is in effect for the fishery for that spe20 cies, population, or population complex, and

21 ‘‘(iii) no such plan or amendment is submitted

22 by the appropriate Council to the Secretary for ap23 proval within 240 days after the Council is notified

24 of such determination;
18

•HR 4404 IH

1 ‘‘(D) notwithstanding any fishery management

2 plan that is in effect and any objective definition of

3 overfishing therein, the Secretary determines, based

4 on the best scientific information available, that a

5 fish species, population, or population complex—

6 ‘‘(i) has sustained fishing mortality that

7 exceeds maximum sustainable yield by more

8 than 10 percent per annum averaged over a pe9 riod of 3 consecutive years, or that com10 promises ecological integrity, or

11 ‘‘(ii) is depleted; or’’.

12 (2) DETERMINATION OF OVERFISHING.—Section

13 304(c) (16 U.S.C. 1854(c)) is amended by adding at the

14 end the following:

15 ‘‘(4) A determination by the Secretary described in

16 paragraph (1)(D) (i) or (ii) shall constitute a determina17 tion of overfishing with respect to which a recovery plan

18 is required under section 304(h). Notwithstanding the pre19 ceding sentence, the Secretary may determine that a fish

20 species or population is not overfished, based on the best

21 scientific information available, only if such determination

22 is based on a clear preponderance of such scientific infor23 mation. Nothing in this paragraph or paragraph (1) shall

24 prevent a more stringent objective definition of overfishing

25 under a fishery management plan, pursuant to section
19

•HR 4404 IH

1 304(e) or pursuant to a judicial determination. For the

2 purposes of paragraph (1)(D)(ii), a fish species or popu3 lation shall be considered to be depleted if it is determined

4 by the Secretary, using the best available scientific infor5 mation and a calculation that provides a risk-averse as6 sessment, that the spawning population is reduced to 20

7 percent or less than the unfished population, unless it is

8 shown, subject to review and approval by the Secretary,

9 that a smaller spawning population is adequate to provide

10 maximum sustainable yield and maintain ecological integ11 rity. If the size of the spawning population cannot be de12 termined, alternative measurements may be used subject

13 to approval by the Secretary.’’.

14 (d) ESTABLISHMENT OF FEES.—Section 304(d) (16

15 U.S.C. 1854(d)) is amended—

16 (1) by inserting ‘‘(1)’’ before ‘‘The Secretary

17 shall’’;

18 (2) striking ‘‘section 303(b)(1)’’ and inserting

19 ‘‘sections 303 and 304’’;

20 (3) striking the third sentence; and

21 (4) by adding at the end the following new

22 paragraphs:

23 ‘‘(2) FEE SYSTEM REQUIREMENTS.—Any sys24 tem of fees established under this section shall—
20

•HR 4404 IH

1 ‘‘(A) provide that the total amount of fees

2 collected under this section not exceed the

3 amount equal to the difference of—

4 ‘‘(i) the combined cost of (I) station5 ing observers on board fishing vessels and

6 United States vessels and United States

7 fish processors (II) the actual cost of

8 inputting collected data, and (III) assess9 ments necessary for a risk sharing pool im10 plemented under subsection (e), minus

11 ‘‘(ii) any amount received for such

12 purpose from another source or from an

13 existing surplus in this National Fishery

14 Observer Fund established by paragraph

15 (3);

16 ‘‘(B) be fair and equitable to all partici17 pants in the fisheries under the jurisdiction of

18 any Council;

19 ‘‘(C) provide that fees collected not be used

20 to pay any costs of administrative overhead or

21 other costs not directly incurred in carrying out

22 the system;

23 ‘‘(D) not be used to offset amounts author24 ized under other provisions of law;
21

•HR 4404 IH

1 ‘‘(E) provide that fees shall be expressed

2 as a percentage, not to exceed 1 percent of the

3 wholesale or 2 percent of the ex-vessel value of

4 the fish and shellfish harvested under the juris5 diction of any Council;

6 ‘‘(F) provide that fees under that system

7 be assessed against all fishing vessels and Unit8 ed States processors participating in fisheries

9 under the jurisdiction of the Councils, including

10 those not required to carry an observer under

11 a fishery management plan;

12 ‘‘(G) provide that fees collected under the

13 system shall be deposited in the National Fish14 ery Observer Fund established by paragraph

15 (3);

16 ‘‘(H) provide that fees collected under the

17 system shall only be used for implementing re18 quirements relating to observers under fishery

19 management plans; and

20 ‘‘(I) comply with section 9701(b) of title

21 31, United States Code.

22 ‘‘(3) NATIONAL FISHERY OBSERVER FUND.—

23 There is established in the Treasury a separate ac24 count which shall be known as the National Fishery

25 Observer Fund. The Fund shall be available to the
22

•HR 4404 IH

1 Secretary, without appropriation or fiscal year limi2 tation, for carrying out this section, subject to the

3 restrictions in subsection (b)(2). The Fund shall

4 consist of all amounts received by the United States

5 as fees under this subsection. Amounts in the Fund

6 that are not currently needed for the purposes of

7 this section shall be kept on deposit or invested in

8 obligations of, or guaranteed by, the United

9 States.’’.

10 (e) FISHERIES RESEARCH.—Section 304(e) (16

11 U.S.C. 1854(e)) is amended—

12 (1) in the heading by inserting ‘‘OVERFISHING

13 LIST AND’’ before ‘‘FISHERIES’’;

14 (2) in paragraph (3)(A) by inserting after ‘‘deg15 radation,’’ the following: ‘‘identification of essential

16 fishery habitat,’’; and

17 (3) by adding at the end the following new

18 paragraph:

19 ‘‘(5) No later than 1 year after the date of en20 actment of the Marine Fish Conservation Amend21 ments of 1994 and each year thereafter, the Sec22 retary shall, after consultation with and notice to the

23 appropriate Councils and based on the best scientific

24 information available, prepare and publish in the

25 Federal Register a list of fish species, populations,
23

•HR 4404 IH

1 and population complexes that are overfished and

2 the objective definition of overfishing utilized by the

3 Secretary to make that determination. Such deter4 mination shall be made whether or not a fishery

5 management plan is in effect for a species, popu6 lation, or population complex or contains an objec7 tive definition of overfishing, and is not required to

8 be in conformity with any such plan. In cases in

9 which scientific data are severely limited, the Sec10 retary’s informed judgment may be used. In the case

11 of fish species, populations, and population com12 plexes for which there is insufficient information to

13 make such a determination, the Secretary shall de14 velop a research plan to identify and gather the

15 needed data. The plan shall—

16 ‘‘(A) identify priority research needed to

17 assess the condition of the relevant fish species,

18 populations, and population complexes and to

19 support fishery conservation and management;

20 ‘‘(B) describe a research program to con21 duct that research; and

22 ‘‘(C) indicate the timetable for conducting

23 that research, assess those conditions, and sup24 porting that conservation and management.’’.
24

•HR 4404 IH

1 (f) FISHERIES UNDER AUTHORITY OF MORE THAN

2 ONE COUNCIL.—Section 304(f) (16 U.S.C. 1854(f)) is

3 amended—

4 (1) in paragraph (1), in the matter following

5 subparagraph (B), by striking ‘‘the voting members,

6 present and voting, of each Council concerned’’ and

7 inserting the following: ‘‘all of the combined individ8 ual voting members of the concerned Councils

9 present and voting’’;

10 (2) by amending paragraph (3) to read as fol11 lows:

12 ‘‘(3) Any fishery management plan or amendment

13 which—

14 ‘‘(A) addresses a highly migratory species fish15 ery to which paragraph (1) applies,

16 ‘‘(B) was prepared by the Secretary, and

17 ‘‘(C) was in effect on July 1, 1993,

18 shall remain in effect until superseded by a fishery man19 agement plan or amendment prepared by the appropriate

20 Councils, and approved by the Secretary.’’.

21 (g) RECOVERY PLANS.—Section 304 (16 U.S.C.

22 1854) is amended by adding at the end the following new

23 subsection:

24 ‘‘(h) RECOVERY PLANS.—(1) If the Secretary deter25 mines that a condition of overfishing has occurred with
25

•HR 4404 IH

1 respect to a fish species, population, or population complex

2 that is subject to a fishery management plan, based on

3 the best scientific information available and the definition

4 of overfishing specified in such plan, the Secretary shall

5 notify the appropriate Councils in writing of such deter6 mination.

7 ‘‘(2) Within 180 days after receiving such notice, the

8 appropriate Councils shall prepare and submit to the Sec9 retary for approval an amendment to the fishery manage10 ment plan, including a recovery plan that specifies—

11 ‘‘(A) the action or combination of actions to be

12 taken to rebuild the fish species, population, or pop13 ulation complex specified in the notice;

14 ‘‘(B) the time within which such rebuilding

15 shall be accomplished, which shall be no greater

16 than 5 years; and

17 ‘‘(C) the level of abundance to which such fish

18 populations or population complexes are to be rebuilt

19 to provide maximum sustainable yield and maintain

20 ecological integrity.

21 ‘‘(3) The time established pursuant to paragraph

22 (2)(B) for a recovery plan may be extended only upon a

23 determination by the Secretary, based upon the best avail24 able scientific information (which shall include at a mini25 mum information from annual progress reports made
26

•HR 4404 IH

1 under paragraph (5)), that a longer period will be required

2 due only to the reproductive capacity, productivity, or life

3 span of the fish species concerned.

4 ‘‘(4) The Secretary shall review and act upon such

5 amendment within 180 days after receipt and in accord6 ance with the procedures set forth in this section.

7 ‘‘(5) The Secretary shall review progress made in re8 building a species, population, or population complex

9 under a recovery plan under paragraph (2). The first re10 view shall occur no later than the beginning of the 3d year

11 in which the plan is in effect, and subsequent reviews shall

12 occur at least annually thereafter.’’.

13 (h) BYCATCH RESEARCH.—Section 304 (16 U.S.C.

14 1854) is further amended by adding after subsection (h),

15 as added by subsection (g) of this section, the following

16 new subsection:

17 ‘‘(i) BYCATCH RESEARCH.—The Secretary shall es18 tablish, in cooperation with industry, a program for the

19 elimination of bycatch through fees and incentive pro20 grams. Amounts received as such fees shall be made avail21 able to the appropriate Councils for use exclusively for

22 bycatch related management activities, including costs of

23 observer programs and cooperative efforts with the Gov24 ernment on research and development of selective fishing
27

•HR 4404 IH

1 gear and other technological devices for the reduction of

2 bycatch.’’.

3 (i) FISHERY HABITAT.—Section 304 (16 U.S.C.

4 1854) is further amended by adding after subsection (i)

5 as added by subsection (h) of this section, the following

6 new subsection:

7 ‘‘(j) HABITAT CONSERVATION.—(1) Within 6 months

8 after the date of the enactment of the Marine Fish Con9 servation Amendments of 1994 and every 12 months

10 thereafter, the Secretary shall publish in the Federal Reg11 ister and submit to the Congress a report on the cumu12 lative impacts of fishery habitats of the actions authorized,

13 funded, or carried out by Federal agencies, including an

14 assessment of how fishery habitats which are identified in

15 approved fishery management plans are being impacted.

16 ‘‘(2) Upon the request of a Council, the Secretary

17 shall immediately undertake a study to identify essential

18 fishery habitat of a fishery under the authority of the

19 Council, and the possible Federal and State actions which

20 could destroy or adversely modify such habitat. The Sec21 retary shall submit the results of such study to the Council

22 as soon as practicable, but not later than 12 months after

23 the date of such request.’’.

24 (j) SPECIAL PROVISIONS REGARDING OBSERVERS.—

25 Section 304 of the Magnuson Fishery Conservation and
28

•HR 4404 IH

1 Management Act (16 U.S.C. 1854) is further amended by

2 adding after subsection (j), as added by subsection (i) of

3 this section, the following new subsection:

4 ‘‘(k) SPECIAL PROVISIONS REGARDING OBSERV5 ERS.—(1) The Secretary shall review—

6 ‘‘(A) the feasibility of establishing a risk shar7 ing pool through a reasonable fee, to provide cov8 erage for vessels and vessel owners against liability

9 from civil suits by observers, and

10 ‘‘(B) the availability of comprehensive commer11 cial insurance for vessel and owner liability against

12 civil suits by observers.

13 ‘‘(2) If the Secretary determines that a risk sharing

14 pool is feasible, the Secretary shall establish such a pool

15 unless the Secretary determines that—

16 ‘‘(A) comprehensive commercial insurance is

17 available for all fishing vessels and United States

18 fish processors required to have observers under this

19 section, and

20 ‘‘(B) such comprehensive commercial insurance

21 will provide a greater measure of coverage at a lower

22 cost to each participant.

23 ‘‘(3) The Secretary shall establish an alternative ob24 servation program for vessels on which facilities for quar25 tering of an observer, or for carrying out observer func-
29

•HR 4404 IH

1 tions, are inadequate to ensure the health or safety of the

2 observer or the safe operation of the vessel.’’.

3 SEC. 109. IMPLEMENTATION OF FISHERY MANAGEMENT

4 PLANS.

5 (a) INTERIM MEASURES.—Section 305 (16 U.S.C.

6 1855) is amended—

7 (1) by redesignating subsections (c) through (e)

8 as subsections (d) through (f), respectively;

9 (2) by adding after subsection (b) the following

10 new subsection:

11 ‘‘(c) INTERIM MEASURES.—(1) In the absence of a

12 fishery management plan which contains such a provision,

13 the Secretary or the appropriate Council (subject to ap14 proval by the Secretary) may adopt as an interim measure

15 regulations with respect to any fish species, population,

16 or population complex consisting of specific provisions to

17 conserve such fish species, population, or population com18 plex, including a provision establishing a minimum size to

19 increase yield per recruit, prohibiting a type of fishing

20 gear or closing an area to fishing.

21 ‘‘(2) Any regulation under this subsection which

22 changes any existing fishery management plan shall be

23 treated as an amendment to such plan for the period in

24 which such regulation is in effect.
30

•HR 4404 IH

1 ‘‘(3) Any regulation under this subsection shall not

2 constitute a recovery plan for purposes of section 303 or

3 subsection (c) or (h) of this section. Any regulation under

4 this subsection shall remain in effect for 1 year after its

5 adoption, unless (A) it is specifically limited to a lesser

6 of effective period or superseded by a fishery management

7 plan or amendment thereto, or (B) the Secretary, initially

8 or before the expiration of the regulation, follows the pro9 cedures to review and approve the regulation that are ap10 plicable to a fishery management plan, or amendment to

11 a plan, under section 304.’’.

12 (b) RESPONSIBILITY OF SECRETARY.—Section

13 305(e), as redesignated by subsection (a) of this section;

14 is amended by inserting ‘‘(1)’’ before ‘‘The Secretary

15 shall’’; and by adding at the end the following new para16 graphs:

17 ‘‘(2) The Secretary shall comment on and make

18 recommendations concerning any action authorized,

19 funded, or carried out, or proposed to be authorized,

20 funded, or carried out, by any State or Federal

21 agency that may result in the destruction or adverse

22 modification of the essential habitat designated in a

23 fishery management plan approved under section

24 304.
31

•HR 4404 IH

1 ‘‘(3) Within 45 days after receiving a comment

2 or recommendation under paragraph (2), a Federal

3 agency shall provide a detailed response, in writing,

4 to the Secretary regarding the matter, including a

5 description of measures being considered by the

6 agency for avoiding, mitigating, or offsetting the im7 pact of the activity on such essential habitat.

8 ‘‘(4) Each Federal agency shall, in consultation

9 with the Secretary, ensure that any action author10 ized, funded, or carried out by the agency is not

11 likely to result in the destruction or adverse modi12 fication of the essential habitat of a fishery identi13 fied in a fishery management plan approved under

14 section 304.

15 ‘‘(5) The Secretary, after notice and oppor16 tunity for public hearing, may prohibit any action

17 authorized, funded, or carried out by a Federal

18 agency which the Secretary determines may result in

19 the destruction or adverse modification of essential

20 fishery habitat of a fishery identified in a fishery

21 management plan approved under section 304.’’.

22 (c) CITIZEN SUITS PROVISION.—Section 305 (16

23 U.S.C. 1855) is further amended by adding at the end

24 the following new subsection:

25 ‘‘(g) CITIZEN SUITS.—
32

•HR 4404 IH

1 ‘‘(1) IN GENERAL.—Except as provided in para2 graph (2), any person may commence a civil action

3 on his or her own behalf against the Secretary if

4 there is alleged a violation of any provision of this

5 Act or any regulation promulgated thereunder, or a

6 failure of the Secretary to perform any act or duty

7 under this Act which is not discretionary with the

8 Secretary, or the appropriate Council, as the case

9 may be, to perform such act or duty.

10 ‘‘(2) NOTICE.—No action may be commenced

11 under paragraph (1) before the 60th calendar day

12 after the date on which the plaintiff gives notice of

13 the action to the Secretary and the affected Council

14 if the action is directed against such Council; except

15 that the action may be brought immediately after

16 such notification in the case of an action under this

17 section with respect to an emergency posing a sig18 nificant risk to the well-being of any fishery re19 source. Notice under this paragraph shall be given

20 in such manner as the Secretary shall prescribe by

21 regulation. Until the adoption of such regulation on

22 the manner of notice, delivery of notice upon the

23 Secretary by first class, prepaid United States mail,

24 with proof of mailing, shall satisfy the notice re25 quirement herein.
33

•HR 4404 IH

1 ‘‘(3) COSTS.—The court, in issuing any final

2 order in any suit brought pursuant to paragraph

3 (1), may award costs of litigation, including reason4 able attorney and expert witness fees, to any party

5 if the court determines such award is appropriate.

6 ‘‘(4) OTHER RIGHTS.—Nothing in this section

7 shall restrict or expand any right which any person

8 (or class of persons) may have under any statute or

9 common law to seek enforcement of any requirement

10 or to seek any other relief.

11 ‘‘(5) INTERVENTION.—In any action under this

12 section, any person may intervene as a matter of

13 right if such person has a direct interest which is or

14 may be adversely affected by the action and the dis15 position of the action may, as a practical matter, im16 pair or impede the person’s ability to protect that in17 terest, unless the United States or another party

18 shows that the person’s interest is adequately rep19 resented by existing parties in the action.’’.

20 (d) CITIZEN PETITIONS.—Section 305 (16 U.S.C.

21 1855) is further amended by adding after subsection (g),

22 as added by subsection (c) of this section, the following

23 new subsection:

24 ‘‘(h) CITIZEN PETITIONS.—
34

•HR 4404 IH

1 ‘‘(1) IN GENERAL.—Any interested person may

2 petition the Secretary at any time to make any find3 ing or determination, or take any other action au4 thorized by this Act. The petition shall include such

5 substantial information as may be necessary to dem6 onstrate the need for the action requested by the pe7 tition.

8 ‘‘(2) CONSIDERATION AND RULING.—To the

9 maximum extent practicable, within 90 days after

10 receiving the petition of an interested person to

11 make a finding or determination, or take any other

12 action authorized by this Act, the Secretary shall

13 make a ruling as to whether the petition presents

14 substantial information indicating that the peti15 tioned action may be warranted. The Secretary shall

16 promptly publish such ruling in the Federal Register

17 and, if the petition is found to present such informa18 tion, the Secretary shall undertake to make a find19 ing or determination, or take any other action au20 thorized by the relevant provisions of this Act.’’.
35

•HR 4404 IH

1 TITLE II—AMENDMENTS TO THE

2 ATLANTIC TUNAS CONVEN3 TION ACT

4 SEC. 201. REGARDING HIGHLY MIGRATORY SPECIES.

5 (a) HIGHLY MIGRATORY SPECIES.—Section 3(a) of

6 the Atlantic Tunas Convention Act of 1975 (16 U.S.C.

7 971a(a)) is amended—

8 (1) in paragraph (1) by striking the 2d and 3rd

9 sentences and inserting the following: ‘‘The Director

10 of the National Marine Fisheries Service or his or

11 her designee shall be one of the Commissioners, and

12 the other 2 Commissioners shall be appointed by and

13 serve at the pleasure of the President. A Commis14 sioner who is appointed by the President may not be

15 a salaried employee of a State, a political subdivision

16 of a State, or the Federal Government.’’;

17 (2) by adding at the end the following new sen18 tence: ‘‘No Commissioner shall be an individual with

19 a financial interest or serving as an officer, director,

20 trustee, partner, or employee with an organization

21 that has a financial interest in any catching, har22 vesting, processing, or marketing activity that is un23 dertaken within any fishery over which the Commis24 sion has jurisdiction.’’; and
36

•HR 4404 IH

1 (3) by striking paragraph (2) and redesignating

2 paragraph (3) as (2).

3 (b) ADMINISTRATION.—Section 6(c)(3) of the Atlan4 tic Tunas Convention Act of 1975 (16 U.S.C. 971d(c)(3))

5 is amended in the matter following subparagraph (K) by

6 striking ‘‘or decreasing’’.

Æ

HR 4404 IH——2

HR 4404 IH——3