16 U.S.C. § 1861a — Transition to sustainable fisheries

Page 2107 TITLE 16—CONSERVATION § 1861a EFFECTIVE DATE Section effective Mar. 1, 1977, see section 312 of Pub. L. 94–265, formerly set out as a note under section 1857 of this title. TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. FISHERIES ENFORCEMENT ASSET FORFEITURE FUND AND SANCTUARIES ENFORCEMENT ASSET FORFEITURE FUND Pub. L. 112–55, div. B, title I, §§ 110, 111, Nov. 18, 2011, 125 Stat. 602, provided that: ‘‘SEC. 110. There is established in the Treasury a non- interest bearing fund to be known as the ‘Fisheries En- forcement Asset Forfeiture Fund’, which shall consist of all sums received as fines, penalties, and forfeitures of property for violations of any provisions of 16 U.S.C. chapter 38 or of any other marine resource law enforced by the Secretary of Commerce, including the Lacey Act Amendments of 1981 (16 U.S.C. 3371 et seq.) and with the exception of collections pursuant to 16 U.S.C. 1437, which are currently deposited in the Operations, Re- search, and Facilities account: Provided, That all unob- ligated balances that have been collected pursuant to 16 U.S.C. 1861 or any other marine resource law en- forced by the Secretary of Commerce with the excep- tion of 16 U.S.C. 1437 shall be transferred from the Oper- ations, Research, and Facilities account into the Fish- eries Enforcement Asset Forfeiture Fund and shall re- main available until expended. ‘‘SEC. 111. There is established in the Treasury a non- interest bearing fund to be known as the ‘Sanctuaries Enforcement Asset Forfeiture Fund’, which shall con- sist of all sums received as fines, penalties, and forfeit- ures of property for violations of any provisions of 16 U.S.C. chapter 38, which are currently deposited in the Operations, Research, and Facilities account: Provided, That all unobligated balances that have been collected pursuant to 16 U.S.C. 1437 shall be transferred from the Operations, Research, and Facilities account into the Sanctuaries Enforcement Asset Forfeiture Fund and shall remain available until expended.’’ ACTION AGAINST VESSELS AND VESSEL OWNERS EN- GAGED IN ILLEGAL, UNREPORTED, OR UNREGULATED FISHING Pub. L. 110–161, div. B, title I, § 113, Dec. 26, 2007, 121 Stat. 1896, provided that: ‘‘(a) The Secretary of Commerce may— ‘‘(1) develop, maintain, and make public a list of vessels and vessel owners engaged in illegal, unre- ported, or unregulated fishing, including vessels or vessel owners identified by an international fishery management organization, whether or not the United States is a party to the agreement establishing such organization; and ‘‘(2) take appropriate action against listed vessels and vessel owners, including action against fish, fish parts, or fish products from such vessels, in accord- ance with applicable United States law and con- sistent with applicable international law, including principles, rights, and obligations established in ap- plicable international fishery management and trade agreements. ‘‘(b) Action taken by the Secretary under subsection (a)(2) that include measures to restrict use of or access to ports or port services shall apply to all ports of the United States and its territories. ‘‘(c) The Secretary may promulgate regulations to implement this section.’’ INTEGRATION OF VESSEL MONITORING SYSTEM DATA Pub. L. 109–241, title VIII, § 803, July 11, 2006, 120 Stat. 563, provided that: ‘‘The Secretary of the department in which the Coast Guard is operating shall integrate ves- sel monitoring system data into its maritime oper- ations databases for the purpose of improving moni- toring and enforcement of Federal fisheries laws and work with the Under Secretary of Commerce for Oceans and Atmosphere to ensure effective use of such data for monitoring and enforcement.’’ AGREEMENT TO MAKE MORE EFFECTIVE ENFORCEMENT OF DOMESTIC LAWS AND INTERNATIONAL AGREEMENTS Pub. L. 102–582, title II, § 202, Nov. 2, 1992, 106 Stat. 4905, provided that not later than six months after Nov. 2, 1992, the Secretary of the department in which the Coast Guard is operating, the Secretary of Commerce, and the Secretary of Defense were to enter into an agreement under subsec. (a) of this section to make more effective the enforcement of domestic laws and international agreements that conserve and manage living marine resources of the United States. § 1861a. Transition to sustainable fisheries (a) Fishery resource disaster relief (1) Definitions In this subsection: (A) Allowable cause The term ‘‘allowable cause’’ means a nat- ural cause, discrete anthropogenic cause, or undetermined cause, including a cause that occurred not more than 5 years prior to the date of a request for a fishery resource dis- aster determination that affected such appli- cable fishery. (B) Anthropogenic cause The term ‘‘anthropogenic cause’’ means an anthropogenic event, such as an oil spill or spillway opening— (i) that could not have been addressed or prevented by fishery management meas- ures; and (ii) that is otherwise beyond the control of fishery managers to mitigate through conservation and management measures, including regulatory restrictions imposed as a result of judicial action or to protect human health or marine animals, plants, or habitats. (C) Fishery resource disaster The term ‘‘fishery resource disaster’’ means a disaster that is determined by the Secretary in accordance with this subsection and— (i) is an unexpected large decrease in fish stock biomass or other change that results in significant loss of access to the fishery resource, which may include loss of fishing vessels and gear for a substantial period of time and results in significant revenue loss or negative subsistence impact due to an allowable cause; and (ii) does not include— (I) reasonably predictable, foreseeable, and recurrent fishery cyclical variations in species distribution or stock abun- dance; or (II) reductions in fishing opportunities resulting from conservation and manage- ment measures taken pursuant to this chapter. Page 2108 TITLE 16—CONSERVATION § 1861a (D) Indian Tribe The term ‘‘Indian Tribe’’ has the meaning given such term in section 5130 of title 25, and the term ‘‘Tribal’’ means of or per- taining to such an Indian tribe. (E) Natural cause The term ‘‘natural cause’’— (i) means a weather, climatic, hazard, or biology-related event, such as— (I) a hurricane; (II) a flood; (III) a harmful algal bloom; (IV) a tsunami; (V) a hypoxic zone; (VI) a drought; (VII) El Nin˜ o effects on water tempera- ture; (VIII) a marine heat wave; or (IX) disease; and (ii) does not mean a normal or cyclical variation in a species distribution or stock abundance. (F) 12-month revenue loss The term ‘‘12-month revenue loss’’ means the percentage reduction, as applicable, in commercial, charter, headboat, or processor revenue for the affected fishery for the 12 months during which the fishery resource disaster occurred, when compared to average annual revenue in the most recent 5 years when no fishery resource disaster occurred or equivalent for stocks with cyclical life histories. (G) Undetermined cause The term ‘‘undetermined cause’’ means a cause in which the current state of knowl- edge does not allow the Secretary to identify the exact cause, and there is no current con- clusive evidence supporting a possible cause of the fishery resource disaster. (2) General authority (A) In general The Secretary shall have the authority to determine the existence, extent, and begin- ning and end dates of a fishery resource dis- aster under this subsection in accordance with this subsection. (B) Availability of funds After the Secretary determines that a fish- ery resource disaster has occurred, the Sec- retary is authorized to make sums available, from funds appropriated for such purposes, to be used by the affected State, Indian Tribe, or interstate marine fisheries com- mission, or by the Secretary in cooperation with the affected State, Indian Tribe, or interstate marine fisheries commission. (C) Savings clause The requirements under this paragraph and paragraphs (3), (4), and (5) shall take ef- fect only with respect to fishery resource disaster determination requests submitted after December 29, 2022. (3) Initiation of a fishery resource disaster re- view (A) Eligible requesters (i) In general If the Secretary has not independently determined that a fishery resource dis- aster has occurred, a request for a fishery resource disaster determination may be submitted to the Secretary at any time, but not later than the applicable date de- termined under clause (ii), by— (I) the Governor of an affected State; (II) an official resolution of an Indian Tribe; or (III) any other comparable elected or politically appointed representative as determined by the Secretary. (ii) Applicable date The applicable date under this clause shall be— (I) 1 year after the date of the conclu- sion of the fishing season; (II) in the case of a distinct cause that occurs during more than 1 consecutive fishing season, 2 years after the date of the conclusion of the fishing season for which the request for a fishery resource disaster determination is made; or (III) in the case of a complete fishery closure, 1 year after the date on which that closure is determined by the Sec- retary. (B) Required information A complete request for a fishery resource disaster determination under subparagraph (A) shall include— (i) identification of all presumed affected fish stocks; (ii) identification of the fishery as Fed- eral, non-Federal, or both; (iii) the geographical boundaries of the fishery, as determined by the eligible re- quester, including geographic boundaries that are smaller than the area represented by the eligible requester; (iv) preliminary information on causes of the fishery resource disaster, if known; and (v) information needed to support a find- ing of a fishery resource disaster, includ- ing— (I) information demonstrating the oc- currence of an unexpected large decrease in fish stock biomass or other change that results in significant loss of access to the fishery resource, which could in- clude the loss of fishing vessels and gear, for a substantial period of time; (II) significant— (aa) 12-month revenue loss for the af- fected fishery; or (bb) negative subsistence impact for the affected fishery, or if a fishery re- source disaster has occurred at any time in the previous 5-year period, the most recent 5 years when no fishery re- source disaster occurred; (III) if applicable, information on lost resource tax revenues assessed by local Page 2109 TITLE 16—CONSERVATION § 1861a communities, such as a raw fish tax and local sourcing requirements; and (IV) if applicable and available, infor- mation on affected fishery 12-month rev- enue loss for charter, headboat, or proc- essors related to the information pro- vided under subclause (I), subject to sec- tion 1881a(b) of this title. (C) Assistance The Secretary may provide data and anal- ysis assistance to an eligible requester de- scribed in paragraph (1), if— (i) the assistance is so requested; (ii) the Secretary is in possession of the required information described in subpara- graph (B); and (iii) the data is not available to the re- quester, in carrying out the complete re- quest under subparagraph (B). (D) Initiation of review The Secretary shall have the discretion to initiate a fishery resource disaster review without a request. (4) Review process (A) Interim response Not later than 20 days after receipt of a re- quest under paragraph (3), the Secretary shall provide an interim response to the in- dividual that— (i) acknowledges receipt of the request; (ii) provides a regional contact within the National Oceanographic and Atmos- pheric Administration; (iii) outlines the process and timeline by which a request shall be considered; and (iv) requests additional information con- cerning the fishery resource disaster, if the original request is considered incom- plete. (B) Evaluation of requests (i) In general The Secretary shall complete a review, within the time frame described in clause (ii), using the best scientific information available, in consultation with the af- fected fishing communities, States, or In- dian Tribes, of— (I) the information provided by the re- quester and any additional information relevant to the fishery, which may in- clude— (aa) fishery characteristics; (bb) stock assessments; (cc) the most recent fishery inde- pendent surveys and other fishery re- source assessments and surveys con- ducted by Federal, State, or Tribal of- ficials; (dd) estimates of mortality; and (ee) overall effects; and (II) the available economic informa- tion, which may include an analysis of— (aa) landings data; (bb) revenue; (cc) the number of participants in- volved; (dd) the number and type of jobs and persons impacted, which may include— (AA) fishers; (BB) charter fishing operators; (CC) subsistence users; (DD) United States fish processors; and (EE) an owner of a related fishery infrastructure or business affected by the disaster, such as a marina oper- ator, recreational fishing equipment retailer, or charter, headboat, or ten- der vessel owner, operator, or crew; (ee) an impacted Indian Tribe; (ff) other forms of disaster assistance made available to the fishery, includ- ing prior awards of disaster assistance for the same event; (gg) the length of time the resource, or access to the resource, has been re- stricted; (hh) status of recovery from previous fishery resource disasters; (ii) lost resource tax revenues as- sessed by local communities, such as a raw fish tax; and (jj) other appropriate indicators to an affected fishery, as determined by the National Marine Fisheries Service. (ii) Time frame The Secretary shall complete the review described in clause (i), if the fishing sea- son, applicable to the fishery— (I) has concluded or there is no defined fishing season applicable to the fishery, not later than 120 days after the Sec- retary receives a complete request for a fishery resource disaster determination; (II) has not concluded, not later than 120 days after the conclusion of the fish- ing season; or (III) is expected to be closed for the en- tire fishing season, not later than 120 days after the Secretary receives a com- plete request for a fishery resource dis- aster determination. (C) Fishery resource disaster determination The Secretary shall make the determina- tion of a fishery resource disaster based on the criteria for determinations listed in paragraph (5). (D) Notification Not later than 14 days after the conclusion of the review under this paragraph, the Sec- retary shall notify the requester and the Governor of the affected State or Indian Tribe representative of the determination of the Secretary. (5) Criteria for determinations (A) In general The Secretary shall make a determination about whether a fishery resource disaster has occurred, based on the revenue loss thresholds under subparagraph (B), and, if a fishery resource disaster has occurred, whether the fishery resource disaster was due to— (i) a natural cause; (ii) an anthropogenic cause; (iii) a combination of a natural cause and an anthropogenic cause; or Page 2110 TITLE 16—CONSERVATION § 1861a (iv) an undetermined cause. (B) Revenue loss thresholds (i) In general Based on the information provided or analyzed under paragraph (4)(B), the Sec- retary shall apply the following 12-month revenue loss thresholds in determining whether a fishery resource disaster has oc- curred: (I) Losses greater than 80 percent may result in a positive determination that a fishery resource disaster has occurred, based on the information provided or analyzed under paragraph (4)(B). (II) Losses between 35 percent and 80 percent shall be evaluated to determine whether economic impacts are severe enough to determine that a fishery re- source disaster has occurred. (III) Losses less than 35 percent shall not be eligible for a determination that a fishery resource disaster has occurred. (ii) Charter fishing In making a determination of whether a fishery resource disaster has occurred, the Secretary shall consider the economic im- pacts to the charter fishing industry to en- sure financial coverage for charter fishing businesses. (iii) Negative subsistence impacts In considering negative subsistence im- pacts, the Secretary shall evaluate the se- verity of negative impacts to the fishing community instead of applying the rev- enue loss thresholds described in clause (i). (C) Ineligible fisheries A fishery subject to overfishing in any of the 3 years preceding the date of a deter- mination under this subsection is not eligi- ble for a determination of whether a fishery resource disaster has occurred unless the Secretary determines that overfishing was not a contributing factor to the fishery re- source disaster. (D) Exceptional circumstances In an exceptional circumstance where sub- stantial economic impacts to the affected fishery and fishing community have been subject to a disaster declaration under an- other statutory authority, such as in the case of a natural disaster or from the direct consequences of a Federal action taken to prevent, or in response to, a natural disaster for purposes of protecting life and safety, the Secretary may determine a fishery re- source disaster has occurred without a re- quest, notwithstanding the requirements under subparagraph (B) and paragraph (3). (6) Disbursal of appropriated funds (A) Authorization The Secretary shall allocate funds avail- able under paragraph (9) for fishery resource disasters. (B) Allocation of appropriated fishery re- source disaster assistance (i) Notification of funding availability When there are appropriated funds for 1 or more fishery resource disasters, the Secretary shall notify— (I) the public; and (II) representatives of affected fishing communities with a positive disaster de- termination that is unfunded; of the availability of funds, not more than 14 days after the date of the appropriation or the determination of a fishery resource dis- aster, whichever occurs later. (ii) Extension of deadline The Secretary may extend the deadline under clause (i) by 90 days to evaluate and make determinations on eligible requests. (C) Considerations In determining the allocation of appropria- tions for a fishery resource disaster, the Sec- retary shall consider commercial, charter, headboat, or seafood processing revenue losses and negative impacts to subsistence or Indian Tribe ceremonial fishing oppor- tunity, for the affected fishery, and may consider the following factors: (i) Direct economic impacts. (ii) Uninsured losses. (iii) Losses of recreational fishing oppor- tunity. (iv) Aquaculture operations revenue loss. (v) Direct revenue losses to a fishing community. (vi) Treaty obligations. (vii) Other economic impacts. (D) Spend plans (i) In general To receive an allocation from funds available under paragraph (9), a requester with an affirmative fishery resource dis- aster determination shall submit a spend plan to the Secretary, not more than 120 days after receiving notification that funds are available, that shall include the following information, if applicable: (I) Objectives and outcomes, with an emphasis on addressing the factors con- tributing to the fishery resource disaster and minimizing future uninsured losses, if applicable. (II) Statement of work. (III) Budget details. (ii) Review (I) In general The Secretary shall review a spend plan submitted under clause (i) to deter- mine if it is complete and provide notice within 10 days. (II) Incomplete spend plan If the Secretary determines that a spend plan submitted under clause (i) is not complete, when providing the notice required by subclause (I), the Secretary shall provide a detailed description of the information that is necessary for the spend plan to be determined complete. Page 2111 TITLE 16—CONSERVATION § 1861a (E) Regional contact If so requested, the Secretary shall provide a regional contact within the National Oce- anic and Atmospheric Administration to fa- cilitate review of spend plans and disbursal of funds. (F) Disbursal of funds (i) Availability (I) Timeline Funds shall be made available to grantees not later than 90 days after the date the Secretary receives a complete spend plan. (II) Review of completed spend plan and apportionment of funds If so requested, the Director of the Of- fice of Management and Budget may re- view a completed spend plan concur- rently with the Secretary. The Director of the Office of Management and Budget may not delay the timeline described in subclause (I). (ii) Method The Secretary may provide an allocation of funds under this subsection in the form of a grant, direct payment, cooperative agreement, loan, or contract. (iii) Eligible uses (I) In general Funds allocated for fishery resources disasters under this subsection shall re- store the fishery affected by such a dis- aster, prevent a similar disaster in the future, or assist the affected fishing community, and shall prioritize the fol- lowing uses, which are not in order of priority: (aa) Habitat conservation and res- toration and other activities, including scientific research, that reduce adverse impacts to the fishery or improve un- derstanding of the affected species or its ecosystem. (bb) The collection of fishery infor- mation and other activities that im- prove management of the affected fish- ery. (cc) In a commercial fishery, capac- ity reduction and other activities that improve management of fishing effort, including funds to offset budgetary costs to refinance a Federal fishing ca- pacity reduction loan or to repay the principal of a Federal fishing capacity reduction loan. (dd) Developing, repairing, or im- proving fishery-related public infra- structure. (ee) Direct assistance to a person, fishing community (including assist- ance for lost fisheries resource levies), or a business to alleviate economic loss incurred as a direct result of a fishery resource disaster, particularly when affected by a circumstance de- scribed in paragraph (5)(D) or by nega- tive impacts to subsistence or Indian Tribe ceremonial fishing opportunity. (ff) Hatcheries and stock enhance- ment to help rebuild the affected stock or offset fishing pressure on the af- fected stock. (II) Displaced fishery employees Where appropriate, individuals car- rying out the activities described in items (aa) through (dd) of subclause (I) shall be individuals who are, or were, employed in a commercial, charter, or Indian Tribe fishery for which the Sec- retary has determined that a fishery re- source disaster has occurred. (7) Limitations (A) Federal share (i) In general Except as provided in clauses (ii) and (iii), the Federal share of the cost of any activity carried out under the authority of this subsection shall not exceed 75 percent of the cost of that activity. (ii) Waiver The Secretary may waive the non-Fed- eral share requirements of this subsection, if the Secretary determines that— (I) no reasonable means are available through which the recipient of the Fed- eral share can meet the non-Federal share requirement; and (II) the probable benefit of 100 percent Federal financing outweighs the public interest in imposition of the non-Federal share requirement. (iii) Exception The Federal share shall be equal to 100 percent in the case of— (I) direct assistance as described in paragraph (6)(F)(iii)(I)(ee); or (II) assistance to subsistence or Tribal fisheries. (B) Limitations on administrative expenses (i) Federal Not more than 3 percent of the funds available under this subsection may be used for administrative expenses by the National Oceanographic and Atmospheric Administration. (ii) State governments or Indian Tribes Of the funds remaining after the use de- scribed in clause (i), not more than 5 per- cent may be used by States, Indian Tribes, or interstate marine fisheries commissions for administrative expenses. (C) Fishing capacity reduction program (i) In general No funds available under this subsection may be used as part of a fishing capacity reduction program in a fishery unless the Secretary determines that adequate con- servation and management measures are in place in such fishery. (ii) Assistance conditions As a condition of providing assistance under this subsection with respect to a Page 2112 TITLE 16—CONSERVATION § 1861a 1 So in original. Probably should be capitalized. vessel under a fishing capacity reduction program, the Secretary shall— (I) prohibit the vessel from being used for fishing in Federal, State, or inter- national waters; and (II) require that the vessel be— (aa) scrapped or otherwise disposed of in a manner approved by the Sec- retary; (bb) donated to a nonprofit organiza- tion and thereafter used only for pur- poses of research, education, or train- ing; or (cc) used for another non-fishing pur- pose provided the Secretary deter- mines that adequate measures are in place to ensure that the vessel cannot reenter any fishery anywhere in the world. (D) No fishery endorsement (i) In general A vessel that is prohibited from fishing under subparagraph (C)(ii)(I) shall not be eligible for a fishery endorsement under section 12113(a) of title 46. (ii) Noneffective A fishery endorsement for a vessel de- scribed in clause (i) shall not be effective. (iii) No sale A vessel described in clause (i) shall not be sold to a foreign owner or reflagged. (8) Public information on data collection The Secretary shall make available and up- date as appropriate, information on data col- lection and submittal best practices for the in- formation described in paragraph (4)(B). (9) Authorization of appropriations There are authorized to be appropriated to carry out this subsection $377,000,000 for the period of fiscal years 2023 through 2027. (b) Fishing capacity reduction program (1) The Secretary, at the request of the appro- priate Council for fisheries under the authority of such Council, the Governor of a State for fish- eries under State authority, or a majority of permit holders in the fishery, may conduct a voluntary fishing capacity reduction program (referred to in this section as the ‘‘program’’) in a fishery if the Secretary determines that the program— (A) is necessary to prevent or end over- fishing, rebuild stocks of fish, or achieve measurable and significant improvements in the conservation and management of the fish- ery; (B) is consistent with the Federal or State fishery management plan or program in effect for such fishery, as appropriate, and that the fishery management plan— (i) will prevent the replacement of fishing capacity removed by the program through a moratorium on new entrants, practicable re- strictions on vessel upgrades, and other ef- fort control measures, taking into account the full potential fishing capacity of the fleet; and (ii) establishes a specified or target total allowable catch or other measures that trig- ger closure of the fishery or adjustments to reduce catch; and (C) is cost-effective and, in the instance of a program involving an industry fee system, prospectively capable of repaying any debt ob- ligation incurred under section 53735 of title 46. (2) The objective of the program shall be to ob- tain the maximum sustained reduction in fish- ing capacity at the least cost and in a minimum period of time. To achieve that objective, the Secretary is authorized to pay— (A) the owner of a fishing vessel, if the per- mit authorizing the participation of the vessel in the fishery is surrendered for permanent revocation and the vessel owner and permit holder relinquish any claim associated with the vessel or permit that could qualify such owner or holder for any present or future lim- ited access system permit in the fishery for which the program is established or in any other fishery and such vessel is (i) scrapped, or (ii) through the Secretary of the department in which the Coast Guard is operating, sub- jected to title restrictions (including loss of the vessel’s fisheries endorsement) that per- manently prohibit and effectively prevent its use in fishing in federal 1 or state 1 waters, or fishing on the high seas or in the waters of a foreign nation; or (B) the holder of a permit authorizing par- ticipation in the fishery, if such permit is sur- rendered for permanent revocation, and such holder relinquishes any claim associated with the permit and vessel used to harvest fishery resources under the permit that could qualify such holder for any present or future limited access system permit in the fishery for which the program was established. (3) Participation in the program shall be vol- untary, but the Secretary shall ensure compli- ance by all who do participate. (4) The harvester proponents of each program and the Secretary shall consult, as appropriate and practicable, with Councils, Federal agen- cies, State and regional authorities, affected fishing communities, participants in the fishery, conservation organizations, and other interested parties throughout the development and imple- mentation of any program under this section. (5) PAYMENT CONDITION.—The Secretary may not make a payment under paragraph (2) with respect to a vessel that will not be scrapped un- less the Secretary certifies that the vessel will not be used for fishing in the waters of a foreign nation or fishing on the high seas. (6) REPORT.— (A) IN GENERAL.—Subject to the availability of funds, the Secretary shall, within 12 months after January 12, 2007, submit to the Congress a report— (i) identifying and describing the 20 fish- eries in United States waters with the most severe examples of excess harvesting capac- ity in the fisheries, based on value of each fishery and the amount of excess harvesting capacity as determined by the Secretary; (ii) recommending measures for reducing such excess harvesting capacity, including Page 2113 TITLE 16—CONSERVATION § 1861a the retirement of any latent fishing permits that could contribute to further excess har- vesting capacity in those fisheries; and (iii) potential sources of funding for such measures. (B) BASIS FOR RECOMMENDATIONS.—The Sec- retary shall base the recommendations made with respect to a fishery on— (i) the most cost effective means of achiev- ing voluntary reduction in capacity for the fishery using the potential for industry fi- nancing; and (ii) including measures to prevent the ca- pacity that is being removed from the fish- ery from moving to other fisheries in the United States, in the waters of a foreign na- tion, or on the high seas. (c) Program funding (1) The program may be funded by any com- bination of amounts— (A) available under clause (iv) of section 713c–3(b)(1)(A) of title 15; (B) appropriated for the purposes of this sec- tion; (C) provided by an industry fee system es- tablished under subsection (d) and in accord- ance with section 53735 of title 46; or (D) provided from any State or other public sources or private or non-profit organizations. (2) All funds for the program, including any fees established under subsection (d), shall be paid into the fishing capacity reduction fund es- tablished under section 53735 of title 46. (d) Industry fee system (1)(A) If an industry fee system is necessary to fund the program, the Secretary may conduct a referendum on such system. Prior to the ref- erendum, the Secretary shall— (i) identify, to the extent practicable, and notify all permit or vessel owners who would be affected by the program; and (ii) make available to such owners informa- tion about the industry fee system describing the schedule, procedures, and eligibility re- quirements for the referendum, the proposed program, and the amount and duration and any other terms and conditions of the pro- posed fee system. (B) The industry fee system shall be consid- ered approved if the referendum votes which are cast in favor of the proposed system constitute at least a majority of the permit holders in the fishery, or 50 percent of the permitted allocation of the fishery, who participated in the fishery. (2) Notwithstanding section 1854(d) of this title and consistent with an approved industry fee system, the Secretary is authorized to establish such a system to fund the program and repay debt obligations incurred pursuant to section 53735 of title 46. The fees for a program estab- lished under this section shall— (A) be determined by the Secretary and ad- justed from time to time as the Secretary con- siders necessary to ensure the availability of sufficient funds to repay such debt obliga- tions; (B) not exceed 5 percent of the ex-vessel value of all fish harvested from the fishery for which the program is established; (C) be deducted by the first ex-vessel fish purchaser from the proceeds otherwise payable to the seller and accounted for and forwarded by such fish purchasers to the Secretary in such manner as the Secretary may establish, unless the Secretary determines that such fees should be collected from the seller; and (D) be in effect only until such time as the debt obligation has been fully paid. (e) Implementation plan (1) Framework regulations The Secretary shall propose and adopt framework regulations applicable to the im- plementation of all programs under this sec- tion. (2) Program regulations The Secretary shall implement each pro- gram under this section by promulgating regu- lations that, together with the framework reg- ulations, establish each program and control its implementation. (3) Harvester proponents’ implementation plan The Secretary may not propose implementa- tion regulations for a program to be paid for by an industry fee system until the harvester proponents of the program provide to the Sec- retary a proposed implementation plan that, among other matters— (A) proposes the types and numbers of ves- sels or permits that are eligible to partici- pate in the program and the manner in which the program shall proceed, taking into account— (i) the requirements of this section; (ii) the requirements of the framework regulations; (iii) the characteristics of the fishery and affected fishing communities; (iv) the requirements of the applicable fishery management plan and any amend- ment that such plan may require to sup- port the proposed program; (v) the general needs and desires of har- vesters in the fishery; (vi) the need to minimize program costs; and (vii) other matters, including the man- ner in which such proponents propose to fund the program to ensure its cost effec- tiveness, as well as any relevant factors demonstrating the potential for, or nec- essary to obtain, the support and general cooperation of a substantial number of af- fected harvesters in the fishery (or portion of the fishery) for which the program is in- tended; and (B) proposes procedures for program par- ticipation (such as submission of owner bids under an auction system or fair market- value assessment), including any terms and conditions for participation, that the har- vester proponents deem to be reasonably necessary to meet the program’s proposed objectives. (4) Participation contracts The Secretary shall contract with each per- son participating in a program, and each such contract shall, in addition to including such Page 2114 TITLE 16—CONSERVATION § 1861a other matters as the Secretary deems nec- essary and appropriate to effectively imple- ment each program (including penalties for contract non-performance) be consistent with the framework and implementing regulations and all other applicable law. (5) Reduction auctions Each program not involving fair market as- sessment shall involve a reduction auction that scores the reduction price of each bid offer by the data relevant to each bidder under an appropriate fisheries productivity factor. If the Secretary accepts bids, the Secretary shall accept responsive bids in the rank order of their bid scores, starting with the bid whose reduction price is the lowest percentage of the productivity factor, and successively accept- ing each additional responsive bid in rank order until either there are no more respon- sive bids or acceptance of the next bid would cause the total value of bids accepted to ex- ceed the amount of funds available for the pro- gram. (6) Bid invitations Each program shall proceed by the Sec- retary issuing invitations to bid setting out the terms and conditions for participation consistent with the framework and imple- menting regulations. Each bid that the Sec- retary receives in response to the invitation to bid shall constitute an irrevocable offer from the bidder. (Pub. L. 94–265, title III, § 312, as added Pub. L. 104–297, title I, § 116(a), Oct. 11, 1996, 110 Stat. 3600; amended Pub. L. 109–479, title I, § 112(a), Jan. 12, 2007, 120 Stat. 3598; Pub. L. 117–328, div. S, title II, § 202, Dec. 29, 2022, 136 Stat. 5261; Pub. L. 118–229, § 2, Jan. 4, 2025, 138 Stat. 2824.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a)(1)(C)(ii)(II), was in the original ‘‘this Act’’, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, known as the Magnuson-Ste- vens 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. CODIFICATION In subsecs. (b)(1)(C), (c)(1)(C), (2), and (d)(2), ‘‘section 53735 of title 46’’ substituted for ‘‘section 1111 of title XI of the Merchant Marine Act, 1936’’ on authority of Pub. L. 109–304, § 18(c), Oct. 6, 2006, 120 Stat. 1709, which Act enacted section 53735 of Title 46, Shipping. PRIOR PROVISIONS A prior section 312 of Pub. L. 94–265, title III, Apr. 13, 1976, 90 Stat. 359, was set out as an Effective Date note under section 1857 of this title, prior to being amended generally by Pub. L. 104–297. AMENDMENTS 2025—Subsec. (a)(6)(D). Pub. L. 118–229, § 2(1), amended subpar. (D) generally. Prior to amendment, subpar. (D) related to spend plans. Subsec. (a)(6)(F)(i). Pub. L. 118–229, § 2(2), amended cl. (i) generally. Prior to amendment, text read as follows: ‘‘Funds shall be made available to grantees not later than 90 days after the date the Secretary receives a complete spend plan.’’ 2022—Subsec. (a). Pub. L. 117–328 amended subsec. (a) generally. Prior to amendment, subsec. (a) related to fisheries disaster relief. 2007—Subsec. (a)(1)(B). Pub. L. 109–479, § 112(a)(1), sub- stituted ‘‘measures, including regulatory restrictions (including those imposed as a result of judicial action) imposed to protect human health or the marine envi- ronment;’’ for ‘‘measures;’’. Subsec. (a)(4). Pub. L. 109–479, § 112(a)(2), substituted ‘‘2007 through 2013.’’ for ‘‘1996, 1997, 1998, and 1999.’’ Subsec. (b)(1). Pub. L. 109–479, § 112(a)(3), in introduc- tory provisions, substituted ‘‘the Governor of a State for fisheries under State authority, or a majority of permit holders in the fishery, may conduct a voluntary fishing’’ for ‘‘or the Governor of a State for fisheries under State authority, may conduct a fishing’’. Subsec. (b)(1)(B)(i). Pub. L. 109–479, § 112(a)(4), inserted ‘‘practicable’’ after ‘‘entrants,’’. Subsec. (b)(1)(C). Pub. L. 109–479, § 112(a)(5), sub- stituted ‘‘cost-effective and, in the instance of a pro- gram involving an industry fee system, prospectively’’ for ‘‘cost-effective and’’. Subsec. (b)(2)(A). Pub. L. 109–479, § 112(a)(6), added subpar. (A) and struck out former subpar. (A) which read as follows: ‘‘the owner of a fishing vessel, if such vessel is (i) scrapped, or (ii) through the Secretary of the department in which the Coast Guard is operating, subjected to title restrictions that permanently pro- hibit and effectively prevent its use in fishing, and if the permit authorizing the participation of the vessel in the fishery is surrendered for permanent revocation and the owner relinquishes any claim associated with the vessel and permit that could qualify such owner for any present or future limited access system permit in the fishery for which the program is established; or’’. Subsec. (b)(4). Pub. L. 109–479, § 112(a)(7), substituted ‘‘The harvester proponents of each program and the Secretary shall consult, as appropriate and practicable, with Councils,’’ for ‘‘The Secretary shall consult, as ap- propriate, with Councils,’’. Subsec. (b)(5), (6). Pub. L. 109–479, § 112(a)(8), added pars. (5) and (6). Subsec. (d)(1)(A). Pub. L. 109–479, § 112(a)(9), (10), in in- troductory provisions, substituted ‘‘Secretary’’ for ‘‘Secretary, at the request of the appropriate Council,’’ before ‘‘may conduct’’ and ‘‘Secretary’’ for ‘‘Secretary, in consultation with the Council,’’ before ‘‘shall—’’. Subsec. (d)(1)(B). Pub. L. 109–479, § 112(a)(11), sub- stituted ‘‘at least a majority of the permit holders in the fishery, or 50 percent of the permitted allocation of the fishery, who participated in the fishery.’’ for ‘‘a two-thirds majority of the participants voting.’’ Subsec. (d)(2)(C). Pub. L. 109–479, § 112(a)(12), sub- stituted ‘‘establish, unless the Secretary determines that such fees should be collected from the seller;’’ for ‘‘establish;’’. Subsec. (e). Pub. L. 109–479, § 112(a)(13), added subsec. (e) and struck out former subsec. (e) which related to implementation plan. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 109–479, title I, § 112(b), Jan. 12, 2007, 120 Stat. 3601, provided that: ‘‘Sections 116, 203, 204, 205, and 206 of the Sustainable Fisheries Act [Pub. L. 104–297, see Tables for classification] are deemed to have added sec- tions 312, 402, 403, 404, and 405 [16 U.S.C. 1861a, 1881a to 1881d], respectively to the Act [Pub. L. 94–265] as of the date of enactment of the Sustainable Fisheries Act [Oct. 11, 1996].’’ BUDGET REQUEST FOR DEPARTMENT OF COMMERCE Pub. L. 117–328, div. S, title II, § 205(a), Dec. 29, 2022, 136 Stat. 5270, provided that: ‘‘In the budget justifica- tion materials submitted to Congress in support of the budget of the Department of Commerce for each fiscal year (as submitted with the budget of the President under section 1105(a) of title 31, United States Code), 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;