II

103D CONGRESS

2D SESSION S. 2138

To amend the Magnuson Fishery Conservation and Management Act.

IN THE SENATE OF THE UNITED STATES

MAY 19 (legislative day, MAY 16), 1994

Mr. KERRY (for himself and Mr. STEVENS) (by request) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

A BILL

To amend the Magnuson Fishery Conservation and

Management Act.

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

3 FINDINGS, PURPOSES, AND POLICY

4 SECTION 1. Section 2 of the Act (16 U.S.C. 1801)

5 is amended—

6 (1) in paragraph (a)(2) by—

7 (A) inserting ‘‘resource’’ between ‘‘fishery’’

8 and ‘‘conservation’’; and

9 (B) deleting ‘‘and’’ before ‘‘(B)’’, and add10 ing after the second occurrence of ‘‘threatened’’
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1 ‘‘, and (C) direct and indirect habitat losses

2 have resulted in diminished capacity to support

3 existing fishing levels’’;

4 (2) in paragraph (a)(6) by inserting ‘‘to provide

5 long-term protection for essential marine and estua6 rine fish habitats,’’ between ‘‘conservation,’’ and

7 ‘‘and to realize’’;

8 (3) by adding new paragraphs (a) (9) and (10)

9 to read as follows:

10 ‘‘(9) The greatest long-term threat to the viabil11 ity of commercial and recreational fisheries is the

12 continuing loss of marine and estuarine habitats on

13 a national level. Habitat considerations must receive

14 increased attention in the conservation and manage15 ment of fishery resources of the United States.

16 ‘‘(10) Fishery habitat protection can be

17 achieved through direct advocacy for fishery habitats

18 by the Secretary in the implementation of existing

19 Federal procedures for interagency consultation and

20 the application of other Federal statutes under the

21 Secretary’s purview.’’; and

22 (4) by adding a new paragraph (b)(7) to read

23 as follows:

24 ‘‘(7) to promote the advocacy of fishery habitat

25 protection in the review of projects conducted under
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1 Federal permits, licenses, or other authorities that

2 affect, or have the potential to affect, fishery

3 habitats.’’.

4 DEFINITIONS

5 SEC. 2. Section 3 of the Act (16 U.S.C. 1802) is

6 amended—

7 (1) by renumbering subsections (6) through

8 (31) as subsections (7) through (32), respectively,

9 and by adding a new subsection (6) as follows:

10 ‘‘(6) The term ‘essential fish habitat’ means

11 any area formally identified by a Council or by the

12 Secretary for species managed under section

13 304(g)(3) that is—

14 ‘‘(A) landward of the outer boundary of

15 the exclusive economic zone and essential to the

16 life cycle of marine, estuarine, anadromous, or

17 catadromous species; or

18 ‘‘(B) essential to the production of opti19 mum yield throughout the range of one or more

20 fisheries under management by a Council or by

21 the Secretary under section 304(g)(3); or

22 ‘‘(C) meeting other criteria or guidance as

23 provided by the Secretary to the Councils.’’;

24 and
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1 (2) by further amending renumbered section

2 3(22) of the Act by revising the text and adding a

3 new paragraph (C) to read as follows:

4 ‘‘(22) The term ‘optimum’, with respect to the

5 yield from a fishery, means the amount of fish—

6 ‘‘(A) which will provide the greatest overall

7 benefit to the Nation, with particular reference

8 to food production and recreational opportuni9 ties;

10 ‘‘(B) which is prescribed on the basis of

11 the maximum sustainable yield from a fishery,

12 as modified by any relevant economic, social, or

13 ecological factor; and

14 ‘‘(C) which ensures the rebuilding of de15 pleted stocks to a level consistent with produc16 ing the maximum sustainable yield.’’.

17 FOREIGN FISHING

18 SEC. 3. (a) Section 201(a)(1) of the Act (16 U.S.C.

19 1821(a)(1)) is revised to read as follows:

20 ‘‘(1) is authorized under subsection (b) or (c),

21 or is approved under section 204(b)(6)(A)(ii);’’.

22 (b) Section 201 of the Act (16 U.S.C. 1821) is

23 amended by deleting section (g), (h), (i), and (j) as sub24 sections 201(f), and by redesignating subsections (f), (g),

25 (h), and (i), respectively.
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1 PERMITS FOR FOREIGN FISHING

2 SEC. 4. (a) Section 204(b)(1) of the Act (16 U.S.C.

3 1824(b)(1)) is amended to read as follows:

4 ‘‘(b) APPLICATIONS AND PERMITS.—

5 ‘‘(1) ELIGIBILITY.—(A) Except as provided in

6 subparagraph (B), each foreign nation with which

7 the United States has entered into a governing

8 international fishery agreement shall submit an ap9 plication to the Secretary of State each year for a

10 permit for each of its fishing vessels that wishes to

11 engage in fishing described in subsection (a).

12 ‘‘(B) An owner of a vessel other than a vessel

13 of the United States, who wishes to engage in the

14 transshipment at sea of fish products in the exclu15 sive economic zone or within the boundary of any

16 State, may submit an application to the Secretary

17 each year for a permit for a vessel belonging to that

18 owner, whether or not such vessel is subject to an

19 international fishery agreement described in section

20 201 (b) or (c).

21 ‘‘(C) No permit issued under this section may

22 be valid for longer than a year; and section 558(c)

23 of title 5, United States Code, does not apply to the

24 renewal of any such permit.’’.
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1 (b) Section 204(b)(4) of the Act (16 U.S.C.

2 1824(b)(4)) is amended by—

3 (1) inserting ‘‘submitted under paragraph

4 (1)(A)’’ after the words ‘‘any application’’;

5 (2) redesignating subparagraphs (A), (B), and

6 (C) as subparagraphs (i), (ii) and (iii);

7 (3) redesignating paragraph (4) as paragraph

8 (4)(A); and

9 (4) inserting a new paragraph (4)(B) to read as

10 follows:

11 ‘‘(B) Upon receipt of any application sub12 mitted under paragraph (1)(B) which complies

13 with the requirements of paragraph (3), the

14 Secretary shall promptly transmit copies of the

15 application or summary as indicated under sub16 paragraphs (A)(ii) and (iii).’’.

17 (c) Section 204(b)(5) of the Act (16 U.S.C.

18 1824(b)(5)) is amended by replacing the words ‘‘under

19 paragraph (4)(C)’’ with the words ‘‘submitted under para20 graph (1)(A)’’.

21 (d) Section 204(b)(6) of the Act (16 U.S.C.

22 1824(b)(6)) is amended by—

23 (1) replacing the phrase ‘‘transmitted under

24 paragraph (4)(A)’’ with the phrase ‘‘submitted

25 under paragraph 1(A)’’ in paragraph (6)(A);
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1 (2) redesignating paragraph (6)(A) as para2 graph (6)(A)(i); and

3 (3) adding a new subparagraph (A)(ii), as fol4 lows:

5 ‘‘(ii) In the case of any application submit6 ted under paragraph (1)(B), the Secretary may

7 approve the application upon determining that

8 the activity described in the application will be

9 in the interest of the United States and will

10 meet the applicable requirements of this Act,

11 and that the owners or operators have agreed

12 to comply with requirements set forth in section

13 201(c)(2) and have established any bonds or fi14 nancial assurances that may be required by the

15 Secretary; or the Secretary may disapprove all

16 or any portion of the application.’’.

17 (e) Section 204(b)(8) of the Act (16 U.S.C.

18 1824(b)(8)) is amended by inserting the words ‘‘, or the

19 agent for the foreign vessel owner for any application sub20 mitted under paragraph (1)(B)’’ at the end of subpara21 graph (A).

22 (f) Section 204(b)(9) of the Act (16 U.S.C.

23 1824(b)(9)) is amended by—

24 (1) inserting the words ‘‘paragraph (1)(A) of’’

25 after the phrase ‘‘by a foreign nation under’’;
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1 (2) redesignating paragraph (9) as paragraph

2 (9)(A); and

3 (3) adding a new paragraph (9)(B) to read as

4 follows:

5 ‘‘(B) If the Secretary does not approve any

6 application submitted by a foreign vessel owner

7 under paragraph (1)(B) of this subsection, the

8 Secretary shall promptly inform the vessel

9 owner of the disapproval and the reasons there10 fore. The owner, after taking into consideration

11 the reasons for disapproval, may submit a re12 vised application under this subsection.’’.

13 (g) Section 204(b)(11) of the Act (16 U.S.C.

14 1824(b)(11)) is amended by—

15 (1) inserting the words ‘‘submitting an applica16 tion under paragraph (1)(A)’’ after the words ‘‘If a

17 foreign nation’’;

18 (2) redesignating paragraph (11) as paragraph

19 (11)(A); and

20 (3) adding a new paragraph (11)(B), to read as

21 follows:

22 ‘‘(B) If the vessel owner submitting an ap23 plication under paragraph (1)(B) notifies the

24 Secretary of acceptance of the conditions and

25 restrictions established by the Secretary under
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1 paragraph (7), and upon payment of the appli2 cable fees established pursuant to paragraph

3 (10) and confirmation of any bonds or financial

4 assurances that may be required for such fish5 ing, the Secretary shall thereupon issue a per6 mit for the vessel.’’.

7 LARGE-SCALE DRIFTNET FISHING

8 SEC. 5. Section 206 of the Act (16 U.S.C. 1826) is

9 amended by deleting subsection 206(e), and by redesignat10 ing subsections (f), (g), and (h) as subsections (e), (f),

11 and (g), respectively.

12 NATIONAL STANDARDS FOR FISHERY CONSERVATION AND

13 MANAGEMENT

14 SEC. 6. (a) Section 301(a) of the Act (16 U.S.C.

15 1851) is amended by revising subsection (1) to read as

16 follows:

17 ‘‘(1) Conservation and management measures

18 shall prevent overfishing and rebuild depleted stocks.

19 Such measures shall be designed to achieve, on a

20 continuing basis, the optimum yield from each fish21 ery.’’.

22 (b) Section 301(a) of the Act (16 U.S.C. 1851) is

23 amended by adding a new subsection 8 to read as follows:

24 ‘‘(8) Conservation and management measures

25 shall, to the extent practicable, minimize the inciden26 tal catch of non-target living marine resources that
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1 results in the unnecessary waste of those re2 sources.’’.

3 REGIONAL FISHERY MANAGEMENT COUNCILS

4 SEC. 7. (a) Section 302(a) of the Act (16 U.S.C.

5 1852(a)) is amended by revising subsection (a)(6) to read

6 as follows:

7 ‘‘(6) PACIFIC COUNCIL.—The Pacific Fishery

8 Management Council shall consist of the States of

9 California, Oregon, Washington, and Idaho and shall

10 have authority over the fisheries in the Pacific

11 Ocean seaward of such States. The Pacific Council

12 shall have 14 voting members, including 8 appointed

13 by the Secretary in accordance with subsection

14 (b)(2) (at least one of whom shall be appointed from

15 each such State), and including one appointed from

16 an Indian tribe with Federally recognized fishing

17 rights from California, Oregon, Washington, or

18 Idaho.’’.

19 (b) Section 302(b) of the Act (16 U.S.C. 1852(b))

20 is amended—

21 (1) by revising paragraph (C) of subsection

22 (b)(1) to read as follows:

23 ‘‘(C) The members required to be ap24 pointed by the Secretary in accordance with

25 subsections (b) (2) and (5)’’;
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1 (2) by renumbering subsection (5) as subsection

2 (6), and inserting a new subsection (5) to read as

3 follows:

4 ‘‘(5)(A) The Secretary shall appoint to the Pa5 cific Fishery Management Council one representa6 tive, designated by the Secretary of the Interior, of

7 an Indian tribe with Federally recognized fishing

8 rights from California, Oregon, Washington, or

9 Idaho, from a list of not less than three individuals

10 submitted by the tribal governments. The represent11 ative shall serve for a term of three years and may

12 not be reappointed to the consecutive term.

13 ‘‘(B) Representation shall be rotated among the

14 tribes taking into consideration—

15 ‘‘(i) the qualifications of the individuals on

16 the list referred to in subparagraph (A),

17 ‘‘(ii) the various treaty rights of the Indian

18 tribes involved and judicial cases that set forth

19 how those rights are to be exercised, and

20 ‘‘(iii) the geographic area in which the

21 tribe of the representative is located.

22 ‘‘(C) A vacancy occurring prior to the expira23 tion of any term shall be filled in the same manner

24 set out in subparagraphs (A) and (B), except that

25 the Secretary may use the list from which the
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1 vacating representative was chosen. A representative

2 appointed to fill such a vacancy may not be

3 reappointed to a consecutive term.’’; and

4 (3) by replacing the words ‘‘subsection (b)(2)’’

5 in renumbered subsection (6) with the words ‘‘sub6 sections (b) (2) and (5)’’.

7 (c) Section 302(h) of the Act (16 U.S.C. 1852(h))

8 is amended by redesignating subparagraphs (2) through

9 (6) as subparagraphs (3) through (7), respectively, and

10 by adding a new subparagraph (2) as follows:

11 ‘‘(2) take immediate action to prepare an

12 amendment to the applicable fishery management

13 plan or to submit proposed regulations—

14 ‘‘(A) to prevent overfishing of a stock or

15 stock complex, as defined in the fishery man16 agement plan, from occurring whenever such

17 stock or stock complex, as identified under sec18 tion 304(h), is determined to be approaching an

19 overfished condition, or

20 ‘‘(B) to stop overfishing of the stock or

21 stock complex, and to restore the stock to a

22 condition that is consistent with producing the

23 maximum sustainable yield when such stock or

24 stock complex is determined to be overfished.
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1 A Council shall submit a plan amendment or pro2 posed regulations to the Secretary within 1 year

3 from the date of transmittal of the report on the

4 status of stocks, as required under section 304(h),

5 to the Council for those stocks that are approaching

6 a condition of being overfished or are overfished.’’

7 (d) Section 302(i) of the Act (16 U.S.C. 1853(i)) is

8 amended—

9 (1) in subparagraph (1)(A) by deleting ‘‘and’’

10 before ‘‘(B)’’;

11 (2) in subparagraph (1)(B) by deleting the pe12 riod and replacing it with ‘‘; and’’;

13 (3) by adding a new subparagraph (1)(C) to

14 read:

15 ‘‘(C) shall be responsible for identifying es16 sential fish habitats.’’; and

17 (4) by adding a new paragraph (3) as follows:

18 ‘‘(3) By December 31, 1995, and annually

19 thereafter, the Councils shall submit for publication

20 by the Secretary a listing of all essential fish habi21 tats identified pursuant to subparagraph (1)(C) for

22 all fishery management plans in effect on that

23 date.’’.

24 (e) Section 302(k) of the Act (16 U.S.C. 1852(k))

25 is amended by adding a new subparagraph (8) as follows:
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1 ‘‘(8)(A) An affected individual who has a finan2 cial interest that would be significantly affected by

3 a Council decision may not participate in the Coun4 cil’s deliberations relating to that decision, unless

5 such individual receives a written authorization

6 under subparagraph (B) or (C) below. An affected

7 individual who may not participate may comment or

8 testify on the decision as a member of the public.

9 ‘‘(B)(i) At the request of an affected individual,

10 or at the initiative of the appropriate regional direc11 tor, the regional director shall make a determination

12 for the record whether the individual has a financial

13 interest that would be significantly affected by a

14 Council decision.

15 ‘‘(ii) If the regional director determines that an

16 affected individual’s financial interest would be sig17 nificantly affected by a Council decision, the regional

18 director may authorize the individual’s participation

19 in the decision if the director determines in writing

20 that the need for the individual’s participation out21 weighs the potential for a conflict of interest.

22 ‘‘(C) Any Council member may submit a writ23 ten request to the Assistant Administrator for Fish24 eries, National Oceanic and Atmospheric Adminis25 tration, to review any determination by the regional
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1 director under subparagraph (B). Such review shall

2 be completed within 90 days of receipt of the re3 quest.

4 ‘‘(D) If the Council makes a decision before the

5 Assistant Administrator for Fisheries has reviewed a

6 determination or authorization under subparagraph

7 (C), the eventual ruling may not be treated as cause

8 for the invalidation or reconsideration of the deci9 sion.

10 ‘‘(E) The Secretary is authorized to issue

11 guidelines with respect to making the determinations

12 under sections 8 (A) and (B).’’.

13 CONTENTS OF FISHERY MANAGEMENT PLANS

14 SEC. 8. Section 303 of the Act (16 U.S.C. 1853) is

15 amended in its entirety to read as follows:

16 ‘‘SEC. 303. CONTENTS OF FISHERY MANAGEMENT PLANS

17 AND REGULATIONS.

18 ‘‘(a) FISHERY MANAGEMENT PLANS.—Before under19 taking management of any fishery, the Council or the Sec20 retary shall prepare a fishery management plan, which

21 shall—

22 ‘‘(1) contain a description of the fishery, includ23 ing, but not limited to, the number of vessels in24 volved, the type and quantity of fishing gear used,

25 the species of fish involved and their location, the

26 cost likely to be incurred in management, actual and
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1 potential revenues from the fishery, any recreational

2 interest in the fishery, and the nature and extent of

3 foreign fishing and Indian treaty fishing rights, if

4 any;

5 ‘‘(2) assess the impact of the fishery on the

6 physical environment, with particular attention to

7 protected species and habitat, and to any stocks of

8 naturally spawning anadromous fish in the region;

9 ‘‘(3) identify the problems to be addressed and

10 management objectives to be achieved in regulating

11 the fishery, and outline the primary alternative ap12 proaches to resolving the problems and achieving the

13 objectives;

14 ‘‘(4) specify an objective and measurable defini15 tion of overfishing for each stock or stock complex

16 in the fishery;

17 ‘‘(5) assess and specify the present and prob18 able future condition of, and the maximum sustain19 able yield and optimum yield from, the fishery, and

20 include a summary of the information utilized in

21 making such specification;

22 ‘‘(6) establish a process for specifying—

23 ‘‘(A) the capacity and the extent to which

24 fishing vessels of the United States, on an an25 nual basis, will harvest the optimum yield,
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1 ‘‘(B) the portion of such optimum yield

2 which, on an annual basis, will not be harvested

3 by fishing vessels of the United States and can

4 be made available for foreign fishing, and

5 ‘‘(C) the capacity and extent to which

6 United States fish processors, on an annual

7 basis, will process that portion of such optimum

8 yield that will be harvested by fishing vessels of

9 the United States;

10 ‘‘(7) assess and specify the nature and extent of

11 scientific data that are needed for effective manage12 ment of the fishery; and

13 ‘‘(8) contain a description, based on guidelines

14 developed by the Secretary, of all essential fish habi15 tats including—

16 ‘‘(A) the characteristics that make the

17 habitats essential to the conservation and man18 agement of the particular fishery for which the

19 plan was prepared;

20 ‘‘(B) the threats facing the continued via21 bility of each essential fish habitat for the long22 term maintenance of the specific fishery;

23 ‘‘(C) the adequacy of the existing regu24 latory regime in providing long-term protection

25 for these habitats; and
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1 ‘‘(D) recommendations for regulatory and

2 nonregulatory actions that should be considered

3 to ensure the long-term protection of these

4 habitats.

5 ‘‘(b) TRANSITION.—Councils are encouraged to pre6 pare fishery management plans under the new format to

7 replace existing fishery management plans. However, any

8 fishery management plan that has not been replaced by

9 1 year from enactment shall be deemed a plan for the pur10 poses of the amended Act; the plan’s conservation and

11 management measures shall be deemed deleted from the

12 document.

13 ‘‘(c) REGULATIONS.—Regulations promulgated to

14 conserve and manage a fishery—

15 ‘‘(1) shall contain the conservation and manage16 ment measures, applicable to foreign fishing and

17 fishing by vessels of the United States, that are—

18 ‘‘(A) necessary and appropriate for the

19 conservation and management of the fishery to

20 prevent overfishing, and to protect, restore, and

21 promote the long-term health and stability of

22 the fishery;

23 ‘‘(B) described in this subsection; and

24 ‘‘(C) consistent with the national stand25 ards, the other provisions of this Act, regula-
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1 tions implementing recommendations by inter2 national organizations in which the United

3 States participates (including but not limited to

4 closed areas, quotas, and size limits), and any

5 other applicable law;

6 ‘‘(2) shall specify the pertinent data that shall

7 be submitted to the Secretary with respect to the

8 fishery, including, but not limited to, information re9 garding the type and quantity of fishing gear used,

10 catch by species in numbers of fish or weight there11 of, areas in which fishing was engaged in, time of

12 fishing, number of hauls, and the estimated process13 ing capacity of, and the actual processing capacity

14 utilized by, United States fish processors;

15 ‘‘(3) may consider and provide for temporary

16 adjustments, after consultation with the Coast

17 Guard and persons utilizing the fishery, regarding

18 access to the fishery for vessels otherwise prevented

19 from harvesting because of weather or other ocean

20 conditions affecting the safe conduct of the fishery;

21 except that the adjustment shall not adversely affect

22 conservation efforts in other fisheries or discriminate

23 among participants in the affected fishery;

24 ‘‘(4) may require a permit to be obtained from

25 the Secretary, with respect to—
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1 ‘‘(A) any fishing vessel of the United

2 States fishing, or wishing to fish, in the exclu3 sive economic zone or for anadromous species

4 or Continental Shelf fishery resources beyond

5 such zone;

6 ‘‘(B) the operator of any such vessel; and

7 ‘‘(C) any United States fish processor who

8 first receives fish that are subject to the regula9 tions;

10 ‘‘(5) may designate zones where, and periods

11 when, fishing shall be limited, or shall not be per12 mitted, or shall be permitted only by specified types

13 of fishing vessels or with specified types and quan14 tities of fishing gear;

15 ‘‘(6) may establish specified limitations on the

16 catch of fish (based on area, species, size, number,

17 weight, sex, incidental catch, total biomass, or other

18 factors), which are necessary and appropriate for the

19 conservation and management of the fishery;

20 ‘‘(7) may prohibit, limit, condition, or require

21 the use of specified types and quantities of fishing

22 gear, fishing vessels, or equipment for such vessels,

23 including devices which may be required to facilitate

24 enforcement of the provisions of this Act;
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1 ‘‘(8) may incorporate consistent with the na2 tional standards, the other provisions of this Act,

3 and any other applicable law) the relevant fishery

4 conservation and management measures of the

5 coastal States nearest to the fishery;

6 ‘‘(9)(A) may establish a system for limiting ac7 cess to the fishery in order to achieve optimum yield

8 if, in developing such system, the Council and the

9 Secretary take into account—

10 ‘‘(i) present participation in the fishery,

11 ‘‘(ii) historical fishing practices in, and de12 pendence on, the fishery,

13 ‘‘(iii) the economics of the fishery,

14 ‘‘(iv) the capability of fishing vessels used

15 in the fishery to engage in other fisheries,

16 ‘‘(v) the cultural and social framework rel17 evant to the fishery, and

18 ‘‘(vi) any other relevant considerations;

19 ‘‘(B) However, regulations may not establish

20 such a limited access system, except for fisheries

21 managed under section 304(g)(3), unless such sys22 tem is first approved by a majority of the voting

23 members, present and voting, of each appropriate

24 Council;
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1 ‘‘(10) may require fish processors who first re2 ceive fish that are subject to the regulations to sub3 mit data which are necessary for the conservation

4 and management of the fishery;

5 ‘‘(11) may require that observers be carried on

6 board a vessel of the United States engaged in fish7 ing for species that are subject to the regulations,

8 for the purpose of collecting data necessary for the

9 conservation and management of the fishery; except

10 that such a vessel shall not be required to carry an

11 observer on board if the facilities of the vessel for

12 the quartering of an observer, or for carrying out

13 observer functions, are so inadequate or unsafe that

14 the health or safety of the observer or the safe oper15 ation of the vessel would be jeopardized; and

16 ‘‘(12) may prescribe such other measures, re17 quirements, or conditions and restrictions as are de18 termined to be necessary and appropriate for the

19 conservation and management of the fishery.

20 ‘‘(d) CONFIDENTIALITY OF STATISTICS.—Any statis21 tic submitted to the Secretary by any person in compliance

22 with any requirement under regulations promulgated

23 under section 305 shall be confidential and shall not be

24 disclosed, for a period of three years following the year

25 of submission to the Secretary, except—
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1 ‘‘(1) to Federal employees and Council employ2 ees who are responsible for management plan devel3 opment and monitoring;

4 ‘‘(2) to State employees pursuant to an agree5 ment with the Secretary that prevents public disclo6 sure of the identity or business of any person; or

7 ‘‘(3) when required by court order.

8 The Secretary shall, by regulation, prescribe such proce9 dures as may be necessary to preserve such confidentiality,

10 except that the Secretary may release or make public any

11 such statistics in any aggregate or summary form which

12 does not directly or indirectly disclose the identity or busi13 ness of any person who submits such statistics. Nothing

14 in this subsection shall be interpreted or construed to pre15 vent the use for conservation and management purposes

16 by the Secretary, or with the approval of the Secretary,

17 the Council, of any statistic submitted in compliance with

18 a requirement under regulations promulgated under sec19 tion 305.

20 ‘‘(e) RESTRICTION ON USE OF CERTAIN DATA.—The

21 Secretary shall promulgate regulations to restrict the use,

22 in civil enforcement or criminal proceedings under this

23 Act, the Marine Mammal Protection Act of 1972 (16

24 U.S.C. 1361 et seq.), or the Endangered Species Act (16

25 U.S.C. 1531 et seq.), of information collected by voluntary
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1 fishery data collectors, including sea samplers, while

2 aboard any vessel for conservation and management pur3 poses if the presence of such a fishery data collector

4 aboard is not required by any of such Acts or regulations

5 thereunder.’’.

6 PRE-RULEMAKING PROCEDURES

7 SEC. 9. Section 304 of the Act ‘‘ACTION BY THE

8 SECRETARY’’ (16 U.S.C. 1854) is amended in its entirety

9 to read as follows:

10 ‘‘SEC. 304. PRE-RULEMAKING PROCEDURES.

11 ‘‘(a) DATA COLLECTION PROGRAMS.—

12 ‘‘(1) If a Council determines that additional in13 formation and data (other than information and

14 data that would disclose proprietary or confidential

15 commercial or financial information regarding fish16 ing operations or fish processing operations) would

17 be beneficial for the purposes of determining wheth18 er a fishery is in need of management, the Council

19 may request that the Secretary implement a data

20 collection program for the fishery which would pro21 vide the types of information and data (other than

22 information and data that would disclose proprietary

23 or confidential commercial or financial information

24 regarding fishing operations or fish processing oper25 ations) specified by the Council. The Secretary shall

26 approve such a data collection program if he deter-
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1 mines that the need is justified, and shall promul2 gate regulations to implement the program within

3 60 days after such determination is made. If the

4 Secretary determines that the need for a data collec5 tion program is not justified, the Secretary shall in6 form the Council of the reasons for such determina7 tion in writing. The determinations of the Secretary

8 under this subsection regarding a Council request

9 shall be made within a reasonable period of time

10 after he receives that request.

11 ‘‘(2) The Secretary shall establish by regulation

12 a nation-wide mandatory data collection program to

13 provide basic fisheries performance data. The pro14 gram shall—

15 ‘‘(A) integrate data collection programs

16 under existing fishery management plans into a

17 non-duplicative data collection and management

18 system;

19 ‘‘(B) include all species of fish within the

20 geographical areas of authority of the Councils;

21 and

22 ‘‘(C) coordinate with other data collection

23 programs conducted by the Secretary, other

24 Federal agencies, or by the States, to ensure

25 completeness and to avoid duplication.
26

S 2138 IS

1 ‘‘(b) FISHERIES RESEARCH.—

2 ‘‘(1) The Secretary shall initiate and maintain,

3 in cooperation with the Councils, a comprehensive

4 program of fishery research to carry out and further

5 the purposes policy, and provisions of this Act. Such

6 program shall be designed to acquire knowledge and

7 information, including statistics, on fishery conserva8 tion and management and on the economics of the

9 fisheries.

10 ‘‘(2) Within 1 year after the date of enactment

11 of the Fishery Conservation Amendments of 1990,

12 and at least every three years thereafter, the Sec13 retary shall develop publish in the Federal Register

14 a strategic plan for fisheries research for the 5 years

15 immediately following such publication. The plan

16 shall—

17 ‘‘(A) identify and describe a comprehensive

18 program with a limited number of priority ob19 jectives for research in each of the areas speci20 fied in paragraph (2);

21 ‘‘(B) indicate the goals and timetables for

22 the program described in subparagraph (A);

23 and
27

S 2138 IS

1 ‘‘(C) provide a role for affected commercial

2 fishermen in such research, including involve3 ment in field testing.

4 ‘‘(3) The areas of research referred to in para5 graph (a) are as follows:

6 ‘‘(A) Research to support fishery conserva7 tion and management, including research on

8 the economics of fisheries and biological re9 search concerning the interdependence of fish10 eries or stocks or fish, the impact of pollution

11 on fish populations, the impact of wetland and

12 estuarine degradation, and other matters bear13 ing upon the abundance and availability of fish.

14 ‘‘(B) Conservation engineering research,

15 including the study of fish behavior and the de16 velopment and testing of new gear technology

17 and fishing techniques to minimize the harvest

18 of nontarget species and promote efficient har19 vest of target species.

20 ‘‘(C) Information management research,

21 including the development of a fishery informa22 tion base and an information management sys23 tem that will permit the full use of data in the

24 support of effective fishery conservation and

25 management.
28

S 2138 IS

1 ‘‘(4) In developing the plan required under

2 paragraph (1), the Secretary shall consult with rel3 evant federal agencies, scientific and technical ex4 perts, and other interested persons, public and pri5 vate, and shall publish a proposed plan in the Fed6 eral Register for the purpose of receiving public

7 comment on the plan. The Secretary shall ensure

8 that affected commercial fishermen are actively in9 volved in the development of the portion of the plan

10 pertaining to conservation engineering research.

11 Upon final publication in the Federal Register, the

12 plan shall be submitted by the Secretary to the Com13 mittee on Commerce, Science, and Transportation of

14 the Senate and the Committee on Merchant Marine

15 and Fisheries of the House of Representatives.

16 ‘‘(c) INCIDENTAL HARVEST RESEARCH.—

17 ‘‘(1) Within 9 months after the date of enact18 ment of the Fishery Conservation Amendments of

19 1990, the Secretary shall, after consultation with the

20 Gulf of Mexico Fishery Management Council and

21 South Atlantic Fishery Management Council, estab22 lish by regulation a 3-year program to assess the im23 pact on fishery resources of incidental harvest by the

24 shrimp trawl fishery within the authority of such

25 Councils.
29

S 2138 IS

1 ‘‘(2) The program established pursuant to para2 graph (1) shall provide for the identification of

3 stocks of fish which are subject to significant inci4 dental harvest in the course of normal shrimp trawl

5 fishing activity.

6 ‘‘(3) For stocks of fish identified pursuant to

7 paragraph (2), with priority given to stocks which

8 (based upon the best available scientific information)

9 are considered to be overfished, the Secretary shall

10 conduct—

11 ‘‘(A) a program to collect and evaluate

12 data on the nature and extent (including the

13 spatial and temporal distribution) of incidental

14 mortality of such stocks as a direct result of

15 shrimp trawl fishing activities;

16 ‘‘(B) an assessment of the status and con17 dition of such stocks, including collection of in18 formation which would allow the estimation of

19 life history parameters with sufficient accuracy

20 and precision to support sound scientific evalua21 tion of the effects of various management alter22 natives on the status of such stocks; and

23 ‘‘(C) a program of data collection and eval24 uation for such stocks on the magnitude and

25 distribution of fishing mortality and fishing ef-
30

S 2138 IS

1 fort by sources of fishing mortality other than

2 shrimp trawl fishing activity.

3 ‘‘(4) The Secretary shall, in cooperation with

4 affected interests, commence a program to design,

5 and evaluate the efficacy of, technological devices

6 and other changes in fishing technology for the re7 duction of incidental mortality of nontarget fishery

8 resources in the course of shrimp trawl fishing activ9 ity. Such program shall take into account local con10 ditions and include evaluation of any reduction in in11 cidental mortality, as well as any reduction or in12 crease in the retention of shrimp in the course of

13 normal fishing activity.

14 ‘‘(5) The Secretary shall, upon completion of

15 the programs required by this subsection, submit a

16 detailed report on the results of such programs to

17 the Committee on Commerce, Science, and Trans18 portation of the Senate and the Committee on Mer19 chant Marine and Fisheries of the House of Rep20 resentative.

21 ‘‘(d) ACTION BY THE SECRETARY AFTER RECEIPT

22 OF PLAN.—After the Secretary receives a fishery manage23 ment plan, or amendment to such plan, which was pre24 pared by a Council, the Secretary shall—
31

S 2138 IS

1 ‘‘(1) immediately commence a review of the

2 management plan or amendment to determine

3 whether it is consistent with the national standards,

4 the other provisions of this Act, and any other appli5 cable law; and

6 ‘‘(2) immediately publish in the Federal Reg7 ister a notice stating that the plan or amendment is

8 available and that written data, views, or comments

9 of interested persons on the document or amend10 ment may be submitted to the Secretary during the

11 45-day period beginning on the date the notice is

12 published.

13 ‘‘(e) REVIEW BY THE SECRETARY.—

14 ‘‘(1) In undertaking the review required under

15 paragraph (d)(1), the Secretary shall—

16 ‘‘(A) take into account the data, views, and

17 comments received from interested persons;

18 ‘‘(B) consult with the Secretary of State

19 with respect to foreign fishing;

20 ‘‘(C) consult with the Secretary of the de21 partment in which the Coast Guard is operating

22 with respect to enforcement at sea and to fish23 ery access adjustments referred to in section

24 303(c)(3); and
32

S 2138 IS

1 ‘‘(D) consult with the Secretary of the In2 terior with respect to plans that affect anad3 romous fisheries.

4 ‘‘(2) The Secretary shall approve, disapprove,

5 or partially disapprove a plan or amendment within

6 30 days of the end of the comment period under

7 subsection (d)(2) by written notice to the Council. A

8 notice of disapproval or partial disapproval shall

9 specify—

10 ‘‘(A) the applicable law with which the

11 plan or amendment is inconsistent;

12 ‘‘(B) the nature of such inconsistency(ies);

13 and

14 ‘‘(C) recommendations concerning the ac15 tions that could be taken by the Council to con16 form such plan or amendment to the require17 ments of applicable law.

18 ‘‘(3)(A) If the Secretary disapproves or par19 tially disapproves a plan or amendment, the Council

20 may submit a revised plan or amendment to the Sec21 retary.

22 ‘‘(B) After the Secretary receives a revised plan

23 or amendment the Secretary shall follow the proce24 dures specified in subsections (d) and (e).

25 ‘‘(f) PREPARATION BY THE SECRETARY.—
33

S 2138 IS

1 ‘‘(1) The Secretary may prepare a fishery man2 agement plan, with respect to any fishery, or any

3 amendment to any such plan, in accordance with the

4 national standards, the other provisions of this Act,

5 and any other applicable law, if—

6 ‘‘(A) the appropriate Council fails to de7 velop and submit to the Secretary, after a rea8 sonable period of time, a fishery management

9 plan for such fishery, or any necessary amend10 ment to such plan, if such fishery requires con11 servation and management; or

12 ‘‘(B) the Secretary disapproves or partially

13 disapproves any such plan or amendment, or

14 disapproves a revised plan or amendment, and

15 the Council involved fails to submit a revised or

16 further revised plan or amendment, as the case

17 may be.

18 In preparing any such plan or amendment, the Sec19 retary shall consult with the Secretary of State with

20 respect to foreign fishing and with the Secretary of

21 the department in which the Coast Guard is operat22 ing with respect to enforcement at sea.

23 ‘‘(2) The Secretary shall prepare a fishery man24 agement plan amendment or proposed regulations if

25 the appropriate Council fails to submit an amend-
34

S 2138 IS

1 ment or proposed regulations to the Secretary,

2 under section 302(h)(2), within 1 year after deter3 mining that any managed stock is overfished.

4 ‘‘(3)(A) Whenever, under paragraph (1), the

5 Secretary prepares a fishery management plan or

6 amendment, the Secretary shall immediately—

7 ‘‘(i) submit such plan or amendment to the

8 appropriate Council for consideration and com9 ment; and

10 ‘‘(ii) publish in the Federal Register a no11 tice stating that the plan or amendment is

12 available and that written data, views, or com13 ments of interested persons on the plan or

14 amendment may be submitted to the Secretary

15 during the 45-day period beginning on the date

16 the notice is published.

17 ‘‘(B) The appropriate Council must submit its

18 comments and recommendations, if any, regarding

19 the plan or amendment to the Secretary before the

20 close of the 45-day period referred to in subpara21 graph (A)(ii). After the close of such 45-day period,

22 the Secretary, after taking into account any such

23 comments and recommendations, as well as any

24 views, data, or comments submitted under subpara25 graph (A)(ii), may adopt such plan or amendment.
35

S 2138 IS

1 ‘‘(g) FISHERIES UNDER AUTHORITY OF MORE THAN

2 ONE COUNCIL.—

3 ‘‘(1) Except as provided in paragraph (3), if

4 any fishery extends beyond the geographical area of

5 authority of any one Council, the Secretary may—

6 ‘‘(A) designate which Council shall prepare

7 the fishery management plan for such fishery

8 and any amendment to such plan, and prepare

9 proposed regulations for such fishery; and

10 ‘‘(B) may require that the plan, amend11 ment, and proposed regulations be prepared

12 jointly by the Councils concerned.

13 No jointly prepared fishery management plan,

14 amendment, or proposed regulations may be submit15 ted to the Secretary, unless approved by a majority

16 of the voting members, present and voting, of each

17 Council concerned.

18 ‘‘(2) The Secretary shall establish the bound19 aries between the geographical areas of authority of

20 adjacent Councils.

21 ‘‘(3)(A) The Secretary shall have authority over

22 any highly migratory species fishery that is within

23 the geographical area of authority of more than one

24 of the following Councils: New England Council,
36

S 2138 IS

1 Mid-Atlantic Council, South Atlantic Council, Gulf

2 Council, and Caribbean Council.

3 ‘‘(B) In accordance with the provisions of this

4 Act and any other applicable law, the Secretary

5 shall—

6 ‘‘(i) identify research and information pri7 orities, including observer requirements and

8 necessary data collection and analysis for the

9 conservation and management of highly migra10 tory species;

11 ‘‘(ii) prepare and amend fishery manage12 ment plan with respect to highly migratory spe13 cies fisheries to which this paragraph applies;

14 and

15 ‘‘(iii) diligently pursue, through inter16 national entities (such as the International

17 Commission for the Conservation of Atlantic

18 Tunas), international fishery management

19 measures with respect to fishing for highly mi20 gratory species.

21 ‘‘(C) In preparing or amending any fishery

22 management plan and in promulgating any regula23 tions for fisheries covered by this paragraph, the

24 Secretary shall—
37

S 2138 IS

1 ‘‘(i) conduct public hearings, at appro2 priate times and in appropriate locations in the

3 geographical areas concerned, so as to allow in4 terested persons an opportunity to be heard in

5 the preparation and amendment of the plan and

6 regulations;

7 ‘‘(ii) consult with and consider the com8 ments and views of commissioners and advisory

9 groups appointed under Acts implementing rel10 evant international fishery agreements pertain11 ing to highly migratory species;

12 ‘‘(iii) consult with and consider the com13 ments and views of affected Councils;

14 ‘‘(iv) evaluate the likely effects, if any, of

15 conservation and management measures on par16 ticipants in the affected fisheries and minimize,

17 to the extent practicable, any disadvantage to

18 United States fishermen in relation to foreign

19 competitors; and

20 ‘‘(v) review, on a continuing basis (and

21 promptly whenever a recommendation pertain22 ing to fishing for highly migratory species has

23 been made under a relevant international fish24 ery agreement), and revise as appropriate, the
38

S 2138 IS

1 conservation and management measures for the

2 fishery.

3 ‘‘(D) Conservation and management measures

4 adopted under this paragraph shall—

5 ‘‘(i) take into consideration traditional

6 fishing patterns of fishing vessels of the United

7 States and the operating requirements of the

8 fisheries;

9 ‘‘(ii) be fair and equitable in allocating

10 fishing privileges among United States fisher11 men and not have economic allocation as the

12 sole purpose; and

13 ‘‘(iii) promote international conservation.

14 ‘‘(E) In implementing the provisions of this

15 paragraph, the Secretary shall consult with—

16 ‘‘(i) the Secretary of State;

17 ‘‘(ii) commissioners and advisory groups

18 appointed under Acts implementing relevant

19 international fishery agreements pertaining to

20 highly migratory species; and

21 ‘‘(iii) appropriate Councils.

22 ‘‘(h) REPORT ON STATUS OF STOCKS.—The Sec23 retary shall report annually to the Councils the status of

24 stocks under their jurisdiction and identify those stocks
39

S 2138 IS

1 that are approaching a condition of being overfished or

2 are overfished.’’.

3 RULEMAKING

4 SEC. 10. Section 305 of the Act ‘‘IMPLEMENTA5 TION OF FISHERY MANAGEMENT PLANS’’ (16 U.S.C.

6 1854) is amended in its entirety to read as follows:

7 ‘‘SEC. 305. RULEMAKING.

8 ‘‘(a) PROPOSED REGULATIONS.—

9 ‘‘(1) The Council may submit proposed regula10 tions consistent with an approved plan or amend11 ment, following public hearings as specified in sec12 tion 302(h), for action by the Secretary under this

13 section.

14 ‘‘(A) Such regulations shall be accom15 panied by a fishery impact statement which

16 shall assess, specify, and describe the likely ef17 fects, if any, of the regulations on—

18 ‘‘(i) participants in the fisheries af19 fected by the regulations; and

20 ‘‘(ii) participants in the fisheries con21 ducted in adjacent areas under the author22 ity of another Council, after consultation

23 with such Council and representatives of

24 those participants.

25 ‘‘(B) After the Secretary receives proposed

26 regulations prepared by a Council, the Sec-
40

S 2138 IS

1 retary shall immediately make a preliminary

2 evaluation of the proposed regulations for pur3 poses of deciding if they are consistent with the

4 fishery management plan and the national

5 standards.

6 ‘‘(C) If that decision is affirmative, the

7 Secretary shall immediately publish such regu8 lations, with such changes as may be necessary

9 for clarity or enforceability, in the Federal Reg10 ister, together with an explanation of those

11 changes.

12 ‘‘(D) If that decision is negative, the Sec13 retary shall notify the Council in writing of the

14 inconsistencies.

15 ‘‘(2) The Secretary may promulgate proposed

16 regulations consistent with any plan or amendment

17 prepared by the Secretary.

18 ‘‘(3) The comment period on proposed regula19 tions shall be 45 days, except that the Secretary

20 may shorten the comment period on minor revisions

21 to existing rules.

22 ‘‘(b) IMPLEMENTATION.—The Secretary shall pro23 mulgate final regulations within 45 days after the end of

24 the comment period under subsection (a)(3). The Sec25 retary must publish an explanation of any substantive dif-
41

S 2138 IS

1 ferences between the proposed and final rules. All final

2 regulations must be consistent with the plan, with the na3 tional standards and other provisions of this Act, and with

4 other applicable law.

5 ‘‘(c) EMERGENCY ACTIONS.—

6 ‘‘(1) If the Secretary finds that an emergency

7 exists involving any fishery, he may promulgate

8 emergency regulations necessary to address the

9 emergency, without regard to whether a fishery

10 management plan exists for such fishery.

11 ‘‘(2) If a Council finds that an emergency exists

12 involving any fishery within its jurisdiction, whether

13 or not a fishery management plan exists for such

14 fishery—

15 ‘‘(A) the Secretary shall promulgate emer16 gency regulations under paragraph (1) to ad17 dress the emergency if the Council, by unani18 mous vote of the members who are voting mem19 bers, requests the taking of such actions; and

20 ‘‘(B) The Secretary may promulgate emer21 gency regulations under paragraph (1) to ad22 dress the emergency if the Council, by less than

23 a unanimous vote, requests the taking of such

24 action.
42

S 2138 IS

1 ‘‘(3) Any emergency regulation which is incon2 sistent with an existing fishery management plan

3 shall be treated as an amendment to such document

4 for the period in which such regulation is in effect.

5 Any emergency regulation promulgated under this

6 subsection—

7 ‘‘(A) shall be published in the Federal

8 Register together with the reasons therefor;

9 ‘‘(B) shall remain in effect for not more

10 than 90 days after the date of publication, ex11 cept that any such regulation may be promul12 gated for an additional period of not more than

13 270 days: Provided, That the public has had an

14 opportunity to comment on the emergency regu15 lation, and, in the case of a Council rec16 ommendation for emergency regulations, the

17 Council is actively preparing a fishery manage18 ment plan, amendment, or proposed regulations

19 to address the emergency on a permanent basis;

20 ‘‘(C) that responds to a public health

21 emergency may remain in effect until the cir22 cumstances that created the emergency no

23 longer exist, provided the public has an oppor24 tunity to comment after the regulation is pub25 lished; and
43

S 2138 IS

1 ‘‘(D) may be terminated by the Secretary

2 at an earlier date by publication in the Federal

3 Register of a notice of termination, except for

4 emergency regulations promulgated under para5 graph (2) in which case such early termination

6 may be made only upon the agreement of the

7 Secretary and the Council concerned.

8 ‘‘(d) ESTABLISHMENT OF FEES.—

9 ‘‘(1) The Secretary may establish fees for any

10 permit issued pursuant to this Act. The level of any

11 such fees shall be fair and equitable to all partici12 pants in the fisheries, and meet the requirements of

13 section 9701(b) of title 31, United States Code. The

14 Secretary may enter into a cooperative agreement

15 with the States concerned, under which the States

16 administer the permit system; the agreement may

17 provide that all or part of the fees collected under

18 this system shall accrue to the States.

19 ‘‘(2) The Secretary may establish fees by regu20 lation to pay the costs of implementing conservation

21 and management measures authorized by this Act,

22 when it is determined by the Secretary that partici23 pants in the fishery will receive direct and substan24 tial benefits from such measures. The level of any

25 such fees shall be fair and equitable to all partici-
44

S 2138 IS

1 pants in the fisheries, and meet the requirements of

2 section 9701(b) of title 31, United States Code.

3 ‘‘(3) The Secretary shall establish fees on the

4 value of fish authorized to be taken under individual

5 harvest shares assigned to persons or vessels pursu6 ant to a limited access system. Fees assessed under

7 this paragraph shall not exceed 3 percent annually

8 of the value of fish authorized to be taken under in9 dividual harvest shares. The Secretary shall, by reg10 ulation, prescribe the method of determining the

11 value of fish authorized to be taken by such shares,

12 the amount of each respective fee on an annual

13 basis, and the method of collecting such fees.

14 ‘‘(4) The Secretary shall establish fees on the

15 ex-vessel value of all fish upon the first sale within

16 the jurisdiction of the United States. Fees under

17 this paragraph shall not exceed one percent of the

18 value of such fish. The Secretary shall, by regula19 tion, prescribe the method of determining the value

20 of such fish and the method of collecting such fees.

21 ‘‘(e) FEES CONTINGENT ON APPROPRIATIONS.—The

22 fees authorized in subsection (d) shall be collected, cred23 ited to the Operations, Research, and Facilities appropria24 tion, and available until expended for the purposes speci-
45

S 2138 IS

1 fied in subsection (f), only to the extent and in the

2 amounts provided in advance in appropriations Acts.

3 ‘‘(f) USE OF FEES.—Fees authorized in subsection

4 (d) may be expended for the following purposes—

5 ‘‘(1) collecting, processing, and analyzing eco6 nomic, social, biological, and statistical information

7 concerning marine recreational and commercial fish8 ing and supporting activities;

9 ‘‘(2) placing observers on domestic fishing ves10 sels;

11 ‘‘(3) conducting scientific research and publish12 ing information concerning abundance, distribution,

13 and ecology of marine fish;

14 ‘‘(4) conserving and managing stocks of marine

15 fish, including, but not limited to, developing, mon16 itoring, and implementing fishery management plans

17 and regulations;

18 ‘‘(5) improving enforcement of marine conserva19 tion programs;

20 ‘‘(6) educating resource users and the general

21 public on aspects of marine conservation programs;

22 ‘‘(7) carrying out the other provisions of this

23 Act; and

24 ‘‘(8) reducing harvesting capacity, including the

25 removal from a fishery of fishing vessels and permits
46

S 2138 IS

1 issued by the United States Government for fishing

2 privileges if the Secretary finds that—

3 ‘‘(A) the fishery, for which a fishery man4 agement plan is prepared, is determined to be

5 overfished as defined within that plan;

6 ‘‘(B) the fishery is materially affected by a

7 fishery management plan’s stock recovery re8 quirements;

9 ‘‘(C) the fishery is economically depressed;

10 and

11 ‘‘(D) the fishery is managed pursuant to a

12 limited access program under section 303(c)(9)

13 of the Act.

14 ‘‘(g) RESPONSIBILITY OF THE SECRETARY.—The

15 Secretary shall have general responsibility to carry out the

16 provisions of this Act. The Secretary may promulgate such

17 regulations, in accordance with section 553 of title 5,

18 United States Code, as may be necessary to discharge

19 such responsibility.

20 ‘‘(h) EFFECT OF CERTAIN LAWS ON CERTAIN TIME

21 REQUIREMENTS.—The Paperwork Reduction Act of 1980

22 (44 U.S.C. 3501 et seq.), the Regulatory Flexibility Act

23 (5 U.S.C. 601 et seq.), and Executive Order Numbered

24 12866, dated September 30, 1993, shall be complied with

25 within the time limitations specified in subsection (b) as
47

S 2138 IS

1 they apply to the functions of the Secretary under such

2 provisions.

3 ‘‘(i) JUDICIAL REVIEW.—

4 ‘‘(1) Regulations promulgated by the Secretary

5 under this Act and actions described in paragraph

6 (2) shall be subject to judicial review to the extent

7 authorized by, and in accordance with, chapter 7 of

8 title 5, United States Code, if a complaint for such

9 review is filed within 30 days after the date on

10 which the regulations are promulgated or the action

11 is published in the Federal Register, as applicable;

12 except that—

13 ‘‘(A) section 705 of such title is not appli14 cable, and

15 ‘‘(B) the appropriate court shall only set

16 aside any such regulation or action on a ground

17 specified in section 706(2) (A), (B), (C), or (D)

18 of such title.

19 ‘‘(2) The actions referred to in paragraph (1)

20 are actions that are taken by the Secretary under

21 regulations which implement a fishery management

22 plan, including but not limited to actions that estab23 lish the date of closure of a fishery to commercial or

24 recreational fishing.
48

S 2138 IS

1 ‘‘(3)(A) Notwithstanding any other provision of

2 law, the Secretary shall file a response to any com3 plaint filed in accordance with paragraph (1), not

4 later than 45 days after the date the Secretary is

5 served with that complaint, except that the appro6 priate court may extend the period for filing such a

7 response upon a showing by the Secretary of good

8 cause for that extension.

9 ‘‘(B) A response of the Secretary under this

10 paragraph shall include a copy of the administrative

11 record for the regulations that are the subject of the

12 petition.

13 ‘‘(4) Upon a motion by the person who files a

14 complaint under this subsection, the appropriate

15 court shall assign the matter for hearing at the ear16 liest possible date and shall expedite the matter in

17 every possible way.’’.

18 STATE JURISDICTION

19 SEC. 11. Section 306(c)(1) of the Act (16 U.S.C.

20 1856(c)(1)) is amended by—

21 (1) deleting the word ‘‘and’’ from subparagraph

22 1(A);

23 (2) deleting the period from the end of subpara24 graph (B) and replacing it with ‘‘; and’’; and

25 (3) by inserting immediately after subpara26 graph (B) of the following new subparagraph:
49

S 2138 IS

1 ‘‘(C) the owner or operator of the vessel

2 submits reports on the tonnage of fish received

3 from U.S. vessels and the locations from which

4 such fish were harvested, in accordance with

5 such procedures as the Secretary by regulation

6 shall prescribe.’’.

7 PROHIBITED ACTS

8 SEC. 12. (a) Section 307(1)(L) of the Act (16 U.S.C.

9 1857(1)(L)) is amended to read as follows:

10 ‘‘(L) to forcibly assault, resist, oppose, im11 pede, intimidate, or interfere with any observer

12 on a vessel under this Act, or any data collector

13 employed by or under contract to the National

14 Marine Fisheries Service;’’.

15 (b) Section 307(1)(M) of the Act (16 U.S.C.

16 1857(1)(M)) is amended by deleting ‘‘; or’’ after the word

17 ‘‘nation’’ and inserting the following: ‘‘: Provided, That—

18 ‘‘(i) a vessel used to engage in large-scale

19 driftnet fishing is deemed to be subject to the juris20 diction of the United States if it is used to engage

21 in such fishing shoreward of the outer boundary of

22 the exclusive economic zone of the United States, it

23 is a vessel of the United States, it is a stateless ves24 sel, or it is a foreign-flag vessel and the flag-state

25 authorizes the United States to exercise jurisdiction

26 over it, and
50

S 2138 IS

1 ‘‘(ii) it shall be a rebuttable presumption that

2 any vessel that is shoreward of the outer boundary

3 of the exclusive economic zone of the United States

4 or beyond the exclusive economic zone of any nation,

5 and that has onboard gear that is capable of use for

6 large-scale driftnet fishing, is engaged in such fish7 ing; or’’.

8 (c) Section 307(2)(A) of the Act (16 U.S.C.

9 1857(2)(A)) is amended to read as follows:

10 ‘‘(A) in fishing within the boundaries of

11 any State, except—

12 ‘‘(i) recreational fishing permitted

13 under section 201(i),

14 ‘‘(ii) fish processing permitted under

15 section 306(c), or

16 ‘‘(iii) transhipment at sea of fish

17 products within the boundaries of any

18 State in accordance with a permit ap19 proved under section 204(b)(6)(A)(ii);’’.

20 (d) Section 307(3) of the Act (16 U.S.C. 1857(3))

21 is amended to read:

22 ‘‘(3) for any vessel of the United States, and

23 for the owner or operator of any vessel of the United

24 States, to transfer at sea directly or indirectly, or at25 tempt to so transfer at sea, any United States har-
51

S 2138 IS

1 vested fish to any foreign fishing vessel, while such

2 foreign vessel is within the exclusive economic zone

3 or within the boundaries of any State except to the

4 extent that the foreign fishing vessel has been per5 mitted under section 204(b)(6)(B) or section 306(c)

6 to receive such fish;’’.

7 (e) Section 307(4) of the Act (16 U.S.C. § 1857(4))

8 is amended by adding after the word ‘‘zone’’ the following

9 phrase, ‘‘or within the boundaries of any State’’.

10 CIVIL PENALTIES AND PERMIT SANCTIONS

11 SEC. 13. (a) Section 308(b) of the Act (16 U.S.C.

12 1858(b)) is amended by deleting the first sentence and

13 substituting the following: ‘‘Any person against whom a

14 civil penalty is assessed under subsection (a), or against

15 whom a permit sanction is imposed under subsection (g)

16 (other than a permit suspension for nonpayment of pen17 alty or fine), may obtain review thereof in the United

18 States district court for the appropriate district by filing

19 a complaint against the Secretary in such court within 30

20 days from the date of such order.’’.

21 (b) Section 308(g)(1)(C) of the Act (16 U.S.C.

22 1858(g)(1)(C)) is amended to read as follows:

23 ‘‘(C) any amount in settlement of a civil

24 forfeiture imposed on a vessel or other property,

25 or any civil penalty or criminal fine imposed on

26 a vessel or owner or operator of a vessel or any
52

S 2138 IS

1 other person who has been issued or has ap2 plied for a permit under any fishery resource

3 law statute enforced by the Secretary, has

4 not been paid and is overdue, the Secretary

5 may—’’.

6 ENFORCEMENT

7 SEC. 14. (a) Section 311(e)(1) of the Act (16 U.S.C.

8 1861(e)(1)) is amended by—

9 (1) substituting the word ‘‘marine’’ for the

10 word ‘‘fishery’’ in the chapeau, and in subpara11 graphs (A) and (B); and

12 (2) by amending subparagraph (E) to read as

13 follows:

14 ‘‘(E) claims of parties in interest to prop15 erty disposed of under section 612(b) of the

16 Tariff Act of 1930 (19 U.S.C. 1612(b)), as

17 made applicable by section 310(c) of this Act or

18 by any other marine resource law enforced by

19 the Secretary, to seizures made by the Sec20 retary, in amounts determined by the Secretary

21 to be applicable to such claims at the time of

22 seizure; and’’.

23 (b) Section 311(e)(2) of the Act (16 U.S.C.

24 1861(e)(2)) is amended to read as follows:

25 ‘‘(2) Any person found in an administrative or

26 judicial proceeding to have committed any violation
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1 of this Act or any other marine resource law en2 forced by the Secretary shall be liable for the cost

3 incurred in the sale, storage, care, and maintenance

4 of any fish or other property seized in connection

5 with the violation.’’.

6 OBSERVERS WAGES AS MARITIME LIENS

7 SEC. 15. The Act is amended by adding the following

8 new section:

9 ‘‘SEC. 312. OBSERVERS’ WAGES AS SEAMEN’S

10 LIENS.—Claims for observers’ wages shall be considered

11 maritime liens against the vessel and be accorded the same

12 priority as seamen’s liens under admiralty and general

13 maritime law.’’.

14 CONFORMING AMENDMENTS

15 SEC. 16. (a) Section 2(b)(4) of the Act is amended

16 by replacing the words ‘‘fishery management plan’’ with

17 the words ‘‘conservation and management measures’’.

18 (b) Section 2(b)(5) of the Act is amended by replac19 ing, each time it appears, the word ‘‘plans’’ with the word

20 ‘‘measures’’.

21 (c) Section 3(31) of the Act is amended by replacing

22 the words ‘‘for which a fishery management plan prepared

23 under title III or a preliminary fishery management plan

24 prepared under section 201(h) has been implemented’’

25 with the words ‘‘regulated under this Act’’.
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1 (d) Section 201(c) of the Act is amended by deleting

2 the phrase ‘‘, including any regulations promulgated to

3 implement any applicable fishery management plan or any

4 preliminary fishery management plan’’.

5 (e) Section 201 of the Act (16 U.S.C. 1821) is

6 amended by replacing ‘‘(g)’’ in subsection (a)(2) with

7 ‘‘(f)’’ and by replacing ‘‘(i)’’ in subsection (c)(2)(D) with

8 ‘‘(h)’’.

9 (f) Section 201(g) of the Act is amended by replacing

10 the words ‘‘no fishery management plan for that fishery

11 will be prepared and implemented’’ with the words ‘‘no

12 regulations for that fishery will be promulgated’’; by re13 placing the phrase ‘‘303(a)(5)’’ with the phrase

14 ‘‘303(c)(2)’’; by replacing the phrase ‘‘303(b)(2), (3), (4),

15 (5), and (7)’’ with the phrase ‘‘303(c)(5), (6), (7), (8),

16 and (10)’’; by replacing the words ‘‘a fishery management

17 plan is prepared and implemented’’ with the words ‘‘regu18 lations are promulgated’’; and, in the final sentence, by

19 deleting the words ‘‘implementing the applicable fishery

20 management plan’’.

21 (g) Section 201(h) of the Act is amended by replacing

22 the words ‘‘management plans’’ with the word ‘‘regula23 tions’’.
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1 (h) Section 201(i) of the Act is amended by replacing

2 the words ‘‘fishery management plan implemented’’ with

3 the words ‘‘regulations promulgated’’.

4 (i) Section 204(b)(7)(A) of the Act is amended to

5 read as follows:

6 ‘‘(A) All of the requirements of regulations

7 promulgated under section 201(g) or under title

8 III.’’.

9 (j) Section 302(h)(3) of the Act (16 U.S.C. 1852(h))

10 is amended by replacing ‘‘204(b)(4)(C)’’ with

11 ‘‘204(b)(4)(A)(iii)’’.

12 (k) Section 302(h)(4) of the Act is amended by re13 placing the words ‘‘fishery management plans and amend14 ments to such plans’’ with the word ‘‘regulations’’.

15 (l) Section 302(h)(6) of the Act is amended by replac16 ing the phrase ‘‘303(a) (3) and (4)’’ with the phrase

17 ‘‘303(a) (5) and (6)’’, and by replacing the phrase

18 ‘‘304(f)(3)’’ with the phrase ‘‘304(g)(3)’’.

19 (m) Section 306(b)(1) of the Act is amended by re20 placing in subsection (A), the words ‘‘covered by a fishery

21 management plan implemented’’ with the words ‘‘regula22 tions promulgated’’; by replacing, in subsection (B), the

23 words ‘‘fishery management plan’’ with the word ‘‘regula24 tions’’; and by replacing the words ‘‘such fishery manage25 ment plan and the regulations promulgated to implement
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1 such plan’’ with the words ‘‘regulations promulgated for

2 such fishery’’.

3 (n) Section 307(1)(J)(i) of the Act is amended by de4 leting the words ‘‘American Lobster Fishery Management

5 Plan, as implemented by’’ and the words ‘‘, or any succes6 sor to that plan, implemented under this title’’.

7 (o) Section 307(2)(B) of the Act (16 U.S.C.

8 § 1857(2)(B)) is amended by replacing ‘‘201(j)’’ with

9 ‘‘201(i)’’.

10 (p) Section 311(f) of the Act is amended by replacing

11 the words ‘‘Fishery Management Plan’’ in the subhead

12 with the word ‘‘Regulations’’; by replacing the words

13 ‘‘Fishery Management Plan’’ in subsection (1) with the

14 word ‘‘regulations’’; by replacing the words ‘‘fishery man15 agement plan approved’’ in subsection (2) with the words

16 ‘‘regulations promulgated’’; by replacing the words ‘‘under

17 the Northeast Multispecies Fishery Management Plan’’ in

18 subsection (3) with the words ‘‘for the Northeast

19 Multispecies fishery’’; and by replacing, in subsection (4),

20 the words ‘‘Fishery Management Plan’’ with the word

21 ‘‘regulations’’ and the words ‘‘that Plan’’ with the words

22 ‘‘those regulations’’.

23 (q) Section 314(c) of the Act is amended by revising

24 the subhead to read ‘‘MANAGEMENT OF

25 UNDERUTILIZED SPECIES’’; by adding the Phrase ‘‘and
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1 regulations’’ after ‘‘fishery management plans’’; and by re2 placing the words ‘‘covered under such a plan’’ with the

3 words ‘‘regulated under this Act’’.

4 AUTHORIZATION OF APPROPRIATIONS

5 SEC. 17. Section 406 of the Act (16 U.S.C. 1882)

6 is amended by adding at the end the following new para7 graph:

8 ‘‘(20) $103,218,000 for the fiscal year ending

9 September 30, 1994, $142,502,000 for the fiscal

10 year ending September 30, 1995, and such sums as

11 may be necessary for fiscal year 1996.’’.

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