II 

109TH CONGRESS 

1ST SESSION S. 1549 

To improve the conservation and management of Pacific whiting, and for 

other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 28, 2005 

Mr. SMITH introduced the following bill; which was read twice and referred 

to the Committee on Commerce, Science, and Transportation 

A BILL 

To improve the conservation and management of Pacific 

whiting, 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 ‘‘Cooperative Hake Im5 provement and Conservation Act’’. 

6 SEC. 2. FINDINGS, SENSE OF CONGRESS, PURPOSES, AND 

7 POLICY. 

8 (a) FINDINGS.—Congress makes the following find9 ings: 
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1 (1) The United States has an obligation to en2 sure that, to the extent practicable in accordance 

3 with applicable law, stocks of Pacific whiting are 

4 conserved and managed in a sustainable manner so 

5 as to prevent overfishing while providing economic 

6 opportunities for the United States fishing industry, 

7 including commercial fishermen and seafood proc8 essors, and coastal communities. 

9 (2) The Pacific whiting fishery is uniquely suit10 ed to the establishment of a distinct market-based 

11 program due to the relatively small and easily identi12 fiable numbers of fishermen and processors involved, 

13 and to the existence of a management system that 

14 clearly allocates harvest among discrete sectors of 

15 the fishery. 

16 (b) SENSE OF CONGRESS.—It is the sense of Con17 gress that— 

18 (1) a regional program of market-based incen19 tives for management and conservation should be es20 tablished in order to meet the obligation described in 

21 subsection (a)(1); and 

22 (2) as actions taken to reduce excess capacity 

23 in fisheries may result in adverse impacts on fisher24 men, processors, and local coastal communities, any 
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1 such program should be designed, to the extent 

2 practicable, to avoid such impacts. 

3 (c) PURPOSE.—The purpose of this Act is to facili4 tate the continued economic viability of the Pacific whiting 

5 fishery for the benefit of the United States through the 

6 establishment of a market-based cooperative system for 

7 the harvesting and processing of Pacific whiting. 

8 (d) POLICY.—It is the policy of the United States to 

9 demonstrate the conservation and economic benefits of a 

10 market-based cooperative system by using the shore-based 

11 vessels and processors of the Pacific whiting in a fishery 

12 management program without disrupting other sectors of 

13 the whiting fishery or other fisheries. 

14 SEC. 3. DEFINITIONS. 

15 In this Act: 

16 (1) AGGREGATE CATCH.—The term ‘‘aggregate 

17 catch’’ means the total amount of Pacific whiting 

18 harvested and delivered on shore in California, Or19 egon, and Washington without further processing 

20 during the benchmark period during a year from 

21 1994 through 2004, excluding any such Pacific whit22 ing harvested pursuant to a treaty between the 

23 United States and a treaty tribe. 

24 (2) AGGREGATE LANDED CATCH.—The term 

25 ‘‘aggregate landed catch’’ means the total amount of 
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1 Pacific whiting processed on shore in California, Or2 egon, and Washington during the benchmark period 

3 during a year from 1999 through 2004. 

4 (3) BENCHMARK PERIOD.—The term ‘‘bench5 mark period’’ means for a year, the period from 

6 April 1 through September 30 of such year. 

7 (4) CATCH.—The term ‘‘catch’’ means all fish8 ery removals from the offshore whiting resource, in9 cluding landings, discards, and bycatch in fisheries 

10 other than the Pacific whiting fishery. 

11 (5) COOPERATIVE SHARE.—The term ‘‘coopera12 tive share’’ means the percentage of allowable Pa13 cific whiting harvest assigned to each qualified fish14 erman or qualified processor based on the formula 

15 established in section 4. 

16 (6) COUNCIL.—The term ‘‘Council’’ means the 

17 Pacific Fishery Management Council established 

18 under section 302(a)(1)(F) of the Magnuson-Stevens 

19 Act (16 U.S.C. 1852(a)(1)(F)). 

20 (7) MAGNUSON-STEVENS ACT.—The term 

21 ‘‘Magnuson-Stevens Act’’ means the Magnuson-Ste22 vens Fishery Conservation and Management Act (16 

23 U.S.C. 1801 et seq.). 

24 (8) OFFSHORE WHITING RESOURCE.—The term 

25 ‘‘offshore whiting resource’’ means the 
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1 transboundary stock of fish of the species Merluccius 

2 productus that— 

3 (A) is located in the offshore waters of the 

4 United States and Canada; and 

5 (B) does not include any fish of that spe6 cies located in Puget Sound or the Strait of 

7 Georgia. 

8 (9) ON-SHORE ALLOCATION.—The term ‘‘on9 shore allocation’’ means that amount of the United 

10 States catch level required under a Plan to be deliv11 ered to processors located on shore in the States of 

12 California, Oregon, or Washington. 

13 (10) PACIFIC COAST GROUNDFISH FISHERY

14 MANAGEMENT PLAN.—The term ‘‘Pacific Coast 

15 Groundfish Fishery Management Plan’’ means the 

16 Pacific Coast Groundfish Fishery Management Plan 

17 and Environmental Impact Statement for the Cali18 fornia, Oregon, and Washington groundfish fishery 

19 approved by the Secretary on January 4, 1982, and 

20 all subsequent approved amendments to that plan. 

21 (11) PACIFIC GROUNDFISH.—The term ‘‘Pacific 

22 groundfish’’ means all species of fish included in the 

23 Pacific Coast Groundfish Fishery Management Plan. 

24 (12) PACIFIC WHITING.—The term ‘‘Pacific 

25 whiting’’ means that portion of the harvest of the 
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1 offshore whiting resource that is under the jurisdic2 tion of the United States. 

3 (13) PLAN.—The term ‘‘Plan’’ means a fishery 

4 management plan prepared by the Council and ap5 proved by the Secretary under the Magnuson-Ste6 vens Act. 

7 (14) PERSON.—The term ‘‘person’’ means any 

8 individual (whether or not a citizen or national of 

9 the United States), any corporation, partnership, as10 sociation, or other entity (whether or not organized 

11 or existing under the laws of any State). 

12 (15) PROCESSING.—The term ‘‘processing’’ 

13 means the preparation or packaging of Pacific whit14 ing to render it suitable for human consumption, re15 tail sale, industrial uses, or long-term storage by 

16 cooking, filleting, freezing, conversion to fish protein 

17 compounds, mincing, or heading and gutting. 

18 (16) PROCESSOR.—The term ‘‘processor’’ 

19 means a person that engages in processing of Pacific 

20 whiting harvested as part of an on-shore allocation. 

21 (17) QUALIFIED FISHERMAN.—The term 

22 ‘‘qualified fisherman’’ means the current owner of a 

23 trawl-endorsed Pacific groundfish limited entry per24 mit issued under regulations implementing the Pa25 cific Coast Groundfish Fishery Management Plan 
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1 which during any two years from 1994 through 

2 2004 delivered not less than of 500 metric tons of 

3 Pacific whiting during each such year to a processor 

4 during the benchmark period. 

5 (18) QUALIFIED PROCESSOR.—The term 

6 ‘‘qualified processor’’ means— 

7 (A) a processor that operated in any year 

8 from 1999 through 2004, and processed at 

9 least 1,000,000 pounds of whiting during such 

10 year; or 

11 (B) a successor in ownership of a processor 

12 described in subparagraph (A). 

13 (19) SECRETARY.—The term ‘‘Secretary’’ 

14 means the Secretary of Commerce. 

15 (20) SHARE-HOLDER.—The term ‘‘share-hold16 er’’ means the current owner of cooperative shares. 

17 (21) TREATY TRIBE.—The term ‘‘treaty tribe’’ 

18 means any Indian tribe determined by the United 

19 States courts to have rights to harvest Pacific whit20 ing within specified areas. 

21 (22) UNITED STATES CATCH LEVEL.—The term 

22 ‘‘United States catch level’’ means that portion of 

23 the offshore whiting resource which may be har24 vested by persons subject to the jurisdiction of the 

25 United States. 
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1 SEC. 4. RATIONALIZATION OF THE PACIFIC WHITING FISH2 ERY. 

3 (a) IDENTIFICATION OF QUALIFIED PARTICI4 PANTS.— 

5 (1) REQUIREMENT FOR PERMITS.—The Sec6 retary shall issue a permit to— 

7 (A) any person who demonstrates by ap8 propriate records that such person is a qualified 

9 fisherman; and 

10 (B) any person who demonstrates by ap11 propriate records that such person is a qualified 

12 processor. 

13 (2) LIMITATIONS.—Permits issued under this 

14 subsection will be clearly designated as qualified 

15 fisherman or qualified processor permits, are not 

16 interchangeable, and shall not confer ownership in 

17 any stock of fish over which the United States exer18 cises sovereign jurisdiction. 

19 (3) TRANSFER OF PERMITS.—Permits may be 

20 transferred through sale, lease, barter, gift, inherit21 ance, or any other legal means. A permit which is 

22 transferred may not be redesignated and may only 

23 be used in accordance with this Act and any regula24 tions issued pursuant to this Act. 

25 (4) FEE.—The Secretary may charge a fee to 

26 issue a permit under this subsection which shall not 
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1 exceed the administrative costs incurred in issuing 

2 the permit. 

3 (5) ENDORSEMENT.—For the purposes of para4 graph (1)(A), the permit issued by the Secretary 

5 shall be an appropriate permanent endorsement of a 

6 Pacific groundfish trawl limited entry permit issued 

7 under the Pacific Coast Groundfish Fishery Manage8 ment Plan. 

9 (b) ALLOCATION OF RESOURCE.—Prior to March 1 

10 of the calendar year following the issuance of final regula11 tions as required by section 6, the Secretary shall make 

12 an initial allocation of cooperative shares as follows: 

13 (1) Each qualified fisherman who currently 

14 owns a Pacific groundfish trawl limited entry permit 

15 issued under the Pacific Coast Groundfish Fishery 

16 Management Plan that has been endorsed under 

17 subsection (a) shall be assigned a percentage of co18 operative share using the following formula: 

19 (A) For each permit, the amount of Pacific 

20 whiting harvested by any vessel to which the 

21 permit was assigned during the benchmark pe22 riod in each of the years from 1994 through 

23 2004 shall be divided by the aggregate catch for 

24 each of those years. 
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1 (B) The 9 highest percentages shall be 

2 averaged and the result shall be considered the 

3 permit’s catch history. 

4 (C) Each permit’s catch history shall be di5 vided by the sum of all catch histories to deter6 mine the qualified fisherman’s cooperative 

7 share. 

8 (2) Each qualified processor who has been 

9 issued a permit under subsection (a) shall be as10 signed a percentage of cooperative share using the 

11 following formula: 

12 (A) For each qualified processor, the 

13 amount of Pacific whiting purchased by that 

14 processor during the benchmark period in each 

15 of the years from 1999 through 2004 shall be 

16 divided by the aggregate landed catch for each 

17 of those years. 

18 (B) The 4 highest percentages shall be 

19 averaged and the result shall be considered the 

20 qualified processor’s processing history. 

21 (C) Each qualified processor’s processing 

22 history shall be divided by the sum of all proc23 essing histories to determine the qualified proc24 essor’s cooperative share. 
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1 (3) The percentages assigned to qualifying fish2 ermen shall be designated fishermen’s cooperative 

3 share and the percentages assigned to qualifying 

4 processors shall be designated processors’ coopera5 tive share. Except as provided in subsection (d), co6 operative shares may be transferred, in whole or in 

7 part, through sale, lease, barter, gift, inheritance or 

8 any other legal means but will retain their original 

9 designation. 

10 (c) COOPERATIVE HARVEST OF PACIFIC WHITING.— 

11 (1) In each calendar year, the on-shore alloca12 tion shall be divided so that— 

13 (A) an amount sufficient to account for the 

14 incidental commercial or recreational catch of 

15 Pacific whiting in fisheries other than the Pa16 cific whiting fishery, but not to exceed 1 per17 cent of the on-shore allocation, shall be avail18 able for harvest by any person legally eligible to 

19 harvest Pacific whiting; and 

20 (B) after subtracting the amounts de21 scribed in subparagraph (A), 50 percent of the 

22 remainder shall be available for harvest using 

23 fishermen’s cooperative shares and 50 percent 

24 of the remainder shall be available for harvest 

25 using processors’ cooperative shares. 
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1 (2) At any time during a calendar year, a hold2 er of fisherman’s cooperative shares may enter into 

3 one or more agreements with holders of processor’s 

4 cooperative shares to use all or a portion of those 

5 processors’ cooperative shares. No Pacific whiting 

6 may be harvested using fishermen’s cooperative 

7 shares or processors’ cooperative shares without a 

8 registered agreement. Such an agreement shall not 

9 be valid if— 

10 (A) it does not require the use of an equal 

11 amount of fishermen’s cooperative shares and 

12 processors’ cooperative shares; or 

13 (B) it is not registered with the Secretary 

14 prior to the time the cooperative shares covered 

15 by the agreement are used to harvest Pacific 

16 whiting. 

17 (d) RESTRICTIONS ON TRANSFER.—Fishermen’s co18 operative shares may only be transferred to a person hold19 ing a Pacific groundfish trawl limited entry permit issued 

20 under the Pacific Coast Groundfish Fishery Management 

21 Plan. 

22 (e) CONTRIBUTION TO RESEARCH AND MANAGE23 MENT.— 

24 (1) FEE.—In addition to any fee which may be 

25 collected under subsection (a), the Secretary is au-
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1 thorized and shall collect a fee equally from share2 holders to recover the costs of carrying out this sec3 tion (including costs associated with carrying out ac4 tivities under section 5) and of conducting scientific 

5 research on the offshore whiting resource. 

6 (2) DETERMINATION OF FEE.— 

7 (A) IN GENERAL.—Each share-holder will 

8 be liable for a fee up to 3 percent of the ex-ves9 sel value of the Pacific whiting that was har10 vested in a calendar year using fishermen’s co11 operative shares owned by that share-holder 

12 and up to 3 percent of the ex-vessel value of the 

13 Pacific whiting that was harvested in a calendar 

14 year using processors’ cooperative shares owned 

15 by that share-holder. 

16 (B) SCHEDULE OF PAYMENT.—The fee re17 ferred to in subparagraph (A) shall be payable 

18 not later than 30 days after the end of the cal19 endar year during which the Pacific whiting on 

20 which the fee is imposed was harvested. 

21 (3) AVAILABILITY OF FEES.—Fees collected 

22 under this subsection shall be available to the Sec23 retary without fiscal year limitation and may only be 

24 used to carry out the Secretary’s obligations under 

25 this Act, except as provided in paragraph (4). 
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1 (4) USE BY STATES.—Upon application from 

2 the States of Washington, Oregon, or California, the 

3 Secretary may transfer up to 33 percent of the fees 

4 collected under this subsection in any calendar year 

5 to 1 or more of such States to offset costs incurred 

6 by such States in the conservation and management 

7 of Pacific whiting. 

8 SEC. 5. CONSERVATION OF PACIFIC WHITING. 

9 (a) LIMITS ON INCIDENTAL CATCH.— 

10 (1) RECOMMENDATION OF INCIDENTAL CATCH

11 LIMITATIONS.—The Council may recommend to the 

12 Secretary appropriate amounts of any species of Pa13 cific groundfish, other than Pacific whiting, that 

14 may be harvested incidentally to the harvest of Pa15 cific whiting under this Act and any other Act. 

16 (2) SCHEDULE FOR RECOMMENDATIONS.—The 

17 Council may make recommendations annually or in 

18 such other time increment that facilitates conserva19 tion and management of the Pacific groundfish fish20 ery. 

21 (3) RECOMMENDATIONS.— 

22 (A) BASIS FOR RECOMMENDATIONS.— 

23 Such recommendations shall be— 

24 (i) based on the best scientific infor25 mation available; 
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1 (ii) reasonably calculated to promote 

2 conservation; 

3 (iii) fair and equitable to holders of 

4 cooperative shares and others who harvest 

5 Pacific groundfish; and 

6 (iv) to the extent practicable, designed 

7 to minimize the discard of Pacific whiting 

8 and other species of Pacific groundfish. 

9 (4) CONSIDERATIONS.—The Council shall, in 

10 making such recommendations, consider the percent11 age of Pacific whiting available for harvest by hold12 ers of cooperative shares relative to the percentage 

13 of Pacific whiting available for harvest by others. 

14 (5) USE OF FUNDS.—The amounts rec15 ommended under paragraph (1) shall include specific 

16 subamounts by species or species group which shall 

17 be available only to holders of cooperative shares and 

18 which may be transferred among holders of coopera19 tive shares who are harvesting Pacific whiting under 

20 a valid agreement under section 4. 

21 (6) PUBLICATION.—Not later than 45 days 

22 after receiving the recommendations of the Council, 

23 the Secretary shall publish a proposed rule which 

24 applies the aggregate limits to the Pacific whiting 
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1 fishery and allow 30 days for public comment before 

2 publishing a final rule. 

3 (b) MONITORING.—The Secretary shall issue regula4 tions providing for the statistically reliable monitoring of 

5 harvesting and processing of Pacific whiting to determine 

6 compliance with this Act and to collect necessary biological 

7 samples for the conservation and management of the Pa8 cific whiting fishery and the offshore whiting resource. 

9 (c) ACTION BY THE COUNCIL.— 

10 (1) RECOMMENDATIONS OF OTHER INCIDENTAL

11 CATCH LIMITATIONS.—The Council may recommend 

12 amendments to the Pacific Coast Groundfish Fish13 ery Management Plan which provide for limits on in14 cidental catch of species other than Pacific whiting, 

15 monitoring of the Pacific whiting fishery, and a sys16 tem allowing transfer of incidental catch amounts 

17 among persons harvesting Pacific whiting under a 

18 valid agreement under section 4. Amendments rec19 ommended under this paragraph shall meet the re20 quirements of subsection (a)(3). 

21 (2) ADDITIONAL REGULATIONS.—Regulations 

22 issued by the Secretary under subsections (a) or (b) 

23 shall be superseded by any regulations issued by the 

24 Secretary to implement Plan amendments rec25 ommended under paragraph (1). 
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1 (d) COMPLIANCE WITH ENVIRONMENTAL STAND2 ARDS.—Amendments to the Pacific Coast Groundfish 

3 Fishery Management Plan and regulations implementing 

4 those amendments which are prepared in accordance with 

5 applicable provisions of the Magnuson-Stevens Act and 

6 regulations implementing this Act are deemed to have 

7 been prepared in compliance with the requirements of sec8 tion 102(2)(C) of the National Environmental Policy Act 

9 of 1969 (42 U.S.C. 4332(2)(C)). 

10 SEC. 6. PROGRAM IMPLEMENTATION. 

11 (a) REQUIREMENT.—Not later than 6 months after 

12 the date of enactment of this Act, the Secretary shall issue 

13 final regulations to implement the program for Pacific 

14 whiting conservation and management described in this 

15 Act. In developing such regulations, the Secretary shall 

16 allow the Council the opportunity to propose draft regula17 tions. 

18 (b) PLAN AMENDMENT.—The Council may amend 

19 the appropriate Plan to conform with this Act or regula20 tions issued under this Act. Failure of the Council to 

21 amend a Plan shall not delay the obligations of the Sec22 retary under subsection (a). 
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1 SEC. 7. ENFORCEMENT AND PENALTIES. 

2 (a) IN GENERAL.—It is unlawful for any person to 

3 violate any provision of this Act or any regulation issued 

4 under this Act. 

5 (b) UNLAWFUL HARVEST.—It is unlawful for any 

6 person to harvest Pacific whiting using cooperative shares 

7 without having a valid agreement registered with the Sec8 retary under section 4(c)(2). 

9 (c) PENALTY.—Any person who commits an action 

10 that is unlawful under subsection (a) or (b) may be liable 

11 for a civil penalty under subsection (a) of section 308 of 

12 the Magnuson-Stevens Act (16 U.S.C. 1858) or permit 

13 sanction imposed by subsection (g) of such section 308, 

14 as if such person had committed an act prohibited by sec15 tion 307 of such Act (16 U.S.C. 1857). 

16 (d) REVIEW.—Any person against whom a civil pen17 alty is assessed or against whom a permit sanction is im18 posed as described in subsection (c) may obtain review 

19 thereof as described in subsection (b) of section 308 of 

20 the Magnuson-Stevens Act. 

21 (e) SHERMAN ACT.—No person may own or control 

22 cooperative shares in an amount or manner that violates 

23 the Sherman Act (15 U.S.C. 1 et seq.). 

24 SEC. 8. REPORTS TO CONGRESS. 

25 (a) REQUIREMENT.—Not later than 5 years after the 

26 issuance of final regulations under section 6(a), and dur-
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1 ing each 5-year period thereafter, the Secretary, after con2 sultation with the Council, shall submit to Congress a re3 port on the implementation of this Act. 

4 (b) CONTENTS.—Such reports shall include— 

5 (1) a description of the conservation and man6 agement actions carried out for the Pacific whiting 

7 fishery, including the extent to which bycatch (in8 cluding discard) of Pacific groundfish has been mini9 mized; 

10 (2) the number of active fishing vessels and 

11 processing facilities remaining in such fishery; 

12 (3) the economic impact of such fishery on local 

13 coastal communities; 

14 (4) whether the amounts specified in section 

15 4(c)(1)(A) continue to be appropriate; and 

16 (5) any recommendations of the Secretary for 

17 changes to this Act, along with a justification for 

18 such recommendations. 

19 SEC. 9. CONSTRUCTION. 

20 The provisions of this Act shall be deemed not to vio21 late section 804 of the Departments of Commerce, Justice, 

22 and State, the Judiciary, and Related Agencies Appropria23 tions Act, 2004 (division B of Public Law 108–199; 118 

24 Stat. 111) or any provision of the Magnuson-Stevens Act 
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1 and may not be construed to have any effect on the appli2 cation of such section 804. 

3 SEC. 10. AUTHORIZATIONS. 

4 There is authorized to be appropriated to the Sec5 retary $750,000 for each of fiscal years 2006 and 2007 

6 to carry out the provisions of this Act, of which $250,000 

7 may be made available to the Council each fiscal year. 

Æ