16 U.S.C. § 1856 — State jurisdiction

Page 2093 TITLE 16—CONSERVATION § 1856 REGISTRY TRANSITION FOR LIMITED ACCESS SYSTEM PERMITS Pub. L. 104–297, title I, § 110(e), Oct. 11, 1996, 110 Stat. 3592, as amended by Pub. L. 104–208, div. A, title I, § 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: ‘‘Security interests on permits described under section 305(h)(1) of the Magnuson-Ste- vens Fishery Conservation and Management Act [16 U.S.C. 1855(h)(1)], as amended by this Act, that are ef- fective and perfected by otherwise applicable law on the date of the final regulations implementing section 305(h) shall remain effective and perfected if, within 120 days after such date, the secured party submits evi- dence satisfactory to the Secretary of Commerce and in compliance with such regulations of the perfection of such security.’’ WESTERN PACIFIC DEMONSTRATION PROJECTS Pub. L. 104–297, title I, § 111(b), Oct. 11, 1996, 110 Stat. 3594, as amended by Pub. L. 104–208, div. A, title I, § 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 144(g)], Dec. 21, 2000, 114 Stat. 2763, 2763A–250; Pub. L. 106–555, title II, § 206, Dec. 21, 2000, 114 Stat. 2770; Pub. L. 109–479, title II, § 207, Jan. 12, 2007, 120 Stat. 3615, provided that: ‘‘(1) The Secretary of Commerce is authorized to make direct grants to eligible western Pacific commu- nities, as recommended by the Western Pacific Fishery Management Council, for the purpose of establishing fishery demonstration projects to foster and promote traditional indigenous fishing practices. There are au- thorized to be appropriated to carry out this section [amending this section and enacting this note] $500,000 for each fiscal year. ‘‘(2) Demonstration projects funded pursuant to this subsection shall foster and promote the involvement of western Pacific communities in western Pacific fish- eries and may— ‘‘(A) identify and apply traditional indigenous fish- ing practices; ‘‘(B) develop or enhance western Pacific commu- nity-based fishing opportunities; and ‘‘(C) involve research, community education, or the acquisition of materials and equipment necessary to carry out any such demonstration project. ‘‘(3)(A) The Western Pacific Fishery Management Council, in consultation with the Secretary of Com- merce, shall establish an advisory panel under section 302(g) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1852(g)) to evaluate, de- termine the relative merits of, and annually rank ap- plications for such grants. The panel shall consist of not more than 8 individuals who are knowledgeable or experienced in traditional indigenous fishery practices of western Pacific communities and who are not mem- bers or employees of the Western Pacific Fishery Man- agement Council. ‘‘(B) If the Secretary of Commerce or the Secretary of the Interior awards a grant for a demonstration project not in accordance with the rank given to such project by the advisory panel, the Secretary shall pro- vide a detailed written explanation of the reasons therefor. ‘‘(4) The Western Pacific Fishery Management Coun- cil shall, with the assistance of such advisory panel, submit an annual report to the Congress assessing the status and progress of demonstration projects carried out under this subsection. ‘‘(5) Appropriate Federal agencies may provide tech- nical assistance to western Pacific community-based entities to assist in carrying out demonstration projects under this subsection. ‘‘(6) In this subsection the term ‘Western Pacific com- munity’ means a community eligible to participate under section 305(i)(2)(B)(i) through (iv) of the Magnu- son-Stevens Fishery Conservation and Management Act (16 U.S.C. 1855(i)(2)(B)(i) through (iv)).’’ § 1856. State jurisdiction (a) In general (1) Except as provided in subsection (b), noth- ing in this chapter shall be construed as extend- ing or diminishing the jurisdiction or authority of any State within its boundaries. (2) For the purposes of this chapter, except as provided in subsection (b), the jurisdiction and authority of a State shall extend— (A) to any pocket of waters that is adjacent to the State and totally enclosed by lines de- limiting the territorial sea of the United States pursuant to the Geneva Convention on the Territorial Sea and Contiguous Zone or any successor convention to which the United States is a party; (B) with respect to the body of water com- monly known as Nantucket Sound, to the pocket of water west of the seventieth merid- ian west of Greenwich; and (C) to the waters of southeastern Alaska (for the purpose of regulating fishing for other than any species of crab) that are— (i) north of the line representing the inter- national boundary at Dixon Entrance and the westward extension of that line; east of 138 degrees west longitude; and not more than three nautical miles seaward from the coast, from the lines extending from headland to headland across all bays, inlets, straits, passes, sounds, and entrances, and from any island or group of islands, includ- ing the islands of the Alexander Archipelago (except Forrester Island); or (ii) between the islands referred to in clause (i) (except Forrester Island) and the mainland. (3) A State may regulate a fishing vessel out- side the boundaries of the State in the following circumstances: (A) The fishing vessel is registered under the law of that State, and (i) there is no fishery management plan or other applicable Federal fishing regulations for the fishery in which the vessel is operating; or (ii) the State’s laws and regulations are consistent with the fishery management plan and applicable Federal fish- ing regulations for the fishery in which the vessel is operating. (B) The fishery management plan for the fishery in which the fishing vessel is operating delegates management of the fishery to a State and the State’s laws and regulations are consistent with such fishery management plan. If at any time the Secretary determines that a State law or regulation applicable to a fishing vessel under this circumstance is not consistent with the fishery management plan, the Secretary shall promptly notify the State and the appropriate Council of such deter- mination and provide an opportunity for the State to correct any inconsistencies identified in the notification. If, after notice and oppor- tunity for corrective action, the State does not correct the inconsistencies identified by the Secretary, the authority granted to the State under this subparagraph shall not apply until the Secretary and the appropriate Coun- cil find that the State has corrected the incon- sistencies. For a fishery for which there was a Page 2094 TITLE 16—CONSERVATION § 1856 fishery management plan in place on August 1, 1996 that did not delegate management of the fishery to a State as of that date, the author- ity provided by this subparagraph applies only if the Council approves the delegation of man- agement of the fishery to the State by a three- quarters majority vote of the voting members of the Council. (C) The fishing vessel is not registered under the law of the State of Alaska and is operating in a fishery in the exclusive economic zone off Alaska for which there was no fishery manage- ment plan in place on August 1, 1996, and the Secretary and the North Pacific Council find that there is a legitimate interest of the State of Alaska in the conservation and manage- ment of such fishery. The authority provided under this subparagraph shall terminate when a fishery management plan under this chapter is approved and implemented for such fishery. (b) Exception (1) If the Secretary finds, after notice and an opportunity for a hearing in accordance with section 554 of title 5, that— (A) the fishing in a fishery, which is covered by a fishery management plan implemented under this chapter, is engaged in predomi- nately within the exclusive economic zone and beyond such zone; and (B) any State has taken any action, or omit- ted to take any action, the results of which will substantially and adversely affect the car- rying out of such fishery management plan; the Secretary shall promptly notify such State and the appropriate Council of such finding and of his intention to regulate the applicable fish- ery within the boundaries of such State (other than its internal waters), pursuant to such fish- ery management plan and the regulations pro- mulgated to implement such plan. (2) If the Secretary, pursuant to this sub- section, assumes responsibility for the regula- tion of any fishery, the State involved may at any time thereafter apply to the Secretary for reinstatement of its authority over such fishery. If the Secretary finds that the reasons for which he assumed such regulation no longer prevail, he shall promptly terminate such regulation. (3) If the State involved requests that a hear- ing be held pursuant to paragraph (1), the Sec- retary shall conduct such hearing prior to tak- ing any action under paragraph (1). (c) Exception regarding foreign fish processing in internal waters (1) A foreign fishing vessel may engage in fish processing within the internal waters of a State if, and only if— (A) the vessel is qualified for purposes of this paragraph pursuant to paragraph (4)(C) or has received a permit under section 1824(d) of this title; (B) the owner or operator of the vessel ap- plies to the Governor of the State for, and (subject to paragraph (2)) is granted, permis- sion for the vessel to engage in such proc- essing and the application specifies the species to be processed; and (C) the owner or operator of the vessel sub- mits reports on the tonnage of fish received from vessels of the United States and the loca- tions from which such fish were harvested, in accordance with such procedures as the Sec- retary by regulation shall prescribe. (2) The Governor of a State may not grant per- mission for a foreign fishing vessel to engage in fish processing under paragraph (1)— (A) for a fishery which occurs in the waters of more than one State or in the exclusive eco- nomic zone, except after— (i) consulting with the appropriate Council and Marine Fisheries Commission, and (ii) considering any comments received from the Governor of any other State where the fishery occurs; and (B) if the Governor determines that fish processors within the State have adequate ca- pacity, and will utilize such capacity, to proc- ess all of the United States harvested fish from the fishery concerned that are landed in the State. (3) Nothing in this subsection may be con- strued as relieving a foreign fishing vessel from the duty to comply with all applicable Federal and State laws while operating within the inter- nal waters of a State incident to permission ob- tained under paragraph (1)(B). (4) For purposes of this subsection— (A) The term ‘‘fish processing’’ includes, in addition to processing, the performance of any other activity relating to fishing, including, but not limited to, preparation, supply, stor- age, refrigeration, or transportation. (B) The phrase ‘‘internal waters of a State’’ means all waters within the boundaries of a State except those seaward of the baseline from which the territorial sea is measured. (C) A foreign fishing vessel shall be treated as qualified for purposes of paragraph (1) if the foreign nation under which it is flagged will be a party to (i) a governing international fishery agreement or (ii) a treaty described in section 1821(b) of this title during the time the vessel will engage in the fish processing for which permission is sought under paragraph (1)(B). (Pub. L. 94–265, title III, § 306, Apr. 13, 1976, 90 Stat. 355; Pub. L. 97–191, § 1, June 1, 1982, 96 Stat. 107; Pub. L. 97–453, § 9, Jan. 12, 1983, 96 Stat. 2491; Pub. L. 98–623, title IV, § 404(4), Nov. 8, 1984, 98 Stat. 3408; Pub. L. 99–659, title I, § 101(c)(2), Nov. 14, 1986, 100 Stat. 3707; Pub. L. 101–627, title I, § 112, Nov. 28, 1990, 104 Stat. 4453; Pub. L. 104–297, title I, § 112(a)–(c), Oct. 11, 1996, 110 Stat. 3595, 3596.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a)(1), (2), (3)(C) and (b)(1)(A), was in the original ‘‘this Act’’, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, known as the Magnuson-Stevens Fishery Conservation and Manage- ment Act, which is classified principally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables. AMENDMENTS 1996—Subsec. (a)(3). Pub. L. 104–297, § 112(a), amended par. (3) generally. Prior to amendment, par. (3) read as Page 2095 TITLE 16—CONSERVATION § 1856 follows: ‘‘Except as otherwise provided by paragraph (2), a State may not directly or indirectly regulate any fishing vessel outside its boundaries, unless the vessel is registered under the law of that State.’’ Subsec. (b)(3). Pub. L. 104–297, § 112(b), added par. (3). Subsec. (c)(1)(A). Pub. L. 104–297, § 112(c)(1), sub- stituted ‘‘(4)(C) or has received a permit under section 1824(d) of this title;’’ for ‘‘(4)(C); and’’. Subsec. (c)(1)(C). Pub. L. 104–297, § 112(c)(2), (3), added subpar. (C). 1990—Subsec. (c)(1)(B). Pub. L. 101–627, § 112(1), in- serted before period at end ‘‘and the application speci- fies the species to be processed’’. Subsec. (c)(2). Pub. L. 101–627, § 112(2), added par. (2) and struck out former par. (2) which read as follows: ‘‘The Governor of a State may not grant permission for a foreign fishing vessel to engage in fish processing under paragraph (1)(B) if he determines that fish proc- essors within the State have adequate capacity, and will utilize such capacity, to process all of the United States harvested fish from the fishery concerned that are landed in the State.’’ 1986—Subsec. (b)(1)(A). Pub. L. 99–659 substituted ‘‘ex- clusive economic zone’’ for ‘‘fishery conservation zone’’. 1984—Subsec. (a). Pub. L. 98–623 designated existing provisions as pars. (1) to (3), in par. (2), as so des- ignated, redesignated cls. (1) and (2) as subpars. (A) and (B), respectively, and added subpar. (C), and in par. (3), as so designated, inserted exception relating to par. (2). 1983—Subsec. (a). Pub. L. 97–453 inserted provision de- lineating the jurisdiction and authority of a State over waters adjacent to the State and over Nantucket Sound. 1982—Subsec. (c). Pub. L. 97–191 added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1982 AMENDMENT Pub. L. 97–191, § 3, June 1, 1982, 96 Stat. 108, provided that: ‘‘This Act [amending this section and section 1857 of this title] shall take effect on June 1, 1982.’’ AUTHORITY OF STATES OF WASHINGTON, OREGON, AND CALIFORNIA TO MANAGE DUNGENESS CRAB FISHERY Pub. L. 105–384, title II, § 203, Nov. 13, 1998, 112 Stat. 3453, as amended by Pub. L. 107–77, title VI, § 624, Nov. 28, 2001, 115 Stat. 803; Pub. L. 109–479, title III, § 302(e), Jan. 12, 2007, 120 Stat. 3624; Pub. L. 115–49, § 1, Aug. 18, 2017, 131 Stat. 1000, provided that: ‘‘(a) IN GENERAL.—Subject to the provisions of this section and notwithstanding section 306(a) of the Mag- nuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1856(a)), each of the States of Wash- ington, Oregon, and California may adopt and enforce State laws and regulations governing fishing and proc- essing in the exclusive economic zone adjacent to that State in any Dungeness crab (Cancer magister) fishery for which there is no fishery management plan in effect under that Act [16 U.S.C. 1801 et seq.]. ‘‘(b) REQUIREMENTS FOR STATE MANAGEMENT.—Any law or regulation adopted by a State under this section for a Dungeness crab fishery— ‘‘(1) except as provided in paragraph (2), shall apply equally to vessels engaged in the fishery in the exclu- sive economic zone and vessels engaged in the fishery in the waters of the State, and without regard to the State that issued the permit under which a vessel is operating; ‘‘(2) shall not apply to any fishing by a vessel in ex- ercise of tribal treaty rights except as provided in United States v. Washington, D.C. No. CV–70–09213, United States District Court for the Western District of Washington; and ‘‘(3) shall include any provisions necessary to im- plement tribal treaty rights pursuant to the decision in United States v. Washington, D.C. No. CV–70–09213. ‘‘(c) LIMITATION ON ENFORCEMENT OF STATE LIMITED ACCESS SYSTEMS.—Any law of the State of Washington, Oregon, or California that establishes or implements a limited access system for a Dungeness crab fishery may not be enforced against a vessel that is otherwise le- gally fishing in the exclusive economic zone adjacent to that State and that is not registered under the laws of that State, except a law regulating landings. ‘‘(d) STATE PERMIT OR TREATY RIGHT REQUIRED.—No vessel may harvest or process Dungeness crab in the ex- clusive economic zone adjacent to the State of Wash- ington, Oregon, or California, except as authorized by a permit issued by any of those States or pursuant to any tribal treaty rights to Dungeness crab pursuant to the decision in United States v. Washington, D.C. No. CV–70–09213. ‘‘(e) STATE AUTHORITY OTHERWISE PRESERVED.—Ex- cept as expressly provided in this section, nothing in this section reduces the authority of any State under the Magnuson-Stevens Fishery Conservation and Man- agement Act (16 U.S.C. 1801 et seq.) to regulate fishing, fish processing, or landing of fish. ‘‘(f) TERMINATION OF AUTHORITY.—The authority of the States of Washington, Oregon, and California under this section with respect to a Dungeness crab fishery shall expire on the effective date of a fishery manage- ment plan for the fishery under the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1801 et seq.]. ‘‘(g) REPEAL.—[Repealed section 112(d) of Pub. L. 104–297, see below.] ‘‘(h) DEFINITIONS.—The definitions set forth in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802) shall apply to this sec- tion. ‘‘(i) Not later than December 31, 2001, and every 2 years thereafter, the Pacific State Marine Fisheries Commission shall submit to the Committee on Com- merce, Science, and Transportation of the Senate and the Committee on Resources [now Committee on Nat- ural Resources] of the House of Representatives a re- port on the status and management of the Dungeness Crab fishery located off the coasts of the States of Washington, Oregon, and California, including— ‘‘(1) stock status and trends throughout its range; ‘‘(2) a description of applicable research and sci- entific review processes used to determine stock sta- tus and trends; and ‘‘(3) measures implemented or planned that are de- signed to prevent or end overfishing in the fishery.’’ Pub. L. 104–297, title I, § 112(d), Oct. 11, 1996, 110 Stat. 3596, 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, which provided interim authority to the States of Washington, Oregon, and California to enforce State laws and regulations governing fish harvesting and processing against any vessel operating in the exclu- sive economic zone off each respective State in a fish- ery for Dungeness crab (Cancer magister) for which there is no fishery management plan implemented under this chapter, was repealed by Pub. L. 105–384, title II, § 203(g), Nov. 13, 1998, 112 Stat. 3454. FOREIGN FISH PROCESSING IN NORTON SOUND Pub. L. 99–509, title V, § 5004, Oct. 21, 1986, 100 Stat. 1912, provided that for purposes of processing pink salmon within the internal waters of the State of Alas- ka, the geographic area bounded on the north by a par- allel of latitude of 64 degrees, 23 minutes, on the south by a parallel of latitude of 63 degrees, 51 minutes, on the east by the baseline from which the territorial sea was measured, and on the west by the outer limit of the territorial sea, was to be considered to be internal wa- ters of the State of Alaska for the purposes of subsec. (c)(4)(B) of this section until Sept. 30, 1993. Executive Documents TERRITORIAL SEA AND CONTIGUOUS ZONE OF UNITED STATES For extension of territorial sea and contiguous zone of United States, see Proc. No. 5928 and Proc. No. 7219, Page 2096 TITLE 16—CONSERVATION § 1857 1 So in original. respectively, set out as notes under section 1331 of Title 43, Public Lands. § 1857. Prohibited acts It is unlawful— (1) for any person— (A) to violate any provision of this chapter or any regulation or permit issued pursuant to this chapter; (B) to use any fishing vessel to engage in fishing after the revocation, or during the period of suspension, of an applicable permit issued pursuant to this chapter; (C) to violate any provision of, or regula- tion under, an applicable governing inter- national fishery agreement entered into pur- suant to section 1821(c) of this title; (D) to refuse to permit any officer author- ized to enforce the provisions of this chapter (as provided for in section 1861 of this title) to board a fishing vessel subject to such per- son’s control for purposes of conducting any search or inspection in connection with the enforcement of this chapter or any regula- tion, permit, or agreement referred to in subparagraph (A) or (C); (E) to forcibly assault, resist, oppose, im- pede, intimidate, or interfere with any such authorized officer in the conduct of any search or inspection described in subpara- graph (D); (F) to resist a lawful arrest for any act prohibited by this section; (G) to ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any fish taken or retained in violation of this chapter or any regulation, permit, or agreement referred to in subparagraph (A) or (C); (H) to interfere with, delay, or prevent, by any means, the apprehension or arrest of an- other person, knowing that such other per- son has committed any act prohibited by this section; (I) to knowingly and willfully submit to a Council, the Secretary, or the Governor of a State false information (including, but not limited to, false information regarding the capacity and extent to which a United States fish processor, on an annual basis, will process a portion of the optimum yield of a fishery that will be harvested by fishing vessels of the United States) regarding any matter that the Council, Secretary, or Gov- ernor is considering in the course of car- rying out this chapter; (J) to ship, transport, offer for sale, sell, or purchase, in interstate or foreign commerce, any whole live lobster of the species Homarus americanus, that— (i) is smaller than the minimum posses- sion size in effect at the time under the American Lobster Fishery Management Plan, as implemented by regulations pub- lished in part 649 of title 50, Code of Fed- eral Regulations, or any successor to that plan implemented under this subchapter, or in the absence of any such plan, is smaller than the minimum possession size in effect at the time under a coastal fish- ery management plan for American lobster adopted by the Atlantic States Marine Fisheries Commission under the Atlantic Coastal Fisheries Cooperative Manage- ment Act (16 U.S.C. 5101 et seq.); (ii) is bearing eggs attached to its ab- dominal appendages; or (iii) bears evidence of the forcible re- moval of extruded eggs from its abdominal appendages; (K) to to 1 steal or attempt to steal or to negligently and without authorization re- move, damage, or tamper with— (i) fishing gear owned by another person, which is located in the exclusive economic zone, or (ii) fish contained in such fishing gear; (L) to forcibly assault, resist, oppose, im- pede, intimidate, sexually harass, bribe, or interfere with any observer on a vessel under this chapter, or any data collector employed by the National Marine Fisheries Service or under contract to any person to carry out responsibilities under this chapter; (M) to engage in large-scale driftnet fish- ing that is subject to the jurisdiction of the United States, including use of a fishing ves- sel of the United States to engage in such fishing beyond the exclusive economic zone of any nation, unless such large-scale driftnet fishing— (i) deploys, within the exclusive eco- nomic zone, a net with a total length of less than two and one-half kilometers and a mesh size of 14 inches or greater; and (ii) is conducted within 5 years of De- cember 29, 2022; (N) to strip pollock of its roe and discard the flesh of the pollock; (O) to knowingly and willfully fail to dis- close, or to falsely disclose, any financial in- terest as required under section 1852(j) of this title, or to knowingly vote on a Council decision in violation of section 1852(j)(7)(A) of this title; (P)(i) to remove any of the fins of a shark (including the tail) at sea; (ii) to have custody, control, or possession of any such fin aboard a fishing vessel unless it is naturally attached to the corresponding carcass; (iii) to transfer any such fin from one ves- sel to another vessel at sea, or to receive any such fin in such transfer, without the fin naturally attached to the corresponding car- cass; or (iv) to land any such fin that is not natu- rally attached to the corresponding carcass, or to land any shark carcass without such fins naturally attached; (Q) to import, export, transport, sell, re- ceive, acquire, or purchase in interstate or foreign commerce any fish taken, possessed, transported, or sold in violation of any for- eign law or regulation or any treaty or in contravention of any binding conservation measure adopted by an international agree- ment or organization to which the United States is a party; or