§1854 — Title 16 Conservation | U.S. Code

Summary

When a Council sends a fishery management plan, an amendment, or proposed regulations to the Secretary, the Secretary must quickly check that the plan or rules follow the national standards, other parts of the law, and any other applicable laws. The Secretary must publish a notice in the Federal Register saying the plan is available and accept written comments for 60 days. The Secretary must consider public comments, talk with the Secretary of State about foreign fishing, and consult the department that runs the Coast Guard about enforcement and access issues. After the public comment period ends, the Secretary must approve, disapprove, or partially approve the plan within 30 days and explain any legal problems and suggested fixes. If the Council sends proposed regulations, the Secretary must decide within 15 days if they match the plan and law; if yes, the rules are published for public comment for 15 to 60 days, and if no, the Secretary must tell the Council what to change. Final regulations must be issued within 30 days after the public comment period, and any differences from the proposed rules must be explained. Definition: “immediately” means on or before the 5th day after the Council sends a plan, amendment, or final proposed regulation. If a Council fails to act, or if the Secretary disapproves a plan and the Council does not fix it, the Secretary may write a plan or amendment. The Secretary must hold public hearings, consult the Secretary of State and the Coast Guard department, and send the plan to the Council and publish a 60-day comment notice. The Secretary cannot add a limited access system (including limited access privilege programs) to a Council’s fishery plan unless a majority of that Council’s voting members approve it. The Secretary sets permit fees but they cannot exceed administrative costs. For limited access privilege programs and community development quota programs, the Secretary must collect fees to cover actual management, data, and enforcement costs, but not more than 3 percent of the ex-vessel value; these fees go into the Limited Access System Administration Fund, and up to 33 percent may be returned to a State by application for community quota program costs. The Secretary must report yearly to Congress and the Councils on fishery status and name fisheries that are overfished or likely to be overfished within two years. If a fishery is overfished, the Secretary must immediately tell the Council and publish a notice. The Council has 2 years to make and carry out a plan to stop overfishing or the Secretary will prepare one within 9 months. Rebuilding plans must be as short as possible and generally no longer than 10 years, allocate recovery and restrictions fairly, and consider international participation when relevant. The Secretary must review progress at least every 2 years and act if recovery is not happening. For highly migratory species under Secretary authority, the Secretary must follow extra consultation, advisory panel, international, and research steps, and fish tagged and released under approved programs are not counted as bycatch. The Secretary can repeal a Council plan only with a three-quarters Council vote. The Secretary must also update NEPA procedures in consultation with Councils and the Council on Environmental Quality, following specific deadlines tied to January 12, 2007. For fisheries overfished because of too much foreign fishing with no international fix, the Secretary, with the Secretary of State, must immediately pursue international action and within 1 year develop domestic and international recommendations.

Title 16, §1854

Conservation — Source: USLM XML via OLRC

(a)(1)Upon transmittal by the Council to the Secretary of a fishery management plan or plan amendment, the Secretary shall—

(A)immediately commence a review of the plan or amendment to determine whether it is consistent with the national standards, the other provisions of this chapter, and any other applicable law; and

(B)immediately publish in the Federal Register a notice stating that the plan or amendment is available and that written information, views, or comments of interested persons on the plan or amendment may be submitted to the Secretary during the 60-day period beginning on the date the notice is published.

(2)In undertaking the review required under paragraph (1), the Secretary shall—

(A)take into account the information, views, and comments received from interested persons;

(B)consult with the Secretary of State with respect to foreign fishing; and

(C)consult with the Secretary of the department in which the Coast Guard is operating with respect to enforcement at sea and to fishery access adjustments referred to in section 1853(a)(6) of this title.

(3)The Secretary shall approve, disapprove, or partially approve a plan or amendment within 30 days of the end of the comment period under paragraph (1) by written notice to the Council. A notice of disapproval or partial approval shall specify—

(A)the applicable law with which the plan or amendment is inconsistent;

(B)the nature of such inconsistencies; and

(C)recommendations concerning the actions that could be taken by the Council to conform such plan or amendment to the requirements of applicable law.

(4)If the Secretary disapproves or partially approves a plan or amendment, the Council may submit a revised plan or amendment to the Secretary for review under this subsection.

(5)For purposes of this subsection and subsection (b), the term “immediately” means on or before the 5th day after the day on which a Council transmits to the Secretary a fishery management plan, plan amendment, or proposed regulation that the Council characterizes as final.

(b)(1)Upon transmittal by the Council to the Secretary of proposed regulations prepared under section 1853(c) of this title, the Secretary shall immediately initiate an evaluation of the proposed regulations to determine whether they are consistent with the fishery management plan, plan amendment, this chapter and other applicable law. Within 15 days of initiating such evaluation the Secretary shall make a determination and—

(A)if that determination is affirmative, the Secretary shall publish such regulations in the Federal Register, with such technical changes as may be necessary for clarity and an explanation of those changes, for a public comment period of 15 to 60 days; or

(B)if that determination is negative, the Secretary shall notify the Council in writing of the inconsistencies and provide recommendations on revisions that would make the proposed regulations consistent with the fishery management plan, plan amendment, this chapter, and other applicable law.

(2)Upon receiving a notification under paragraph (1)(B), the Council may revise the proposed regulations and submit them to the Secretary for reevaluation under paragraph (1).

(3)The Secretary shall promulgate final regulations within 30 days after the end of the comment period under paragraph (1)(A). The Secretary shall consult with the Council before making any revisions to the proposed regulations, and must publish in the Federal Register an explanation of any differences between the proposed and final regulations.

(c)(1)The Secretary may prepare a fishery management plan, with respect to any fishery, or any amendment to any such plan, in accordance with the national standards, the other provisions of this chapter, and any other applicable law, if—

(A)the appropriate Council fails to develop and submit to the Secretary, after a reasonable period of time, a fishery management plan for such fishery, or any necessary amendment to such a plan, if such fishery requires conservation and management;

(B)the Secretary disapproves or partially disapproves any such plan or amendment, or disapproves a revised plan or amendment, and the Council involved fails to submit a revised or further revised plan or amendment; or

(C)the Secretary is given authority to prepare such plan or amendment under this section.

(2)In preparing any plan or amendment under this subsection, the Secretary shall—

(A)conduct public hearings, at appropriate times and locations in the geographical areas concerned, so as to allow interested persons an opportunity to be heard in the preparation and amendment of the plan and any regulations implementing the plan; and

(B)consult with the Secretary of State with respect to foreign fishing and with the Secretary of the department in which the Coast Guard is operating with respect to enforcement at sea.

(3)Notwithstanding paragraph (1) for a fishery under the authority of a Council, the Secretary may not include in any fishery management plan, or any amendment to any such plan, prepared by him, a provision establishing a limited access system, including any limited access privilege program, unless such system is first approved by a majority of the voting members, present and voting, of each appropriate Council.

(4)Whenever the Secretary prepares a fishery management plan or plan amendment under this section, the Secretary shall immediately—

(A)for a plan or amendment for a fishery under the authority of a Council, submit such plan or amendment to the appropriate Council for consideration and comment; and

(B)publish in the Federal Register a notice stating that the plan or amendment is available and that written information, views, or comments of interested persons on the plan or amendment may be submitted to the Secretary during the 60-day period beginning on the date the notice is published.

(5)Whenever a plan or amendment is submitted under paragraph (4)(A), the appropriate Council must submit its comments and recommendations, if any, regarding the plan or amendment to the Secretary before the close of the 60-day period referred to in paragraph (4)(B). After the close of such 60-day period, the Secretary, after taking into account any such comments and recommendations, as well as any views, information, or comments submitted under paragraph (4)(B), may adopt such plan or amendment.

(6)The Secretary may propose regulations in the Federal Register to implement any plan or amendment prepared by the Secretary. In the case of a plan or amendment to which paragraph (4)(A) applies, such regulations shall be submitted to the Council with such plan or amendment. The comment period on proposed regulations shall be 60 days, except that the Secretary may shorten the comment period on minor revisions to existing regulations.

(7)The Secretary shall promulgate final regulations within 30 days after the end of the comment period under paragraph (6). The Secretary must publish in the Federal Register an explanation of any substantive differences between the proposed and final rules. All final regulations must be consistent with the fishery management plan, with the national standards and other provisions of this chapter, and with any other applicable law.

(d)(1)The Secretary shall by regulation establish the level of any fees which are authorized to be charged pursuant to section 1853(b)(1) of this title. The Secretary may enter into a cooperative agreement with the States concerned under which the States administer the permit system and the agreement may provide that all or part of the fees collected under the system shall accrue to the States. The level of fees charged under this subsection shall not exceed the administrative costs incurred in issuing the permits.

(2)(A)Notwithstanding paragraph (1), the Secretary is authorized and shall collect a fee to recover the actual costs directly related to the management, data collection, and enforcement of any—

(i)limited access privilege program; and

(ii)community development quota program that allocates a percentage of the total allowable catch of a fishery to such program.

(B)Such fee shall not exceed 3 percent of the ex-vessel value of fish harvested under any such program, and shall be collected at either the time of the landing, filing of a landing report, or sale of such fish during a fishing season or in the last quarter of the calendar year in which the fish is harvested.

(C)(i)Fees collected under this paragraph shall be in addition to any other fees charged under this chapter and shall be deposited in the Limited Access System Administration Fund established under section 1855(h)(5)(B) of this title.

(ii)Upon application by a State, the Secretary shall transfer to such State up to 33 percent of any fee collected pursuant to subparagraph (A) under a community development quota program and deposited in the Limited Access System Administration Fund in order to reimburse such State for actual costs directly incurred in the management and enforcement of such program.

(e)(1)The Secretary shall report annually to the Congress and the Councils on the status of fisheries within each Council’s geographical area of authority and identify those fisheries that are overfished or are approaching a condition of being overfished. For those fisheries managed under a fishery management plan or international agreement, the status shall be determined using the criteria for overfishing specified in such plan or agreement. A fishery shall be classified as approaching a condition of being overfished if, based on trends in fishing effort, fishery resource size, and other appropriate factors, the Secretary estimates that the fishery will become overfished within two years.

(2)If the Secretary determines at any time that a fishery is overfished, the Secretary shall immediately notify the appropriate Council and request that action be taken to end overfishing in the fishery and to implement conservation and management measures to rebuild affected stocks of fish. The Secretary shall publish each notice under this paragraph in the Federal Register.

(3)Within 2 years after an identification under paragraph (1) or notification under paragraphs (2) or (7), the appropriate Council (or the Secretary, for fisheries under section 1852(a)(3) of this title) shall prepare and implement a fishery management plan, plan amendment, or proposed regulations for the fishery to which the identification or notice applies—

(A)to end overfishing immediately in the fishery and to rebuild affected stocks of fish; or

(B)to prevent overfishing from occurring in the fishery whenever such fishery is identified as approaching an overfished condition.

(4)For a fishery that is overfished, any fishery management plan, amendment, or proposed regulations prepared pursuant to paragraph (3) or paragraph (5) for such fishery shall—

(A)specify a time period for rebuilding the fishery that shall—

(i)be as short as possible, taking into account the status and biology of any overfished stocks of fish, the needs of fishing communities, recommendations by international organizations in which the United States participates, and the interaction of the overfished stock of fish within the marine ecosystem; and

(ii)not exceed 10 years, except in cases where the biology of the stock of fish, other environmental conditions, or management measures under an international agreement in which the United States participates dictate otherwise;

(B)allocate both overfishing restrictions and recovery benefits fairly and equitably among sectors of the fishery; and

(C)for fisheries managed under an international agreement, reflect traditional participation in the fishery, relative to other nations, by fishermen of the United States.

(5)If, within the 2-year period beginning on the date of identification or notification that a fishery is overfished, the Council does not submit to the Secretary a fishery management plan, plan amendment, or proposed regulations required by paragraph (3)(A), the Secretary shall prepare a fishery management plan or plan amendment and any accompanying regulations to stop overfishing and rebuild affected stocks of fish within 9 months under subsection (c).

(6)During the development of a fishery management plan, a plan amendment, or proposed regulations required by this subsection, the Council may request the Secretary to implement interim measures to reduce overfishing under section 1855(c) of this title until such measures can be replaced by such plan, amendment, or regulations. Such measures, if otherwise in compliance with the provisions of this chapter, may be implemented even though they are not sufficient by themselves to stop overfishing of a fishery.

(7)The Secretary shall review any fishery management plan, plan amendment, or regulations required by this subsection at routine intervals that may not exceed two years. If the Secretary finds as a result of the review that such plan, amendment, or regulations have not resulted in adequate progress toward ending overfishing and rebuilding affected fish stocks, the Secretary shall—

(A)in the case of a fishery to which section 1852(a)(3) of this title applies, immediately make revisions necessary to achieve adequate progress; or

(B)for all other fisheries, immediately notify the appropriate Council. Such notification shall recommend further conservation and management measures which the Council should consider under paragraph (3) to achieve adequate progress.

(f)(1)Except as provided in paragraph (3),11 See References in Text note below. if any fishery extends beyond the geographical area of authority of any one Council, the Secretary may—

(A)designate which Council shall prepare the fishery management plan for such fishery and any amendment to such plan; or

(B)may require that the plan and amendment be prepared jointly by the Councils concerned.

(2)The Secretary shall establish the boundaries between the geographical areas of authority of adjacent Councils.

(g)(1)The Secretary shall prepare a fishery management plan or plan amendment under subsection (c) with respect to any highly migratory species fishery to which section 1852(a)(3) of this title applies. In preparing and implementing any such plan or amendment, the Secretary shall—

(A)consult with and consider the comments and views of affected Councils, commissioners and advisory groups appointed under Acts implementing relevant international fishery agreements pertaining to highly migratory species, and the advisory panel established under section 1852(g) of this title;

(B)establish an advisory panel under section 1852(g) of this title for each fishery management plan to be prepared under this paragraph;

(C)evaluate the likely effects, if any, of conservation and management measures on participants in the affected fisheries and minimize, to the extent practicable, any disadvantage to United States fishermen in relation to foreign competitors;

(D)with respect to a highly migratory species for which the United States is authorized to harvest an allocation, quota, or at a fishing mortality level under a relevant international fishery agreement, provide fishing vessels of the United States with a reasonable opportunity to harvest such allocation, quota, or at such fishing mortality level;

(E)review, on a continuing basis (and promptly whenever a recommendation pertaining to fishing for highly migratory species has been made under a relevant international fishery agreement), and revise as appropriate, the conservation and management measures included in the plan;

(F)diligently pursue, through international entities (such as the International Commission for the Conservation of Atlantic Tunas), comparable international fishery management measures with respect to fishing for highly migratory species; and

(G)ensure that conservation and management measures under this subsection—

(i)promote international conservation of the affected fishery;

(ii)take into consideration traditional fishing patterns of fishing vessels of the United States and the operating requirements of the fisheries;

(iii)are fair and equitable in allocating fishing privileges among United States fishermen and do not have economic allocation as the sole purpose; and

(iv)promote, to the extent practicable, implementation of scientific research programs that include the tagging and release of Atlantic highly migratory species.

(2)Notwithstanding section 1802(2) of this title, fish harvested in a commercial fishery managed by the Secretary under this subsection or the Atlantic Tunas Convention Act of 1975 (16 U.S.C. 971d), or highly migratory species harvested in a commercial fishery managed by a Council under this chapter or the Western and Central Pacific Fisheries Convention Implementation Act [16 U.S.C. 6901 et seq.], that are not regulatory discards and that are tagged and released alive under a scientific tagging and release program established by the Secretary shall not be considered bycatch for purposes of this chapter.

(h)The Secretary may repeal or revoke a fishery management plan for a fishery under the authority of a Council only if the Council approves the repeal or revocation by a three-quarters majority of the voting members of the Council.

(i)(1)The Secretary shall, in consultation with the Councils and the Council on Environmental Quality, revise and update agency procedures for compliance with the National Environmental Policy Act (42 U.S.C. 4231 et seq.). The procedures shall—

(A)conform to the time lines for review and approval of fishery management plans and plan amendments under this section; and

(B)integrate applicable environmental analytical procedures, including the time frames for public input, with the procedure for the preparation and dissemination of fishery management plans, plan amendments, and other actions taken or approved pursuant to this chapter in order to provide for timely, clear and concise analysis that is useful to decision makers and the public, reduce extraneous paperwork, and effectively involve the public.

(2)The updated agency procedures promulgated in accordance with this section used by the Councils or the Secretary shall be the sole environmental impact assessment procedure for fishery management plans, amendments, regulations, or other actions taken or approved pursuant to this chapter.

(3)The Secretary shall—

(A)propose revised procedures within 6 months after January 12, 2007;

(B)provide 90 days for public review and comments; and

(C)promulgate final procedures no later than 12 months after January 12, 2007.

(4)The Secretary is authorized and directed, in cooperation with the Council on Environmental Quality and the Councils, to involve the affected public in the development of revised procedures, including workshops or other appropriate means of public involvement.

(i)The provisions of this subsection shall apply in lieu of subsection (e) to a fishery that the Secretary determines is overfished or approaching a condition of being overfished due to excessive international fishing pressure, and for which there are no management measures to end overfishing under an international agreement to which the United States is a party. For such fisheries—

(1)the Secretary, in cooperation with the Secretary of State,33 So in original. Probably should be followed by “shall”. immediately take appropriate action at the international level to end the overfishing; and

(2)within 1 year after the Secretary’s determination, the appropriate Council, or Secretary, for fisheries under section 1852(a)(3) of this title shall—

(A)develop recommendations for domestic regulations to address the relative impact of fishing vessels of the United States on the stock and, if developed by a Council, the Council shall submit such recommendations to the Secretary; and

(B)develop and submit recommendations to the Secretary of State, and to the Congress, for international actions that will end overfishing in the fishery and rebuild the affected stocks, taking into account the relative impact of vessels of other nations and vessels of the United States on the relevant stock.

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Regulations

as he deems necessary or appropriate to carry out each plan or amendment prepared by him under this paragraph. Subsec. (c)(2). Pub. L. 97–453, § 7(a)(2)(B), amended par. (2) generally, which had provided that whenever, pursuant to paragraph (1), the Secretary prepared a fishery management plan or amendment, the Secretary was to promptly transmit such plan or amendment to the appropriate Council for consideration and comment, that within 45 days after the date of receipt of such plan or amendment, the appropriate Council could recommend, to the Secretary, changes in such plan or amendment, consistent with the national standards, the other provisions of this chapter, and any other applicable law, and that after the expiration of such 45-day period, the Secretary could implement such plan or amendment pursuant to section 1855 of this title. Subsec. (d). Pub. L. 97–453, § 7(a)(3), inserted provisions relating to agreements with the States for the administration of the permit system and the permissible accrual to the States of fees collected under the system.

Statutory Notes and Related Subsidiaries

January 1, 2000.” Comprehensive Management System for Atlantic Pelagic Longline Fishery Pub. L. 104–297, title I, § 109(h), Oct. 11, 1996, 110 Stat. 3586, 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: “(1) The Secretary of Commerce shall—“(A) establish an advisory panel under section 302(g)(4) of the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1852(g)(4)], as amended by this Act, for pelagic longline fishing vessels that participate in fisheries for Atlantic highly migratory species; “(B) conduct surveys and workshops with affected fishery participants to provide information and identify options for future management programs; “(C) to the extent practicable and necessary for the evaluation of options for a comprehensive management system, recover vessel production records; and “(D) complete by

January 1, 1998, a comprehensive study on the feasibility of implementing a comprehensive management system for pelagic longline fishing vessels that participate in fisheries for Atlantic highly migratory species, including, but not limited to, individual fishing quota programs and other limited access systems. “(2) Based on the study under paragraph (1)(D) and consistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), in cooperation with affected participants in the fishery, the United States Commissioners on the International Commission for the Conservation of Atlantic Tunas, and the advisory panel established under paragraph (1)(A), the Secretary of Commerce may, after

October 1, 1998, implement a comprehensive management system pursuant to section 304 of such Act (16 U.S.C. 1854) for pelagic longline fishing vessels that participate in fisheries for Atlantic highly migratory species. Such a system may not implement an individual fishing quota program until after

October 1, 2000.” Inapplicability of Subsection (h) to American Lobster Fishery Management Plan Pub. L. 104–297, title I, § 109(j), Oct. 11, 1996, 110 Stat. 3587, 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: “section 304(h) of the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1854(h)], as amended by this Act, shall not apply to the American Lobster Fishery Management Plan.” Interim Management of Highly Migratory Species Fisheries Pub. L. 101–627, title I, § 108(k), Nov. 28, 1990, 104 Stat. 4447, 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: “Notwithstanding the

Amendments

made by subsections (a) and (g) [amending section 1852 of this title], any fishery management plan or amendment which—“(1) addresses a highly migratory species fishery to which section 304(f)(3) of the Magnuson-Stevens Fishery Conservation and Management Act [former 16 U.S.C. 1854(f)(3)] (as amended by this Act) applies, “(2) was prepared by one or more Regional Fishery Management Councils, and “(3) was in force and effect on January 1, 1990, shall remain in force and effect until superseded by a fishery management plan prepared by the Secretary, and

Regulations

implementing that plan.”

§1854 Action by Secretary

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Title 16, §1854

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