16 U.S.C. § 5105 — State noncompliance with coastal fishery

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