16 U.S.C. § 5104 — State implementation of coastal fishery

Page 2529 TITLE 16—CONSERVATION § 5104 1996—Par. (1). Pub. L. 104–297 inserted ‘‘and’’ after semicolon in subpar. (A), substituted ‘‘States.’’ for ‘‘States; and’’ in subpar. (B), and struck out subpar. (C) which read as follows: ‘‘recommends actions to be taken by the Secretary in the exclusive economic zone to conserve and manage the fishery.’’ Executive Documents TERRITORIAL SEA OF UNITED STATES For extension of territorial sea of United States, see Proc. No. 5928, set out as a note under section 1331 of Title 43, Public Lands. § 5103. State-Federal cooperation in Atlantic coastal fishery management (a) Federal support for State coastal fisheries programs The Secretary in cooperation with the Sec- retary of the Interior shall develop and imple- ment a program to support the interstate fish- ery management efforts of the Commission. The program shall include activities to support and enhance State cooperation in collection, man- agement, and analysis of fishery data; law en- forcement; habitat conservation; fishery re- search, including biological and socioeconomic research; and fishery management planning. (b) Federal regulation in exclusive economic zone (1) In the absence of an approved and imple- mented fishery management plan under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), and after consultation with the appropriate Coun- cils, the Secretary may implement regulations to govern fishing in the exclusive economic zone that are— (A) compatible with the effective implemen- tation of a coastal fishery management plan; and (B) consistent with the national standards set forth in section 301 of the Magnuson-Ste- vens Fishery Conservation and Management Act (16 U.S.C. 1851). The regulations may include measures rec- ommended by the Commission to the Secretary that are necessary to support the provisions of the coastal fishery management plan. Regula- tions issued by the Secretary to implement an approved fishery management plan prepared by the appropriate Councils or the Secretary under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) shall supersede any conflicting regulations issued by the Secretary under this subsection. (2) The provisions of sections 307, 308, 309, 310, and 311 of the Magnuson-Stevens Fishery Con- servation and Management Act (16 U.S.C. 1857, 1858, 1859, 1860, and 1861) regarding prohibited acts, civil penalties, criminal offenses, civil for- feitures, and enforcement shall apply with re- spect to regulations issued under this subsection as if such regulations were issued under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). (Pub. L. 103–206, title VIII, § 804, Dec. 20, 1993, 107 Stat. 2449; Pub. L. 104–297, title IV, § 404(b), Oct. 11, 1996, 110 Stat. 3619; Pub. L. 106–555, title I, § 122(b)(3), Dec. 21, 2000, 114 Stat. 2766.) Editorial Notes REFERENCES IN TEXT The Magnuson-Stevens Fishery Conservation and Management Act, referred to in subsec. (b), is Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, which is classified principally to chapter 38 (§ 1801 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables. AMENDMENTS 2000—Subsec. (b). Pub. L. 106–555 substituted ‘‘Magnu- son-Stevens Fishery’’ for ‘‘Magnuson Fishery’’ wher- ever appearing. 1996—Subsec. (b)(1)(A). Pub. L. 104–297 substituted ‘‘compatible with’’ for ‘‘necessary to support’’. § 5104. State implementation of coastal fishery management plans (a) Coastal fishery management plans (1) The Commission shall prepare and adopt coastal fishery management plans to provide for the conservation of coastal fishery resources. In preparing a coastal fishery management plan for a fishery that is located in both State waters and the exclusive economic zone, the Commis- sion shall consult with appropriate Councils to determine areas where such coastal fishery man- agement plan may complement Council fishery management plans. The coastal fishery manage- ment plan shall specify the requirements nec- essary for States to be in compliance with the plan. Upon adoption of a coastal fishery man- agement plan, the Commission shall identify each State that is required to implement and enforce that plan. (2) Within 1 year after December 20, 1993, the Commission shall establish standards and proce- dures to govern the preparation of coastal fish- ery management plans under this chapter, in- cluding standards and procedures to ensure that— (A) such plans promote the conservation of fish stocks throughout their ranges and are based on the best scientific information avail- able; and (B) the Commission provides adequate op- portunity for public participation in the plan preparation process, including at least four public hearings and procedures for the submis- sion of written comments to the Commission. (b) State implementation and enforcement (1) Each State identified under subsection (a) with respect to a coastal fishery management plan shall implement and enforce the measures of such plan within the timeframe established in the plan. (2) Within 90 days after December 20, 1993, the Commission shall establish a schedule of time- frames within which States shall implement and enforce the measures of coastal fishery manage- ment plans in existence before December 20, 1993. No such timeframe shall exceed 12 months after the date on which the schedule is adopted. (c) Commission monitoring of State implementa- tion and enforcement The Commission shall, at least annually, re- view each State’s implementation and enforce- ment of coastal fishery management plans for Page 2530 TITLE 16—CONSERVATION § 5105 the purpose of determining whether such State is effectively implementing and enforcing each such plan. Upon completion of such reviews, the Commission shall report the results of the re- views to the Secretaries. (Pub. L. 103–206, title VIII, § 805, Dec. 20, 1993, 107 Stat. 2450.) § 5105. State noncompliance with coastal fishery management plans (a) Noncompliance determination The Commission shall determine that a State is not in compliance with the provisions of a coastal fishery management plan if it finds that the State has not implemented and enforced such plan within the timeframes established under the plan or under section 5104 of this title. (b) Notification Upon making any determination under sub- section (a), the Commission shall within 10 working days notify the Secretaries of such de- termination. Such notification shall include the reasons for making the determination and an explicit list of actions that the affected State must take to comply with the coastal fishery management plan. The Commission shall pro- vide a copy of the notification to the affected State. (c) Withdrawal of noncompliance determination After making a determination under sub- section (a), the Commission shall continue to monitor State implementation and enforcement. Upon finding that a State has complied with the actions required under subsection (b), the Com- mission shall immediately withdraw its deter- mination of noncompliance. The Commission shall promptly notify the Secretaries of such withdrawal. (Pub. L. 103–206, title VIII, § 806, Dec. 20, 1993, 107 Stat. 2451.) § 5106. Secretarial action (a) Secretarial review of Commission determina- tion of noncompliance Within 30 days after receiving a notification from the Commission under section 5105(b) of this title and after review of the Commission’s determination of noncompliance, the Secretary shall make a finding on— (1) whether the State in question has failed to carry out its responsibility under section 5104 of this title; and (2) if so, whether the measures that the State has failed to implement and enforce are necessary for the conservation of the fishery in question. (b) Consideration of comments In making a finding under subsection (a), the Secretary shall— (A) give careful consideration to the com- ments of the State that the Commission has determined under section 5105(a) of this title is not in compliance with a coastal fishery man- agement plan, and provide such State, upon request, with the opportunity to meet with and present its comments directly to the Sec- retary; and (B) solicit and consider the comments of the Commission and the appropriate Councils. (c) Moratorium (1) Upon making a finding under subsection (a) that a State has failed to carry out its responsi- bility under section 5104 of this title and that the measures it failed to implement and enforce are necessary for conservation, the Secretary shall declare a moratorium on fishing in the fishery in question within the waters of the non- complying State. The Secretary shall specify the moratorium’s effective date, which shall be any date within 6 months after declaration of the moratorium. (2) If after a moratorium is declared under paragraph (1) the Secretary is notified by the Commission that the Commission is with- drawing under section 5105(c) of this title the de- termination of noncompliance, the Secretary shall immediately determine whether the State is in compliance with the applicable plan. If so, the moratorium shall be terminated. (d) Implementing regulations The Secretary may issue regulations nec- essary to implement this section. Such regula- tions— (1) may provide for the possession and use of fish which have been produced in an aqua- culture operation, subject to applicable State regulations; and (2) shall allow for retention of fish that are subject to a moratorium declared under this section and unavoidably taken as incidental catch in fisheries directed toward menhaden if— (A) discarding the retained fish is imprac- ticable; (B) the retained fish do not constitute a significant portion of the catch of the vessel; and (C) retention of the fish will not, in the judgment of the Secretary, adversely affect the conservation of the species of fish re- tained. (e) Prohibited acts during moratorium During the time in which a moratorium under this section is in effect, it is unlawful for any person to— (1) violate the terms of the moratorium or of any implementing regulation issued under subsection (d); (2) engage in fishing for any species of fish to which the moratorium applies within the wa- ters of the State subject to the moratorium; (3) land, attempt to land, or possess fish that are caught, taken, or harvested in violation of the moratorium or of any implementing regu- lation issued under subsection (d); (4) fail to return to the water immediately, with a minimum of injury, any fish to which the moratorium applies that are taken inci- dental to fishing for species other than those to which the moratorium applies, except as provided by regulations issued under sub- section (d); (5) refuse to permit any officer authorized to enforce the provisions of this chapter to board a fishing vessel subject to such person’s con- trol for purposes of conducting any search or