16 U.S.C. § 1855 (CONSERVATION)
§ 1855. Other requirements and authority
(a) Gear evaluation and notification of entry
(1) Not later than 18 months after October 11, 1996, the Secretary shall publish in the Federal Register, after notice and an opportunity for public comment, a list of all fisheries—
(A) under the authority of each Council and all fishing gear used in such fisheries, based on information submitted by the Councils under section 1853(a) of this title; and
(B) to which section 1852(a)(3) of this title applies and all fishing gear used in such fisheries.
(2) The Secretary shall include with such list guidelines for determining when fishing gear or a fishery is sufficiently different from those listed as to require notification under paragraph (3).
(3) Effective 180 days after the publication of such list, no person or vessel may employ fishing gear or engage in a fishery not included on such list without giving 90 days advance written notice to the appropriate Council, or the Secretary with respect to a fishery to which section 1852(a)(3) of this title applies. A signed return receipt shall serve as adequate evidence of such notice and as the date upon which the 90-day period begins.
(4) A Council may submit to the Secretary any proposed changes to such list or such guidelines the Council deems appropriate. The Secretary shall publish a revised list, after notice and an opportunity for public comment, upon receiving any such proposed changes from a Council.
(5) A Council may request the Secretary to promulgate emergency regulations under subsection (c) to prohibit any persons or vessels from using an unlisted fishing gear or engaging in an unlisted fishery if the appropriate Council, or the Secretary for fisheries to which section 1852(a)(3) of this title applies, determines that such unlisted gear or unlisted fishery would compromise the effectiveness of conservation and management efforts under this chapter.
(6) Nothing in this subsection shall be construed to permit a person or vessel to engage in fishing or employ fishing gear when such fishing or gear is prohibited or restricted by regulation under a fishery management plan or plan amendment, or under other applicable law.
(b) Fish habitat
(1)
(A) The Secretary shall, within 6 months of October 11, 1996, establish by regulation guidelines to assist the Councils in the description and identification of essential fish habitat in fishery management plans (including adverse impacts on such habitat) and in the consideration of actions to ensure the conservation and enhancement of such habitat. The Secretary shall set forth a schedule for the amendment of fishery management plans to include the identification of essential fish habitat and for the review and updating of such identifications based on new scientific evidence or other relevant information.
(B) The Secretary, in consultation with participants in the fishery, shall provide each Council with recommendations and information regarding each fishery under that Council’s authority to assist it in the identification of essential fish habitat, the adverse impacts on that habitat, and the actions that should be considered to ensure the conservation and enhancement of that habitat.
(C) The Secretary shall review programs administered by the Department of Commerce and ensure that any relevant programs further the conservation and enhancement of essential fish habitat.
(D) The Secretary shall coordinate with and provide information to other Federal agencies to further the conservation and enhancement of essential fish habitat.
(2) Each Federal agency shall consult with the Secretary with respect to any action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by such agency that may adversely affect any essential fish habitat identified under this chapter.
(3) Each Council—
(A) may comment on and make recommendations to the Secretary and any Federal or State agency concerning any activity authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by any Federal or State agency that, in the view of the Council, may affect the habitat, including essential fish habitat, of a fishery resource under its authority; and
(B) shall comment on and make recommendations to the Secretary and any Federal or State agency concerning any such activity that, in the view of the Council, is likely to substantially affect the habitat, including essential fish habitat, of an anadromous fishery resource under its authority.
(4)
(A) If the Secretary receives information from a Council or Federal or State agency or determines from other sources that an action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by any State or Federal agency would adversely affect any essential fish habitat identified under this chapter, the Secretary shall recommend to such agency measures that can be taken by such agency to conserve such habitat.
(B) Within 30 days after receiving a recommendation under subparagraph (A), a Federal agency shall provide a detailed response in writing to any Council commenting under paragraph (3) and the Secretary regarding the matter. The response shall include a description of measures proposed by the agency for avoiding, mitigating, or offsetting the impact of the activity on such habitat. In the case of a response that is inconsistent with the recommendations of the Secretary, the Federal agency shall explain its reasons for not following the recommendations.
(c) Emergency actions and interim measures
(1) If the Secretary finds that an emergency exists or that interim measures are needed to reduce overfishing for any fishery, he may promulgate emergency regulations or interim measures necessary to address the emergency or overfishing, without regard to whether a fishery management plan exists for such fishery.
(2) If a Council finds that an emergency exists or that interim measures are needed to reduce overfishing for any fishery within its jurisdiction, whether or not a fishery management plan exists for such fishery—
(A) the Secretary shall promulgate emergency regulations or interim measures under paragraph (1) to address the emergency or overfishing if the Council, by unanimous vote of the members who are voting members, requests the taking of such action; and
(B) the Secretary may promulgate emergency regulations or interim measures under paragraph (1) to address the emergency or overfishing if the Council, by less than a unanimous vote, requests the taking of such action.
(3) Any emergency regulation or interim measure which changes any existing fishery management plan or amendment shall be treated as an amendment to such plan for the period in which such regulation is in effect. Any emergency regulation or interim measure promulgated under this subsection—
(A) shall be published in the Federal Register together with the reasons therefor;
(B) shall, except as provided in subparagraph (C), remain in effect for not more than 180 days after the date of publication, and may be extended by publication in the Federal Register for one additional period of not more than 186 days, provided the public has had an opportunity to comment on the emergency regulation or interim measure, and, in the case of a Council recommendation for emergency regulations or interim measures, the Council is actively preparing a fishery management plan, plan amendment, or proposed regulations to address the emergency or overfishing on a permanent basis;
(C) that responds to a public health emergency or an oil spill may remain in effect until the circumstances that created the emergency no longer exist, Provided, That the public has an opportunity to comment after the regulation is published, and, in the case of a public health emergency, the Secretary of Health and Human Services concurs with the Secretary’s action; and
(D) may be terminated by the Secretary at an earlier date by publication in the Federal Register of a notice of termination, except for emergency regulations or interim measures promulgated under paragraph (2) in which case such early termination may be made only upon the agreement of the Secretary and the Council concerned.
(d) Responsibility of Secretary
The Secretary shall have general responsibility to carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this chapter. The Secretary may promulgate such regulations, in accordance with section 553 of title 5, as may be necessary to discharge such responsibility or to carry out any other provision of this chapter.
(e) Effect of certain laws on certain time requirements
The Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.),1 the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and Executive Order Numbered 12866, dated September 30, 1993, shall be complied with within the time limitations specified in subsections (a), (b), and (c) of section 1854 of this title as they apply to the functions of the Secretary under such provisions.
(f) Judicial review
(1) Regulations promulgated by the Secretary under this chapter and actions described in paragraph (2) shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of title 5, if a petition for such review is filed within 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register, as applicable; except that—
(A) section 705 of such title is not applicable, and
(B) the appropriate court shall only set aside any such regulation or action on a ground specified in section 706(2)(A), (B), (C), or (D) of such title.
(2) The actions referred to in paragraph (1) are actions that are taken by the Secretary under regulations which implement a fishery management plan, including but not limited to actions that establish the date of closure of a fishery to commercial or recreational fishing.
(3)
(A) Notwithstanding any other provision of law, the Secretary shall file a response to any petition filed in accordance with paragraph (1), not later than 45 days after the date the Secretary is served with that petition, except that the appropriate court may extend the period for filing such a response upon a showing by the Secretary of good cause for that extension.
(B) A response of the Secretary under this paragraph shall include a copy of the administrative record for the regulations that are the subject of the petition.
(4) Upon a motion by the person who files a petition under this subsection, the appropriate court shall assign the matter for hearing at the earliest possible date and shall expedite the matter in every possible way.
(g) Negotiated conservation and management measures
(1)
(A) In accordance with regulations promulgated by the Secretary pursuant to this paragraph, a Council may establish a fishery negotiation panel to assist in the development of specific conservation and management measures for a fishery under its authority. The Secretary may establish a fishery negotiation panel to assist in the development of specific conservation and management measures required for a fishery under section 1854(e)(5) of this title, for a fishery for which the Secretary has authority under section 1854(g) of this title, or for any other fishery with the approval of the appropriate Council.
(B) No later than 180 days after October 11, 1996, the Secretary shall promulgate regulations establishing procedures, developed in cooperation with the Administrative Conference of the United States, for the establishment and operation of fishery negotiation panels. Such procedures shall be comparable to the procedures for negotiated rulemaking established by subchapter III of chapter 5 of title 5.
(2) If a negotiation panel submits a report, such report shall specify all the areas where consensus was reached by the panel, including, if appropriate, proposed conservation and management measures, as well as any other information submitted by members of the negotiation panel. Upon receipt, the Secretary shall publish such report in the Federal Register for public comment.
(3) Nothing in this subsection shall be construed to require either a Council or the Secretary, whichever is appropriate, to use all or any portion of a report from a negotiation panel established under this subsection in the development of specific conservation and management measures for the fishery for which the panel was established.
(h) Central registry system for limited access system permits
(1) Within 6 months after October 11, 1996, the Secretary shall establish an exclusive central registry system (which may be administered on a regional basis) for limited access system permits established under section 1853(b)(6) of this title or other Federal law, including limited access privileges, which shall provide for the registration of title to, and interests in, such permits, as well as for procedures for changes in the registration of title to such permits upon the occurrence of involuntary transfers, judicial or nonjudicial foreclosure of interests, enforcement of judgments thereon, and related matters deemed appropriate by the Secretary. Such registry system shall—
(A) provide a mechanism for filing notice of a nonjudicial foreclosure or enforcement of a judgment by which the holder of a senior security interest acquires or conveys ownership of a permit, and in the event of a nonjudicial foreclosure, by which the interests of the holders of junior security interests are released when the permit is transferred;
(B) provide for public access to the information filed under such system, notwithstanding section 1881a(b) of this title; and
(C) provide such notice and other requirements of applicable law that the Secretary deems necessary for an effective registry system.
(2) The Secretary shall promulgate such regulations as may be necessary to carry out this subsection, after consulting with the Councils and providing an opportunity for public comment. The Secretary is authorized to contract with non-Federal entities to administer the central registry system.
(3) To be effective and perfected against any person except the transferor, its heirs and devisees, and persons having actual notice thereof, all security interests, and all sales and other transfers of permits described in paragraph (1), shall be registered in compliance with the regulations promulgated under paragraph (2). Such registration shall constitute the exclusive means of perfection of title to, and security interests in, such permits, except for Federal tax liens thereon, which shall be perfected exclusively in accordance with the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.). The Secretary shall notify both the buyer and seller of a permit if a lien has been filed by the Secretary of the Treasury against the permit before collecting any transfer fee under paragraph (5) of this subsection.
(4) The priority of security interests shall be determined in order of filing, the first filed having the highest priority. A validly-filed security interest shall remain valid and perfected notwithstanding a change in residence or place of business of the owner of record. For the purposes of this subsection, “security interest” shall include security interests, assignments, liens and other encumbrances of whatever kind.
(5)
(A) Notwithstanding section 1854(d)(1) of this title, the Secretary shall collect a reasonable fee of not more than one-half of one percent of the value of a limited access system permit upon registration of the title to such permit with the central registry system and upon the transfer of such registered title. Any such fee collected shall be deposited in the Limited Access System Administration Fund established under subparagraph (B).
(B) There is established in the Treasury a Limited Access System Administration Fund. The Fund shall be available, without appropriation or fiscal year limitation, only to the Secretary for the purposes of—
(i) administering the central registry system; and
(ii) administering and implementing this chapter in the fishery in which the fees were collected. Sums in the Fund that are not currently needed for these purposes shall be kept on deposit or invested in obligations of, or guaranteed by, the United States.
(i) Alaska and western Pacific community development programs
(1) Western Alaska community development quota program
(A) In general
There is established the western Alaska community development quota program in order—
(i) to provide eligible western Alaska villages with the opportunity to participate and invest in fisheries in the Bering Sea and Aleutian Islands Management Area;
(ii) to support economic development in western Alaska;
(iii) to alleviate poverty and provide economic and social benefits for residents of western Alaska; and
(iv) to achieve sustainable and diversified local economies in western Alaska.
(B) Program allocation
(i) In general
Except as provided in clause (ii), the annual percentage of the total allowable catch, guideline harvest level, or other annual catch limit allocated to the program in each directed fishery of the Bering Sea and Aleutian Islands shall be the percentage approved by the Secretary, or established by Federal law, as of March 1, 2006, for the program. The percentage for each fishery shall be either a directed fishing allowance or include both directed fishing and nontarget needs based on existing practice with respect to the program as of March 1, 2006, for each fishery.
(ii) Exceptions
Notwithstanding clause (i)—
(I) the allocation under the program for each directed fishery of the Bering Sea and Aleutian Islands (other than a fishery for halibut, sablefish, pollock, and crab) shall be a total allocation (directed and nontarget combined) of 10.7 percent effective January 1, 2008; and
(II) the allocation under the program in any directed fishery of the Bering Sea and Aleutian Islands (other than a fishery for halibut, sablefish, pollock, and crab) established after July 11, 2006, shall be a total allocation (directed and nontarget combined) of 10.7 percent.
The total allocation (directed and nontarget combined) for a fishery to which subclause (I) or (II) applies may not be exceeded.
(iii) Processing and other rights
Allocations to the program include all processing rights and any other rights and privileges associated with such allocations as of March 1, 2006.
(iv) Regulation of harvest
The harvest of allocations under the program for fisheries with individual quotas or fishing cooperatives shall be regulated by the Secretary in a manner no more restrictive than for other participants in the applicable sector, including with respect to the harvest of nontarget species.
(C) Allocations to entities
Each entity eligible to participate in the program shall be authorized under the program to harvest annually the same percentage of each species allocated to the program under subparagraph (B) that it was authorized by the Secretary to harvest of such species annually as of March 1, 2006, except to the extent that its allocation is adjusted under subparagraph (H). Such allocation shall include all processing rights and any other rights and privileges associated with such allocations as of March 1, 2006. Voluntary transfers by and among eligible entities shall be allowed, whether before or after harvesting. Notwithstanding the first sentence of this subparagraph, seven-tenths of one percent of the total allowable catch, guideline harvest level, or other annual catch limit, within the amount allocated to the program by subclause (I) or subclause (II) of subparagraph (B)(ii), shall be allocated among the eligible entities by the panel established in subparagraph (G), or allocated by the Secretary based on the nontarget needs of eligible entities in the absence of a panel decision.
(D) Eligible villages
The following villages shall be eligible to participate in the program through the following entities:
(i) The villages of Akutan, Atka, False Pass, Nelson Lagoon, Nikolski, and Saint George through the Aleutian Pribilof Island Community Development Association.
(ii) The villages of Aleknagik, Clark’s Point, Dillingham, Egegik, Ekuk, Ekwok, King Salmon/Savonoski, Levelock, Manokotak, Naknek, Pilot Point, Port Heiden, Portage Creek, South Naknek, Togiak, Twin Hills, and Ugashik through the Bristol Bay Economic Development Corporation.
(iii) The village of Saint Paul through the Central Bering Sea Fishermen’s Association.
(iv) The villages of Chefornak, Chevak, Eek, Goodnews Bay, Hooper Bay, Kipnuk, Kongiganak, Kwigillingok, Mekoryuk, Napakiak, Napaskiak, Newtok, Nightmute, Oscarville, Platinum, Quinhagak, Scammon Bay, Toksook Bay, Tuntutuliak, and Tununak through the Coastal Villages Region Fund.
(v) The villages of Brevig Mission, Diomede, Elim, Gambell, Golovin, Koyuk, Nome, Saint Michael, Savoonga, Shaktoolik, Stebbins, Teller, Unalakleet, Wales, and White Mountain through the Norton Sound Economic Development Corporation.
(vi) The villages of Alakanuk, Emmonak, Grayling, Kotlik, Mountain Village, and Nunam Iqua through the Yukon Delta Fisheries Development Association.
(E) Eligibility requirements for participating entities
To be eligible to participate in the program, an entity referred to in subparagraph (D) shall meet the following requirements:
(i) Board of directors
The entity shall be governed by a board of directors. At least 75 percent of the members of the board shall be resident fishermen from the entity’s member villages. The board shall include at least one director selected by each such member village.
(ii) Panel representative
The entity shall elect a representative to serve on the panel established by subparagraph (G).
(iii) Other investments
The entity may make up to 20 percent of its annual investments in any combination of the following:
(I) For projects that are not fishery-related and that are located in its region.
(II) On a pooled or joint investment basis with one or more other entities participating in the program for projects that are not fishery-related and that are located in one or more of their regions.
(III) For matching Federal or State grants for projects or programs in its member villages without regard to any limitation on the Federal or State share, or restriction on the source of any non-Federal or non-State matching funds, of any grant program under any other provision of law.
(iv) Fishery-related investments
The entity shall make the remainder percent of its annual investments in fisheries-related projects or for other purposes consistent with the practices of the entity prior to March 1, 2006.
(v) Annual statement of compliance
Each year the entity, following approval by its board of directors and signed by its chief executive officer, shall submit a written statement to the Secretary and the State of Alaska that summarizes the purposes for which it made investments under clauses (iii) and (iv) during the preceding year.
(vi) Other panel requirements
The entity shall comply with any other requirements established by the panel under subparagraph (G).
(F) Entity status, limitations, and regulation
The entity—
(i) shall be subject to any excessive share ownership, harvesting, or processing limitations in the fisheries of the Bering Sea and Aleutian Islands Management Area only to the extent of the entity’s proportional ownership, excluding any program allocations, and notwithstanding any other provision of law;
(ii) shall comply with State of Alaska law requiring annual reports to the entity’s member villages summarizing financial operations for the previous calendar year, including general and administrative costs and compensation levels of the top 5 highest paid personnel;
(iii) shall comply with State of Alaska laws to prevent fraud that are administered by the Alaska Division of Banking and Securities, except that the entity and the State shall keep confidential from public disclosure any information if the disclosure would be harmful to the entity or its investments; and
(iv) is exempt from compliance with any State law requiring approval of financial transactions, community development plans, or amendments thereto, except as required by subparagraph (H).
(G) Administrative panel
(i) Establishment
There is established a community development quota program panel.
(ii) Membership
The panel shall consist of 6 members. Each entity participating in the program shall select one member of the panel.
(iii) Functions
The panel shall—
(I) administer those aspects of the program not otherwise addressed in this paragraph, either through private contractual arrangement or through recommendations to the North Pacific Council, the Secretary, or the State of Alaska, as the case may be; and
(II) coordinate and facilitate activities of the entities under the program.
(iv) Unanimity required
The panel may act only by unanimous vote of all 6 members of the panel and may not act if there is a vacancy in the membership of the panel.
(H) Decennial review and adjustment of entity allocations
(i) In general
During calendar year 2012 and every 10 years thereafter, the State of Alaska shall evaluate the performance of each entity participating in the program based on the criteria described in clause (ii).
(ii) Criteria
The panel shall establish a system to be applied under this subparagraph that allows each entity participating in the program to assign relative values to the following criteria to reflect the particular needs of its villages:
(I) Changes during the preceding 10-year period in population, poverty level, and economic development in the entity’s member villages.
(II) The overall financial performance of the entity, including fishery and nonfishery investments by the entity.
(III) Employment, scholarships, and training supported by the entity.
(IV) Achieving of the goals of the entity’s community development plan.
(iii) Adjustment of allocations
After the evaluation required by clause (i), the State of Alaska shall make a determination, on the record and after an opportunity for a hearing, with respect to the performance of each entity participating in the program for the criteria described in clause (ii). If the State determines that the entity has maintained or improved its overall performance with respect to the criteria, the allocation to such entity under the program shall be extended by the State for the next 10-year period. If the State determines that the entity has not maintained or improved its overall performance with respect to the criteria—
(I) at least 90 percent of the entity’s allocation for each species under subparagraph (C) shall be extended by the State for the next 10-year period; and
(II) the State may determine, or the Secretary may determine (if State law prevents the State from making the determination), and implement an appropriate reduction of up to 10 percent of the entity’s allocation for each species under subparagraph (C) for all or part of such 10-year period.
(iv) Reallocation of reduced amount
If the State or the Secretary reduces an entity’s allocation under clause (iii), the reduction shall be reallocated among other entities participating in the program whose allocations are not reduced during the same period in proportion to each such entity’s allocation of the applicable species under subparagraph (C).
(I) Secretarial approval not required
Notwithstanding any other provision of law or regulation thereunder, the approval by the Secretary of a community development plan, or an amendment thereof, under the program is not required.
(J) Community development plan defined
In this paragraph, the term “community development plan” means a plan, prepared by an entity referred to in subparagraph (D), for the program that describes how the entity intends—
(i) to harvest its share of fishery resources allocated to the program, or
(ii) to use its share of fishery resources allocated to the program, and any revenue derived from such use, to assist its member villages with projects to advance economic development,
but does not include a plan that allocates fishery resources to the program.
(2)
(A) The Western Pacific Council and the Secretary may establish a western Pacific community development program for any fishery under the authority of such Council in order to provide access to such fishery for western Pacific communities that participate in the program.
(B) To be eligible to participate in the western Pacific community development program, a community shall—
(i) be located within the Western Pacific Regional Fishery Management Area;
(ii) meet criteria developed by the Western Pacific Council, approved by the Secretary and published in the Federal Register;
(iii) consist of community residents who are descended from the aboriginal people indigenous to the area who conducted commercial or subsistence fishing using traditional fishing practices in the waters of the Western Pacific region;
(iv) not have previously developed harvesting or processing capability sufficient to support substantial participation in fisheries in the Western Pacific Regional Fishery Management Area; and
(v) develop and submit a Community Development Plan to the Western Pacific Council and the Secretary.
(C) In developing the criteria for eligible communities under subparagraph (B)(ii), the Western Pacific Council shall base such criteria on traditional fishing practices in or dependence on the fishery, the cultural and social framework relevant to the fishery, and economic barriers to access to the fishery.
(D) For the purposes of this subsection “Western Pacific Regional Fishery Management Area” means the area under the jurisdiction of the Western Pacific Council, or an island within such area.
(E) Notwithstanding any other provision of this chapter, the Western Pacific Council shall take into account traditional indigenous fishing practices in preparing any fishery management plan.
(3) The Secretary shall deduct from any fees collected from a community development quota program under section 1854(d)(2) of this title the costs incurred by participants in the program for observer and reporting requirements which are in addition to observer and reporting requirements of other participants in the fishery in which the allocation to such program has been made.
(4) After October 11, 1996, the North Pacific Council and Western Pacific Council may not submit to the Secretary a community development quota program that is not in compliance with this subsection.
(j) Western Pacific and Northern Pacific regional marine education and training
(1) In general
The Secretary shall establish a pilot program for regionally-based marine education and training programs in the Western Pacific and the Northern Pacific to foster understanding, practical use of knowledge (including native Hawaiian, Alaskan Native, and other Pacific Islander-based knowledge), and technical expertise relevant to stewardship of living marine resources. The Secretary shall, in cooperation with the Western Pacific and the North Pacific Regional Fishery Management Councils, regional educational institutions, and local Western Pacific and Northern Pacific community training entities, establish programs or projects that will improve communication, education, and training on marine resource issues throughout the region and increase scientific education for marine-related professions among coastal community residents, including indigenous Pacific islanders, Native Hawaiians, Alaskan Natives, and other underrepresented groups in the region.
(2) Program components
The program shall—
(A) include marine science and technology education and training programs focused on preparing community residents for employment in marine related professions, including marine resource conservation and management, marine science, marine technology, and maritime operations;
(B) include fisheries and seafood-related training programs, including programs for fishery observers, seafood safety and seafood marketing, focused on increasing the involvement of coastal community residents in fishing, fishery management, and seafood-related operations;
(C) include outreach programs and materials to educate and inform consumers about the quality and sustainability of wild fish or fish products farmed through responsible aquaculture, particularly in Hawaii, Alaska, the Western Pacific, the Northern Pacific, and the Central Pacific;
(D) include programs to identify, with the fishing industry, methods and technologies that will improve the data collection, quality, and reporting and increase the sustainability of fishing practices, and to transfer such methods and technologies among fisheries sectors and to other nations in the Western, Northern, and Central Pacific;
(E) develop means by which local and traditional knowledge (including Pacific islander, Native Hawaiian, and Alaskan Native knowledge) can enhance science-based management of fishery resources of the region; and
(F) develop partnerships with other Western Pacific Island and Alaskan agencies, academic institutions, and other entities to meet the purposes of this section.
(k) Multispecies groundfish
(1) In general
Within 60 days after January 12, 2007, the Secretary of Commerce shall determine whether fishing in State waters—
(A) without a New England multispecies groundfish fishery permit on regulated species within the multispecies complex is not consistent with the applicable Federal fishery management plan; or
(B) without a Federal bottomfish and seamount groundfish permit in the Hawaiian archipelago on regulated species within the complex is not consistent with the applicable Federal fishery management plan or State data are not sufficient to make such a determination.
(2) Cure
If the Secretary makes a determination that such actions are not consistent with the plan, the Secretary shall, in consultation with the Council, and after notifying the affected State, develop and implement measures to cure the inconsistency pursuant to section 1856(b) of this title.
(Pub. L. 94–265, title III, § 305, Apr. 13, 1976, 90 Stat. 354; Pub. L. 96–561, title II, § 235, Dec. 22, 1980, 94 Stat. 3299; Pub. L. 97–453, § 8, Jan. 12, 1983, 96 Stat. 2490; Pub. L. 101–627, title I, §§ 110(b)(2), 111(a)(1), (b), Nov. 28, 1990, 104 Stat. 4451, 4452; Pub. L. 104–297, title I, §§ 110(a)–(d), 111(a), Oct. 11, 1996, 110 Stat. 3587–3590, 3592; Pub. L. 109–241, title IV, § 416(a), July 11, 2006, 120 Stat. 540; Pub. L. 109–479, § 3(d)(3), title I, §§ 108–110, 116(b)(1), Jan. 12, 2007, 120 Stat. 3578, 3594–3596, 3606.)
heading: References in Text
text: This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.
The Paperwork Reduction Act of 1980, referred to in subsec. (e), is Pub. L. 96–511, Dec. 11, 1980, 94 Stat. 2812, as amended, which was classified principally to chapter 35 (§ 3501 et seq.) of Title 44, Public Printing and Documents, prior to the general amendment of that chapter by Pub. L. 104–13, § 2, May 22, 1995, 109 Stat. 163. For complete classification of this Act to the Code, see Short Title of 1980 Amendment note set out under section 101 of Title 44 and Tables.
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), referred to in subsec. (e), is Pub. L. 96–354, Sept. 19, 1980, 94 Stat. 1164, which is classified generally to chapter 6 (§ 601 et seq.) of Title 5, Government Organization and Employees. For complete classification of the Act to the Code, see Short Title note set out under section 601 of Title 5 and Tables.
Executive Order Numbered 12866, referred to in subsec. (e), is set out as a note under section 601 of Title 5, Government Organization and Employees.
The Internal Revenue Code of 1986, referred to in subsec. (h)(3), is classified generally to Title 26, Internal Revenue Code.
heading: Amendments
text: 2007—Subsec. (c)(3)(B). Pub. L. 109–479, § 108(a), which directed substitution of “186 days,” for “180 days,” the second time appearing, was executed by making the substitution the only place that phrase appeared, to reflect the probable intent of Congress.
Subsec. (c)(3)(D). Pub. L. 109–479, § 108(b), inserted “or interim measures” after “emergency regulations”.
Subsec. (h)(1). Pub. L. 109–479, § 3(d)(3), substituted “limited access privileges,” for “individual fishing quotas,” in introductory provisions.
Subsec. (i)(1)(B)(ii). Pub. L. 109–479, § 116(b)(1)(C), which directed insertion of “The total allocation (directed and nontarget combined) for a fishery to which subclause (I) or (II) applies may not be exceeded.” after cl. (ii), was executed by making the insertion as concluding provisions of cl. (ii), to reflect the probable intent of Congress.
Subsec. (i)(1)(B)(ii)(I). Pub. L. 109–479, § 116(b)(1)(A), substituted “total allocation (directed and nontarget combined) of 10.7 percent effective January 1, 2008; and” for “directed fishing allocation of 10 percent upon the establishment of a quota program, fishing cooperative, sector allocation, or other rationalization program in any sector of the fishery; and”.
Subsec. (i)(1)(B)(ii)(II). Pub. L. 109–479, § 116(b)(1)(B), substituted “total allocation (directed and nontarget combined) of 10.7 percent.” for “directed fishing allocation of 10 percent.”
Subsec. (i)(1)(C). Pub. L. 109–479, § 116(b)(1)(D), inserted at end “Voluntary transfers by and among eligible entities shall be allowed, whether before or after harvesting. Notwithstanding the first sentence of this subparagraph, seven-tenths of one percent of the total allowable catch, guideline harvest level, or other annual catch limit, within the amount allocated to the program by subclause (I) or subclause (II) of subparagraph (B)(ii), shall be allocated among the eligible entities by the panel established in subparagraph (G), or allocated by the Secretary based on the nontarget needs of eligible entities in the absence of a panel decision.”
Subsec. (j). Pub. L. 109–479, § 109, added subsec. (j).
Subsec. (k). Pub. L. 109–479, § 110, added subsec. (k).
2006—Subsec. (i)(1). Pub. L. 109–241 added par. (1) and struck out former par. (1) which related to the western Alaska community development quota program.
1996—Pub. L. 104–297, § 110(a)(1), (3), substituted “Other requirements and authority” for “Implementation of fishery management plans” as section catchline.
Subsec. (a). Pub. L. 104–297, § 110(a)(1), (3), added subsec. (a) and struck out heading and text of former subsec. (a). Text read as follows: “The Secretary shall promulgate each regulation that is necessary to carry out a plan or amendment—
“(1) within 110 days after the plan or amendment was received by him for action under section 1854(a) of this title, if such plan or amendment takes effect under section 1854(b)(1) of this title;
“(2) within 75 days after a revised plan or amendment was received by him under section 1854(b) of this title, if such plan or amendment takes effect under paragraph (3)(D) of such section; or
“(3) within such time as he deems appropriate in the case of a plan or amendment prepared by him under section 1854(c) or (f)(3) of this title.”
Subsec. (b). Pub. L. 104–297, § 110(a)(3), added subsec. (b). Former subsec. (b) redesignated (f).
Subsec. (c). Pub. L. 104–297, § 110(b)(1), inserted “and interim measures” after “actions” in heading.
Subsec. (c)(1). Pub. L. 104–297, § 110(b)(2)(C), which directed insertion of “or overfishing” after “emergency”, was executed by making the insertion after “the emergency” to reflect the probable intent of Congress.
Pub. L. 104–297, § 110(b)(2)(A), (B), substituted “or that interim measures are needed to reduce overfishing for” for “involving” and inserted “or interim measures” after “emergency regulations”.
Subsec. (c)(2). Pub. L. 104–297, § 110(b)(2)(C), which directed insertion of “or overfishing” after “emergency”, was executed by making the insertion after “the emergency” in subpars. (A) and (B) to reflect the probable intent of Congress.
Pub. L. 104–297, § 110(b)(2)(A), (B), substituted “or that interim measures are needed to reduce overfishing for” for “involving” in introductory provisions and inserted “or interim measures” after “emergency regulations” in subpars. (A) and (B).
Subsec. (c)(3). Pub. L. 104–297, § 110(b)(3)(A), inserted “or interim measure” after “emergency regulation” in two places in introductory provisions.
Subsec. (c)(3)(B). Pub. L. 104–297, § 110(b)(3)(B), (D), added subpar. (B) and struck out former subpar. (B) which read as follows: “shall remain in effect for not more than 90 days after the date of such publication, except that any such regulation may, by agreement of the Secretary and the Council, be promulgated for one additional period of not more than 90 days; and”.
Subsec. (c)(3)(C). Pub. L. 104–297, § 110(b)(3)(D), added subpar. (C). Former subpar. (C) redesignated (D).
Subsec. (c)(3)(D). Pub. L. 104–297, § 110(b)(3)(C), redesignated subpar. (C) as (D).
Subsec. (e). Pub. L. 104–297, § 110(c), substituted “12866, dated September 30, 1993,” for “12291, dated February 17, 1981,” and “subsections (a), (b), and (c) of section 1854 of this title” for “subsection (c) of this section or section 1854(a) and (b) of this title”.
Subsec. (f). Pub. L. 104–297, § 110(a)(2), redesignated subsec. (b) as (f).
Subsecs. (g), (h). Pub. L. 104–297, § 110(d), added subsecs. (g) and (h).
Subsec. (i). Pub. L. 104–297, § 111(a), added subsec. (i).
1990—Subsec. (a). Pub. L. 101–627, §§ 110(b)(2), 111(a)(1)(A), redesignated subsec. (c) as (a) and substituted “section 1854(c) or (f)(3)” for “section 1854(c)”.
Subsec. (b). Pub. L. 101–627, § 111(a)(1)(A), (b), redesignated subsec. (d) as (b) and amended it generally. Prior to amendment, subsec. (b) read as follows: “Regulations promulgated by the Secretary under this chapter shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of title 5, if a petition for such review is filed within 30 days after the date on which the regulations are promulgated; except that (1) section 705 of such title is not applicable, and (2) the appropriate court shall only set aside any such regulation on a ground specified in section 706(2)(A), (B), (C), or (D) of such title.”
Subsecs. (c) to (e), (g), (h). Pub. L. 101–627, § 111(a)(1), redesignated subsecs. (e), (g), and (h) as (c), (d), and (e), respectively.
1983—Subsec. (a). Pub. L. 97–453, § 8(1), struck out subsec. (a) which had provided that, as soon as practicable after the Secretary approved pursuant to section 1854(a) and (b) of this title any fishery management plan or amendment or prepared pursuant to section 1854(c) of this title any fishery management plan or amendment, the Secretary was to publish a notice of availability of such plan or amendment and any regulations which he proposed to promulgate to implement such plan or amendment in the Federal Register, and that interested persons were to be afforded a period of not less than 45 days after such publication within which to submit in writing data, views, or comments on the plan or amendment, and on the proposed regulations.
Subsec. (b). Pub. L. 97–453, § 8(1), struck out subsec. (b) which had provided that the Secretary might schedule a hearing, in accordance with section 553 of title 5, on any fishery management plan, any amendment to any such plan, any regulations to implement any such plan or amendment and that if any such hearing was scheduled, the Secretary could postpone the effective date of the regulations proposed to implement such plan or amendment, or take such other action as he deemed appropriate to preserve the rights or status of any person, pending its outcome.
Subsec. (c). Pub. L. 97–453, § 8(2), substituted provision that the Secretary shall promulgate each regulation that is necessary to carry out a plan or amendment within 110 days after the plan or amendment was received by him for action under section 1854(a) of this title if such plan or amendment takes effect under section 1854(b)(1) of this title, within 75 days after a revised plan or amendment was received by him under section 1854(b) of this title if such plan or amendment takes effect under paragraph (3)(D) of such section, or within such time as he deems appropriate in the case of a plan or amendment prepared by him under section 1854(c) of this title, for provision that the Secretary promulgate regulations to implement any fishery management plan or any amendment to any such plan after consideration of all relevant matters presented to him during the 45-day period referred to in former subsection (a) of this section and produced in any hearing held under former subsection (b) of this section if he found the plan or amendment consistent with the national standards, the other provisions of this chapter, and any other applicable law, and that to the extent practicable, such regulation be put into effect in a manner not disruptive of the regular fishing season for any fishery.
Subsec. (e). Pub. L. 97–453, § 8(3), substituted provision that if the Secretary finds that an emergency exists involving any fishery, he may promulgate emergency regulations necessary to address the emergency, without regard to whether a fishery management plan exists for such fishery, that if a Council finds that an emergency exists involving any fishery within its jurisdiction, whether or not a fishery management plan exists for such fishery, the Secretary shall promulgate emergency regulations under paragraph (1) to address the emergency if the Council, by unanimous vote of the members who are voting members, requests the taking of such action, and the Secretary may promulgate emergency regulations under paragraph (1) to address the emergency if the Council, by less than a unanimous vote, requests the taking of such action, for provision that if the Secretary found that an emergency involving any fishery resources existed, he could promulgate emergency regulations, without regard to former subsections (a) and (c) of this section, to implement any fishery management plan, if required, or promulgate emergency regulations to amend any regulation implementing any existing fishery management plan, to the extent required by such emergency, lengthened from 45 days to 90 days the maximum period that emergency regulations may remain in effect after publication in the Federal Register and the maximum additional period for which such regulations may be promulgated, and inserted a provision that emergency regulations promulgated under par. (2) may only be terminated early upon the agreement of the Secretary and the Council concerned.
Subsec. (f). Pub. L. 97–453, § 8(4), struck out subsec. (f) which had directed the Secretary to report to the Congress and the President, not later than March 1 of each year, on all activities of the Councils and the Secretary with respect to fishery management plans, regulations to implement such plans, and all other activities relating to the conservation and management of fishery resources undertaken under this chapter during the preceding calendar year.
Subsec. (h). Pub. L. 97–453, § 8(5), added subsec. (h).
1980—Subsec. (a). Pub. L. 96–561 inserted “a notice of availability of” after “Federal Register (A)”.
heading: Effective Date of 2007 Amendment
text: Pub. L. 109–479, title I, § 116(b)(2), Jan. 12, 2007, 120 Stat. 3606, provided that: “The allocation percentage in subclause (I) of section 305(i)(1)(B)(ii) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1855(i)(1)(B)(ii)), as amended by paragraph (1) of this subsection, shall be in effect in 2007 with respect to any sector of a fishery to which such subclause applies and in which a fishing cooperative is established in 2007, and such sector’s 2007 allocation shall be reduced by a pro rata amount to accomplish such increased allocation to the program. For purposes of section 305(i)(1) of that Act [16 U.S.C. 1855(i)(1)] and of this subsection [amending this section], the term ‘fishing cooperative’ means a fishing cooperative whether or not authorized by a fishery management council or Federal agency, if a majority of the participants in the sector are participants in the fishing cooperative.”
heading: Termination of Administrative Conference of United States
text: For termination of Administrative Conference of United States, see provision of title IV of Pub. L. 104–52, set out as a note preceding section 591 of Title 5, Government Organization and Employees.
heading: No Interruption of Existing Allocations
text: Pub. L. 109–241, title IV, § 416(b), July 11, 2006, 120 Stat. 545, provided that: “The amendment made by subsection (a) [amending this section] shall not be construed or implemented in a way that causes any interruption in the allocations of fishery resources to the western Alaska community development quota program or in the opportunity of an entity participating in that program to harvest its share of such allocations.”
heading: Eligibility To Participate in Western Alaska Community Development Quota Program
text: Pub. L. 109–59, title X, § 10206, Aug. 10, 2005, 119 Stat. 1934, provided that:
“A community shall be eligible to participate in the western Alaska community development quota program established under section 305(i) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1855(i)) if the community—
“(1) is listed in table 7 to part 679 of title 50, Code of Federal Regulations, as in effect on March 8, 2004; or
“(2) was determined to be eligible to participate in such program by the National Marine Fisheries Service on April 19, 1999.”
heading: Community Development Quota Report
text: Pub. L. 104–297, title I, § 108(h), Oct. 11, 1996, 110 Stat. 3580, provided that:
“Not later than October 1, 1998, the National Academy of Sciences, in consultation with the Secretary, the North Pacific and Western Pacific Councils, communities and organizations participating in the program, participants in affected fisheries, and the affected States, shall submit to the Secretary of Commerce and Congress a comprehensive report on the performance and effectiveness of the community development quota programs under the authority of the North Pacific and Western Pacific Councils. The report shall—
“(1) evaluate the extent to which such programs have met the objective of providing communities with the means to develop ongoing commercial fishing activities;
“(2) evaluate the manner and extent to which such programs have resulted in the communities and residents—
“(A) receiving employment opportunities in commercial fishing and processing; and
“(B) obtaining the capital necessary to invest in commercial fishing, fish processing, and commercial fishing support projects (including infrastructure to support commercial fishing);
“(3) evaluate the social and economic conditions in the participating communities and the extent to which alternative private sector employment opportunities exist;
“(4) evaluate the economic impacts on participants in the affected fisheries, taking into account the condition of the fishery resource, the market, and other relevant factors;
“(5) recommend a proposed schedule for accomplishing the developmental purposes of community development quotas; and
“(6) address such other matters as the National Academy of Sciences deems appropriate.”
heading: Registry Transition for Limited Access System Permits
text: Pub. L. 104–297, title I, § 110(e), Oct. 11, 1996, 110 Stat. 3592, as amended by Pub. L. 104–208, div. A, title I, § 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: “Security interests on permits described under section 305(h)(1) of the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1855(h)(1)], as amended by this Act, that are effective and perfected by otherwise applicable law on the date of the final regulations implementing section 305(h) shall remain effective and perfected if, within 120 days after such date, the secured party submits evidence satisfactory to the Secretary of Commerce and in compliance with such regulations of the perfection of such security.”
heading: Western Pacific Demonstration Projects
text: Pub. L. 104–297, title I, § 111(b), Oct. 11, 1996, 110 Stat. 3594, as amended by Pub. L. 104–208, div. A, title I, § 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 144(g)], Dec. 21, 2000, 114 Stat. 2763, 2763A–250; Pub. L. 106–555, title II, § 206, Dec. 21, 2000, 114 Stat. 2770; Pub. L. 109–479, title II, § 207, Jan. 12, 2007, 120 Stat. 3615, provided that:
“(1) The Secretary of Commerce is authorized to make direct grants to eligible western Pacific communities, as recommended by the Western Pacific Fishery Management Council, for the purpose of establishing fishery demonstration projects to foster and promote traditional indigenous fishing practices. There are authorized to be appropriated to carry out this section [amending this section and enacting this note] $500,000 for each fiscal year.
“(2) Demonstration projects funded pursuant to this subsection shall foster and promote the involvement of western Pacific communities in western Pacific fisheries and may—
“(A) identify and apply traditional indigenous fishing practices;
“(B) develop or enhance western Pacific community-based fishing opportunities; and
“(C) involve research, community education, or the acquisition of materials and equipment necessary to carry out any such demonstration project.
“(3)
(A) The Western Pacific Fishery Management Council, in consultation with the Secretary of Commerce, shall establish an advisory panel under section 302(g) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1852(g)) to evaluate, determine the relative merits of, and annually rank applications for such grants. The panel shall consist of not more than 8 individuals who are knowledgeable or experienced in traditional indigenous fishery practices of western Pacific communities and who are not members or employees of the Western Pacific Fishery Management Council.
“(B) If the Secretary of Commerce or the Secretary of the Interior awards a grant for a demonstration project not in accordance with the rank given to such project by the advisory panel, the Secretary shall provide a detailed written explanation of the reasons therefor.
“(4) The Western Pacific Fishery Management Council shall, with the assistance of such advisory panel, submit an annual report to the Congress assessing the status and progress of demonstration projects carried out under this subsection.
“(5) Appropriate Federal agencies may provide technical assistance to western Pacific community-based entities to assist in carrying out demonstration projects under this subsection.
“(6) In this subsection the term ‘Western Pacific community’ means a community eligible to participate under section 305(i)(2)(B)(i) through (iv) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1855(i)(2)(B)(i) through (iv)).”