I
103D CONGRESS
2D SESSION
H. R. 4404
To amend the Magnuson Fishery Conservation and Management Act to pro-
mote 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) in-
troduced the following bill; which was referred to the Committee on Mer-
chant Marine and Fisheries
A BILL
To amend the Magnuson Fishery Conservation and Manage-
ment Act to promote the long-term sustainability of
marine fisheries, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Marine Fish Conserva-
tion Amendments of 1994’’.
TITLE I—AMENDMENTS TO MAG-
NUSON FISHERY CONSERVA-
TION AND MANAGEMENT ACT
SEC. 101. AMENDMENTS TO MAGNUSON FISHERY CON-
SERVATION AND MANAGEMENT ACT.
Except as otherwise expressly provided, whenever in
this title an amendment or repeal is expressed in terms
of an amendment to, or repeal of, a section or other provi-
sion, the reference shall be considered to be made to a
section or other provision of the Magnuson Fishery Con-
servation and Management Act (16 U.S.C. 1801 et seq.).
SEC. 102. FINDINGS AND POLICY.
(a) FINDINGS.—(1) Section 2(a)(2) (16 U.S.C.
1801(a)(2)) is amended by striking ‘‘and’’ at the end of
clause (A), and by inserting before the period at the end
the following: ‘‘and, (C) losses of essential fishery habitats
have diminished the ability of stocks of fish to survive.’’.
(2) Section 2(a)(6) (16 U.S.C. 1801(a)(6)) is amend-
ed by inserting after ‘‘to insure conservation,’’ the follow-
ing: ‘‘to provide long-term protection for essential fishery
habitats,’’.
(3) Section 2(a) (16 U.S.C. 1801(a)) is amended by
adding at the end the following new paragraph:
‘‘(9) The greatest long-term threat to the viabil-
ity of commercial and recreational fisheries of the
United States is the continuing loss of essential fish-
ery habitat. Increased attention must be given to the
protection of these habitats to conserve and manage
the fishery resources of the United States.’’.
(b) POLICY.—(1) Section 2(c)(3) (16 U.S.C.
1801(c)(3)) is amended by inserting after ‘‘practical meas-
ures that’’ the following: ‘‘reduce bycatch to insignificant
levels approaching zero and’’.
(2) Section 2(c) (16 U.S.C. 1801(c)) is amended by
striking ‘‘and’’ after the semicolon in paragraph (5), by
striking the period at the end of paragraph (6) and insert-
ing ‘‘; and’’, and by adding at the end the following new
paragraph:
‘‘(7) to ensure to the maximum extent prac-
ticable that all State and Federal actions are con-
sistent with the conservation and management of
fisheries under this Act.’’.
SEC. 103. DEFINITIONS.
Section 3 (16 U.S.C. 1802) is amended—
(1) by redesignating paragraphs (2) through
(5) as paragraphs (3) through (6) respectively, by
redesignating the second paragraph (6) through
paragraph (21) as paragraphs (8) through (23), re-
spectively, by redesignating the second paragraph
(22) through paragraph (26) as paragraphs (25)
through (29), respectively, and by redesignating the
second paragraph (27) through paragraph (32) as
paragraphs (31) through (36), respectively;
(2) by inserting after paragraph (1) the follow-
ing new paragraph:
‘‘(2) The term ‘bycatch’ means the incidental
catch, take, or harvest of—
‘‘(A) marine mammals, birds, turtles, or
fish that are not the target species of the fish-
ery in which a fishing vessel is engaged,
‘‘(B) any fish discarded or lost during fish-
ing operations, or
‘‘(C) fish of the same species as the target
species of the fishery in which a fishing vessel
is engaged and the harvest of which is prohib-
ited by conservation and management measures
promulgated under a fishery management plan
in effect under title III.’’;
(3) by inserting after paragraph (6), as redesig-
nated by paragraph (1) of this subsection the follow-
ing new paragraph:
‘‘(7) The term ‘essential fishery habitat’ means
an area which includes physical or biological features
which (A) are essential to the conservation and man-
agement of a fishery, and (B) may require special
management considerations or protection.’’.
(4) in paragraph (9), as redesignated by para-
graph (1) of this subsection, by inserting ‘‘, turtles,’’
after ‘‘marine mammals’’;
(5) in paragraph (23), as redesignated by para-
graph (1) of this subsection, by inserting ‘‘biologi-
cal,’’ before ‘‘or ecological factor’’, and by inserting
before the period the following: ‘‘, except that no
economic or social factor may be applied under this
paragraph to increase the amount described in this
paragraph above maximum sustainable yield, com-
promise ecological integrity, lead to or prolong
overfishing, or impede recovery from overfishing’’;
(6) by inserting after paragraph (23); as redes-
ignated by paragraph (1) of this subsection, the fol-
lowing new paragraph:
‘‘(24) The term ‘overfishing’ means a level or a
rate of fishing that either jeopardizes the capacity of
a fish species, population, or population complex to
provide maximum sustainable yield on a continuing
basis or compromises ecological integrity.’’; and
(7) by inserting after paragraph (29), as redes-
ignated by paragraph (1) of this subsection, the fol-
lowing new paragraph:
‘‘(30) The term ‘target species’ means the spe-
cies or species groups for which a fishing vessel is
fishing.’’.
SEC. 104. HIGHLY MIGRATORY SPECIES.
Section 102 (16 U.S.C. 1812) is amended by striking
‘‘utilization’’ and inserting ‘‘yield’’.
SEC. 105. NATIONAL STANDARDS.
(a) ACHIEVING OPTIMUM YIELD.—Section 301(a)(1)
(16 U.S.C. 1851(a)(1)) is amended by striking ‘‘for the
United States fishing industry’’.
(b) MARGIN OF SAFETY.—Section 301(a) (16 U.S.C.
1851(a)) is amended by redesignating paragraphs (3)
through (7) as (4) through (8), respectively, and by insert-
ing after paragraph (2) the following new paragraph:
‘‘(3) In order to account for inadequacies in
data, uncertainties in the best available scientific in-
formation, and unpredictable variations and fluctua-
tions in fish populations and catches, and to provide
for the ecological needs of the species that interact
within a management unit, conservation and man-
agement measures shall provide an adequate margin
of safety to act as a buffer against overfishing.’’.
(c) REDUCTION OF BYCATCH.—Section 301(a) (16
U.S.C. 1851(a)) is amended by adding at the end the fol-
lowing new paragraph:
‘‘(9) Conservation and management measures
shall reduce bycatch to the lowest level practicable
and avoid unnecessary waste of fish.’’.
(d) 
GUIDELINES.—Section 
301(b) 
(16 
U.S.C.
1851(b)) is amended by striking ‘‘advisory guidelines
which shall not have the force and effect of law’’ and in-
serting ‘‘guidelines,’’.
SEC. 106. REGIONAL FISHERY MANAGEMENT COUNCILS.
(a) VOTING MEMBERS.—Section 302(b) (16 U.S.C.
1852(b)) is amended—
(1) in paragraph (2)(B) by adding at the end
the following:
‘‘In addition, the Secretary, in making appointments
under this section, shall ensure that no fewer than 25 per-
cent of the appointed members of each Council are persons
selected for their fisheries expertise, as demonstrated by
university, environmental organization, or other nonuser
group affiliation and by past actions and accomplish-
ments.’’; and
(2) in paragraph (5) in the first sentence by in-
serting before the period at the end the following:
‘‘or if the Secretary makes a written determination,
including a statement of the reasons for such deter-
mination, that the member has violated conflict of
interest provisions of subsection (k)’’.
(b) TRANSACTION
OF BUSINESS.—Section 302(e)
(16 U.S.C. 1852(e)) is amended by redesignating para-
graphs (2) through (4) as paragraphs (3) through (5), re-
spectively, and inserting after paragraph (1) the following
new paragraph:
‘‘(2) Each decision of the Council shall be re-
corded through a roll call vote such that the vote of
individual members is registered and forwarded with
the decision to the Secretary for review under sec-
tion 304.’’.
(c) FISHERY HABITAT CONCERNS.—Section 302(i)
(16 U.S.C. 1852(i)) is amended—
(1) in paragraph (1) by striking ‘‘and’’ after
the semicolon in subparagraph (A), by redesignating
subparagraph (B) as subparagraph (C); and by in-
serting after subparagraph (A) the following new
subparagraph:
‘‘(B) may request that the Secretary initi-
ate consultation under section 305(e)(4) con-
cerning any such activity which may affect the
essential fishery habitat of a fishery under its
jurisdiction which is designated in a fishery
management plan which is in effect under sec-
tion 304; and’’; and
(2) in paragraph (2) by striking ‘‘In the case of
a comment or recommending under paragraph
(1)(C), the response’’ and inserting ‘‘The response’’,
by inserting ‘‘, avoiding,’’ after ‘‘mitigating’’, and by
adding at the end the following: ‘‘In the case of a
response or decision that is inconsistent with the
Council’s recommendations, the Federal agency shall
explain its reasons for not following the rec-
ommendations and how its actions are consistent
with the conservation and management of the fish-
ery concerned.’’.
(d) DISCLOSURE OF FINANCIAL INTEREST.—Section
302(k) (16 U.S.C. 1852(k)) is amended—
(1) in the heading by inserting ‘‘AND RECUSAL’’
before the period at the end;
(2) in paragraph (2) by striking subparagraph
(B) and inserting the following:
‘‘(B) the spouse, child, grandchild, parent,
sibling, or partner of that individual;’’;
(3) in paragraph (5) by striking ‘‘and’’ after
the semicolon in subparagraph (A), by striking the
period at the end of subparagraph (B), and inserting
‘‘; and’’, and by adding at the end, the following new
subparagraph:
‘‘(C) be kept on file with the Secretary for
use in reviewing Council actions under section
304 and made available for public inspection at
reasonable hours.’’;
(4) in paragraph (6) by striking ‘‘prescribed
under’’ and all that follows through the end of the
paragraph and inserting ‘‘prescribed under this sub-
section may be treated as cause for the invalidation
of that action if the vote of that individual was nec-
essary for approval of that action under subsection
(e).’’; and
(5) by amending paragraph (7) to read as fol-
lows:
‘‘(7) A Council member holding a financial interest
requiring disclosure under this subsection shall recuse him
or herself from voting on or participating in all Council
actions that would affect such financial interest. Council
members and the public may submit to the Secretary for
review under section 304, in writing, a challenge to any
vote of a Council member that is alleged to have been
made in violation of this paragraph.’’.
SEC. 107. CONTENTS OF FISHERY MANAGEMENT PLANS.
(a) REQUIRED PROVISIONS.—Section 303(a) (16
U.S.C. 1853(a)) is amended as follows:
(1) Paragraph (1)(A) is amended by inserting
before the semicolon at the end the following: ‘‘in-
cluding its essential fishery habitat’’.
(2) Paragraph (2) is amended by inserting after
‘‘location,’’ the following: ‘‘its essential habitat,’’.
(3) Paragraph (7) is amended by striking
‘‘readily available’’, and by inserting before the semi-
colon at the end the following: ‘‘, including the ef-
fects of fishing gear and practices used in that fish-
ery on the habitat of the fishery or other fisheries
under the Council’s jurisdiction’’.
(4) Paragraph (8) is amended by striking
‘‘and’’ after the semicolon, paragraph (9) is amend-
ed by striking the period and inserting a semicolon,
and the following new paragraphs are added at the
end:
‘‘(10) 
specify 
an 
objective 
definition 
of
overfishing for each fish species or population in-
volved in the fishery (as described pursuant to para-
graph (2)), which is developed or expressed in terms
of a minimum level of spawning biomass, maximum
level or rate of fishing mortality, or other measur-
able standard designed to ensure the maintenance of
the fish species or population’s abundance, age
structure, sex ratio, and size structure so as to pre-
serve its capacity to provide maximum sustainable
yield and maintain ecological integrity;
‘‘(11) in the case of any fishery management
plan or amendment for a fishery for which a deter-
mination has been made by the Council or the Sec-
retary that such fishery is overfished, contain a re-
covery plan which will establish measures for re-
building the fish species, population, or population
complex in accordance with specifications for a re-
covery plan set forth in section 304(h)(2);
‘‘(12) specify allowable gear types for the fish-
ery;
‘‘(13) require the use of gear types which mini-
mize bycatch and associated mortality;
‘‘(14) include provisions that—
‘‘(A) require that observers be stationed on
fishing vessels engaged in the catching, taking,
or harvesting of fish and on fish processing ves-
sels that are vessels of the United States and
are fishing for or processing species under the
jurisdiction of the Council having authority over
the geographical area to which the plan applies
for purposes of collecting data necessary for the
conservation and management and scientific un-
derstanding of any fisheries under the jurisdic-
tion of the Council; and
‘‘(B) are reasonably calculated to—
‘‘(i) ensure the gathering by observers sta-
tioned on vessels pursuant to subparagraph (A),
of reliable data that is necessary for the con-
servation and management and scientific under-
standing of the fisheries covered by the plan;
‘‘(ii) be fair and equitable to all fishing
vessels and fish processing vessels that are ves-
sels of the United States and that participate in
fisheries covered by the plan;
‘‘(iii) be consistent with other applicable
laws; and
‘‘(iv) take into consideration the operating
requirements of the fisheries and the safety of
observers and fishermen;
‘‘(15) establish a system of fees to pay for the
costs of implementing the plan;
‘‘(16) assess the bycatch of all gear types used
in the fishery; require through regulation provisions
to measure bycatch and associated mortality; develop
regulations such as seasonal, time, and area clo-
sures, gear modifications, and others to reduce
bycatch and associated mortality; specify the best
available technology that reduces bycatch; and evalu-
ate the bycatch of all new gear types and methods
before they can be allowed in the fishery; and
‘‘(17) contain conservation and management
measures to minimize or eliminate the adverse im-
pacts of fishing gear and practices on habitat for
fish.’’.
(b) REVIEW OF EXISTING PLANS BY SECRETARY
REGARDING OVERFISHING DEFINITION.—
(1) REVIEW AND DETERMINATION OF COMPLI-
ANCE.—Not later than 90 days after the date of the
enactment of this Act, the Secretary of Commerce
shall—
(A) review each fishery management plan
in effect under title III of the Magnuson Fish-
ery Conservation and Management Act;
(B) determine whether the plan contains a
definition (or definitions) of overfishing in com-
pliance with section 303(a)(10) of that Act, as
amended by subsection (a) of this section; and
(C) if the Secretary determines that the
plan does not contain such a definition, notify
the Regional Fishery Management Council hav-
ing authority over the geographical area to
which the plan applies regarding that deter-
mination.
(2) PREPARATION OF AMENDMENT.—Not later
than 180 days after receiving notification from the
Secretary of Commerce under paragraph (1) with re-
spect to a fishery management plan, a Regional
Fishery Management Council shall prepare and sub-
mit to the Secretary an amendment to the plan to
add to the plan a definition of overfishing in accord-
ance with section 303(a)(10) of the Magnuson Fish-
ery Conservation and Management Act, as amended
by subsection (a) of this section, in accordance with
procedures and requirements applicable to an
amendment under that Act.
SEC. 108. ACTIONS BY THE SECRETARY WITH RESPECT TO
FISHERY MANAGEMENT PLANS.
Section 304(a)(2) (16 U.S.C. 1854(a)(2)) is amended
in subparagraph (B) by striking ‘‘and’’ after the semi-
colon, in subparagraph (C) by striking the period and in-
serting ‘‘; and’’, and by adding at the end of paragraph
(2) the following:
‘‘(D) evaluate whether any violation of sec-
tion 302(k) occurred with respect to the prepa-
ration of the plan or amendment that is the
subject of the review.’’.
(b) REVIEW BY SECRETARY.—Section 304(b) (16
U.S.C. 1854(b)) is amended—
(1) in paragraph (2) in the first sentence by in-
serting before the comma the following: ‘‘or with the
best scientific information presented to the Council
by scientists participating in the plan development
process’’;
(2) by redesignating paragraph (3) as para-
graph (4); and
(3) by inserting after paragraph (2) the follow-
ing:
‘‘(3) If the Secretary determines that a Council
member voted in violation of section 302(k) in any
Council action related to the preparation of the plan
or amendment, the Secretary shall disapprove the
action if that vote was necessary for approval of the
action.’’.
(c) PREPARATION BY SECRETARY.—(1) PREPARA-
TION
REQUIRED.—Section 
304(c)(1) 
(16 
U.S.C.
1854(c)(1)) is amended—
(A) in the material preceding subparagraph
(A), by striking ‘‘may’’ and inserting ‘‘shall’’, and by
inserting after ‘‘management plan,’’ the following:
‘‘including a recovery plan if necessary,’’;
(B) in subparagraph (A) by striking ‘‘or’’ after
the semicolon;
(C) by redesignating subparagraph (B) as sub-
paragraph (E);
(D) in subparagraph (E) (as redesignated by
paragraph (3) of this subsection) by striking ‘‘such
plan or amendment’’ and inserting ‘‘a plan or
amendment submitted by a Council’’; and
(E) by inserting after subparagraph (A) the fol-
lowing new subparagraphs:
‘‘(B) the appropriate Council fails to develop
and submit to the Secretary a recovery plan as re-
quired under subsection (h), within the time speci-
fied therein;
‘‘(C)(i) the Secretary determines under sub-
section (e)(4) that a fish species, population, or pop-
ulation complex is overfished,
‘‘(ii) no fishery management plan or required
part thereof, is in effect for the fishery for that spe-
cies, population, or population complex, and
‘‘(iii) no such plan or amendment is submitted
by the appropriate Council to the Secretary for ap-
proval within 240 days after the Council is notified
of such determination;
‘‘(D) notwithstanding any fishery management
plan that is in effect and any objective definition of
overfishing therein, the Secretary determines, based
on the best scientific information available, that a
fish species, population, or population complex—
‘‘(i) has sustained fishing mortality that
exceeds maximum sustainable yield by more
than 10 percent per annum averaged over a pe-
riod of 3 consecutive years, or that com-
promises ecological integrity, or
‘‘(ii) is depleted; or’’.
(2) DETERMINATION
OF
OVERFISHING.—Section
304(c) (16 U.S.C. 1854(c)) is amended by adding at the
end the following:
‘‘(4) A determination by the Secretary described in
paragraph (1)(D) (i) or (ii) shall constitute a determina-
tion of overfishing with respect to which a recovery plan
is required under section 304(h). Notwithstanding the pre-
ceding sentence, the Secretary may determine that a fish
species or population is not overfished, based on the best
scientific information available, only if such determination
is based on a clear preponderance of such scientific infor-
mation. Nothing in this paragraph or paragraph (1) shall
prevent a more stringent objective definition of overfishing
under a fishery management plan, pursuant to section
304(e) or pursuant to a judicial determination. For the
purposes of paragraph (1)(D)(ii), a fish species or popu-
lation shall be considered to be depleted if it is determined
by the Secretary, using the best available scientific infor-
mation and a calculation that provides a risk-averse as-
sessment, that the spawning population is reduced to 20
percent or less than the unfished population, unless it is
shown, subject to review and approval by the Secretary,
that a smaller spawning population is adequate to provide
maximum sustainable yield and maintain ecological integ-
rity. If the size of the spawning population cannot be de-
termined, alternative measurements may be used subject
to approval by the Secretary.’’.
(d) ESTABLISHMENT OF FEES.—Section 304(d) (16
U.S.C. 1854(d)) is amended—
(1) by inserting ‘‘(1)’’ before ‘‘The Secretary
shall’’;
(2) striking ‘‘section 303(b)(1)’’ and inserting
‘‘sections 303 and 304’’;
(3) striking the third sentence; and
(4) by adding at the end the following new
paragraphs:
‘‘(2) FEE SYSTEM REQUIREMENTS.—Any sys-
tem of fees established under this section shall—
‘‘(A) provide that the total amount of fees
collected under this section not exceed the
amount equal to the difference of—
‘‘(i) the combined cost of (I) station-
ing observers on board fishing vessels and
United States vessels and United States
fish processors (II) the actual cost of
inputting collected data, and (III) assess-
ments necessary for a risk sharing pool im-
plemented under subsection (e), minus
‘‘(ii) any amount received for such
purpose from another source or from an
existing surplus in this National Fishery
Observer Fund established by paragraph
(3);
‘‘(B) be fair and equitable to all partici-
pants in the fisheries under the jurisdiction of
any Council;
‘‘(C) provide that fees collected not be used
to pay any costs of administrative overhead or
other costs not directly incurred in carrying out
the system;
‘‘(D) not be used to offset amounts author-
ized under other provisions of law;
‘‘(E) provide that fees shall be expressed
as a percentage, not to exceed 1 percent of the
wholesale or 2 percent of the ex-vessel value of
the fish and shellfish harvested under the juris-
diction of any Council;
‘‘(F) provide that fees under that system
be assessed against all fishing vessels and Unit-
ed States processors participating in fisheries
under the jurisdiction of the Councils, including
those not required to carry an observer under
a fishery management plan;
‘‘(G) provide that fees collected under the
system shall be deposited in the National Fish-
ery Observer Fund established by paragraph
(3);
‘‘(H) provide that fees collected under the
system shall only be used for implementing re-
quirements relating to observers under fishery
management plans; and
‘‘(I) comply with section 9701(b) of title
31, United States Code.
‘‘(3) NATIONAL FISHERY OBSERVER FUND.—
There is established in the Treasury a separate ac-
count which shall be known as the National Fishery
Observer Fund. The Fund shall be available to the
Secretary, without appropriation or fiscal year limi-
tation, for carrying out this section, subject to the
restrictions in subsection (b)(2). The Fund shall
consist of all amounts received by the United States
as fees under this subsection. Amounts in the Fund
that are not currently needed for the purposes of
this section shall be kept on deposit or invested in
obligations of, or guaranteed by, the United
States.’’.
(e) FISHERIES
RESEARCH.—Section 304(e) (16
U.S.C. 1854(e)) is amended—
(1) in the heading by inserting ‘‘OVERFISHING
LIST AND’’ before ‘‘FISHERIES’’;
(2) in paragraph (3)(A) by inserting after ‘‘deg-
radation,’’ the following: ‘‘identification of essential
fishery habitat,’’; and
(3) by adding at the end the following new
paragraph:
‘‘(5) No later than 1 year after the date of en-
actment of the Marine Fish Conservation Amend-
ments of 1994 and each year thereafter, the Sec-
retary shall, after consultation with and notice to the
appropriate Councils and based on the best scientific
information available, prepare and publish in the
Federal Register a list of fish species, populations,
and population complexes that are overfished and
the objective definition of overfishing utilized by the
Secretary to make that determination. Such deter-
mination shall be made whether or not a fishery
management plan is in effect for a species, popu-
lation, or population complex or contains an objec-
tive definition of overfishing, and is not required to
be in conformity with any such plan. In cases in
which scientific data are severely limited, the Sec-
retary’s informed judgment may be used. In the case
of fish species, populations, and population com-
plexes for which there is insufficient information to
make such a determination, the Secretary shall de-
velop a research plan to identify and gather the
needed data. The plan shall—
‘‘(A) identify priority research needed to
assess the condition of the relevant fish species,
populations, and population complexes and to
support fishery conservation and management;
‘‘(B) describe a research program to con-
duct that research; and
‘‘(C) indicate the timetable for conducting
that research, assess those conditions, and sup-
porting that conservation and management.’’.
(f) FISHERIES UNDER AUTHORITY OF MORE THAN
ONE COUNCIL.—Section 304(f) (16 U.S.C. 1854(f)) is
amended—
(1) in paragraph (1), in the matter following
subparagraph (B), by striking ‘‘the voting members,
present and voting, of each Council concerned’’ and
inserting the following: ‘‘all of the combined individ-
ual voting members of the concerned Councils
present and voting’’;
(2) by amending paragraph (3) to read as fol-
lows:
‘‘(3) Any fishery management plan or amendment
which—
‘‘(A) addresses a highly migratory species fish-
ery to which paragraph (1) applies,
‘‘(B) was prepared by the Secretary, and
‘‘(C) was in effect on July 1, 1993,
shall remain in effect until superseded by a fishery man-
agement plan or amendment prepared by the appropriate
Councils, and approved by the Secretary.’’.
(g) RECOVERY PLANS.—Section 304 (16 U.S.C.
1854) is amended by adding at the end the following new
subsection:
‘‘(h) RECOVERY PLANS.—(1) If the Secretary deter-
mines that a condition of overfishing has occurred with
respect to a fish species, population, or population complex
that is subject to a fishery management plan, based on
the best scientific information available and the definition
of overfishing specified in such plan, the Secretary shall
notify the appropriate Councils in writing of such deter-
mination.
‘‘(2) Within 180 days after receiving such notice, the
appropriate Councils shall prepare and submit to the Sec-
retary for approval an amendment to the fishery manage-
ment plan, including a recovery plan that specifies—
‘‘(A) the action or combination of actions to be
taken to rebuild the fish species, population, or pop-
ulation complex specified in the notice;
‘‘(B) the time within which such rebuilding
shall be accomplished, which shall be no greater
than 5 years; and
‘‘(C) the level of abundance to which such fish
populations or population complexes are to be rebuilt
to provide maximum sustainable yield and maintain
ecological integrity.
‘‘(3) The time established pursuant to paragraph
(2)(B) for a recovery plan may be extended only upon a
determination by the Secretary, based upon the best avail-
able scientific information (which shall include at a mini-
mum information from annual progress reports made
under paragraph (5)), that a longer period will be required
due only to the reproductive capacity, productivity, or life
span of the fish species concerned.
‘‘(4) The Secretary shall review and act upon such
amendment within 180 days after receipt and in accord-
ance with the procedures set forth in this section.
‘‘(5) The Secretary shall review progress made in re-
building a species, population, or population complex
under a recovery plan under paragraph (2). The first re-
view shall occur no later than the beginning of the 3d year
in which the plan is in effect, and subsequent reviews shall
occur at least annually thereafter.’’.
(h) BYCATCH RESEARCH.—Section 304 (16 U.S.C.
1854) is further amended by adding after subsection (h),
as added by subsection (g) of this section, the following
new subsection:
‘‘(i) BYCATCH RESEARCH.—The Secretary shall es-
tablish, in cooperation with industry, a program for the
elimination of bycatch through fees and incentive pro-
grams. Amounts received as such fees shall be made avail-
able to the appropriate Councils for use exclusively for
bycatch related management activities, including costs of
observer programs and cooperative efforts with the Gov-
ernment on research and development of selective fishing
gear and other technological devices for the reduction of
bycatch.’’.
(i) FISHERY HABITAT.—Section 304 (16 U.S.C.
1854) is further amended by adding after subsection (i)
as added by subsection (h) of this section, the following
new subsection:
‘‘(j) HABITAT CONSERVATION.—(1) Within 6 months
after the date of the enactment of the Marine Fish Con-
servation Amendments of 1994 and every 12 months
thereafter, the Secretary shall publish in the Federal Reg-
ister and submit to the Congress a report on the cumu-
lative impacts of fishery habitats of the actions authorized,
funded, or carried out by Federal agencies, including an
assessment of how fishery habitats which are identified in
approved fishery management plans are being impacted.
‘‘(2) Upon the request of a Council, the Secretary
shall immediately undertake a study to identify essential
fishery habitat of a fishery under the authority of the
Council, and the possible Federal and State actions which
could destroy or adversely modify such habitat. The Sec-
retary shall submit the results of such study to the Council
as soon as practicable, but not later than 12 months after
the date of such request.’’.
(j) SPECIAL PROVISIONS REGARDING OBSERVERS.—
Section 304 of the Magnuson Fishery Conservation and
Management Act (16 U.S.C. 1854) is further amended by
adding after subsection (j), as added by subsection (i) of
this section, the following new subsection:
‘‘(k) SPECIAL PROVISIONS REGARDING OBSERV-
ERS.—(1) The Secretary shall review—
‘‘(A) the feasibility of establishing a risk shar-
ing pool through a reasonable fee, to provide cov-
erage for vessels and vessel owners against liability
from civil suits by observers, and
‘‘(B) the availability of comprehensive commer-
cial insurance for vessel and owner liability against
civil suits by observers.
‘‘(2) If the Secretary determines that a risk sharing
pool is feasible, the Secretary shall establish such a pool
unless the Secretary determines that—
‘‘(A) comprehensive commercial insurance is
available for all fishing vessels and United States
fish processors required to have observers under this
section, and
‘‘(B) such comprehensive commercial insurance
will provide a greater measure of coverage at a lower
cost to each participant.
‘‘(3) The Secretary shall establish an alternative ob-
servation program for vessels on which facilities for quar-
tering of an observer, or for carrying out observer func-
tions, are inadequate to ensure the health or safety of the
observer or the safe operation of the vessel.’’.
SEC. 109. IMPLEMENTATION OF FISHERY MANAGEMENT
PLANS.
(a) INTERIM MEASURES.—Section 305 (16 U.S.C.
1855) is amended—
(1) by redesignating subsections (c) through (e)
as subsections (d) through (f), respectively;
(2) by adding after subsection (b) the following
new subsection:
‘‘(c) INTERIM MEASURES.—(1) In the absence of a
fishery management plan which contains such a provision,
the Secretary or the appropriate Council (subject to ap-
proval by the Secretary) may adopt as an interim measure
regulations with respect to any fish species, population,
or population complex consisting of specific provisions to
conserve such fish species, population, or population com-
plex, including a provision establishing a minimum size to
increase yield per recruit, prohibiting a type of fishing
gear or closing an area to fishing.
‘‘(2) Any regulation under this subsection which
changes any existing fishery management plan shall be
treated as an amendment to such plan for the period in
which such regulation is in effect.
‘‘(3) Any regulation under this subsection shall not
constitute a recovery plan for purposes of section 303 or
subsection (c) or (h) of this section. Any regulation under
this subsection shall remain in effect for 1 year after its
adoption, unless (A) it is specifically limited to a lesser
of effective period or superseded by a fishery management
plan or amendment thereto, or (B) the Secretary, initially
or before the expiration of the regulation, follows the pro-
cedures to review and approve the regulation that are ap-
plicable to a fishery management plan, or amendment to
a plan, under section 304.’’.
(b) 
RESPONSIBILITY
OF
SECRETARY.—Section
305(e), as redesignated by subsection (a) of this section;
is amended by inserting ‘‘(1)’’ before ‘‘The Secretary
shall’’; and by adding at the end the following new para-
graphs:
‘‘(2) The Secretary shall comment on and make
recommendations concerning any action authorized,
funded, or carried out, or proposed to be authorized,
funded, or carried out, by any State or Federal
agency that may result in the destruction or adverse
modification of the essential habitat designated in a
fishery management plan approved under section
304.
‘‘(3) Within 45 days after receiving a comment
or recommendation under paragraph (2), a Federal
agency shall provide a detailed response, in writing,
to the Secretary regarding the matter, including a
description of measures being considered by the
agency for avoiding, mitigating, or offsetting the im-
pact of the activity on such essential habitat.
‘‘(4) Each Federal agency shall, in consultation
with the Secretary, ensure that any action author-
ized, funded, or carried out by the agency is not
likely to result in the destruction or adverse modi-
fication of the essential habitat of a fishery identi-
fied in a fishery management plan approved under
section 304.
‘‘(5) The Secretary, after notice and oppor-
tunity for public hearing, may prohibit any action
authorized, funded, or carried out by a Federal
agency which the Secretary determines may result in
the destruction or adverse modification of essential
fishery habitat of a fishery identified in a fishery
management plan approved under section 304.’’.
(c) CITIZEN SUITS PROVISION.—Section 305 (16
U.S.C. 1855) is further amended by adding at the end
the following new subsection:
‘‘(g) CITIZEN SUITS.—
‘‘(1) IN GENERAL.—Except as provided in para-
graph (2), any person may commence a civil action
on his or her own behalf against the Secretary if
there is alleged a violation of any provision of this
Act or any regulation promulgated thereunder, or a
failure of the Secretary to perform any act or duty
under this Act which is not discretionary with the
Secretary, or the appropriate Council, as the case
may be, to perform such act or duty.
‘‘(2) NOTICE.—No action may be commenced
under paragraph (1) before the 60th calendar day
after the date on which the plaintiff gives notice of
the action to the Secretary and the affected Council
if the action is directed against such Council; except
that the action may be brought immediately after
such notification in the case of an action under this
section with respect to an emergency posing a sig-
nificant risk to the well-being of any fishery re-
source. Notice under this paragraph shall be given
in such manner as the Secretary shall prescribe by
regulation. Until the adoption of such regulation on
the manner of notice, delivery of notice upon the
Secretary by first class, prepaid United States mail,
with proof of mailing, shall satisfy the notice re-
quirement herein.