16 U.S.C. § 1862 — North Pacific fisheries conservation

Page 2115 TITLE 16—CONSERVATION § 1862 1 So in original. the Secretary of Commerce shall include a separate statement of the amount for each outstanding un- funded fishery resource disasters.’’ STUDY OF FEDERAL INVESTMENT IN FISHERIES Pub. L. 104–297, title I, § 116(b), Oct. 11, 1996, 110 Stat. 3603, 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, required the Secretary of Commerce to estab- lish a task force comprised of interested parties to study and report to Congress within 2 years of Oct. 11, 1996, on the role of the Federal Government in sub- sidizing the expansion and contraction of fishing capac- ity in fishing fleets managed under the Magnuson-Ste- vens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) and otherwise influencing the aggre- gate capital investments in fisheries. § 1861b. Fisheries enforcement plans and report- ing (a) Fisheries enforcement plans In preparing the Coast Guard’s annual fish- eries enforcement plan, the Commandant of the Coast Guard shall consult with the Under Sec- retary of Commerce for Oceans and Atmosphere and with State and local enforcement authori- ties. (b) Fishery patrols Prior to undertaking fisheries patrols, the Commandant of the Coast Guard shall notify the Under Secretary of Commerce for Oceans and Atmosphere and appropriate State and local en- forcement authorities of the projected dates for such patrols. (c) Annual summary The Commandant of the Coast Guard shall prepare and make available to the Under Sec- retary of Commerce for Oceans and Atmosphere, State and local enforcement entities, and other relevant stakeholders, an annual summary re- port of fisheries enforcement activities for the preceding year, including a summary of the number of patrols, law enforcement actions taken, and resource hours expended. (Pub. L. 108–293, title II, § 224, Aug. 9, 2004, 118 Stat. 1040.) Editorial Notes CODIFICATION Section was enacted as part of the Coast Guard and Maritime Transportation Act of 2004, and not as part of the Magnuson-Stevens Fishery Conservation and Man- agement Act which comprises this chapter. Statutory Notes and Related Subsidiaries TERMINATION OF REPORTING REQUIREMENT For provision terminating reporting requirement under this section, see section 4(b) of Pub. L. 111–207, set out as a Combination of Fisheries Enforcement Plans and Foreign Fishing Incursion Reports note under section 1828 of this title. § 1862. North Pacific fisheries conservation (a) In general The North Pacific Council may prepare, in consultation with the Secretary, a fisheries re- search plan for any fishery under the Council’s jurisdiction except a salmon fishery which— (1) requires that observers be stationed on fishing vessels engaged in the catching, tak- ing, or harvesting of fish and on United States fish processors fishing for or processing spe- cies under the jurisdiction of the Council, in- cluding the Northern Pacific halibut fishery, for the purpose of collecting data necessary for the conservation, management, and sci- entific understanding of any fisheries under the Council’s jurisdiction; and (2) establishes a system, or system,1 of fees, which may vary by fishery, management area, or observer coverage level, to pay for the cost of implementing the plan. (b) Standards (1) Any plan or plan amendment prepared under this section shall be reasonably calculated to— (A) gather reliable data, by stationing ob- servers on all or a statistically reliable sample of the fishing vessels and United States fish processors included in the plan, necessary for the conservation, management, and scientific understanding of the fisheries covered by the plan; (B) be fair and equitable to all vessels and processors; (C) be consistent with applicable provisions of law; and (D) take into consideration the operating re- quirements of the fisheries and the safety of observers and fishermen. (2) Any system of fees established under this section shall— (A) provide that the total amount of fees collected under this section not exceed the combined cost of (i) stationing observers, or electronic monitoring systems, on board fish- ing vessels and United States fish processors, (ii) the actual cost of inputting collected data, and (iii) assessments necessary for a risk-shar- ing pool implemented under subsection (e) of this section, less any amount received for such purpose from another source or from an exist- ing surplus in the North Pacific Fishery Ob- server Fund established in subsection (d) of this section; (B) be fair and equitable to all participants in the fisheries under the jurisdiction of the Council, including the Northern Pacific hal- ibut fishery; (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 plan; (D) not be used to offset amounts authorized under other provisions of law; (E) be expressed as a fixed amount reflecting actual observer costs as described in subpara- graph (A) or a percentage, not to exceed 2 per- cent, of the unprocessed ex-vessel value of fish and shellfish harvested under the jurisdiction of the Council, including the Northern Pacific halibut fishery; (F) be assessed against some or all fishing vessels and United States fish processors, in- cluding those not required to carry an ob- server or an electronic monitoring system under the plan, participating in fisheries under the jurisdiction of the Council, includ- ing the Northern Pacific halibut fishery; Page 2116 TITLE 16—CONSERVATION § 1862 (G) provide that fees collected will be depos- ited in the North Pacific Fishery Observer Fund established under subsection (d) of this section; (H) provide that fees collected will only be used for implementing the plan established under this section; (I) provide that fees collected will be cred- ited against any fee for stationing observers or electronic monitoring systems on board fish- ing vessels and United States fish processors and the actual cost of inputting collected data to which a fishing vessel or fish processor is subject under section 1854(d) of this title; and (J) meet the requirements of section 9701(b) of title 31. (c) Action by Secretary (1) Within 60 days after receiving a plan or plan amendment from the North Pacific Council under this section, the Secretary shall review such plan or plan amendment and either (A) re- mand such plan or plan amendment to the Coun- cil with comments if it does not meet the re- quirements of this section, or (B) publish in the Federal Register proposed regulations for imple- menting such plan or plan amendment. (2) During the 60-day public comment period, the Secretary shall conduct a public hearing in each State represented on the Council for the purpose of receiving public comments on the proposed regulations. (3) Within 45 days of the close of the public comment period, the Secretary, in consultation with the Council, shall analyze the public com- ment received and publish final regulations for implementing such plan. (4) If the Secretary remands a plan or plan amendment to the Council for failure to meet the requirements of this section, the Council may resubmit such plan or plan amendment at any time after taking action the Council be- lieves will address the defects identified by the Secretary. Any plan or plan amendment resub- mitted to the Secretary will be treated as an original plan submitted to the Secretary under paragraph (1) of this subsection. (d) Fishery Observer Fund There is established in the Treasury a North Pacific Fishery Observer Fund. The Fund shall be available, without appropriation or fiscal year limitation, only to the Secretary for the purpose of carrying out the provisions of this section, subject to the restrictions in subsection (b)(2) of this section. The Fund shall consist of all monies deposited into it in accordance with this section. Sums in the Fund that are not cur- rently needed for the purposes of this section shall be kept on deposit or invested in obliga- tions of, or guaranteed by, the United States. (e) Special provisions regarding observers (1) The Secretary shall review— (A) the feasibility of establishing a risk sharing pool through a reasonable fee, subject to the limitations of subsection (b)(2)(E) of this section, to provide coverage for vessels and owners against liability from civil suits by observers, and (B) the availability of comprehensive com- mercial insurance for vessel and owner liabil- ity against civil suits by observers. (2) If the Secretary determines that a risk sharing pool is feasible, the Secretary shall es- tablish such a pool, subject to the provisions of subsection (b)(2) of this section, unless the Sec- retary determines that— (A) comprehensive commercial insurance is available for all fishing vessels and United States fish processors required to have observ- ers under the provisions of this section, and (B) such comprehensive commercial insur- ance will provide a greater measure of cov- erage at a lower cost to each participant. (f) Bycatch reduction In implementing section 1853(a)(11) of this title and this section, the North Pacific Council shall submit conservation and management measures to lower, on an annual basis for a pe- riod of not less than four years, the total amount of economic discards occurring in the fisheries under its jurisdiction. (g) Bycatch reduction incentives (1) Notwithstanding section 1854(d) of this title, the North Pacific Council may submit, and the Secretary may approve, consistent with the provisions of this chapter, a system of fines in a fishery to provide incentives to reduce bycatch and bycatch rates; except that such fines shall not exceed $25,000 per vessel per season. Any fines collected shall be deposited in the North Pacific Fishery Observer Fund, and may be made available by the Secretary to offset costs related to the reduction of bycatch in the fish- ery from which such fines were derived, includ- ing conservation and management measures and research, and to the State of Alaska to offset costs incurred by the State in the fishery from which such penalties were derived or in fisheries in which the State is directly involved in man- agement or enforcement and which are directly affected by the fishery from which such pen- alties were derived. (2)(A) Notwithstanding section 1853(d) of this title, and in addition to the authority provided in section 1853(b)(10) of this title, the North Pa- cific Council may submit, and the Secretary may approve, conservation and management measures which provide allocations of regu- latory discards to individual fishing vessels as an incentive to reduce per vessel bycatch and bycatch rates in a fishery, Provided, That— (i) such allocations may not be transferred for monetary consideration and are made only on an annual basis; and (ii) any such conservation and management measures will meet the requirements of sub- section (h) and will result in an actual reduc- tion in regulatory discards in the fishery. (B) The North Pacific Council may submit re- strictions in addition to the restriction imposed by clause (i) of subparagraph (A) on the transfer- ability of any such allocations, and the Sec- retary may approve such recommendation. (h) Catch measurement (1) By June 1, 1997 the North Pacific Council shall submit, and the Secretary may approve, consistent with the other provisions of this chapter, conservation and management meas- ures to ensure total catch measurement in each fishery under the jurisdiction of such Council. Page 2117 TITLE 16—CONSERVATION § 1862 2 See References in Text note below. 3 So in original. Probably should be section ‘‘1857(1)’’. Such measures shall ensure the accurate enu- meration, at a minimum, of target species, eco- nomic discards, and regulatory discards. (2) To the extent the measures submitted under paragraph (1) do not require United States fish processors and fish processing vessels (as de- fined in chapter 21 of title 46) to weigh fish, the North Pacific Council and the Secretary shall submit a plan to the Congress by January 1, 1998, to allow for weighing, including rec- ommendations to assist such processors and processing vessels in acquiring necessary equip- ment, unless the Council determines that such weighing is not necessary to meet the require- ments of this subsection. (i) Full retention and utilization (1) The North Pacific Council shall submit to the Secretary by October 1, 1998 a report on the advisability of requiring the full retention by fishing vessels and full utilization by United States fish processors of economic discards in fisheries under its jurisdiction if such economic discards, or the mortality of such economic dis- cards, cannot be avoided. The report shall ad- dress the projected impacts of such require- ments on participants in the fishery and de- scribe any full retention and full utilization re- quirements that have been implemented. (2) The report shall address the advisability of measures to minimize processing waste, includ- ing standards setting minimum percentages which must be processed for human consump- tion. For the purpose of the report, ‘‘processing waste’’ means that portion of any fish which is processed and which could be used for human consumption or other commercial use, but which is not so used. (j) Bering Sea and Aleutian Islands crab rational- ization (1) By not later than January 1, 2005, the Sec- retary shall approve and hereafter 2 implement by regulation the Voluntary Three-Pie Coopera- tive Program for crab fisheries of the Bering Sea and Aleutian Islands approved by the North Pa- cific Fishery Management Council between June 2002 and April 2003, and all trailing amendments including those reported to Congress on May 6, 2003. This section shall not preclude the Sec- retary from approving by January 1, 2005, and implementing any subsequent program amend- ments approved by the Council. (2) Notwithstanding any other provision of this chapter, in carrying out paragraph (1) the Secretary shall approve all parts of the Program referred to in such paragraph. Further, no part of such Program may be implemented if, as ap- proved by the North Pacific Fishery Manage- ment Council, individual fishing quotas, proc- essing quotas, community development quota allocation, voluntary cooperatives, binding arbi- tration, regional landing and processing require- ments, community protections, economic data collection, or the loan program for crab fishing vessel captains and crew members, is invali- dated subject to a judicial determination not subject to judicial appeal. If the Secretary de- termines that a processor has leveraged its Indi- vidual Processor Quota shares to acquire a har- vesters open-delivery ‘‘B shares’’, the proc- essor’s Individual Processor Quota shares shall be forfeited. (3) Subsequent to implementation pursuant to paragraph (1), the Council may submit and the Secretary may implement changes to or repeal of conservation and management measures, in- cluding measures authorized in this section, for crab fisheries of the Bering Sea and Aleutian Is- lands in accordance with applicable law, includ- ing this chapter as amended by this subsection, to achieve on a continuing basis the purposes identified by the Council. (4) The loan program referred to in paragraph (2) shall be carried out pursuant to the author- ity of sections 53735 and 53702(b) of title 46. (5) For purposes of implementing this section $1,000,000 shall be made available each year until fully implemented from funds otherwise made available to the National Marine Fisheries Serv- ice for Alaska fisheries activities. (6) Nothing in this chapter shall constitute a waiver, either express or implied, of the anti- trust laws of the United States. The Secretary, in consultation with the Department of Justice and the Federal Trade Commission, shall de- velop and implement a mandatory information collection and review process to provide any and all information necessary for the Department of Justice and the Federal Trade Commission to determine whether any illegal acts of anti-com- petition, anti-trust, or price collusion have oc- curred among persons receiving individual proc- essing quotas under the Program. The Secretary may revoke any individual processing quota held by any person found to have violated a pro- vision of the antitrust laws of the United States. (7) An individual processing quota issued under the Program shall be considered a permit for the purposes of sections 1857, 1858, and 1859 of this title, and may be revoked or limited at any time in accordance with this chapter. Issuance of an individual processing quota under the pro- gram shall not confer any right of compensation to the holder of such individual processing quota if it is revoked or limited and shall not create, or be construed to create, any right, title, or in- terest in or to any fish before the fish is pur- chased from an individual fishing quota holder. (8) The restriction on the collection of eco- nomic data in section 1853 of this title shall not apply with respect to any fish processor who is eligible for, or who has received, individual processing quota under the Program. The re- striction on the disclosure of information in sec- tion 1881a(b)(1) of this title shall not apply when the information is used to determine eligibility for or compliance with an individual processing quota program. (9) The provisions of sections 1858, 1860, and 1861 of this title shall apply to the processing fa- cilities and fish products of any person holding individual processing quota, and the provisions of subparagraphs (D), (E), and (L) of section 1857(l) 3 of this title shall apply to any facility owned or controlled by a person holding indi- vidual processing quota. (Pub. L. 94–265, title III, § 313, as added Pub. L. 101–627, title I, § 118(a), Nov. 28, 1990, 104 Stat. Page 2118 TITLE 16—CONSERVATION § 1863 1 So in original. Probably should be ‘‘paragraph’’. 4457; amended Pub. L. 102–582, title IV, § 404, Nov. 2, 1992, 106 Stat. 4909; Pub. L. 104–297, title I, § 117(a), Oct. 11, 1996, 110 Stat. 3603; Pub. L. 108–199, div. B, title VIII, § 801, Jan. 23, 2004, 118 Stat. 108; Pub. L. 109–479, title II, § 214, Jan. 12, 2007, 120 Stat. 3619.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (g)(1), (h)(1), and (j)(2), (3), (6), (7), was in the original ‘‘this Act’’, mean- ing Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, known as the Magnuson-Stevens Fishery Conservation and Man- agement 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. Hereafter, referred to in subsec. (j)(1), probably means on and after the date of enactment of Pub. L. 108–199, which enacted subsec. (j) of this section and was approved Jan. 23, 2004. CODIFICATION In subsec. (j)(4), ‘‘sections 53735 and 53702(b) of title 46’’ substituted for ‘‘sections 1111 and 1112 of title XI of the Merchant Marine Act, 1936 (46 U.S.C. App. 1279f, 1279g)’’ on authority of Pub. L. 109–304, § 18(c), Oct. 6, 2006, 120 Stat. 1709, which Act enacted sections 53702 and 53735 of Title 46, Shipping. AMENDMENTS 2007—Subsec. (a). Pub. L. 109–479, § 214(1), substituted ‘‘any fishery under the Council’s jurisdiction except a salmon fishery’’ for ‘‘all fisheries under the Council’s jurisdiction except salmon fisheries’’ in introductory provisions. Subsec. (a)(2). Pub. L. 109–479, § 214(2), added par. (2) and struck out former par. (2) which read as follows: ‘‘establishes a system of fees to pay for the costs of im- plementing the plan.’’ Subsec. (b)(2)(A). Pub. L. 109–479, § 214(3), substituted ‘‘observers, or electronic monitoring systems,’’ for ‘‘ob- servers’’. Subsec. (b)(2)(E). Pub. L. 109–479, § 214(4), inserted ‘‘a fixed amount reflecting actual observer costs as de- scribed in subparagraph (A) or’’ after ‘‘expressed as’’. Subsec. (b)(2)(F). Pub. L. 109–479, § 214(5), (6), inserted ‘‘some or’’ after ‘‘against’’ and ‘‘or an electronic moni- toring system’’ after ‘‘observer’’. Subsec. (b)(2)(I), (J). Pub. L. 109–479, § 214(7), (8), added subpar. (I) and redesignated former subpar. (I) as (J). 2004—Subsec. (j). Pub. L. 108–199 added subsec. (j). 1996—Pub. L. 104–297, § 117(a)(1), substituted ‘‘con- servation’’ for ‘‘research plan’’ in section catchline. Subsec. (a). Pub. L. 104–297, § 117(a)(2), substituted ‘‘North Pacific Council’’ for ‘‘North Pacific Fishery Management Council’’ in introductory provisions. Subsecs. (f) to (i). Pub. L. 104–297, § 117(a)(3), added subsecs. (f) to (i). 1992—Subsec. (b)(2)(E). Pub. L. 102–582 substituted ‘‘2 percent, of the unprocessed ex-vessel’’ for ‘‘one percentum, of the’’. Statutory Notes and Related Subsidiaries FEES Pub. L. 117–328, div. S, title I, § 106, Dec. 29, 2022, 136 Stat. 5260, provided that: ‘‘(a) IN GENERAL.—The North Pacific Fishery Manage- ment Council may recommend, and the Secretary of Commerce may approve, regulations necessary for the collection of fees from charter vessel operators who guide recreational anglers who harvest Pacific halibut in International Pacific Halibut Commission regu- latory areas 2C and 3A as those terms are defined in part 300 of title 50, Code of Federal Regulations (or any successor regulations). ‘‘(b) USE OF FEES.—Any fees collected under this sec- tion shall be available for the purposes of— ‘‘(1) financing administrative costs of the Rec- reational Quota Entity program; ‘‘(2) the purchase of halibut quota shares in Inter- national Pacific Halibut Commission regulatory areas 2C and 3A by the recreational quota entity au- thorized in part 679 of title 50, Code of Federal Regu- lations (or any successor regulations); ‘‘(3) halibut conservation and research; and ‘‘(4) promotion of the halibut resource by the rec- reational quota entity authorized in part 679 of title 50, Code of Federal Regulations (or any successor reg- ulations). ‘‘(c) LIMITATION ON COLLECTION AND AVAILABILITY.— Fees shall be collected and available pursuant to this section only to the extent and in such amounts as pro- vided in advance in appropriations Acts, subject to sub- section (d). ‘‘(d) FEE COLLECTED DURING START-UP PERIOD.—Not- withstanding subsection (c), fees may be collected through the date of enactment of an Act making appro- priations for the activities authorized under this Act [div. S of Pub. L. 117–328] through September 30, 2023, and shall be available for obligation and remain avail- able until expended.’’ § 1863. Northwest Atlantic Ocean Fisheries Rein- vestment Program (a) Program (1) Not later than October 1, 1993, the Sec- retary shall establish a Northwest Atlantic Ocean Fisheries Reinvestment Program for the purposes of— (A) promoting development of commercial fisheries and markets for underutilized species of the northwest Atlantic Ocean; (B) developing alternative fishing opportuni- ties for participants in the New England groundfish fishery; (C) providing technical support and assist- ance to United States fishermen and fish proc- essors to improve the value-added processing of underutilized species and to make participa- tion in fisheries for underutilized species of the northwest Atlantic Ocean economically viable; (D) creating new economic opportunities through the improved processing and expanded use of fish waste; and (E) helping to restore overfished New Eng- land groundfish stocks through aquaculture or hatchery programs. (2) CONSULTATION.—In establishing and imple- menting the Northwest Fisheries Reinvestment Program, the Secretary shall consult with rep- resentatives of the commercial fishing industry, the seafood processing industry, and the aca- demic community (including the National Sea Grant Program). (3) ACTIVITIES UNDER PROGRAM.—Subject to the availability of appropriations, the Secretary shall award contracts, grants and other finan- cial assistance to United States citizens to carry out the purposes of subsection 1 (1), under the terms and conditions provided in section 713c–3(c) of title 15, except that, in making awards under this section for projects involving participation in fisheries for underutilized spe- cies, the Secretary shall give the highest pri- ority to a person who owns or operates a fishing